Defence and Security Industrial Strategy

Baroness Smith of Newnham Excerpts

Wednesday 24th March 2021 Lords Chamber

[Lord Tunnicliffe (Lab) [V]]

My Lords, the publication of this strategy is welcome, especially since companies across all sectors have had an extremely tough year. The Government have noted that businesses have cut back on research and development, training and other investments in future capacity and productivity, due to Covid-19. However, the impact of the pandemic on the defence and security sectors is not explored in detail in the strategy. How many jobs have been lost? How many people remain on furlough? How much government support has been awarded to these sectors?

Labour welcomes the publication of this strategy. Indeed, the very use of “strategy” is a victory in itself. We welcome the confirmation that global competition by default, begun by the White Paper in 2012, has gone. It is high time that we put an end to a British Government being just as happy buying abroad as building in Britain. We also welcome the change in naval procurement policy and the commitment to invest £6.6 billion in defence research and development over the next four years. We welcome the Prime Minister’s extra £16.5 billion in capital funding after the last decade of decline, but 30,000 jobs in the defence industry have gone since 2010, and nearly £420 million in real terms has been cut from defence R&D. In many UK regions, the money promised today will still be well short of what has been taken away over the last decade.

The strategy

“aims to establish a more productive and strategic relationship between government and the defence and security industries.”

This is welcome, since the weapons of the future are just as likely to be developed in the private sector as in an MoD lab. We now need to ensure that this is the start of a new era, with the aim not only of making and maintaining in Britain but of developing the technologies and companies that we will need in 10 years’ time to procure in Britain. Innovation and growth are driven by our precious SMEs, and this is certainly true in these sectors. The defence supply chain is made up of highly specialised SMEs and the strategy even states that SMEs make up 95% of the security sector. We must ensure that these businesses are supported as well as protected.

It is welcome to see that the SME spend is going in the right direction, but it is not fast enough. The current MoD SME action plan states that the Ministry of Defence has a target of 25% of its procurement spend going to SMEs by 2022, but that target is not mentioned in the new strategy. Can the Minister confirm whether the target has been dropped?

The strategy says the Government will be publishing a fresh SME action plan to set out how the department will maximise opportunities for SMEs to do business with the MoD. The current SME action plan is due to last until the end of next year. Will the refurbished plan start after that?

The strategy also alludes to other new strategies, so it would be helpful for the Minister to give more details about when the new defence, science and technology collaboration and engagement strategy and the AI strategy will be published. How will the AI strategy seek to catch up with the long-standing AI investments in China and the US?

The National Security and Investment Bill is also currently progressing through this House, and it is interesting to see more detail about how it relates to the MoD, which was probed in Committee. The strategy reveals that a separate MoD directorate will be established, focused on broader economic security and supporting the implementation of the National Security and Investment Bill. How will that new directorate work with the investment and security unit in BEIS? Will the new directorate help businesses with the processes of mandatory and voluntary notifications?

Today the Government are asking industry to do more with more. Ministers have to get this right. The next step is to focus clearly on delivery. The document contains a wealth of detail, most of which is about the new initiative and changes in direction. Will the Minister commit to reporting to the House on progress in 12 months’ time?

[Baroness Smith of Newnham (LD) [V]]

My Lords, another day, another defence Statement repeat, and an opportunity for us to probe the Government’s thinking about wider issues of the integrated review in terms of security, defence and, on this occasion, the defence industrial base.

Like the Labour Front Bench, we broadly welcome this paper. However, I would be a bit more cautious than the noble Lord, Lord Tunnicliffe, and I have a few more questions that might sound a little more concerned about the Government’s thinking in terms of the future. As the foreword to the report states

“our forces require equipment which is state of the art. Just as we are refreshing what we require of our Armed Forces, we are reviewing the equipment they will need to face tomorrow’s threats and setting out a path for innovation for the future.”

That is absolutely right. However, should we be thinking about tomorrow or more about the day after tomorrow? I ask that in particular because yesterday’s Statement in the Commons reaffirmed the Government’s commitment to spending another £85 billion over the next four years on equipment and support for our Armed Forces. That spending is clearly very welcome, but it essentially takes us to the end of this Parliament. What is the longer-term thinking? Research and development is clearly important, but there is a danger that the Government are still thinking in parliamentary cycles and not necessarily about the wider defence procurement situation, which is very different and runs into decades, not merely two or three years. What thinking is going into longer-term planning? The Statement that has been repeated today gives some important insights, but it gives us tomorrow, not the day after tomorrow.

Unlike the noble Lord, Lord Tunnicliffe, I have a slight concern that the new approach signals a shift away from global competition by default. It is right that the UK is resilient, that it has a secure industrial base, that we are able to engage in research and development and that we should be able to have first-class building of ships and other equipment, as stated, right across the United Kingdom. The defence industrial base is clearly very important.

The Statement talks about exports. If the UK is saying that it is no longer going for global competition by default, what work are Her Majesty’s Government doing to persuade our partners and allies, and others who might consider purchasing from the UK, that they should not also pursue a domestically focused agenda? While it is clearly important that we develop things domestically, that export market is flagged up, so there are some questions that may need further exploration.

I ask the Minister to give us a bit more information about the proposals on procurement. Over the past decades—this is not a problem of any individual Government; it is systematic—there have been issues about major capital projects being prone to overspend and overrun, with knock-on effects on the defence budget. How will the changes to procurement affect this? Will we not have so many bespoke projects? How does that fit with the discussions that the Government are having with our defence industry? Can the Minister reassure us that the proposals put forward in the Statement and the strategy document are led by defence needs, not defence industry priorities?

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I thank the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Smith, for their comments. I think I feel a bit like the musical song, “Getting to Know You”. I never seem to be quite away from this Dispatch Box on defence matters, but that is a privilege. I thank the noble Lord and the noble Baroness for their generally positive response to the strategy. I understand that the noble Baroness had some reservations and I shall try to assuage her concerns.

Frankly, I think this new defence, security and industrial strategy marks a watershed for the MoD. It is a substantial document. It is the first time in a long time that we have had true analytical discernment of what the challenges are. We need to understand not only what the threats are but how we are going to respond to them and then recognise that we actually need to be able to respond to them when they arise rather than thinking about the response and hoping to find the technology or the equipment some way down the line. The strategy completely turns on its head the whole pace and depth of the co-operation and collaboration with industry in a very positive manner.

The noble Lord raised the issue of jobs. As he is aware, the defence and security industry in this country is one of the major job providers. We think that over 200,000 jobs across the UK are sustained by these industries, which are globally recognised and renowned. The whole essence of the strategy is not only to secure the defence equipment support and technology that we need when we need it but also to ensure that there is an input to the economy and there is an export potential, so I think his reservation about the job situation is perhaps unfounded. We can look to the strategy to make a singular improvement in how we relate defence investment activity to a broader benefit to the economy and to our exports.

The noble Lord narrated a number of aspirations. I largely agree with them and I suggest that those are in essence met by the paper. He wanted to know how individual parts of the intelligence would join up, and he was interested in some of the specifics about acquisition and procurement.

In the section devoted to that, there are some very reassuring statements, including the proposed reform of the defence and security public contracts regulations, reforming the single-source contracts regulations, and publishing afresh the MoD SME Action Plan; I reassure him that is to be published later this year. In that connection, I mention the successful and effective investments of DASA, the defence and security accelerator, which has done pivotal work since it was introduced. It is an essential support, not least to SMEs and start-ups. That is conducive to a more diverse and innovative market.

The noble Lord particularly mentioned the artificial intelligence strategy. That will be in conjunction with the new defence artificial intelligence centre, which is hoping to accelerate the adoption of this transformative technology across the full spectrum of our capabilities and activities.

The noble Lord also raised the very important matter of measuring delivery against the laudable intentions and objectives of the strategy document. I say to him that, yes, this is recognised and that, because a lot of this is not just MoD but across government, Ministers across government, led by the Secretary of State for Defence, will regularly review progress against the strategy.

The noble Baroness, Lady Smith, was perhaps a little less warm in her reception of the document, although I detected that she is broadly in approval. She asked the pertinent question: is this about today or the day after tomorrow? I suggest that it is about both because, given how the strategy is structured, it recognises and continues much of the good work that has emerged in recent years. It is knitting that together, as I said, based on analysis of the threats we face and how we must respond. There are certain strategic imperatives and areas of independence of operation where we will want that to happen from providers in the UK. I say to her very strongly that this is a strong signpost of the direction of travel for both the MoD and our industry partners.

The noble Baroness asked a pertinent question, which was well justified, about the international community because, as the noble Lord, Lord Tunnicliffe, identified, we have departed from the former premise of “global by default”. She is quite right because, although there will be a premise on which we operate for our strategic imperatives and areas where independence of operation is absolutely critical—it will fall to our UK providers to assist with that—we also recognise of course the importance of the international community.

Our global alliances and partnerships are of strategic importance and, as a leading advocate for the development of innovative, adaptive capabilities, the UK will invest in emerging technologies, using the strength of the UK’s world-class industrial and technological base. We will be open to working with allies and partners through international programmes, and these existing initiatives will continue. There is clearly an opportunity to work closely with our partners and other industry providers abroad. The noble Baroness will be aware that the UK will work internationally to develop key military capabilities, such as developing our future combat air system.

So I reassure the noble Baroness that, although we understand that this Statement gives a clear direction of travel to encourage and support our United Kingdom-based defence and security industry partners, it is not to the exclusion of international provision, where we consider that that does not compromise our security but offers an attractive proposition.

The noble Baroness spoke about overrunning budgets in the past. That is a very legitimate reservation to mention. There have been procurement issues in the past and these have not been proud moments for the MoD. But the way in which the strategy is constructed and conceived, which is about engaging with industry from the earliest moment, identifying what we need, discussing with industry how that might be provided and then being sure that there is a constant monitoring process of how that develops as orders are placed, means that many issues that used to obstruct the smooth progress of our procurement contracts are now being ironed out. In some cases, they are actually being eradicated, because of the much more innovative and intelligent approach to how we liaise with our industry and security partners.

I have tried to answer the principal points the noble Lord and the noble Baroness raised. I hope I have addressed them adequately.

Integrated Review: Defence Command Paper

Baroness Smith of Newnham Excerpts

Tuesday 23rd March 2021 Lords Chamber

[Lord Tunnicliffe (Lab) [V]]

My Lords, as we mark one year since lockdown began, I start by thanking the Armed Forces for their help during the pandemic. They have been essential to our response, from building hospitals to assisting with the vaccine programme, and we owe them a great deal.

In the last defence review, the Government identified the risk posed by pandemics. That document claimed that the Government had

“detailed, robust and comprehensive plans in place”.

But, after one of the world’s worst death tolls and worst recessions, clearly the Government were not prepared. Covid shows that resilience cannot be done on the cheap. Full-spectrum society resilience will require planning, training, and exercising that must be led by the Government and involve the private sector, local agencies and the public, so the reference to,

“Building resilience at home and overseas”


in the Command Paper is welcome, but it is disappointing to see how little there is on lessons learned from Covid. Can the Minister tell the House that the comprehensive national resilience strategy will be published, at the latest, before the autumn, when a further wave is a real possibility?

Turning to the rest of the integrated review and Command Paper, we want them to succeed, to keep our citizens safe and to secure Britain as a moral force for good in the world, but we cannot escape how the two previous reviews, as well as recent actions of the Government, have weakened our foundations. Some £8 billion cut from the defence budget, 45,000 personnel cut from the Armed Forces, £5 billion cut from international development, and this review is set to repeat many of the same mistakes, with more reductions in the strength of our forces and crucial military capabilities. How will the loss of 10,000 personnel affect our relationship with our key allies and NATO? In total, how many jobs in the defence industry will be lost as a result of axing Warrior vehicles and Challenger tanks? I fear that the “era of retreat”, as the PM called it, will not end but be extended.

The Secretary of State says that he wants to

“match genuine money to credible ambitions”,

but it is not clear from the paper how that will be done. Ministers like to talk about the rise in capital funding, but not the real cut in revenue funding over the next four years. Can the Minister guarantee that core programmes will be fully funded? With a black hole of £17 billion in current programmes, how much of the extra money will be swallowed by this? What new processes have been installed to allow the MoD to learn the lessons of previous overspending?

The review also marks a new shift in the UK approach to nuclear. Labour’s commitment to the renewal of our deterrent is non-negotiable, alongside our multilateral commitment to nuclear disarmament and greater arms control. But the reversal of 30 years of all-party non-proliferation policy for the UK is a serious decision, and this Command Paper does not clearly explain why it is necessary. What is the strategic thinking behind lifting the cap? How are we going to use our P5 status to press for new generations of arms-control treaties? As the Command Paper rightly identifies, threats are proliferating and becoming increasingly complex and continuous, so we should recognise the new domains of cyber, AI and space—but new technologies take years to come on stream. China has invested $31 billion in AI since 2016 and the US is already spending more than $10 billion a year on AI. Will the Government’s investment allow us to catch up?

It is also right that we recognise climate change as a “threat multiplier” that will

“drive instability, migration, desertification, competition for natural resources and conflict.”

Yet, despite it being launched over a year ago, we are still waiting for the MoD’s sustainability and climate change strategy. When will this be published?

There are clear inconsistencies at the heart of the review. The Command Paper says that Russia

“continues to pose the greatest nuclear, conventional, military and sub-threshold threat to European security.”

But the Government have still not fully implemented any of the Intelligence and Security Committee’s Russia report’s 21 recommendations. This has left a big gap in our defences which must be filled.

The ambition has been laid out, but it is the actions of the Government that will keep the country safe and allow Britain to be a moral force for good in the world. These actions need to be taken in response to national security threats in co-ordination with allies in order to grow national resilience and jobs back home, and in line with our international commitments. We will continue to hold government actions to these standards in the years ahead.

The Statement and Command Paper are full of fine words—defence Statements always are—but the question is whether there is substance behind the words. To answer that question, we need a full day’s debate to mobilise the wisdom and experience of our Back-Benchers. Accordingly, I have made requests through the usual channels and I hope that the Minister will be able to support me in that request.

[Baroness Smith of Newnham (LD)]

My Lords, from these Benches I echo many of the words of the noble Lord, Lord Tunnicliffe, and there are certain questions that I will therefore not reiterate. However, one area that I would like to reinforce is our gratitude to our Armed Forces. The second point that I shall reiterate to the Minister and, in particular, to the Government Chief Whip and the usual channels is that we need a serious debate on defence, covering at least a day. At Second Reading of the Overseas Operations (Service Personnel and Veterans) Bill, I believe there were 67 speakers. Many Members of your Lordships’ House have expertise and would be able to contribute very effectively to serious debate and scrutiny of the integrated review and the defence Command Paper. Two Statements, one last week on the integrated review and one today on the defence Command Paper, will only touch the surface.

The integrated review was supposed to bring together security, defence, foreign policy and development. However, for defence, we had a Statement on funding at, I think the end of the last calendar year; today, we have the Command Paper; tomorrow, an industrial policy paper is coming forward; and the Armed Forces Bill is coming, as is, according to the Command Paper, a defence accommodation strategy. All are clearly welcome, but it would be even more welcome if we had a real sense and belief that the review that came forward last week was truly integrated, truly strategic and genuinely provided a review of all our international and security challenges, capabilities and commitments.

The Statement, which the Minister has not had to repeat, raises a set of questions about the future of our defence. The Secretary of State started with his time in the Army and referred to a whole series of reviews over the past 30 years. It is clear that the increase in defence expenditure announced last year is important but, as the noble Lord, Lord Tunnicliffe, pointed out, there are questions about value for money. What work have the Government put in to ensure that defence procurement will provide value for money? Will we be able to ensure that the long-term capital expenditure is scrutinised and delivers for the country?

I want also to ask about our co-operation with partners and allies, which is touched on throughout the paper. The commitment to working within NATO is absolutely clear, but there is talk of a tilt towards the Indo-Pacific. What conversations have Her Majesty’s Government had with India? Does it have the same views as the Foreign Secretary or the Defence Secretary about the importance of co-operation, or are we trying to catch up and persuade India that it is important to work with the United Kingdom?

The threats from Russia and China are made explicit in this Command Paper, yet there also seems to be an attempt to work with China in terms of trade. Can the Minister tell us what is more important—trade or defending ourselves against China? Is there a real strategy here?

I turn finally to the nuclear deterrent. There is a suggestion on page 7 that our adversaries are breaching the terms of international agreements. What about breaches made by our allies, and indeed, what is the danger if the United Kingdom threatens to breach them? Like the noble Lord, Lord Tunnicliffe, and the Labour Benches, we are committed to multilateral disarmament. While we are committed to the deterrent, we are also committed to multilateralism. Does the proposal to increase the number of warheads not fly in the face of the United Kingdom’s multi-lateral commitments? Should we not think again in that regard?

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Smith of Newnham Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

[Baroness Smith of Newnham (LD) [V]]

My Lords, I enter this set of amendments as a lead signatory but as somewhat of an interloper, being the only speaker in this set of amendments and the subsequent two who is not a lawyer and does not have legal training. I will defer to my noble friend Lord Thomas of Gresford and his excellent opening remarks, but I want to add a couple of points and reasons why this set of amendments is so important.

As the noble Lord, Lord Hendy, pointed out, this is a minor amendment—essentially, the four amendments are doing the same thing in the various parts of the United Kingdom—but I believe that it is a necessary amendment. That is precisely because Her Majesty’s Government have spent a lot of time telling us that this Bill is about the interests of service men and women and veterans, and yet, if one looks at the briefing, which I suspect other noble Lords have received, from the Royal British Legion, there is particular concern about Part 2 of the Bill. There is a whole set of representations that has been sent to me, and I assume to other noble Lords who are participating—for example, from the Association of Personal Injury Lawyers, which is urging Peers to accept the amendments in my name and that of my noble friend to Clause 11 and Schedules 12 and 13.

Also, this is very much in line with the evidence received by an inquiry undertaken by the All-Party Parliamentary Group on the Rule of Law and the All-Party Parliamentary Group on Drones. I declare a prospective future interest in that my name has been put forward to become a vice-chair of the APPG on Drones. I took no part in the work that it has been doing, but it has produced an excellent briefing. It is important to reiterate from that evidence that, as the noble Baroness, Lady Chakrabarti, pointed out, in Part 2 we are talking about claims brought against the MoD. This looks as if it is a protection for the MoD rather than supporting claimants. I believe very strongly that, if our concern is to support our Armed Forces and veterans, then we should be looking to protect them and not the MoD. That point was also made by Emma Norton, the director of the Centre for Military Justice, in her briefing:

“In terms of impact on soldiers which the MOD states it wants to minimise, it is worth remembering that all of these civil claims – whether brought by a civilian or a soldier - are brought against the MOD as defendant, not individual soldiers, though of course soldiers may have to give evidence.”


Our modest amendment is very much about securing the rights of claimants, and as the noble Lord, Lord Hendy, pointed out, there should be no cases where service men and women and veterans are being disadvantaged, and yet as the Royal British Legion pointed out, even in the Government’s own impact assessment of the Bill, a minimum of 19 injured and bereaved members of the Armed Forces communities would have had their claims blocked if the limit being proposed had been in place. And that is just for operations in Iraq and Afghanistan. Therefore I would like the Minister in his response to consider whether it would not be appropriate to balance the two subsections already proposed for “particular regard” for our amendment to be added as paragraph (c).

--- Later in debate ---

[Lord Faulks (Non-Afl) [V]]

My Lords, once again, it is a pleasure to follow the noble Lord, Lord Hendy. In considering all these amendments, we should bear in mind that not all the claims that this legislation is concerned with—in fact, only a small proportion—are actually brought by veterans. The majority of the claims that have given rise to this litigation are brought by those who allege that they have been the victims of wrongs done to them by the military. One advantage of trying to put an end finally to litigation is that those members of the military who might be involved in this litigation, potentially as witnesses for the defendant or, indeed, for the claimant, can put an end to the matter in their minds. Nobody would be concealing anything deliberately but, once you have left theatre—overseas operations come to an end—it is a considerable burden to be troubled by some incident, about which there may be little corroboration or evidence, and to have to go to court, if necessary, to deal with allegations more than six years after the event.

These amendments are, of course, concerned with date of knowledge, and the legislation provides for an extension from the six-year long-stop period for date of knowledge. Incidentally, long-stop periods are not only in this Bill; they exist in other fields of law—for example, in the Latent Damage Act. As I said previously, and as the noble Lord, Lord Hendy, acknowledged, the date of knowledge is a difficult matter for courts, but they have shown themselves—helped by provisions in Sections 11 and 14 of the Limitation Act—able to find a proper response to difficulties that individuals may have in being aware that they have a cause of action.

The real issue is when the clock starts ticking. In the normal event, it starts ticking when the incident that gives rise to the claim occurs; in these cases, the possibility for litigation will end after six years, unless there is an extension of one year because of an extended date of knowledge. The provisions in the Limitation Act dealing with personal injury claims do not actually provide for a six-year period from the date of knowledge, as these amendments do; they provide at the maximum for three years. In other words, the clock starts ticking for three years after the incident occurs, in the normal case, and three years if there is a postponed date of knowledge. So this six-year extension is in fact wider than exists in conventional limitation periods for negligence cases. There is no equivalent of a date-of-knowledge provision in Human Rights Act cases; it is all dealt with under the provisions of Section 7 of the Human Rights Act.

One must be careful not to make too close a comparison between claims in negligence and claims under the Human Rights Act. As Lord Bingham said in a famous case, the Human Rights Act is not a tort statute. For the most part, these claims for personal injuries are much better brought in negligence. In fact, the claims under the Human Rights Act were usually advanced on the basis of an investigative duty that tends to be attached to these claims, which is one of the reasons why they were relied upon.

I respectfully suggest, although I understand what lies behind them, that these amendments go into territory that they should not go into and extend the period longer than it is desirable that anybody concerned in these types of cases should have to endure.

[Baroness Smith of Newnham (LD) [V]]

My Lords, in this suite of amendments we are focusing on a relatively narrow area. On this occasion, I should be slightly relived that the noble Lord, Lord Faulks, does not entirely agree with the movers of the amendment, because at least it gives me some additional points to respond to.

I take the point that there might be a shorter period within civil law and domestically, but there is a very clear difference between overseas operations and the civilians and military who might have to bring claims, and what might happen in a civilian context in the United Kingdom. As Emma Norton pointed out in her evidence to the All- Party Groups on Drones and on the Rule of Law, if something happened

“within the UK more than 6 years ago, courts would remain able to extend time limits”,

but if something happened overseas the courts would not have that right. As my noble friend Lord Thomas of Gresford pointed out, what is being proposed is unique in the British justice system—a new category of claims arising from overseas operations in respect of which the courts would have no right to give an extension.

It is clearly right that claims should be brought expeditiously and dealt with expeditiously, but sometimes it will not be possible for cases to be brought within the time limits the Government are suggesting. It is surely right to look for ways to ensure that claimants who may have not been in a position to bring a claim within a year of date of knowledge can bring the claim, and further discretion can be brought.

As with amendments in the previous and subsequent groups, if the Minister does not feel able to accept the language of our amendments, perhaps he might suggest how claimants who have cases arising from overseas operations will not be disadvantaged by Part 2 of the Bill.

[Lord Falconer of Thoroton (Lab) [V]]

I will first pick up on a point made by my noble friend Lord Hendy in the last group, which in fact relates to a group debated on Tuesday. It concerns the validity or otherwise of the point advanced by the Government: that they cannot make special exceptions for military personnel only suing the Ministry of Defence—in other words, treat them as if they are governed by the normal limitation periods—because there would be discriminatory concerns under Article 14 of the European Convention on Human Rights.

As I indicated on Tuesday, I disagree with that proposition, as does my noble friend Lord Hendy. It is significant for this group of amendments because real concern is being expressed by practically all of your Lordships—I say practically because the noble Lord, Lord Faulks, is not—about members of the military not being able to bring claims in accordance with what I describe as the “normal law”. I do not ask the noble and learned Lord, Lord Stewart of Dirleton, to respond to the legal point now, but I ask him to write to us indicating the legal basis for the proposition that you cannot have a provision stating that military personnel suing the Ministry of Defence will be governed by the ordinary rules of limitation.

The amendments in this group do two important things. First, the current proposal in the Bill is that the limitation period on civil claims should be

“the later of … the end of the period of 6 years beginning with the date on which the act complained of took place”,

or

“the end of the period of 12 months beginning with the date of knowledge”.

The position is that the claimant who discovers that they have a claim only at the end of six years has only 12 months to make that claim. The first amendment in this group from the noble Lord, Lord Thomas of Gresford, says that it should not be 12 months from the date of knowledge, but six years. I am sympathetic to that idea and I would like to know why a period of 12 months was chosen in relation to service personnel. I would be interested to know why, having regard to the circumstances that arise on overseas operations, the Government thought it appropriate to have what might be seen as a very short period.

The second significant amendment from the noble Lord, Lord Thomas, would add certain additional elements to what is meant by the “date of knowledge”. At the moment, the Bill treats you as knowing if you knew of the act complained of and that it was an act of the Ministry of Defence. The noble Lord, Lord Thomas, proposes amending Clause 11, so that you also have to know of the harm you suffered as a result of the act complained of. If, for example, the harm was mental illness, you might not know for some considerable time. In addition, the amendment says that you do not have to know only that it was an act of the Ministry of Defence, but that you might have a legal right to bring a claim too.

Taking the example given by my noble friend Lord Hendy, if you knew that your son was killed because of an act of the Ministry of Defence—friendly fire—but you did not know there was negligence and that you had a right to bring a claim, then knowing of the act complained of and that it was an act of the Ministry of Defence does not do you much good. These additional factors seem legitimate ones to take into account when considering what is meant by “date of knowledge”. These are important amendments and I am interested to hear the Minister’s answer.

--- Later in debate ---

[Lord Faulks (Non-Afl) [V]]

My Lords, I make it clear that I do not take the view, as the noble Baroness, Lady Chakrabarti, seemed to suggest, that we should not worry too much about limitation periods because this would impact more on victims who were not in the military. That is not my view at all and I do not think that I expressed it. I do not believe that there should be any distinction between categories of claimants on what the limitation period should be.

The question is whether, as a matter of public policy, whoever is the claimant, there is a public interest in litigation coming to an end. That is what underlies all limitation periods in all sorts of circumstances. Six years, which at the moment is the longstop, has been taken as reasonable, having regard to all the difficulties that may exist in bringing claims. However, the particular challenges of overseas operations, for whoever the claimant is, are such that that is a fairly lengthy period.

I do not believe that many of the claims that have been brought would in any way fall foul of either the primary period in negligence of three years or even the one-year period under the Human Rights Act. Six years is quite a long period. In my experience of personal injury actions in other fields, it is very unusual for a court, in its discretion under Section 33, to disapply limitation for such a long period, except in very unusual circumstances. Those circumstances tend to be in cases that are, in any event, covered by date- of-knowledge provisions—for example, latent disease or something of that sort. I am absolutely not concerned to bias anyone, but simply ask whether there is a public interest in there being an end to litigation.

The noble Lord, Lord Thomas, raised a good question about Northern Ireland. As I understand it, there is likely to be a separate piece of legislation dealing with Northern Ireland in due course and I wait with interest to see what that is. My feeling about the provisions on limitation remains the same. I am not entirely sure that they are necessary, because the existing limitation periods are sufficiently sensitive to deal with some of the injustices that could arise from late claims. This is part of the agenda that the Government have to reassure veterans. The idea that it is entirely designed to protect the MoD is a somewhat cynical response. Reassurance for the veterans is a not unworthy aim but not, I entirely accept, if it runs the risk of causing injustice. For the moment, I am not convinced that it does.

[Baroness Smith of Newnham (LD) [V]]

My Lords, I am glad to hear that the noble Lord, Lord Faulks, does not want to bias anyone; I am sure that is absolutely right and we are all on the same page on that. However, he talked of a public interest in having a period of limitation. Clearly, there is a public interest here, but there is also a private, individual one. The amendments in my name and that of my noble friend Lord Thomas of Gresford, try to get that balance right. The noble Baroness, Lady Chakrabarti, put the point very well by saying that we should not be talking about taking the role of the courts out of this entirely: there needs to be some discretion. Amendment 23 begins to rebalance this.

The noble Lord, Lord Faulks, is right that, clearly, there is a period in which people can bring cases but, if our previous set of amendments, which would extend the point from one to six years after the date of knowledge, were not accepted, we would need some mechanism that allowed a bit of discretion because, at the moment, there would be none for the courts. As such, Amendment 23 is desirable in its own right, but it is even more important if other amendments are not accepted, either now or when they are put forward by the Government, or when they are moved on Report.

Could the Minister give a further response on the date of knowledge? In opening his remarks on the previous set of amendments, clarifying a point he made on Tuesday, he said that the 94% of cases that were brought within—or what would be within—time were within six years not just of the incident but of the date of knowledge. If that is the case, does that not make it even more incumbent on the Government to look again at the date of knowledge as a relevant time point to have in the Bill—and not one but six years?

[Lord Falconer of Thoroton (Lab) [V]]

In effect, these amendments once again reintroduce the normal approach to limitation, which is that if you do not bring your claim within 12 months under the Human Rights Act or, if it is a personal injuries claim, within three years—based on tort or a breach of an implied contract—then the court can extend indefinitely, in effect, if it is just and equitable to do so. The courts have applied sensible approaches to those issues, and the longer you are away from the primary limitation period expiring, the better the reason you must have for extending the time.

The noble Lord, Lord Thomas of Gresford, made a very powerful point, asking why there should be special rules for the Ministry of Defence in relation to overseas operations. The answer that the Ministry of Defence gives is that military personnel involved in overseas operations should know—indirectly, because they will not normally be sued personally—that no litigation will arise from their conduct after a specified period, which is six years or one year from the date of knowledge, whichever is later.

That approach does not seem to me or veterans’ organisations to be legitimate in relation to claims being brought by soldiers or veterans in respect of negligence or breaches of human rights by the Ministry of Defence. Military veterans or existing soldiers should be subject to the same rules in relation to limitation as apply in any other claims. There is no evidence that the reassurance that individual members of the military are looking for—in relation to ongoing litigation out of overseas operations—is coming from fear of claims being brought by veterans against the Ministry of Defence for personal injuries caused normally by negligence on its part.

As such, in so far as the new rule about limitation in respect of overseas operations applies to prevent claims being brought by veterans or existing soldiers, I am against it. The proposal made by the noble Lord, Lord Thomas of Gresford, which, in effect, applies the normal rules, should be applied to veterans and existing soldiers who want to bring claims arising out of negligence or breaches of human rights in an overseas operation, just as much as if they bring a claim with the normal rules applying if the injury had occurred to them in the UK. The soldier injured by the provision of a negligent piece of equipment—body armour or a vehicle—can bring a claim with the normal rules applying if it happened on Salisbury Plain, but he or she cannot if the same act of negligence had occurred in an overseas operation. That is profoundly wrong.

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[Baroness Whitaker (Lab) [V]]

My Lords, I speak in support of Amendment 26 and against Clause 12 stand part. My noble and learned friend Lord Falconer of Thoroton and all who have spoken have set out the case exactly with force and clarity, so I will just add that clearing with Parliament any proposal to derogate from the European Convention on Human Rights makes proper acknowledgment of the role of Parliament in such a serious decision, although it is not always honoured in the same way by this Government. In any case, the idea of derogation in the circumstances posited by the Bill is not only misconceived and ineffectual, as noble and noble and learned Lords have said, it undermines the basis of our standing in the world as advocates and practitioners of an international order.

The international rule of law is not the same creature as the national one. Enforcement comes up against sovereignty and is not strong. This is reflected in the part played by the veto, so it depends even more on consent, and it is that consent which is sabotaged by the multiple breaches of international law on torture, genocide, war crimes and crimes against humanity in a set of national legislative proposals as unfocused as this provision. The Bill’s aim of clarity, fairness, certainty and speed of judicial action for our Armed Forces is admirable; the blunderbuss means of ineffective and probably unachievable derogation from the ECHR is not. It betrays our long and distinguished role as one of the founders in creating the instruments for the international rule of law.

[Baroness Smith of Newnham (LD) [V]]

My Lords, the noble Baroness, Lady D’Souza, suggested that this Bill divides your Lordships’ House into two parts: those who wish to see the Bill disappear in its entirety and those who wish to amend it substantially. I think that the situation might be a little more nuanced than that, but like the noble Baroness, I would place myself in the camp who believe that the Bill should probably go through, but heavily amended.

On this occasion, I want to associate myself with the suggestion that Clause 12 should not stand part. Obviously, my noble friend Lord Thomas of Gresford has signed that he will suggest that it should not stand part, alongside the noble and learned Lord, Lord Hope of Craighead. On Tuesday, the noble Baroness, Lady Jones, rather hoped to kill the Bill. I think that removing this clause is important. It is neither necessary nor desirable, as almost all noble and noble and learned Lords who have spoken already have pointed out.

Some severe issues are raised by this clause, in part about what message we are sending internationally. The United Kingdom left the European Union last year. We have said that, as a country, we still respect human rights and the rule of law and that we wish to play a global role. We are still an active player in NATO and in the United Nations, but what message are we sending if we say, “We might want to derogate from the European Convention on Human Rights”? Do we really want to derogate from human rights laws? Is this not a siren call? Is there not a danger that this is trying to speak to a domestic audience? I know that the Minister does not like the concept of lawfare and that she does not care for the term. However, in some ways, the clause as it stands and the amendment tabled by the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Faulks, seem to suggest that this is about speaking to an audience that wants to say, “We should not be too worried about human rights. Let us strike down some of these rules.” Surely our role in the international arena should be precisely that of supporting human rights. We will not do that by derogating from the European Convention on Human Rights.

As various noble and noble and learned Lords have already pointed out, in particular the noble and learned Lords, Lord Falconer of Thoroton and Lord Hope of Craighead, this clause is unnecessary because it is already possible to derogate. Can the Minister explain why she feels that it is necessary? If there is no good reason, the Liberal Democrat Benches will certainly not support the clause.

However, there is always a danger that, however much we might want to remove a clause, it cannot be done and amendment to it might be more appropriate or feasible. To that end, it is clear that Amendment 26 tabled by the noble and learned Lords, Lord Falconer and Lord Hope, my noble friend Lord Thomas and the noble Baroness, Lady D’Souza, is important. If derogations were to be proposed, it is clear that the appropriate people to make that decision are parliamentarians. It is hugely important that the Government should remember the appropriate relations between the institutions of the Executive, the legislature and the judiciary. At times over recent months and years, it has appeared that Her Majesty’s Government seem to think that only the Government should make decisions. If any derogations were to take place, they should be brought forward for a decision on an affirmative vote by both Houses of Parliament. I strongly support Amendment 26.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for the informed proposal in his amendment and other noble Lords for their genuinely thought-provoking contributions. I will try to address them in detail, although I realise that to the perception of some I may do so inadequately.

Amendment 26 would require designated derogation orders proposed by the Government in relation to overseas operations to be approved by Parliament before being made. It is important to begin by repeating the fact that, as some noble Lords have noted, the Government already have the power to derogate some aspects of the ECHR without reference to this Bill, and the Bill will not change that. The noble and learned Lord, Lord Falconer, is correct that the bar is set high to justify derogation, but it can still be done. It is important to remind noble Lords that Parliament already has a crucial role in approving any derogation decision. It is not the intention of this Bill to change the existing robust processes which the Government and Parliament follow if and when a decision to derogate has been made.

The noble and learned Lord, Lord Falconer, and my noble friend Lord Faulks asked why we have Clause 12. The clause merely ensures that all future Governments will be compelled to consider derogating from the ECHR for the purpose of a specific military operation. There is no sinister or malign agenda here, as was implied by the noble Baroness, Lady Chakrabarti. This does not create new law in relation to the ECHR or the procedures for designating a derogation order. In effect, it puts the intent of the 2016 Written Ministerial Statement on to a statutory footing and it will ensure that operational effectiveness can be maintained, for example, by enabling detention where appropriate for imperative reasons of security in a time of war or other public emergency threatening the life of the nations.

It is worth reflecting on the procedure that attends a derogation from the ECHR. If such a decision is ever made, the Human Rights Act requires that the Secretary of State must make an order designating any derogation by the UK from an article or a protocol of the ECHR. The Secretary of State must also make an order amending Schedule 3 to the Human Rights Act to reflect the designation order or any amendment to, replacement of or withdrawal from that order. Crucially, for those concerned that Parliament does not have a say in the process, I would remind noble Lords of the procedures that are already in place. A designation order to derogate ceases to have effect—it evaporates effectively—if a resolution approving the order is not passed by each House of Parliament within 40 days of the order being made. This means that both Houses will always be able to approve or reject any derogation order within 40 days of a decision. That is the process and these are the procedures.

In addition to the requirements laid out in the Human Rights Act 1998, the Government must also communicate a decision to derogate to the Secretary-General of the Council of Europe. This should include details of the measures taken and the reasons for taking them. The Secretary-General should also be informed when derogations have ceased. These existing measures provide for the appropriate level of parliamentary debate and approval of a decision to derogate. To the best of my knowledge, successive Governments have not sought to change that. I am sure that the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Thomas of Gresford, will correct me if I am mistaken.

However, requiring a parliamentary debate on a decision to derogate ahead of time, instead of after it is made, as Amendment 26 proposes, could undermine the operational effectiveness of MoD activity or compromise covert activity that we would not wish hostile operators to be aware of. It is generally accepted, without reference to derogation powers, that military action must at times be taken without gaining the prior consent of Parliament—for example, in situations where the Government’s ability to protect the security interests of the UK must be maintained, and in instances when prior debate and disclosure of information could compromise the effectiveness of our operations and the safety of British service personnel. I submit that the same principles apply here: requiring a debate before an order is made could, similarly, have a detrimental impact upon operational effectiveness. It would effectively shackle the MoD, preventing it from doing what it needs to do, when it needs to do it. It would defeat the purpose of derogation in relation to overseas military operations, which should enhance operational effectiveness. I cannot believe that the noble and learned Lord, Lord Falconer of Thoroton, would wish to impose that stricture. I therefore urge him to withdraw his amendment.

Although I have argued against the proposal from the noble and learned Lord, Lord Hope of Craighead, that Clause 12 should not stand part of the Bill, it has more logic than Amendment 26. I wonder if it is a mischievous stratagem to make the Government look at Clause 12 again. I listened to the noble and learned Lord with great care and I will look at his arguments again. When they are advanced with the lucidity with which he is rightly associated, they have an allure.

Amendment 27, in the name of my noble friend Lord Faulks, is intended to prevent claims connected with overseas operations being brought in England and Wales under the Human Rights Act, whether from service personnel, local nationals or any other claimant. I thank my noble friend for an incisive analysis of the ECHR and the Human Rights Act. He rightly identified the need to bring clarity to an issue that has been dogged by uncertainty and the divided opinion of senior legal personnel. His analysis and conclusions richly inform the debate around the ECHR and the Human Rights Act, but I will comment on his amendment, which I thought was unfairly characterised by the noble Lord, Lord Thomas of Gresford. The noble Baroness, Lady Smith, was a little more charitable. I detect that she is warming to the Bill, albeit with reservations.

In relation to Amendment 27, the Human Rights Act’s extraterritorial application mirrors the scope of extraterritorial jurisdiction under the European Convention on Human Rights. Therefore, it is important to note that, whatever the position under domestic legislation, as a signatory to the ECHR, to which the UK remains committed, we would still be under an obligation to ensure compatibility with the convention. My noble friend acknowledged that. We would still need to provide an effective route for people to bring claims in the United Kingdom in relation to any alleged breach of their convention rights. This was recognised by Professor Ekins during the House of Commons committee’s evidence-gathering session for this Bill.

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I ask the Minister to tell the Committee precisely what the Government’s position is on combat immunity. Of course, if this amendment is successful, the Government will have to do so in any event. I am very sympathetic to the amendment; I am sorry that it is necessary, and I repeat my observation that the reason it is necessary is that we as Parliament and the judges, I am afraid, have failed the military.

[Baroness Smith of Newnham (LD) [V]]

My Lords, like other noble Lords—and noble and gallant Lords—across the Chamber, I welcome the amendment, even if, like the noble Lord, Lord Faulks, I regret that it is necessary. As the noble and gallant Lord, Lord Stirrup, pointed out, it is in many ways necessary to try to deliver what the Minister said the Bill was intended to do, which is to demonstrate to all our service men and women, and veterans, that the MoD and the Government have their backs. The amendment seems to be delivering on the stated aims of the Bill in a way that much of the content of the Bill does not quite seem to do.

Perhaps I have misread the amendment and the noble Lord, Lord Faulks, has read it perfectly, but my reading of it is a little different from his. The first point is:

“The Secretary of State must establish a duty of care standard”.


It does not say, “The only purpose of this amendment is to write a report”; the report comes later. The really crucial thing is that the Secretary of State is to establish the “duty of care”; the annual reports are then supposed to look at certain things, but it is the duty of care itself that matters.

So the amendment does not say, “There’s got to be a report every year”—which, I agree, might look a bit like window-dressing. This really gives the opportunity for the Secretary of State—hopefully with advice from the leading members of the military and taking into consideration the evidence from the many organisations that have been lobbying the Government and Parliament over this Bill—to begin to ensure that we have an appropriate duty of care and that support is given to service men and women under investigation. As my noble friend Lord Burnett said in his powerful speech, there is a whole set of issues that might affect people acting overseas on operations that would not necessarily be the case when people are in normal circumstances.

So this is an important amendment. I very much hope that the Minister will be able, for once, to consider supporting an amendment. If she cannot, I hope that she can look for ways of delivering in the Bill the sort of support for our service men and women that is the intention of this amendment.

[Lord Tunnicliffe (Lab) [V]]

My Lords, we stand four-square behind our troops and, therefore, four-square behind Amendment 31. We want to work with government and colleagues from across the House to get this legislation right. Our country owes a huge debt to our service personnel, yet many have not got the pastoral, mental and well-being support that they require when it is most needed.

Troops and their families who have been through the trauma of these long-running investigations have too often felt cut adrift from their chain of command and the Ministry of Defence. As the noble Lord, Lord Dannatt, said, this gap was clearly identified by multiple people in Committee in the other place, but it has not been identified in the Bill.

When asked if the MoD had offered any support when he was facing eight criminal charges, Major Campbell said: “No, there was none”. General Sir Nick Parker said that

“one of the key things that we have to do is to produce mechanisms that establish a really effective duty of care for those who are placed under the spotlight by malicious claims.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 96.]

He stated that, as drafted, the Bill does not do this.

When asked if the MoD does enough to provide a duty of care to those service personnel who go through investigations and litigations, BAFF executive council member Douglas Young said:

“In our opinion, the answer is no ... we are simply appalled by the experiences of some people who have absolutely been through the wringer for many years.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 5.]


Lieutenant Colonel Chris Parker said that there was certainly a need for

“a broad duty of care with some resourcing for the impact on families and the individuals themselves … It is something that the MoD would have to bring in.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 108.]

The MoD has let down too many personnel with a lack of pastoral, mental health and legal support when they face investigations and pursue rightful compensation. For every member of the Armed Forces who does not receive the proper support and advice during an investigation or litigation, it is not only sad but a failure of the MoD’s responsibility to its employees. We cannot deny that the MoD has lost trust among our brave service personnel, and a statutory duty of care, with regular reporting to Parliament, is a key step in rebuilding that trust. Only then will personnel have the confidence that the MoD will be on their side and support them through the difficulties and stress of an investigation or litigation.

We owe it to our excellent Armed Forces to do better. The MoD owes it to them to provide a statutory duty of care standard for legal, pastoral and mental health support, and that is why we strongly support this amendment.

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[Baroness Chakrabarti (Lab) [V]]

Noble Lords will forgive me for not having discovered the letter to which the noble Lord, Lord Lancaster of Kimbolton, just referred. My only brief observation on his concerns is my own concern that the Bill relates to access to justice in the courts of the jurisdictions to which it extends. I ask only that perhaps the Minister might, in her reply, indicate the extent to which the jurisdictions to which the amendment refers—the overseas territories, the Channel Islands and the Isle of Man—have been consulted about their wishes with regard to these significant changes to the rule of law extending to their legal systems as well. As this is, I believe and hope, the last group today, I want to record my thanks to all noble Lords but to the Minister in particular for her patience and forbearance in the lengthy but important consideration of all these amendments.

[Baroness Smith of Newnham (LD) [V]]

My Lords, both these amendments are important but quite different. They come together as a final hurrah for the Committee stage of the Bill. Amendment 34, in the names of the noble and gallant Lords, Lord Craig of Radley and Lord Boyce, makes perfect sense as a tidying-up measure. As I understand it, we are expecting the next Armed Forces Bill after Prorogation, which would become the 2021 Armed Forces Act. I wonder whether the Minister could indicate whether that would be the time to bring together all relevant legislation on the Armed Forces. Assuming that the Bill that we are debating at the moment is passed—I hope, in a seriously amended form—it may be appropriate to put it within the purview of the 2021 Armed Forces Act.

Beyond that, I had initially thought that the British Overseas Territories, the Isle of Man and other places seemed slightly tangential. The noble Lord, Lord Lancaster, made it absolutely clear why that amendment is so important. On Monday evening, I was speaking to officer cadets at Sandhurst about the challenges of leadership in civilian life. I cited, from my time in local government, the dangers of being a new executive officeholder—equivalent to being a Minister—listening to what officials say. Saying “We consider this situation very unlikely to arise” is not something that a Minister or elected politician should necessarily listen to. I hope that the Minister listens to the noble Lord, Lord Lancaster, and considers this amendment carefully.

As the noble Baroness, Lady Chakrabarti, pointed out, this appears to be the last group of amendments in Committee. Like her, I thank the Minister, her noble and learned colleague on the Front Bench and other noble Lords for participating. I look forward to the next stages of the Bill.

[Lord Tunnicliffe (Lab) [V]]

My Lords, I do not know whether it was a sense of exhaustion but, until the noble and gallant Lord, Lord Craig, and the noble Lord, Lord Lancaster, set out what their amendments meant, I did not fully understand them. I understand them a little better now, and we will give them consideration. The noble Baroness, Lady Smith of Newnham, said that they may find a better home in the 2021 Armed Forces Act. The Minister may give an indication of whether that is sensible.

As this is the last group, I will use it to ask this of the Minister. She has committed to writing a positive library of letters; it would help if she could copy them electronically to all noble Lords who have taken part in Committee so that we can all share her wisdom. With that, I thank her and her colleagues, and all noble Lords, for making this a civilised and thoughtful debate over the last two days.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Smith of Newnham Excerpts

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

[Lord Berkeley of Knighton (CB) [V]]

My Lords, it is a pleasure to follow the well-made points made by the noble Lord, Lord Lancaster of Kimbolton, and I certainly take them on board. I am going to speak briefly to the opening amendments and the general feel of the Bill. I do so having also taken on board the wise words of my noble and gallant friend Lord Stirrup. I look forward to hearing more about his reservations on the Bill.

I was enormously impressed by what we heard from the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Chakrabarti. Their words are, I contend, in the interests of our armed services, given that clarity on the fairness that these matters require helps to give confidence that proceedings involving service personnel are thorough. We desire them to be thorough and universally admired. If they are, that only helps our service personnel. I look forward to hearing other speakers and the reply of the Minister to those concerns.

I turn to a slightly wider landscape. We hear virtually every week in your Lordships’ House about disturbing events in, for example, Myanmar, Hong Kong and China, as well as, even nearer to home, the recent case of the American woman claiming diplomatic immunity after her tragic road crash. There were the cases of the assassination of Mr Khashoggi, the poisonings in Salisbury, Sergei Magnitsky and the current detention of Mr Navalny. The point that I am making is that in all those cases it takes time for the facts to emerge, even to be dug up. The case of Baha Mousa could easily have taken six years, but I salute the efforts that were made. I am afraid that the facts often take longer than five years to emerge. Still more importantly, I contend that our remonstrations about these cases is all the stronger if the way in which we deal with our own employees is as beyond reproach as possible. That is why I worry that five years is too short and why I have real concerns over the presumptions against prosecutions contained in the Bill.

Finally, I stress that I accept that the terrible things that happen in the heat of battle are quite different from the premeditated use of torture. It is that matter which particularly concerns me and to which I shall return when we reach Amendment 14.

[Baroness Smith of Newnham (LD) [V]]

My Lords, it is conventional to say what a pleasure it is to speak after whichever noble Lord has preceded one. On this occasion, it genuinely is a pleasure to speak after the noble Lord, Lord Berkeley of Knighton, because I tended to agree with most of what he said. I am winding up on this group of amendments very much from the same place as when I was winding up at the end of Second Reading from the Liberal Democrat Benches.

On this occasion, my name is attached to some of the amendments, but I will none the less restate, for the avoidance of any doubt before I get into their substance, that I am not proposing that we throw out the Bill. The amendments to which my name is attached are intended for debate in Committee. I support the amendment to change the timescale from five to 10 years, but I am not necessarily at the point of suggesting that, when we get to Report and voting, certain clauses should not stand part of the Bill. Nor am I going to support, much to her disappointment, the noble Baroness, Lady Jones of Moulsecoomb, and say that I shall vote against the whole Bill at Third Reading. That, to the best of my knowledge, is not the Liberal Democrat party line. We have not said that we will vote against the whole Bill. Rather, there are aspects of the Bill which we and many other noble Lords right across the Chamber argued at Second Reading were flawed and which need to be addressed in amendments in Committee that presumably will be voted on on Report.

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[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I speak to Amendment 6. Its purpose is simple—that the decision that the prosecutor makes takes into account the quality, thoroughness, independence and accountability of the investigation. It may be said—as appears from the Minister’s letter—that these matters are being looked at by Sir Richard Henriques in the review that he is conducting. No doubt the detail of all this can be gone into at that time—for example, how independence is to be safeguarded and accountability achieved. No doubt we will need to look at the position in other states. All that is for the future.

However, this Bill is being brought forward now. One matter that must be addressed now is that prosecutors, in deciding whether to continue, have to take into account the quality of the investigation in the respects I have set out in the amendment. I have put this forward based on my own experience of three cases that came before me when I was a judge. In the military context—and the civilian context is exactly the same—they pointed to the importance of thorough, well-resourced investigations.

The first case related to the deaths of 24 people in what is now Malaysia during the communist insurgency in 1948, which came back to the courts in 2011. That very unhappy series of events came back because the initial investigation was not thorough, a subsequent investigation was stopped before it was completed and, by the time the matter came before the courts, there was clear evidence that the original explanation of what had happened—namely, that these persons killed had been shot trying to escape—had been given by soldiers on instructions and that 24 people were killed in cold blood.

The second illustration relates to invents in Iraq and what happened in numerous cases, the most significant of which is the death of Baha Mousa. That is a paradigm example of how a poor investigation can be so terrible that it sometimes takes a very long time to see what went wrong.

The third and perhaps more surprising example is the conviction of Sergeant Blackman for shooting a member of the Taliban. When it originally came before the court martial, there had not been a sufficiently proper investigation of the circumstances, the stresses he underwent and his perception of the support he got from his command. That came out only afterwards and was one of the matters that, as appears from the judgment of the Court of Appeal, led to his conviction being reduced to manslaughter.

The thoroughness and independence of the investigation are critical in any decision to prosecute. A similar reflection can be obtained from ordinary cases; where things have gone wrong or there is a problem, it is the investigation. It is important that an investigation is fair—that is why it is listed—and thorough. And it should be fair in both senses: to the accused and to those who say a crime has been committed.

Independence is of equal importance. Any detailed consideration of the Malay case to which I referred and of the judgment of the Court of Appeal in the Blackman case shows how independence and accountability are also important. Therefore, what must be taken into account as a matter of principle—not of detail, that is for later—are these matters relating to the investigation. It may be said, “Well, things have got a lot better”. However, we all know that even the most well-organised body can make mistakes in the conduct of an investigation, and accountability and independence need to be of a very high level in certain types of case.

I am putting forward this amendment to show that this nation has regard to the covenant and the support it is necessary to give to our Armed Forces, but also to show that we must be seen to do justice, because the doing of justice is equally important. The quality, thoroughness, independence and accountability of the original investigation, if there has been one, or of the more recent one, should be at the forefront of the prosecutor’s decision.

[Baroness Smith of Newnham (LD) [V]]

My Lords, as I said in my comments on the first group of amendments, the vagaries of parliamentary procedure mean that in some ways the groups of amendments are being debated in a less than helpful order. I hope that this group of amendments and the suite of proposals will reassure the noble Lords, Lord West of Spithead and Lord Lancaster, and others who had any concerns that perhaps supporters of the first group might be seeking to eviscerate the Bill in its entirety.

This suite of amendments is intended to be constructive. I will speak predominantly to Amendment 17, in the name of my noble friend Lord Thomas of Gresford and myself, and Amendment 28. They are both about investigations. If the purpose of the Bill is to stop unnecessary investigations and investigations being brought many years later, these two amendments in particular seek in clear and specific ways to give substance to the Government’s stated aims.

Amendment 17 gives a very clear outline of what could be done in terms of investigations: how they should be taken forward and, after they are completed, moved to prosecution. We have not heard huge numbers of veterans saying they have been prosecuted many times, but we have heard concerns about people being investigated and never getting closure. Amendment 17 gives a very clear outline of how investigations could be dealt with.

Amendment 28, in the names of the noble Lord, Lord Tunnicliffe, and the noble and gallant Lord, Lord Boyce, puts limitations on reinvestigation. That surely goes to the heart of what the Government say that they wish to do. If the Government really wish to have the best legislation to serve their own stated aims and fulfil the needs and expectations of current service personnel and veterans, could they please consider these amendments?

In your Lordships’ House, the Minister often feels the need to say that, however laudable the goals of the amendments are, they do not quite fit the approach that the Government want to take. If the Minister does not feel able to support the detail of the amendments, might she consider coming back with some government proposals on how investigations and reinvestigations could be dealt with in a way that would enable the Bill to do what it says on the tin?

[Lord Lancaster of Kimbolton (Con)]

My Lords, it is a pleasure to contribute to this group. I am particularly grateful to the noble and learned Lord, Lord Falconer, for the clarity with which he introduced these amendments.

I turn first to Amendment 3, which effectively seeks to remove Clause 2. That clause, the “presumption against prosecution”, is very powerful. I of course accept that this may not have the legal force it implies to some laymen, not least because of the other measures in the Bill, but it does indicate a very clear change of direction. If one of the aims of this Bill is to offer reassurance to our service personnel and veterans, this is a very powerful clause.

Amendment 3 seeks to delete this clause and effectively replace it with a guarantee of a fair trial. As the noble and learned Lord, Lord Falconer, said, this would happen as a matter of course. I have never met a service man or woman whose concern has been that they will not receive a fair trial in the United Kingdom. So, on the face of it, it does not seem to be a particularly good trade. Removing a presumption against prosecution from Clause 2 and replacing it with a fair trial does not send a particularly powerful message—but I do understand why it is being proposed.

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[Baroness Blower (Lab) [V]]

My Lords, it is a great pleasure to listen and to speak, however briefly, on Amendment 14, which is clearly the vehicle for correcting one of the significant flaws of the Bill. I acknowledge that I have no military experience and but limited knowledge of the law in comparison to many noble Lords in this House.

As other Members of the Committee have said, this amendment is necessary as it provides that the presumption against prosecution will not apply to war crimes, crimes against humanity, genocide or torture. As others have said in this debate, it would restore our obligations under the Geneva conventions, the UN Convention against Torture and the Rome statute to investigate and prosecute grave breaches of humanitarian law.

I am indebted to the Bingham Centre for the Rule of Law, on whose material I have drawn to make these few remarks. It says that,

“although rare, abuses by the military do happen”,

and that

“The UK has a long and proud reputation of decisive action against war crimes … We do not protect British troops … by hiding from the truth or acting with impunity.”


On Second Reading I quoted Martin Luther King Jr, who famously said that

“the arc of the moral universe is long, but it bends toward justice”.

Sally Yates, the US Deputy Attorney-General appointed by President Barack Obama in 2015, added a caveat to this quote, saying that it does not get there on its own. That is why we have international and humanitarian law.

This amendment would correct what is clearly a flaw in this Bill as originally drafted. I cannot possibly rise to the erudition of the noble Lord, Lord Thomas of Gresford, or my noble friend Lady Chakrabarti. But I insist that it must be seen in the Bill that there can be no presumption against war crimes, crimes against humanity, genocide or torture in terms of prosecution. For this reason, I fully support this amendment.

I ask the Minister, who is clearly much admired in your Lordships’ House, to outline once more why she feels that such a presumption is appropriate and why it does not send a very bad signal that undermines the trusted nature of our legal system and our international reputation. As has been said by so many Members of the Committee, it has the potential to open our military personnel up to proceedings in the International Criminal Court—which is absolutely not where we wish to be.

[Baroness Smith of Newnham (LD) [V]]

My Lords, unlike the first group of amendments, this group—particularly Amendment 14—has very broad support across your Lordships’ House. That is scarcely surprising because one of the very clear omissions from the Bill was precisely the group of crimes so eloquently outlined in the opening remarks by the noble Lord, Lord Robertson of Port Ellen.

It is clearly right that one of the exemptions from the presumption is sexual violence—that is fine—but it is a glaring omission to leave other war crimes, crimes against humanity, torture and genocide off the face of the Bill. Indeed, it has been raised at every stage of the Bill. It was raised on Second Reading in the other place and many times on Second Reading in your Lordships’ House. I have only one question to ask the Minister: how can she and the Government justify this omission?

As Members across the Committee have said, it is so important for the reputation of our country that we abide by the rule of law and the conventions which we have signed up to and have so often led. As a country, we pride ourselves on supporting certain values, including opposing torture, genocide, war crimes and crimes against humanity. It is inconceivable that we should say that this is anything that the Armed Forces or we as a country should condone.

My only sense from the Minister, in private meetings and her response to the debate at Second Reading regarding having sexual offences going against presumption but not other war crimes, was that there would never be a case on the battlefield when use of sexual violence was sanctioned. That seems to suggest that genocide, torture or other war crimes could be sanctioned. Surely that is not what the Minister meant or what the Government mean. Were there ever to be a case of torture or genocide—God forbid—surely we should be leading the way in ensuring that it is investigated and prosecuted. The reason it is so important to have this in the Bill is precisely to demonstrate our commitment to upholding human rights and not falling down any cracks.

I am absolutely sure that nobody would willingly commit any of these crimes, and I do not think that very many cases would ever even be investigated, but the amendments need to be in the Bill to ensure that we are not resiling from the conventions that we have signed up to. The noble Lord, Lord Lancaster, who I do not think has participated on this group of amendments, earlier prayed in aid Major Bob Campbell, who had said that he would not be taken to the ICC, and it might have been better to be in front of the ICC than subject to protracted and repeated investigations. The reason that service men and women and veterans from the United Kingdom have not been taken to the ICC is precisely because of our respect for international law.

Why are the Government creating a piece of legislation that leaves such a large hole and potentially damages our reputation? It would be much better to amend the Bill, to have it include war crimes, crimes against humanity, genocide and torture, and ensure that if anyone were accused of such a crime, it would be investigated and prosecuted if necessary and there would not then be a stain. A great problem is the sense that there is a shadow hanging over somebody and the feeling of “If only it hadn’t been for that presumption” or “Because of that presumption, we are now being taken to the Hague”. Surely that is not a position the Government want to leave anybody in.

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, this has been an incredibly instructive debate. Every single speaker has spoken in favour of Amendment 14 in a debate that has lasted an hour, and they could not have been more diverse in their experience: lawyers, military people, senior politicians. We have had the whole range, and they have all spoken in favour of Amendment 14.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab) [V]]

We move on to a different part of the Bill, which seeks to impose more rigorous time limits for bringing civil actions, whether in accordance with the ordinary law of tort or contract, or under the Human Rights Act. Although I am slightly oversimplifying, the Bill essentially seeks to impose a six-year unextendable deadline for bringing civil claims in respect of the conduct of the military, except where knowledge occurs after the six years, in which case there is a further 12-month extension. This is in contradistinction to the normal position whereby a claim would be brought not arising out of overseas operations where the court would have an ability to extend the time for bringing a claim if it were equitable to do so.

In these amendments, we focus on two particular circumstances. First, where a claim is being brought by someone within the military against, in effect, the Government for a breach of human rights or a tortious claim, we take the view that we should not be providing additional limitation hurdles in respect of military personnel bringing claims against the MoD—for example, for the negligent provision of defective equipment. I should be interested to hear why the Government think that there should be such a limitation. As a subgroup, primarily dealing with military personnel but able to deal with others also, if, in relation to an identical claim that had occurred in the UK, somebody could bring a claim and have the limitation period extended if it were equitable to do so, we cannot see any reason why in identical circumstances such a claim could not also be brought, even though the circumstances or damage arose in the course of overseas operations.

For example, if the Ministry of Defence provided defective equipment to a soldier and, as a result, the soldier suffered serious injury in an exercise on Salisbury Plain, why should a soldier who suffers precisely the same injury while on an overseas operation because of the negligent provision of defective equipment by the Ministry of Defence have a shorter and harsher limitation period than the soldier who was injured in precisely the same circumstances for precisely the same reasons in an exercise on Salisbury Plain? For example, they were both injured not necessarily because of the activities of enemy insurgents against them but because all the forms of transport provided were defective in a way that was the fault of the Ministry of Defence. The injury would have occurred whether one was driving along a road in Wiltshire or a road in Iraq or Afghanistan. It is unfair that there should be different limitations for precisely the same sorts of injury.

Two questions arise on this group of amendments. First, why should there be different limitation periods for the military bringing claims against the Ministry of Defence? Secondly and separately, even if there is a reason for that, why should there be a different limitation period for precisely the same injury, the only difference being that it was caused in the course of overseas operations rather than at home, for example? We are aware of the problems that have arisen in relation to many claims being brought—and many failing—arising out of overseas operations. We are all aware of those circumstances, but we are very concerned that, in trying to deal with that multiplicity of claims, the Government are unfairly depriving military personnel of their legitimate right to protect their rights against the Ministry of Defence.

It is very important that the limitation period be fair for claims by military personnel because, for a whole variety of reasons that those engaged in the military will be aware of, there may be very good reasons why a member of the military takes a long time to discover either that they could bring a claim or that they are in an emotional or mental position to bring a claim because of their experiences. We think these provisions are very detrimental and unfair to military personnel and require amendment. I beg to move.

[Baroness Smith of Newnham (LD) [V]]

My Lords, at this time of the evening it would be very easy simply to agree with everything the noble and learned Lord, Lord Falconer of Thoroton, has just said and be happy to move on, but that would do a disservice to our service men and women and veterans, because the points these amendments speak to and the words the noble and learned Lord has just uttered are extremely important. It is surely appropriate that we treat our service personnel and veterans with respect, and that they should not be disadvantaged because they have been service men and women.

Clearly, incidents and dangers can happen in the field of battle that will not be legislated for in a conventional civilian sense, but there might be other issues—hearing loss, for example—associated with having been in the Armed Forces which become clear only later. It seems very strange, as the noble and learned Lord has pointed out, that people should have different rights according to whether the problems arose while based in the UK or on overseas operations. Can the noble and learned Lord, Lord Stewart, who appears to have taken over from the noble Baroness, Lady Goldie, say what work the Government have done in looking at the potential ramifications of this limitation?

This Bill has been put forward by the Government as something supposed to help our service men and women, but this limitation seems to limit their rights. I know the Minister will have been told that it is very important that cases are brought swiftly and issues are dealt with promptly, that it is in everybody’s interest to do so and that delaying things is in no one’s. But neither is curtailing people’s rights.

The Royal British Legion sent a briefing picking up in particular on the Armed Forces covenant, quoting the point:

“Those who serve in the Armed Forces, whether Regular or Reserve, those who have served in the past and their families, should face no disadvantage compared to other citizens in the provision of public and commercial services … In accessing services, former members of the Armed Forces should expect the same level of support as any other citizen in society.”


Assuming that Her Majesty’s Government still support the Armed Forces covenant, can the Minister explain how the proposals in Part 2 of the Bill live up to its commitments? Can he tell us what additional thoughts the Government might be willing to have on looking again at this limitation?

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the noble Lord, Lord Lancaster of Kimbolton, has withdrawn from the debate, so I call the noble Lord, Lord West of Spithead.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

The noble Baroness, Lady Chakrabarti, has withdrawn, so I call the noble Baroness, Lady Smith of Newnham.

[Baroness Smith of Newnham (LD) [V]]

My Lords, not being a lawyer, I shall take the approach taken by the lawyers and be very brief in my comments. I have the same question as the noble and learned Lord, Lord Falconer: what is the purpose of “particular regard” in this respect? There is a time limitation already. Is the “particular regard” intended to truncate the ability to bring proceedings even further, so that if there is a suggestion that somebody’s memory has been impeded by overseas action, it makes it even less likely that proceedings can be brought?

[Lord Stewart of Dirleton (Con)]

My Lords, I am again grateful to those noble Lords who have contributed to this short debate. The Bill introduces three factors that the courts must consider and pay particular regard to when deciding whether to allow Human Rights Act claims connected with overseas operations to proceed after the one-year primary limitation period has expired. We feel that these factors are an important part of the Bill, because they ensure that the unique operational context in which the relevant events occurred is taken into account by the courts when considering limitation arguments in claims connected with overseas operations.

As the noble and learned Lord, Lord Falconer of Thoroton, pointed out very early in his submission, the courts will do this already; the courts will have regard to these things. Part of their consideration of whether to allow a claim to proceed beyond the primary limitation period includes assessing whether the claim is, in the language of statute,

“equitable having regard to all the circumstances”.

But our position is that putting these three factors on the face of the Bill will provide a guarantee for service personnel and veterans that appropriate consideration will always be given by the courts—whether that is for Human Rights Act claims or for personal injury and death claims—to these significant points, which are different from those which would apply in peacetime.

We believe that in situations where claims are connected with overseas operations, the courts should pay particular regard to the reality of these operations: the fact that opportunities to make detailed records at the time may have been limited; that increased reliance may have to be placed on the memories of the service personnel involved; and that, as some personnel may suffer from mental ill-health as a result of their service, there is a human cost to them in so contributing.

This is what the additional factors that the Bill introduces seek to do. They consider the extent to which an assessment of the claim will depend on the memories of service personnel and veterans; the impact of the operational context on their ability to recall the specific incident; and the likely impact of the proceedings on their mental health. We believe that it is right that the operational context is at the forefront of the mind of the court when considering whether to allow claims beyond the primary limitation period. Noble Lords will know that we are also introducing these factors for personal injury and death claims, and we must ensure that Human Rights Act claims connected with overseas operations are treated in the same manner.

Particular emphasis was placed on the word “particular” in the course of this short debate. I undertake, in light of the submissions made in the time available, to consider the terms of the drafting and to weigh the suggestions made by noble Lords in relation to that particular adjective in the context of the provision. I will look at any connotations that might flow from it and might be adverse to the intention of the Bill. At this stage, however, I urge that the amendment be withdrawn.

Armed Forces Act (Continuation) Order 2021

Baroness Smith of Newnham Excerpts

Thursday 11th February 2021 Lords Chamber

[Baroness Smith of Newnham (LD) [V]]

My Lords, it is very frequent that Ministers talk about wide-ranging debate when they are summing up. In winding up for the Liberal Democrat Front Bench, I indeed comment that this has been an extremely wide-ranging debate on one of the shortest statutory instruments that I have ever seen, but clearly one that is very important.

However, it appears that legislation linked to defence and the Armed Forces is a bit like buses, in that we have three pieces of legislation almost simultaneously: the Armed Forces Act (Continuation) Order 2021, the Armed Forces Bill 2021—currently in the other place—and the Overseas Operations (Service Personnel and Veterans) Bill. Inevitably, there is some overlap between those three pieces of legislation. While, like my noble friend Lord Campbell of Pittenweem, I will focus primarily on the Armed Forces Act (Continuation) Order 2021 today, it is necessary to think about the other Bills—precisely because, while I, like other noble Lords and clearly the Liberal Democrat Benches as a whole, fully support this continuation order, it is vital that we have our Armed Forces. Given that they may not be maintained within the kingdom without the consent of Parliament, in line with the 1688 Bill of Rights, it is vital that this order goes through.

It is also vital that the Armed Forces are not just maintained legally, with the support of Parliament—although that is vital—but supported with money and the support that is needed for service personnel to enable them to fulfil their functions. The continuation order might be primarily about service discipline, but, as many noble Lords have pointed out this afternoon, there are issues around recruitment, retention and the size of our Armed Forces. In particular, while this order simply agrees that we should have Armed Forces, I have several questions that I would like the Minister to answer this afternoon, if possible; they are particularly associated with the size of our Armed Forces.

As my noble friend Lord Campbell of Pittenweem pointed out, there is an essential question of a standing army, there are questions and concerns about shortages and various noble Lords have asked questions about the size of the budget. They have pointed out in particular that the size of the defence budget, in and of itself, is not the only issue that matters; what matters is ensuring that we are supporting our Armed Forces, not simply putting money into capabilities such as tanks. I note that the noble Lord, Lord West of Spithead, is not speaking today, but, if he were, he would probably be talking about ships.

However, we also need to consider the size of the Armed Forces. The noble Lord, Lord Robathan, raised the issue brought up by the United States about the size of our Armed Forces, suggesting that 80,000 was too small. Could the Minister confirm whether it is indeed correct that the size of our Armed Forces is due to slip to 72,000, and what assessment the Ministry of Defence or Secretary of State has made of their size and whether this is appropriate for the United Kingdom, particularly at a time when the United Kingdom Government are talking about global Britain?

We have heard about the many very important roles of the Armed Forces, to which I pay tribute. Some of them have been domestic: one of them was at the 2012 Olympics, but they also supported the NHS in relation to vaccinations and other authorities in relation to flooding. Internationally, they have dealt with humanitarian questions, and they also deal with all those other defence issues that one expects the Armed Forces to be dealing with: humanitarian intervention, peacekeeping and military involvement, supporting NATO and the United Nations. What assessment have Her Majesty’s Government made of the size of the Armed Forces and our global commitments? Are they fit for purpose, or should we be looking for an expansion of our regular forces? As has been suggested, at a time of pandemic and rising unemployment, there may well be a pool from which to recruit people.

However, there is also a question of retention. What assessment have Her Majesty’s Government made of the facilities available to the Armed Forces? In particular, is service accommodation now fit for purpose? The National Audit Office suggests that it perhaps is not and that SLAM accommodation needs to be looked at; what assessment have the Government made of this?

Finally, there is a whole range of issues that the Liberal Democrat Benches and Members across your Lordships’ House will clearly wish to raise in the Overseas Operations (Service Personnel and Veterans) Bill and, in particular, the Armed Forces Bill—so these are just a few questions to flag up concerns that will come forward over the coming weeks and months.

Integrated Review: New Ships

Baroness Smith of Newnham Excerpts

Monday 25th January 2021 Lords Chamber

[Baroness Goldie (Con) [V]]

My Lords, the scale of the shipbuilding capacity contemplated for the next decade and beyond is a very positive message for jobs. We all acknowledge that when shipbuilding orders are placed, the companies and communities around them benefit. We have seen that to good effect on the Clyde, the Forth and other shipyard locations south of the border, and that is very welcome. The estimate of jobs for the new craft is difficult to determine at the moment. There is an estimate that the Type 32, for example, represents an investment in UK shipbuilding of over £1.5 billion for the next decade and that would create and sustain roughly 1,040 jobs.

[Baroness Smith of Newnham (LD) [V]]

My Lords, defence is a reserved matter; shipbuilding is not. Will the Minister tell the House what is the likely impact on shipbuilding procurement on the Clyde and the Forth if Scotland were to become independent?

[Baroness Goldie (Con) [V]]

My Lords, our industrial partners in Scotland, principally BAE and Babcock, are trusted industrial partners doing what is acknowledged to be tremendous work in shipbuilding the Type 26 frigates on the Clyde and the Type 31 at Rosyth on the Forth. The plans for independence at the last referendum were shrouded in total uncertainty by those who advocated independence. The noble Baroness is right to raise the concern, because it is pretty clear that an independent Scotland would not be able to commission work to the scale that we currently see placed with yards in Scotland.

British Armed Forces: Global Britain

Baroness Smith of Newnham Excerpts

Thursday 21st January 2021 Grand Committee

[Baroness Smith of Newnham (LD) [V]]

My Lords, I pay tribute to our Armed Forces’ regulars and reserves for the work they do internationally and at home: dealing with Covid, the floods and now trying to play a key role in global Britain. The noble Lord, Lord Lancaster, urged the Minister to say that the Government would keep up the major humanitarian efforts, but he also noted that the problem is that the UK is seen as here today and gone tomorrow, or here one minute and gone the next. That reflects the danger of Prime Ministers—David Cameron did this quite often—and others going somewhere and making a commitment without necessarily a clear strategic objective. Could the Minister clarify what the strategy behind global Britain will be and reassure us that it will not cause overstretch, further damaging our Armed Forces’ morale?

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Smith of Newnham Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Baroness Smith of Newnham (LD) [V]]

My Lords, I start, as did the noble Baroness, Lady Goldie, my noble friend Lord Campbell of Pittenweem and the noble Lord, Lord Touhig, by paying my debt of gratitude to the Armed Forces, to our service personnel and to the veterans and their families. One thing that unites everyone who has spoken in this debate is our commitment to our Armed Forces and the sense that it is vital that they have the support they need.

As the Minister pointed out in her opening remarks, the Government had a manifesto commitment to try to deal with vexatious claims. Although the remarks of my noble friend Lord Thomas of Gresford may have suggested that these Benches would like to throw out this Bill at Second Reading—that seemed to be the understanding of the noble Lord, Lord King—that is not the case. We are certainly not proposing suddenly to demand a vote at Second Reading against the Bill.

I am slightly less sceptical than my noble friend on first reading, but the Bill appears on the face of it to be dealing with a problem which many noble Lords have pointed out is particularly difficult. As the noble Lord, Lord Truscott, said, we want to deal with vexatious, venal and vile cases but, as the right reverend Prelate the Bishop of Portsmouth pointed out, there is a very significant difficulty with this piece of legislation. There is a marked difference between what Her Majesty’s Government say that they wish to do—that the Bill delivers the Conservative manifesto commitment to address vexatious claims, as said on the fact sheet that the Secretary of State’s special adviser sent to speakers in this debate this morning—and what is actually in the Bill.

There are serious concerns about unintended consequences. As my noble friend Lady Northover pointed out, the Bill is very seriously flawed. She suggested that she did not think that she had ever participated on a piece of legislation that was so flawed. It has been pointed out that the legislation passed through the other place unscathed, as the noble Baroness, Lady Deech, put it, and unamended. However, that was not because it was not flawed; it perhaps passed because the Government have an 80-seat majority. Very important amendments were put forward by David Davis and Dan Jarvis, many of which I believe I and my colleagues on the Liberal Democrat Benches and noble Lords across the House will seek to retable in Committee, because there are many problems with this Bill.

Dealing with vexatious claims is important. Nobody wishes members of our Armed Forces to be subject to vexatious claims, nor do repeated investigations serve anybody well. However, there is a very serious question and concern about this Bill, about whether it does anything at all to stop vexatious claims and whether it will stop repeated investigations. The only point that offers some hope that it might deal with vexatious issues is in Clause 3(2)(b), which deals with previous investigations. Beyond that, the Bill does not talk about investigations; it talks about prosecutions.

The noble Baroness, Lady Buscombe, seemed to suggest that the higher threshold for prosecutions was going to deal with the problem of investigations. I could not understand the logic of that point. Could the Minister explain whether she thinks that the points in the legislation about prosecution will do anything at all to deal with the number of investigations, which is what causes the mental stress for so many of our service men and women and veterans? The issue of dealing with vexatious claims may not be helped by this legislation and, as many noble Lords have pointed out, including the noble Viscount, Lord Trenchard, there is a concern that the ICC may take an interest in our service men and women if our legislation is changed in accordance with the Bill. Surely that is an unintended consequence that the Government do not wish to come about.

There are various problems with the Bill. One is the basic presumption against prosecution after five years but, in particular, the concern that many noble Lords talked about: the exclusion of torture from Schedule 1. I do not understand why torture, war crimes and genocide are not there, and that seems to be very much the view across the House. The Minister in her introductory remarks seemed to suggest that sexual offences were part of Schedule 1 because they would never be authorised in war or any other context—they are always illegal. Surely torture is always illegal. When do Her Majesty’s Government ever envisage saying, “Go ahead, please torture”? Surely the exception to the presumption should also be included in Schedule 1. An amendment to that effect is necessary. My right honourable friend Alistair Carmichael MP said in the other place that he wanted to focus on the use of torture because it illustrates well the lack of logic in not including torture in Schedule 1. Where there is evidence of torture, no prosecutor sitting in his or her office should say, “Well, there’s evidence of torture but it is presumed that we would not prosecute it.” What sort of signal does that send?

We can see that the Bill’s architecture is such that torture is clearly designed to belong in Schedule 1, along with sexual offences. That makes perfect sense. It is a matter of logic, not law. The provisions in that schedule cover eventualities whose use is never in any circumstances acceptable. Does the Minister agree that torture is never acceptable? Will she consider taking back to her colleagues in the Ministry of Defence a suggestion that torture needs to be added to Schedule 1? If the Government do not bring forward an amendment, she can rest assured that these Benches and noble Lords across the House will bring forward amendments.

Clause 12 on the derogation from the European Court of Human Rights is also a clause too far. It is an area where the Liberal Democrats will certainly bring forward an amendment.

The Bill might have good intentions but, as the noble Lord, Lord Faulks, suggested, the optics of Part 1 are not good. Indeed, the optics of most of the Bill are not good. We need to think what signals we are sending, both to our allies across the world and to countries that we might think of as our opponents or enemies. As my noble friend Lord Thomas of Gresford asked, how would we feel if other countries adopted the same provisions that the Government are putting forward here, and we were told that cases could not be brought in allegations of torture of our own service men and women or, indeed, anybody else, precisely because there was a presumption against prosecution?

The measures that we are putting forward will have global resonance. Is that the sort of leadership that global Britain wants? Should we not seek to lead by example? On the day in which Joe Biden was inaugurated as President of the United States and said that the US should seek to

“lead not merely by the example of our power, but by the power of our example”,

should the United Kingdom not seek to draw on our long legacy of leading calls for the prohibition of torture and say that we will always stand up against torture and include that in Schedule 1?

The Bill is deeply flawed. For it to pass your Lordships’ House and be appropriate as a piece of legislation for the United Kingdom, it needs significant amendment. At present, it is not acceptable. As the noble Lord, Lord McCrea, said, I hope that together we can bring forward legislation that is worthy of support. I hope that the Minister might provide some amendments in Committee in order that we can indeed take the Bill forward.

UN Mission in Mali: Armed Forces Deployment

Baroness Smith of Newnham Excerpts

Monday 14th December 2020 Lords Chamber

[Lord Touhig (Lab) [V]]

My Lords, today’s repeat of the Mali deployment Statement is very much welcomed because, whenever British forces are deployed, it is right—indeed, absolutely necessary—for Ministers to come to Parliament to explain the reasons, outline the objectives and answer questions. I am sure that the whole House welcomes the fact that the noble Baroness is here to listen to the views expressed and to respond to questions the Statement made in the other place gives rise to.

Britain has rightly been described as a soft power superpower, and around the world many millions of people owe their quality of life today to support from Britain over many years now. In a report published in 2014 entitled Persuasion and Power in the Modern World, a Select Committee of this House chaired by the noble Lord, Lord Howell of Guildford, was tasked with examining the use of soft power in furthering Britain’s global influence and interests. The report is well worth further examination, stressing as it does the need for Britain to remain a top-rank player or face being outwitted, outcompeted and increasingly insecure.

The Mali deployment means we are sending our troops into the most dangerous UN mission in the world today. Our forces go with the respect—and more, the affection—of everyone in these islands. Our forces deploy to an area of the African continent that was in former times part of the French colonial interests. No matter the divisions and travails closer to home over Brexit, we go to Mali as part of the UN mandate —yes, we do—but we go in support of our French friends and allies, and that is how it should be: a common interest and a common responsibility to help bring peace and stability.

Our troop deployment is more successful thanks to the Royal Air Force at Brize Norton. Here I echo the words of Brize’s station commander, Group Captain Emily Flynn, who said that the deployment was a good example of the important and often unnoticed work that is carried out by personnel there. Brize Norton is the centre of a world network supporting Britain’s military operations across the globe and we should be proud of that.

We are told that our 300-strong Light Dragoons task group will be helping protect people from violence and encouraging political dialogue. Can the Minister tell us something about the latter role of encouraging political dialogue that our forces will engage in?

In the Statement, we are reminded that in South Sudan British forces were engaged in building hospitals, bridges and roads. This work, of course, requires the deployed forces to possess specialist skills in building and construction. Can the Minister say, thinking of that role, how we might engage in it in partnership with forces from other countries in Mali?

The Statement tells us that the region in which our troops are deployed is the worst place on earth to be an adolescent girl as it accounts for 7% of the world’s population of primary-age girls who are not in education. What plans, if any, do we have to help address this? I can still remember when, together with my noble friend Lord Murphy of Torfaen, I attended a lecture given by the then Chancellor Gordon Brown in Edinburgh almost 15 years ago, when he powerfully argued that the greatest gift and help that we can give the developing world is free education.

In a world ever more watchful of threats from terrorist violence, Mali, as the Statement emphasises, poses a real danger by creating a space for developing new terrorist threats. Without going into any great detail in a security-sensitive matter, can the Minister confirm that our forces will work closely with our allies, sharing intelligence gathering to the mutual benefit and protection of the citizens of the nations who have deployed troops in Mali?

Finally, as we approach the Christmas season, the whole House would echo the Statement’s grateful thanks and good wishes to our troops there. In this awful Covid time, when families across Britain cannot be together, that separation is even harder to bear for our service personnel and their families. Can the Minister assure the House that every preparation is in hand for our troops in Mali to be in contact with their loved ones here at home over Christmas? I am sure that I am not alone in believing that, if the families of our service men and women at home are happy, our troops, wherever they may be asked to serve around the world, will be happy and content. In an uncertain world, Britain’s soft power capability and our long-established and respected role as a peacemaker have never been more important or more needed.

[Baroness Smith of Newnham (LD) [V]]

My Lords, I start by echoing the words of the noble Lord, Lord Touhig, and the Secretary of State in expressing my gratitude to our service men and women. In particular at this time we send our thanks and best wishes to those serving in Mali and deployed anywhere else in the world in the run-up to Christmas. In particular, we send our thanks and gratitude to the families of our service men and women, without whom they would find doing their job serving our nation so much harder.

The deployment to Mali is, as the noble Lord, Lord Touhig, said, to be welcomed. It is one that the previous Secretary of State for Defence flagged up in the middle of 2019, so it is not a surprise; it is part of an international UN mission, and clearly something that our service men and women are trained for. It is precisely the sort of mission that is to be welcomed but, as the noble Lord, Lord Touhig, pointed out, it is in one of the most dangerous parts of the world. In his Statement, the Secretary of State suggested that our service men and women were well trained and equipped for the mission and have the right training, equipment and preparation to succeed in a complex operating environment. Could the Minister confirm that she believes that those deployed to Mali are appropriately kitted out and that they are not placed in any greater danger than is inevitably the case in such a deployment?

As the noble Lord, Lord Touhig, also pointed out, Mali is a country where it is extremely dangerous, because of terrorist activities, but particularly difficult to be a woman—or a girl being educated. To what extent will the change to humanitarian aid impact on Mali? The Minister is clearly responding primarily for the MoD but she is replying for the Government, so can she confirm that the Government remain committed to supporting women and girls?

In particular, what is the Government’s wider approach to sub-Saharan Africa? I note that the noble Baroness, Lady Anelay of St Johns, will speak later. She admirably chaired the committee of your Lordships’ House on which I sit, and which produced a report on sub-Saharan Africa in July. We have not yet had the opportunity as a House to debate that report, but one issue that the committee kept coming across was a difficulty in understanding whether the Government actually had a strategy for Africa. It would be helpful to understand from the Minister how far Mali fits into such a strategy. Clearly, the UK is playing an important role here as part of a UN mission, but does that fit as part of the Government’s wider strategy?

Overall, this is clearly a welcome mission, even if it is very unfortunate that Mali requires such intervention. It is welcome that the UK continues to play a global role. It is also notable that so much of that role is with our allies, including France and Sweden. Can the Minister reassure the House that, as we move forward, such security relationships will continue to be as deep and fully fledged as they have been? Those relations matter, regardless of the UK’s relations with the European Union. If the deployment to Mali fully reflects what our service men and women should be doing, sending the Navy to deal with French fishermen is perhaps not the best use of our resources.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I thank the noble Lord, Lord Touhig, and the noble Baroness, Lady Smith, very much for their helpful and constructive comments. On behalf of the Government, I also thank them for their tribute to our Armed Forces personnel and, as the noble Baroness so rightly pointed out, their families. Our thoughts are certainly always with our Armed Forces personnel and their families when there is any deployment at all. The noble Lord and the noble Baroness raised a number of points, which I shall try to deal with as comprehensively as I can.

The noble Lord, Lord Touhig, raised the issue of encouraging political dialogue and how we might contribute to the need for construction and engineering skills. I say to him that the whole reason that the United Kingdom is contributing to this United Nations mission in Mali is that the underlying instability means that it is very difficult, in the face of that turbulence, to move on to the more positive and constructive issues to which he refers. We recognise that while our contribution to the security response is important, security interventions alone will not address the instability in the Sahel. We continue to advocate for state-led progress on the peace process in Mali, and for political and institutional reform in the wider region, with greater ownership and leadership of reform efforts by G5 Governments. I reassure the noble Lord that he raises an important point, but the priority at the moment is trying to address the issues of instability and lack of security.

The noble Lord and the noble Baroness also raised the issue of women. It is the case that women have been badly impacted by the consequences of the instability and turmoil. However, it is also the case that there is some cause for optimism. Over the past five years, we have seen progress. Widespread fighting between the parties has not returned, the reconstitution of a national army from members of the former armed groups and—this is the important point—the inclusion of women in the peace process, including MINUSMA’s role as mediator, have been critical to this relative stability. Important points were made about the position of women, how such civil unrest can impact on them and how we can do our best, as a contributing country, to encourage a more enhanced role for women.

The noble Lord and the noble Baroness asked what our objectives are. The Foreign Secretary recently chaired a review process looking at all the strands of the UK ODA budget. The review safeguarded support for five ODA priorities: the very poorest—that is, poverty reduction for the bottom billion; climate change; girls’ education, which will, I hope, reassure the noble Lord and the noble Baroness; Covid-19; and the role of Britain globally as a force for good.

The noble Lord also raised the important issue of how we work with other forces from contributing countries and allies. Indeed, the noble Baroness also talked about that and about our security relationships. I commend them both: they have touched on something really significant. At the heart of this is the fact that we are part of a United Nations mission and we are proud to play our role. We want to be a positive influence to help those countries that have suffered such insurgency and insurrection, particularly Mali, to move on to a better and more stable course. We want that because it is good not just for Mali but for the broader security of the region and the world at large. As the noble Lord alluded to, if we can bring greater stability to that area, we can begin to introduce more robust political processes. If we look at the country’s infrastructure, a great deal of progress has been made in taking the country forward.

The noble Lord and the noble Baroness will be aware that we work closely with France in particular. We are part of the Operation Barkhane mission, which is operative in the Sahel. Unlike MINUSMA, Barkhane is a counterterrorism mission, of course. It has a different purpose but it is an example of the importance of working with allies whom we know well, with whom we get on and with whom we are very proud to work in partnership to improve the overall situation.

I think that I have managed to cover the points made by the noble Lord and the noble Baroness. If I have omitted anything, I shall have a look at Hansard and undertake to rectify it. Again, I express to both the noble Lord and the noble Baroness my appreciation of their constructive comments, particularly their recognition of the tremendous role that our Armed Forces are asked to play.

Trident Nuclear Programme

Baroness Smith of Newnham Excerpts

Monday 7th December 2020 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, the extension of the Trident programme is clear and, as the noble Lord, Lord Lancaster, pointed out, it has recently been reaffirmed by the other place. Could the noble Baroness tell us how Her Majesty’s Government view the extension of Trident in terms of their priorities for the RevCon of the NPT?

[Baroness Goldie (Con) [V]]

I did not quite get the last bit of that question but, perhaps instead of the noble Baroness repeating it, I will undertake to look at Hansard and give her a full reply.

[Baroness Smith of Newnham (LD)]

I asked about priorities for the NPT; if we are extending Trident, how do we fit that with the NPT commitments?

[Baroness Goldie (Con) [V]]

I thank the noble Baroness for repeating the question. The Government take the view that, under the non-proliferation treaty, we remain compliant with international law and in compliance with Article VI of that treaty. We have a very good record of contributing to nuclear disarmament; we have managed to reduce stocks by about 50% from their Cold War peak and we are the only recognised nuclear weapons state to have reduced our deterrent capability to a single nuclear weapons system.