Overseas Operations (Service Personnel and Veterans) Bill

Debate between Baroness Massey of Darwen and Lord Mackay of Clashfern

Committee stage & Lords Hansard
Tuesday 9th March 2021 Lords Chamber

[Baroness Massey of Darwen (Lab) [V]]

My Lords, again I am speaking as a member of the Joint Committee on Human Rights, and the amendments are again based on the views of expert witnesses who contributed to its report. I shall speak to Amendments 4, 7 and 8. They relate to Clause 3 and would delete the requirement to give “particular weight” in any prosecution decision after five years to a person having an impaired ability to exercise self-control or to exercise sound judgment while being deployed on operations overseas. The amendments would omit Clause 3(2)(a), (3) and (4). Their concern is similar to concerns in Clause 11 in relation to limitations on bringing proceedings under the Human Rights Act.

The Joint Committee on Human Rights report on the Bill explains in chapter 3 that:

“In domestic law the prosecution would take into account a person’s mental health as part of the decision as to whether a prosecution is in the public interest—and this is a factor that would currently already apply to prosecutions of members of the Armed Forces. Moreover, a person who is not fit to plead at the time of trial would not be assessed for the … mental element … of an offence. A defendant could raise a plea of insanity as a defence if at the time of the offence their mental condition was so impaired that they were unable to understand the act they were doing or that it was wrong.”


Paragraph 77 of the report states:

“The MoD should not be sending Armed Forces personnel on deployment who are unable to make ‘sound judgements’, who cannot ‘exercise self-control’ or whose mental health is so severely affected that the MoD does not consider that they should be responsible for their criminal actions. Moreover, if a member of the Armed Forces becomes unable to make ‘sound judgements’, can no longer ‘exercise self-control’ or where there are significant concerns about their mental health, then there should be adequate systems in place to relieve that person of their operational duties, remove them from the conflict situation (where appropriate) and give them the support that they need.”


The Joint Committee on Human Rights expressed concern at paragraph 76 that,

“the Bill does not provide any incentives for the military hierarchy to ensure that members of the Armed Forces who are mentally unfit to be deployed get removed from operational duties and given the support that they need. Instead it includes an impediment to prosecuting a person whose judgement may be impaired, who lacks adequate self-control or whose mental health may have been affected”.

Service personnel are trained to deal with complex situations, and there are undoubtedly high-stress situations in combat. Due account must be taken of these complexities as part of any decision on whether to bring a prosecution. However, it should not be part of a statutory barrier to bringing prosecutions when they are in the public interest.

The Joint Committee on Human Rights does not consider that there is any solid basis for including additional requirements that could risk granting de facto impunity to those who have committed crimes on the grounds that the perpetrator lacked sound judgment or could not exercise self-control beyond the threshold already established in criminal law. For that reason, the committee recommends deleting Clause 3(2)(a), (3) and (4). I beg to move.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, the question is when this condition intervenes. It would be one thing to send a person over to a foreign assignment with that condition at that time, but there must be a risk that the impetus of foreign work in certain conditions would bring about these conditions in the person in question. There is therefore a real question as to whether or not the matter of the investigation discloses that the person in question became subject to that condition as a result of his being in the operation abroad. It does not necessarily mean that a person is sent into the work with that kind of condition. I would have thought that that distinction was quite important since the idea of the clause seems to be that they look to see whether or not the conditions under which the military man or woman has been working have produced these results, so far as their mental health is concerned.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Massey of Darwen and Lord Mackay of Clashfern

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

[Lord Mackay of Clashfern (Con) [V]]

My name was down due to a fault of mine; I apologise for interrupting.

[Baroness Massey of Darwen (Lab) [V]]

I have reservations about some of the issues the Minister raised in summing up this excellent debate—most of them have been addressed by noble Lords. I thank all noble Lords for their varied and incisive comments and useful examples in this valuable, interesting and important debate.

I am particularly delighted that the noble and learned Lord, Lord Hope of Craighead, immediately followed me in this debate; he raised many issues and provided excellent analysis and clarifications. I accept his comments and am delighted that he feels he can support what he has called an imperfect amendment. He is also right in saying, as did the noble Lord, Lord Cormack, and others, that great weight must be given to the issue of torture, which should never be authorised.

Other noble Lords have contributed varied arguments on my amendment. The noble Lord, Lord Bruce of Bennachie, made a useful contribution from the point of view of Scotland, where, interestingly, the Bill was found to be inadequate, as he said. That has been a theme throughout the debate, especially when discussing the Human Rights Act as an inadequate safeguard to prevent criminal offences. The noble Baroness, Lady Chakrabarti, among many others, raised this issue, saying that we cannot legislate in such broad terms; it is not all right to do so.

In thanking noble Lords for participating in this debate, I note that, although I understand what the Minister is saying, the consensus is that there are too many inadequacies. Given those inadequacies, I beg to test the opinion of the House.