9 Lord Faulks debates involving the Ministry of Defence

Tue 13th Apr 2021
Tue 9th Mar 2021
Overseas Operations (Service Personnel and Veterans) Bill
Lords Chamber

Committee stage & Lords Hansard & Committee stage
Wed 20th Jan 2021
Overseas Operations (Service Personnel and Veterans) Bill
Lords Chamber

2nd reading (Hansard) & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 2nd reading
Wed 31st Oct 2018
Counter-Terrorism and Border Security Bill
Lords Chamber

Committee: 2nd sitting (Hansard): House of Lords

Fleet Solid Support Ships

Lord Faulks Excerpts
Tuesday 22nd November 2022

(1 year, 7 months ago)

Lords Chamber
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Baroness Goldie Portrait Baroness Goldie (Con)
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What I would say is that Navantia is a globally acknowledged shipbuilding expert. We are very pleased to be able to draw on its skills. For example, the agreement we have reached with Team Resolute means a vital skills and technology transfer. A small team of Spanish shipbuilding experts will transfer to Belfast, and Harland & Wolff will benefit from that. On the wider issue of how we build warships there is a desire to ensure that, where there are sensitive security issues, the majority of warships will be built in the UK. That is what is happening here. The majority of the blocks and modules from which the ships will be assembled will be built in the UK at Harland & Wolff’s facilities in Belfast and Appledore. Interestingly, some components will be manufactured at its sites at Methil in Fife and Arnish in the Isle of Lewis. I hope they have got their thermal vests out to prepare for the Isle of Lewis.

Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, I wonder if the Minister could help the House with the position about the intellectual property in the design of these vessels.

Baroness Goldie Portrait Baroness Goldie (Con)
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The ships have been designed in the UK by BMT, a leading firm of naval architects. Intellectual property in the design rests with it. The Ministry of Defence does not generally seek to acquire ownership of intellectual property created by contractors undertaking work for the department. Rather, we seek to acquire free user rights that permit the department to use, modify and manage equipment as it sees fit through life, without infringing IP rights or incurring fees.

The Government must face the impression given by these sections of the Bill that they are publicly in denial of any misconduct on the part of British troops while settling hundreds of meritorious claims behind the scenes in secret, selecting a category of cases simply on the basis that they arise out of overseas operations and applying to this category a unique bar—a brick wall—where the discretion of the court can no longer be exercised. However just and equitable it would be, it does nothing for the reputation of this country, for the rule of law or for justice. I beg to move.
Lord Faulks Portrait Lord Faulks (Non-Afl) [V]
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My Lords, Amendments 7 and 8 are, in effect, wrecking amendments, while Amendment 13 seeks to distinguish the position of service personnel and other potential claimants. I expressed the view in Committee that I was not convinced that the provisions in Part 2 would make all that much practical difference. The primary limitation period for personal injuries is three years, as the noble Lord, Lord Thomas, has just pointed out, except in so-called delayed date of knowledge cases, as provided by Sections 11 and 14 of the Limitation Act 1980. There is a discretion to disapply the limitation period under Section 33 of the 1980 Act. As he also pointed out, claims under the Human Rights Act have to be brought within one year, with a discretion to extend in rather limited circumstances.

My experience of personal injury claims as a barrister is that courts need considerable persuasion before they extend the three-year period and that the burden rests on a claimant to persuade a court that that primary limitation period should not apply. Limitation periods exist to reflect the difficult balance that has to be struck between allowing everyone to put a line under actual or potential claims and the fact that some claimants will have good reason for delay.

The provisions in Part 2 provide a long-stop, subject to a delayed date of knowledge provision. It seems that claims arising out of overseas operations present particular difficulties for all those involved, and I respectfully differ from the comment made by the noble Lord, Lord Thomas, about Salisbury Plain, particularly in overseas operations where the theatre of operations has moved on or changed its location and it may be extremely difficult to investigate, on either side, the basis of any such claim.

As I said, the provisions are not likely to have much practical effect, but they will nevertheless have some indirect effect in encouraging appropriate claims to be brought with as much speed as is practical. They will also provide a degree of reassurance to our service personnel that a time will come when they will be involved in one way or another in so-called late claims. The noble Lord, Lord Thomas, referred to some uncertainty over what the date of knowledge might be which would defer claims. Subject to what the Minister says, I understand it to be concerned with cases where, for example, there is latent disease that could not be reasonably known about by a claimant at the time; for example, somebody who sustains mesothelioma as a result of exposure to asbestos dust or who has some other illness or injury that becomes manifest only some years after the event in question.

I am not attracted to Amendment 13 either. In Committee, the noble Baroness, Lady Chakrabarti, suggested that I was concerned only with claims brought by the military and not with those brought by the non-military or civilians in, say, Iraq or Afghanistan. That was not in fact what I said or thought. It is therefore something of an irony that this amendment would make that very distinction. I am unaware of any such provision in any other area of the law of limitation of actions—that is, a provision that distinguishes between classes of claimant. There are of course provisions distinguishing the position of a claimant who has not attained his or her majority or who lacks mental capacity. However, it would set a most unfortunate precedent somehow to elevate a particular claimant to have a special status.

The provisions in Part 2 ought to apply in precisely the same way across the board to whomsoever is involved in claims arising out of overseas operations and provide equal protection for all of them. This amendment is discriminatory and should not be included in the Bill. Surely our service personnel want to be treated fairly, rather than to be given some special privileged litigation status. I will listen with great interest to what the noble and gallant Lords who are to follow in this debate have to say about the matter, but for the moment I am unconvinced that any of these amendments should be made to the Bill.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB) [V]
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My Lords, I will add just a few words to what the noble Lord, Lord Thomas of Gresford, said in support of Amendment 13. The provisions to which it is addressed which are of particular interest to me are in Schedule 3, which seeks to amend the legislation that applies in Scotland to the same extent to that in Schedules 2 and 4, which apply to the other jurisdictions. The crucial point is the imposition—for such it is—of an absolute prescription of six years.

As we know, the three-year limitation period that applies at present is accompanied by protections that enable the court to extend the limitation period if it is justified by the circumstances—the date of knowledge exception. It seems that the Bill applies a hard-edged cut-off that makes no allowance whatever for extenuating circumstances. I could understand it if this proposal had been accompanied by a carefully conducted research programme into how the three-year limitation has worked in practice over the years, identifying on how many occasions the period has been extended for more than three years, and why and at what point the extensions have been sought and justified. We are, of course, in this case, and indeed throughout the Bill, dealing with the consequences of operations that have been conducted overseas, maybe under very difficult circumstances. Gathering together enough information to determine whether a claim would be justified, let alone to bring together all the information needed to justify bringing the claim before the court out of time, may take much more time and effort than is needed in the more benign domestic cases. That is the reason for seeking the discrimination to which the noble Lord, Lord Faulks, referred.

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Lord Faulks Portrait Lord Faulks (Non-Afl) [V]
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My Lords, I have thought carefully about this amendment since Committee, when it was moved by the noble Lord, Lord Dannatt. I also reread the debate that took place on that occasion. The amendment received a great deal of support around the House, which was plainly directed towards our Armed Forces and reflected a general desire to ensure that they were, and would be, properly protected against any of the consequences that followed from vexatious claims and repeated investigations. That is of course what lies behind the Bill as it is.

When I first saw the amendment, I thought that it was essentially probing. To that extent, it could be said that the amendment succeeded, albeit rather at the 11th hour, in provoking the Statement issued today and read out by the noble and learned Lord, Lord Mackay of Clashfern. During the debate in Committee, however, the noble Lord, Lord Dannatt, said that the duty of care standard—the expression used in the amendment—which would be established by the Secretary of State in this amendment, if properly worded, would prevent the outrageous behaviour of Phil Shiner and others. In response to the Minister’s reply to the debate, the noble Lord also said that the duty of care would end recurrent vexatious claims and almost unending investigations.

Lord Faulks Portrait Lord Faulks (Non-Afl) [V]
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My Lords, it is a pleasure to follow the noble Lord, Lord Hendy, not least because he has helpfully set out the provisions in the Limitation Act to which I would have made reference. He also made reference to Section 7(5)(a) of the Human Rights Act, which deals with the limitation period for human rights claims.

The purpose of limitation periods is to provide that it is public policy that there should be an end to litigation, but some people have perfectly good reasons to delay bringing cases. It is important that any limitation period strikes an appropriate balance between those who bring claims and those who are the recipient of or witnesses to claims. There is plainly an interest in bringing an end to cases.

The noble Lord, Lord Thomas, suggests that there is a degree of bias as a result of the amendments to the limitation periods provided for by the Bill. I hope that that is not the case, because it is clearly not desirable. The additional provisions that are written into limitation periods specifically for our Armed Forces are questionable. The existing limitation periods under the Limitation Act and Human Rights Act are perfectly adequate to deal with the considerations that are specifically averted to in the Bill.

For example, Section 33 of the Limitation Act, to which the noble Lord, Lord Hendy, referred, recites various matters that should be taken into consideration. He helpfully drew the House’s attention to them. The relevant subsection begins,

“the court shall have regard to all the circumstances of the case and in particular to—”

and then the various factors are listed. There is a slight difference between having regard to all the circumstances, which is a general discretion, and identifying particular factors. The Bill superimposes factors, as it says that the courts must have “particular regard”. There is a difference between “particular regard” and “regard in particular”. I do not think that that is merely a lawyer’s point because, as I said during the debate late on Tuesday, it is important that, although these factors may reasonably be taken into consideration, there should not be any form of trump.

My view is that these additional provisions do not provide a bias, but it is important to allay even the risk of them seeming to provide a bias. With respect, I do not agree with the noble Lord, Lord Hendy, about amending the Human Rights Act on discretion. In fact, in the London Borough of Hackney v Williams in 2017, the Supreme Court said that the court should not rewrite the statute. The words of the statute, in both the Human Rights Act and the Limitation Act, give the court a broad discretion. That will inevitably include these matters—the importance of securing a claim, from the claimant’s point of view, being one of them. All the others set out in both the Limitation Act and the additions provided by the Bill should also be taken into consideration. It is not a trump card, but I understand the noble Lord’s concerns.

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Lord Faulks Portrait Lord Faulks (Non-Afl) [V]
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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 Portrait Baroness Smith of Newnham (LD) [V]
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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.

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Lord Faulks Portrait Lord Faulks (Non-Afl) [V]
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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 Portrait Baroness Smith of Newnham (LD) [V]
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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?

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Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab) [V]
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My Lords, this introduces a new topic, namely the purpose of Clause 12. Its effect is to impose, in relation to

“any overseas operations that the Secretary of State considers are or would be significant”,

that

“the Secretary of State must keep under consideration whether it would be appropriate for the United Kingdom to make a derogation under Article 15(1)”

of the European Convention on Human Rights. Why has that been introduced? Is it worthwhile? As noble Lords will know, when states sign up to the human rights convention they agree not to violate or take any steps in breach of it. States are entitled to derogate from the human rights convention:

“In time of war or other public emergency threatening the life of the nation”.


That is Article 15.1. No state has derogated from the convention due to war with another state. Most derogations have been in response to internal conflicts and terrorism. In these cases, states relying on the power to derogate have tended to rely on a

“public emergency threatening the life of the nation”.

The courts will give states a wide margin of appreciation when it comes to deciding whether there is a public emergency. The UK derogated from the human rights convention in 1970 following terrorist attacks relating to Northern Ireland, and in 2001 after 9/11.

As noble Lords will know, there are very considerable limits on derogating measures. First, states can take measures derogating from the human rights convention only

“to the extent strictly required by the exigencies of the situation”.

That is in the article itself. Secondly, states can never derogate from non-derogable rights; that is in Article 15.2. That means they can never derogate from Article 2 or Article 3, from the articles that prohibit slavery, or from the right not to be convicted of a criminal offence for acts which were not criminalised at the time, and nor can they subject people to greater penalties for a criminal act than existed at the time the offence was committed. What is more, derogations must be consistent with the state’s other obligations under international law. In the context of overseas operations, that means that we in the United Kingdom could never derogate from international humanitarian law.

To some people, new Section 14A might seem a recipe for the state to get away, in relation to overseas operations, from human rights obligations that have been unpopular in some quarters—absolutely not. In effect, all that the right to derogate does is to allow the state—in certain, very unusual circumstances—in practice to detain people without what would otherwise be regarded as a due process, because of the public emergency. Although there are other rights that could be derogated from, in practice that is the only one that would ever genuinely be in consideration in relation to the sort of situation we are dealing with in this Bill.

My concern is that Clause 12, which would add Section 14A to the Human Rights Act, is a totally phoney piece of human rights bashing by the Government, put in only to try to say that we are really “taking on the Human Rights Act” in relation to overseas operations. The only effect of this clause is that consideration would have to be given to the question of whether there should be detentions without trial. I cannot imagine circumstances in which a Government, if that was a possibility, would not consider it without the need for this clause.

I hope that the Minister will be able to reassure me that this is not a completely phoney and empty provision made for bad reasons. On any basis, if a derogation is considered and given effect to because of this clause, an explanation should be given immediately to Parliament, and it should be given effect to only with the approval of Parliament. That is why I put my name to the first of the amendments in this group. I beg to move.

Lord Faulks Portrait Lord Faulks (Non-Afl) [V]
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My Lords, the then Human Rights Bill came to Parliament without a Green Paper or a White Paper or any consultation paper preceding it. It did so shortly after the Labour Government came to power in 1997. Although there were no detailed debates in Parliament about the extraterritorial reach of the then Human Rights Bill, a number of concerns were expressed at the time about whether the convention —the ECHR—was really appropriate in the case of armed conflict abroad. There were those who took the view that there should be an express carveout in those circumstances, but that is not what happened. There was, however, a power in the HRA 1998—as it became—which permitted the Government to derogate from the European convention. It is important to note that the power was not used in Iraq or Afghanistan.

The inclusion in this Bill of an obligation to consider derogation might be regarded as rather unnecessary, since the power exists anyway. I suppose it might be considered to be part of the reassurance agenda vis-à-vis our Armed Forces. In any event, I respectfully ask the Minister about the Government’s interpretation of Article 15. I find it hard to disagree with much of what the noble and learned Lord, Lord Falconer, said about the right to derogate, and I ask her to clarify for the Committee the relevance of this obligation vis-à-vis overseas operations. My Amendment 27, which is supported by the noble and learned Lord, Lord Garnier, is an attempt to grasp a nettle. He would have liked to address the Committee but unfortunately is unable to do so.

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Lord Dodds of Duncairn Portrait Lord Dodds of Duncairn (DUP) [V]
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My Lords, I am very grateful for the opportunity to take part in this important debate. I thank the noble Lord, Lord Dannatt, and others for bringing forward Amendment 31 which would require the Government to

“establish a duty of care standard in relation to … support provided to service personnel”.

I believe that one of the most important duties of the state is to ensure that we do everything in our power to provide for the welfare and well-being of those who serve us all in the military and those who have served us in the past. That obligation also extends, of course, to their families. The recent move to give much greater statutory standing to the Armed Forces covenant, across the whole of the United Kingdom, is very welcome in that respect.

The amendment would create specific duties on the Government in relation to service personnel caught up in investigations and litigation on overseas operations. I have had the opportunity in recent times, in my capacity as a Member of Parliament, to meet with some of the ex-service men and women who have been involved in this type of case. Some of them spoke to me in the context of Operation Banner in Northern Ireland. This Bill clearly does not extend to that operation or to Northern Ireland and some of the issues relating to that were explored at Second Reading. We obviously listened carefully to the Minister’s comments during the passage of the Bill through this House and the other place and we look forward to legislation covering Northern Ireland very soon. I hope that the Minister can confirm that again today.

The experiences and feelings of the veterans that I spoke to in the context of Northern Ireland will mirror in many respects the concerns and anxieties of those who will be subject to investigation and litigation in respect of theatres overseas. It is the long process of investigation which causes most problems—a point that has been made by other noble Lords. Very often, those being investigated are elderly. The knock on the door, or the fear of the knock on the door, after many years out of service can be extremely upsetting and difficult to cope with. One spoke to me about his feelings of being very much alone, abandoned to his fate with no one to turn to, no one to whom he could really express his feelings or from whom he could seek sound advice. Those being investigated are suddenly plunged into a legal nightmare, with the potential for years of long, drawn out legal process.

I very much welcome the fact that the amendment talks about the duty of care standard in relation to legal as well as pastoral and mental health support. This is an extremely important aspect given the complexity of these cases and the passage of time. I also welcome the fact that the amendment covers civil as well as criminal claims and, for that matter, proceedings to do with judicial review. It is important that all these aspects are covered. There is a feeling that things are being looked at now with the benefit of hindsight and with the application of standards which were not applicable at the time.

There are often big financial implications. One person I spoke to cited a total lack of resources or capacity, compounded by ill-health, exacerbating the enormous stress and strain that had been inflicted on them and their family. One man who was undergoing very serious medical treatment was finding the financial as well as the medical implications very hard to bear. People feel extremely frustrated. There is understandable anger at the fact that they are being picked out or targeted in some way while, certainly in the case of Northern Ireland, many of those political voices championing prosecutions and investigations were themselves some of the biggest supporters of the abuse of human rights by terrorists and do not want any investigation into their nefarious activities.

Finally, the fact that the amendment covers the family of ex-servicemen and women and serving members of the military is also important. The families are vital and often feel the same level of stress and strain when such investigations are launched. I wish the amendment well and it has my full support.

Lord Faulks Portrait Lord Faulks (Non-Afl) [V]
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My Lords, I have considerable sympathy with what lies behind the amendment moved by the noble Lord, Lord Dannatt, and supported by the noble and gallant Lord, Lord Stirrup. I cannot help thinking that it is a great pity that it was felt necessary to table the amendment at all. The reason for it, however, is the way in which we as parliamentarians and the law generally have let the military down; that is, after all, what this legislation as a whole is about. For there to be an obligation to state a duty of care standard of the sort envisaged by the amendment is a woeful acknowledgement of that. I do not think there is any equivalent in relation to our duty towards the fire brigade, the police or the NHS. Things have come to a pretty poor pass where we as a House can find so much to sympathise with in this amendment.

However, a statement to the House about the duty of care and how the standard of that duty should be reflected can do no more than state what the law is. As the noble Lord, Lord Dodds, just pointed out, there are specific provisions to deal with litigation and investigation, civil as well as criminal, and judicial reviews. But all a statement would do was say what the state of the law was. Depending on the passage of this Bill, there may be some, little or no change to the existing state of the law. What has repeatedly come through our debates is what lies behind so much of the understandable discontent: these repeated and late investigations.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Faulks Excerpts
Lord Faulks Portrait Lord Faulks (Non-Afl) [V]
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My Lords, it is a pleasure to follow the noble and gallant Lord, Lord Stirrup. Part 1 of the Bill creates a presumption against prosecution after five years, and factors are spelled out in the Bill which require consideration before any later prosecution. I would have thought that those factors would in any event form part of any decision on whether to prosecute, but I have no difficulty with them being put on the face of the Bill. What is important to stress is that this part of the Bill does not give impunity to our Armed Forces, nor does it explicitly deal with the real problem that has faced them, particularly after operations in Iraq and Afghanistan—namely, investigations and reinvestigations many years after the events.

This group seeks, among other things, to remove Part 1 from the Bill entirely, whereas the amendments in groups 2 and 3 at least attempt to amend and not wreck this part of the Bill. The reasons given for this drastic approach are the effect on our international reputation and, in particular, the risk that the International Criminal Court will or might become involved in circumstances where prosecutions would normally be left to our authorities. I am not at all convinced about the reality of this risk. Is it really suggested that if genocide, crimes against humanity or war crimes, as defined by Articles 6, 7 and 8 of the Rome statute, were discovered five years after the original offences, they would not result in a prosecution? Nothing in this Bill would prevent one.

I hope that noble Lords who seek the removal of this part of the Bill have read the evidence that Major Bob Campbell gave to the Public Bill Committee in the House of Commons. He said of the Bill that the principle of attempting to improve the lot of veterans and service personnel was welcomed, and that

“if the Bill were to be squashed it would send a very depressing message to the veterans community—probably one that has been felt quite harshly by the Northern Ireland veterans—that we are not important enough to get any type of assistance when facing legal assault.”

Major Bob Campbell was investigated and reinvestigated 11 times in relation to the same incident over 17 years. His view was that if the Bill had been enforced, his torment would at least have ended in 2009. Whether or not he is right about that, it is important to pay attention to his answers. When asked about the danger of the ICC becoming involved, he told the Committee that he had been repeatedly informed that if IHAT—which noble Lords will know about—was in anyway interfered with, the International Criminal Court would “swoop in” and

“clamp us in leg irons and we would all be off to the Hague.”

About ICC involvement, Major Campbell said:

“I decided to test that theory, and I wrote to the chief prosecutor of the ICC, Ms Bensouda, asking in exasperation whether I, SO71 and SO72 could surrender ourselves to the ICC rather than go through several more appalling years at the hands of the Ministry of Defence. Ms Bensouda responded that our allegation does not fall within her remit, because her job is not to prosecute individual soldiers; her job is to prosecute commanders and policy makers for the most grave crimes. In her orbit, manslaughter, which is what I was accused of, is not a war crime. It is a domestic crime—a regular crime, as opposed to what she would normally deal with. I reported that rejection to the Ministry of Defence, which continued to repeat that the ICC would fall in.


The second point I would make is what would be so terrible about the ICC being involved? We kept getting told that the ICC has a bit of scrutiny over IHAT and is keeping a very close eye on it. Personally, I do not have a problem with that. Like I said, the ICC was not going to ruin our careers, the ICC was not going to harass our families, and the ICC was not going to go and bully soldiers who had left the Army for a witness statement—not even a suspect’s. The ICC would conduct itself professionally, and it would have no incentive—no financial incentive—to drag things out for years, like Red Snapper, which provided most of the detectives to IHAT, did. Finally, the ICC would probably not use the investigative technique that IHAT used, which was to pay Phil Shiner’s gofer to be the go-between between them and witnesses because IHAT was too scared to go to Iraq.”


He continued:

“So regarding the whole spectre of the ICC, first, I do not find it remotely as scary as people make it out to be and, secondly, it is completely false, because I attempted, with my two soldiers, to surrender ourselves in order to spare us another several years of the MOD fannying about, and the offer was refused. So to answer your question, I do not see that as an issue at all.


What I would say, though, is that I think I understand why the Government would be reluctant for the ICC to be involved, because the scrutiny would not be on Tommy Atkins; the scrutiny would be on General Atkins and Minister Atkins.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; cols. 27-28.]


This part of the Bill is not a panacea. It does not of itself prevent investigations or reinvestigations, but it is something which will be welcomed by our own forces. I respectfully suggest that the spectre of the ICC as a reason for wrecking this part of the Bill is unsound. I invite noble Lords who have quite rightly emphasised their respect for our Armed Forces to look soldiers like Major Bob Campbell in the eye and say to them that these provisions are entirely inappropriate and would damage our international reputation. I strongly oppose all these amendments.

Lord Morris of Aberavon Portrait Lord Morris of Aberavon (Lab) [V]
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My Lords, I support Amendments 1 and 2. As I did not take part at Second Reading, I must resist the temptation to cover a whole range of subjects in my contribution to this debate.

As an old Defence Minister, and, indeed, an old soldier who served in Germany as an infantry subaltern and was involved in courts martial there, I broadly welcome the aims of the Bill to introduce a measure of protection against unfounded claims against military personnel, some of which go back many years. I deprecate the cottage industry in the growth of claims.

Let me say immediately that when there is wrongdoing, no person is above the law. Torture is a typical example where we should never propose exemption. I have argued before at the annual conferences of the Inter-Parliamentary Union in Cape Town and, more recently, in St Petersburg to persuade all countries to accept the need to ensure that there is no exemption for this offence.

As a law officer, I played a very small part in encouraging the Foreign and Commonwealth Office under Robin Cook to create the International Criminal Court. As John Healey MP said in the other place on Third Reading of the Bill, the risks of

“British troops being dragged before”—[Official Report, Commons, 3/11/20; col. 277.]

the ICC are there. There may be an argument about this, but that is what he said and we should always bear it in mind. Perhaps the Minister could give an assurance on that very point of what—if any—the dangers are of going before the ICC.

The wise words of Professor Michael Clarke, the former director-general of the Royal United Services Institute, on the dangers of an idea gaining

“international traction that the UK operates a ‘quasi-statute of limitations’”,

and hence might be in danger of being indicted before the International Criminal Court, should always be borne in mind. They need rebuttal, and they need clarification.

When the Government launched their consultation on the changes to the legal protection for our Armed Forces serving overseas, the consultation included proposals to create a statutory presumption for alleged criminal offences which occurred more than 10 years ago. I repeat: 10 years was the issue that went out for consultation.

The Bill is a major departure from the norms of our international obligations

“under international humanitarian law … international human rights law and international criminal law.”

These are not my words; they are the words of Parliament’s Joint Committee on Human Rights. They are words that we should bear in mind and rebut if it is possible to do so.

That is the background, and hence it is a basic requirement that any provisions in the Bill need thorough justification. Therefore, I support Amendments 1 and 2 to change the presumption against prosecution from five to 10 years. My question, very simply, is: what is the Government’s justification for the change from 10 years in the consultation document to five years? I would like an answer before the end of this debate.

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Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab) [V]
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There are three amendments in this group, Amendments 10, 11 and 12, which deal with the question of the need for the consent of the Attorney-General before a prosecution covered by the presumption goes ahead. This is an important but quite short series of issues; in effect, the Bill is adding in the consent of the Attorney-General as the third part of the triple lock, before prosecution is brought against military personnel in respect of overseas operations. Therefore, the consent will be required only when a prosecutor has decided that a case where over five years have gone by is exceptional, and the Attorney-General’s consent, or lack of it, will be of real significance only when he or she does not give it.

The consequences of the Attorney-General not giving consent are, in my view, threefold. First, it may well give rise to suggestions that the issue has been politicised. Secondly, the Attorney-General is very frequently involved in making or overriding decisions made in relation to operations overseas. For example, the Attorney-General will often give instruction and advice in relation to conditions of detention. It is worth reading the evidence given by Nicholas Mercer to the Joint Committee on Human Rights, where he described the involvement of the Attorney General’s Office in decisions that he had been involved in as a lawyer when, in foreign theatres of war, the use of force was involved. As such, my second point is that the Attorney-General may well have been involved in decisions that affect that theatre of war. From my own experience as Solicitor-General, I can tell you that that was indeed the case.

My third point is that, if the Attorney-General is going to override the prosecutor’s view that a prosecution should be brought, he will inevitably be increasing the risk that the matter is referred to or taken up by the ICC—because it will see a case where the prosecutor thinks that the prosecution has an over-50% chance of success and the public interest allows it, yet the Attorney-General has not allowed it to go ahead. Fourthly, if the Attorney-General is overriding the view of the prosecutor, which is the only time when this would be significant, questions will arise as to whether that puts the United Kingdom in breach of a whole range of international obligations—the Geneva convention, the United Nations Convention against Torture, Articles 2 and 3 of the human rights convention and the Rome convention, which is the International Criminal Court statute, in effect.

As such, our amendments first require the Attorney-General to give “reasons” as to whether he is giving or withholding consent, and laying them before Parliament. Secondly, Amendment 11 proposes that he must consider whether refusing consent will

“increase the likelihood of the International Criminal Court exercising its own competence”.

Thirdly, Amendment 12 proposes that he must consider whether his refusing consent would constitute a “breach of international law”. These amendments are laid by way of probing. We have real concerns about this provision and that it will not provide added protection but will instead give rise to very significant legal risks. I beg to move.

Lord Faulks Portrait Lord Faulks (Non-Afl) [V]
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My Lords, these amendments seek to make the Attorney-General and the Advocate-General for Northern Ireland more accountable in relation to what we might call “late prosecutions”, and in particular more accountable to Parliament. The obligation in Amendment 10 provides for a report to Parliament in the event of either the granting or withholding of consent for such a prosecution. I accept what the noble and learned Lord, Lord Falconer, said—that there may be more interest in circumstances where the Attorney-General does not consent to a prosecution.

Amendment 11 provides that the Attorney-General should give consent if there is an increased likelihood of ICC involvement. In Amendment 12 he or she must give consent if not doing so would lead to a breach of international law. Normally, advice from law officers to the Government is not disclosed to Parliament—nor even is the fact that advice has been sought—so to some extent these amendments are a bit of a novelty.

I have considered a number of lawyers’ views about whether the courts, as opposed to Parliament, could be involved in reviewing a decision by the Attorney-General either to consent to a prosecution or not to consent. The balance of view seems to be a cautious yes, although the courts would be expected to exercise a so-called “light-touch review”. In other words, it is unlikely that the courts would quash a decision of this sort.

I was most interested to hear what the noble and learned Lord said about these amendments because, on reading them, I was not quite sure what would be in the report proposed for receipt by Parliament. What would the law officer have to say? Would he or she simply cite public interest, gravity of offences and reasonable prospect of conviction in the event of a decision to prosecute, and presumably the opposite in the event of a decision not to prosecute? I suppose there might be some reference to the length of time between the acts concerned and the decision to prosecute. Of course, he or she would not be expected to give detailed reasons on the strengths of a particular witness or worries about one aspect of the evidence, or something of that sort. I am not sure what Parliament is going to do with that information, but I accept that accountability to Parliament is generally desirable.

As to the obligation under Amendment 11 in relation to the ICC, my understanding of the ICC—and I have attended one of its conferences in Rome—is that it is a court devoted to the macro rather than the micro, as I said when referring to the evidence of Major Campbell. It is also concerned mostly with offences at a high level.

Such prosecutions are often quasi-political—and I do not mean that in a pejorative sense. I recall that the perceived political element of the court was such that a number of countries walked out of the conference in Rome in the first few minutes as a protest at the alleged political element. Of course, the Rome statute is one to which the United States of America is not a signatory.

In one sense, the failure to prosecute or a decision not to prosecute by the Attorney-General must mean that there is an increased likelihood of ICC involvement, although I am not sure how that can be assessed. I entirely support our involvement with the ICC, but there are often complex reasons, including the availability of resources, which determine whether or not there are prosecutions. Our general support for the ICC as an institution should not be diluted in any way, but I am not sure that fear of ICC involvement should mean that the Attorney-General cannot come to the conclusion he or she thinks appropriate in these circumstances.

Similarly, the question of a putative breach of international law seems to me to be rather superfluous. There is an obligation, as I understand it, on the part of the law officers, as Ministers, to comply with the Ministerial Code. That obligation includes an obligation to obey the law, including international law. I do not want to revisit the difficult territory covered by the internal market Bill, but my understanding of the Ministerial Code, and I am on record as saying as much in your Lordships’ House, is that the obligation includes international as well as domestic law—although sometimes international law may not be as easily ascertainable—so I am not currently aware of the need for this extra obligation.

I acknowledge that these amendments are essentially probing, so that Parliament can understand better the process by which the Attorney-General would be involved in so-called late prosecutions. I share the interest of the noble and learned Lord in how the process might work generally, but I am not for the moment persuaded that any of these amendments is either appropriate or necessary.

Finally, I am uneasy about the alleged political component of the Attorney-General’s involvement. I think the role of the Attorney-General in this sort of circumstance is pre-eminently not a political one, but it is ironic that the involvement of Parliament in some way that is envisaged by these amendments could, in fact, run the risk of some important boundaries being crossed.

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Lord Craig of Radley Portrait Lord Craig of Radley (CB) [V]
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My Lords, I shall speak to Amendment 29 and I support this important safeguard for service personnel. As has been mentioned, not all disabilities are immediately self-evident. Medical advances and associating clinical problems with mental or slowly developing illnesses are helping to explain and track the trigger to events not just in the recent past, but over periods measured in years, not months. Should a claim be considered, it should not be dismissed on some arbitrary timeline. Justice for service personnel, both serving and veterans, demands that their interests should be protected.

The changes made in the past decade, replacing the tried and tested Pensions Appeal Tribunal, which had its origins in 1919, with new arrangements, have been the cause of much anxiety at times. Indeed, I put down an annulment Motion to a major tribunal revamp in 2008 that sought to disband the Pensions Appeal Tribunal of England and Wales and move all its military pension and disability work into a civilian social entitlement chamber. This was widely condemned by those with experience of this type of work, by the Royal British Legion and other charities which help with the preparation and submission of such claims. My Motion was debated and, happily, the Government then agreed that the Pensions Appeal Tribunal work should be given its own separate chamber in the restructured tribunals.

So it is not only that claims by service personnel and veterans should not be arbitrarily time-limited: as important is that the tribunal arrangement in place to deal with claims is respected and trusted, as was the former Pensions Appeal Tribunal, with its long experience and proven track record in this field. I hope the Government will acknowledge the importance of that, as well as Amendment 29.

Lord Faulks Portrait Lord Faulks (Non-Afl) [V]
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My Lords, the scheme of this part of the legislation creates a long stop of six years, subject to date of knowledge provisions which provide for an additional one year. It also specifies certain additional factors to be taken into account under the provisions of Section 33 of the Limitation Act 1980.

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Lord Faulks Portrait Lord Faulks (Non-Afl) [V]
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My Lords, I will be brief. I am conscious that the noble and learned Lord, Lord Falconer, does not have much regard to what lawyers say on this Bill, so I will bear that in mind as well. I understand the amendment, but there is a query in my mind as to whether he would prefer a “must not have regard”, or the omission of “particular” so that the clause simply has “the court or tribunal must have regard to”.

I have some sympathy for “must have regard to” rather than “particular regard”, because I accept from the noble and learned Lord that there is a possible suggestion that this would be the trump card rather than one of the factors. But it is appropriate that those matters should be specifically drawn to the attention of a court by the Bill, given its overall philosophy. It is probable that those matters would be taken into account. The law of limitation in relation to the Human Rights Act is still developing. It is rather unclear, but this seems to me to be consistent with the philosophy of the Bill, so I do not agree with the total removal of these provisions as the amendment suggests.

Lord Alderdice Portrait The Deputy Chairman of Committees (Lord Alderdice) (LD)
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The noble Baroness, Lady Chakrabarti, has withdrawn, so I call the noble Baroness, Lady Smith of Newnham.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Faulks Excerpts
Lord Faulks Portrait Lord Faulks (Non-Afl) [V]
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My Lords, the reason for the Bill is clear and was foreshadowed by the Conservative Party manifesto. For some time, there has been a need to do something about vexatious claims against our Armed Forces and repeated investigations into events, often a long time ago. Noble Lords have already heard reference to Policy Exchange, which has for some time done work in this area, most recently in a paper published today about the Bill by Professor Ekins and John Larkin QC. I should declare a personal interest, having introduced a debate in your Lordships’ House on the juridification of war in 2013—inspired significantly by Tom Tugendhat’s paper, The Fog of Law. I am also a practising barrister acting for public authorities, among others, in relation to claims for negligence and under the Human Rights Act.

No one suggests that military operations should be in any way a law-free zone but the exploits of Phil Shiner and others in manufacturing claims have brought lawyers and, of much more importance, the law into disrepute. Such is the incursion of law into warfare that other countries’ armed forces have perceived us as indulging in what is called legal freeloading, by which is meant not that we are reluctant to do our bit in any military enterprise. Rather, the perception is that our vulnerability to legal claims and investigations is such that it is better for others to do the heavy lifting. I find that really dispiriting, given the extraordinary reputation that our Armed Forces quite rightly have.

Part 1 of the Bill is well intentioned but capable of serious misinterpretation, as we have heard, although with great respect to the noble Lord, Lord Robertson, it does not create impunity. It creates a presumption in certain circumstances against prosecution. I also do not accept what the noble Lord, Lord Thomas, and the noble Baroness, Lady Chakrabarti, said: that a law officer deciding whether to prosecute is making a political decision. That seems directly contrary to the law officers’ oath and I regret that it was said.

I am not overenthusiastic about Part 1. The optics are very far from good but I hope it provides veterans with some reassurance. Of course, the real problem is not prosecution but repeated investigation. The noble Lord, Lord Anderson, is quite right that timely and accurate investigations are what we need. Of the various suggestions made by Ekins and Larkin, I am quite attracted to the proposal that once a decision has been made not to prosecute, unless cogent new evidence has arisen—and it should be certified by a senior prosecutor—there should be finality, and our veterans should continue their lives without the fear of being disturbed.

Other areas of the Bill which need attention include the question of extraterritorial application of the Human Rights Act, as referred to by the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Deech. The Strasbourg jurisprudence was wrong, I think, while Lord Bingham and others were right. I hope that Sir Peter Gross and his panel may reconsider this matter.

The changes to the limitation periods are unnecessary. The law is perfectly capable of dealing with stale claims, but I suspect that this is not some sinister conspiracy by the Ministry of Defence to avoid liability. What lies behind this part of the Bill is the protection of individual servicemen against claims, which would of course be indemnified by the Ministry of Defence. In fact, the provisions circumscribe claims by those servicemen, which I think is an unintended consequence.

The Bill does not say anything about combat immunity, which was a key point in the original Fog of Law paper by Policy Exchange. So are judges, with the assistance of what the noble Lord, Lord Robathan, described as smug lawyers, going to have to decide the difficult question of proportionate response in military operations? That is certainly the view of some, following the decision of the Supreme Court in Smith v Ministry of Defence. We need clarity on this, as was pointed out by the noble and gallant Lord, Lord Craig, and the Bill does not provide it.

The Bill is clearly aimed in the right direction but, at the moment, I am afraid it does not quite hit the target. It is not at all an easy target to hit but we must do our very best to improve the Bill.

Reserve Forces and Cadets’ Associations

Lord Faulks Excerpts
Monday 27th January 2020

(4 years, 5 months ago)

Lords Chamber
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Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, I do not have the military experience of many other noble Lords who have spoken in this debate, but I do have a number of friends and contacts who play important roles in the Reserve Forces’ and Cadets’ Associations. I share—with all noble Lords, I am sure—a wish to preserve all that is best about the existing arrangements, while accepting that there may be some improvements that can be made. Inevitably, I will concentrate on legal and regulatory matters.

The draft tailored review highlights a number of strengths in the existing structure, in particular the extensive volunteer membership and community links. As the review concludes, at paragraph 2.2.4, the functions of the RFCAs

“remain relevant and valuable contributing to Defence objectives whilst building and maintaining vital links for the Defence community with the general public.”

Weaknesses in corporate governance are, however, identified. As the noble Lord, Lord De Mauley, pointed out, these could be remedied without the creation of a single executive non-departmental body. The reason for the potential change is said to be because they are not “genuinely unique”—not a particularly happy expression—and thus unclassifiable, as they pass the three tests to be a non-departmental public body.

The Cabinet Office handbook, Classification of Public Bodies: Guidance for Departments, says:

“It is possible that for reasons associated with function or services, there may be a small number of ALBs”—


arm’s-length bodies—

“that cannot be classified into one of the main categories without adversely impacting on the body’s ability to fulfil of those functions/deliver those services.”

It goes on to say that

“such unique and unclassifiable entities will be allowed to remain administratively unclassified, in exceptional circumstances, so long as they have appropriate governance and accountability structures in place.”

Yet there are several statements in the draft report which would lead one to conclude that they are unique, not least in the diversity and variety of their stated tasks. Indeed, in annexe C-5 of the draft report there is a clear statement that “the continuity of their tri-Service regional engagement is unique.”

We are potentially about to lose some really valuable aspects of the organisations of the RFCA based on a concept of uniformity and a rather uneasy concept of uniqueness. What is the reason behind this? One might look to the ministerial foreword—not always a good source. One paragraph from the Minister of State reads as follows:

“I fully support the recommendations the Review makes about how the RFCAs can develop their effectiveness, efficiency, and corporate governance to fully realise the latent potential. In particular, regularising the RFCAs as a single Non-Departmental Public Body … to best deliver an increased focus on financial resilience, facilitating Reserves and Cadets skills development, renewal and modernisation of the Volunteer Estate, and spearheading innovative tri-Service engagement practices.”


I am not sure that that would survive analysis by Mr Dominic Cummings. I am sure that the noble Baroness responding, whom we all much admire, will be able to be a great deal clearer than that foreword as to why this very valuable organisation suffers the possibility of being so sadly diminished.

Counter-Terrorism and Border Security Bill

Lord Faulks Excerpts
Moved by
34: After Clause 6, insert the following new Clause—
“Treason: aiding a hostile State or organisation
(1) A person commits a treason offence if, with intent to aid—(a) a terrorist attack on the United Kingdom by any State or organisation, or(b) any State or organisation that intends to mount a terrorist attack on the United Kingdom or is engaged in a process of planning or preparing for such an attack on the United Kingdom,they engage in conduct falling within subsection (2). (2) A person engages in conduct falling within this subsection if they do an act that is designed to—(a) help carry out a terrorist attack or facilitate the carrying out of a terrorist attack on the United Kingdom, or(b) help the planning of or preparation for a terrorist attack on the United Kingdom, or(c) aid the military or intelligence operations of a State or organisation falling within subsection (1)(b).(3) This section applies—(a) in the United Kingdom, to any person who enjoys the protection of the Crown, and(b) outside the United Kingdom, to any British citizen or any person who is settled in the United Kingdom.(4) A person guilty of a treason offence shall be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.”
Lord Faulks Portrait Lord Faulks (Con)
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My Lords, this amendment in my name and those of my noble friends Lord Hodgson and Lord Bethell is to add an offence of treason to the Bill. The offence of treason, or high treason, has a rather chequered history, I readily admit. The 1351 treason offence remains on the statute book. It focuses significantly on the safety of the sovereign and prohibitions on aiding the sovereign’s enemies. Important though these matters are, it is now generally accepted that that Act is not fit for purpose, and having an offence on the statute book that cannot be used is not satisfactory.

There are now a considerable number of terrorist offences that exist to augment the criminal law. They derive mainly from the Terrorism Acts of 2000 and 2006. This Bill seeks to add to those offences, in recognition of the changing nature of the threat and to provide a nimble response, in legislative terms, to what is happening on the ground. If the nature of terrorism is changing as fast as the noble Baroness, Lady Manningham-Buller, said at Second Reading, there will inevitably be something of a legislative lag, but the Bill seems for the most part to be a sensible response. The reviewers of terrorism legislation have been vigilant in the past—two of them are Members of your Lordships’ House and are present in the Committee today—and this has very much helped the Government to consider what laws need to be updated. Ultimately, though, it is a matter for the Government how they respond to the threats and, in so far as possible, anticipate the nature of terrorist threats in future.

When I first heard the suggestion that we might need a modern law of treason, I was doubtful about either the wisdom of such a move or the need for it. Surely what was required was a much more nuanced response, and I was a little concerned about the potential risk of attracting martyrs if there was seen to be a somewhat heavy-handed response to the various threats from terrorism. I then had the opportunity to read Policy Exchange’s publication Aiding the Enemy, to which I referred at Second Reading. Its distinguished authors make a compelling case. The enthusiastic responses to the study came from a number of important sources, including the former Home Secretary, a former commander at New Scotland Yard and head of Counter Terrorism Command, and a former director-general of the Security Service.

This Bill increases sentences and creates more security at the border, together with some new offences. However, the debates we have already had in Committee illustrate how difficult it will be to satisfy Parliament, and in particular this House, that the various provisions in the Bill adequately reflect the balance between the need to protect citizens from terrorism and the need to preserve civil liberties. After all, the Liberal Democrats have given notice of their intention to oppose each of the first four clauses standing part of the Bill. In particular, I note the debate in relation to Clause 4 two days ago in this House.

It seems important to step back a little. At the heart of this new offence of treason is the question of allegiance or loyalty owed to this country by a subject or citizen of this country, or by someone who is settled here—settlement being a term of art in immigration law. Australia, Canada and New Zealand have responded to this challenge, albeit in slightly different ways. As recently as June, Australia legislated to deal with citizens or relevant others fighting Australian forces abroad. Many other countries have laws in relation to treason.

Let me make it clear that the creation of this new offence is not intended—nor would it act—as any brake on free speech or the right to express dissent or criticism of the Government in relation to any of their activities, and in particular their foreign policy or decision to wage wars. Criticism and overt expressions of dissent are part of a healthy democracy. However, such dissent should not extend, in effect, to waging war against your own country, whether in the United Kingdom or elsewhere, Nor should it include helping, planning or preparing an attack, giving military or other intelligence, or in any way assisting such attacks.

What is the scale of the problem? It is one with multiple dimensions, including British citizens or permanent residents who go abroad to fight with ISIS in Syria or with the Taliban, but also British citizens and others who help those groups or others who intend to attack the UK or fight UK forces in the UK itself. It is estimated that about 900 British terror suspects went to Syria and Iraq during the wars. Those who have not been killed, or who are not currently prisoners, have been described by our senior counterterrorism officer as a “big national security threat”. It is true that when they return they will—or should—face immediate arrest and questioning and will be encouraged to enter deradicalisation schemes. But it is said that prosecution will be difficult, particularly against the many women involved—the so-called brides of Jihad—who will or may claim duress or in other ways try and distance themselves from what others may have done.

What about Anjem Choudary, released from prison on 19 October, half way through his in my view inadequate sentence for supporting ISIS? Now he will be placed on a deradicalisation or anti-extremism course, and a considerable amount of our resources will be spent on monitoring his activities, having regard to the range and scope of his encouragement of so many other terrorists. What he did was undoubtedly a betrayal of his country. He acted as a recruiting agent for a group that intended to cause and has caused attacks on the United Kingdom, and which the UK faces abroad. He would be guilty of treason.

Should the authorities simply wait for a British citizen to commit serious offences—in other words, to wait for a returning traitor, as they seem to have done with Khalid Ali, a British citizen who spent five years serving with the Taliban in Afghanistan before returning to the United Kingdom in late 2016? Apprehended in Whitehall with knives in his possession, he was sentenced on 20 July to life imprisonment for preparing acts of terrorism, but he ought to have been prosecuted for treason as soon as his activities in Afghanistan came to light.

Then there is Rabar Mala, an Iraqi national who had remained in the UK unlawfully after his visa expired in 2008. He became the first person to be convicted for possession of property for the purposes of terrorism. He activated some 360 SIM cards for fighters in Iraq and Syria and co-ordinated ISIS communications. He was also planning possible attacks in the United Kingdom, inviting funds and personnel to be sent to enable an attack on a major civilian target. Being neither British nor a settled non-citizen, had Mala served ISIS outside the UK he would not have breached the offence I propose. But while voluntarily living among us he owed a duty of allegiance to the United Kingdom which he betrayed by serving ISIS, aiding its military and intelligence operations in Iraq and Syria and planning attacks on the United Kingdom. The offence for which he was convicted and sentenced to eight years manifestly fails to recognise the true nature of his wrongdoing or to provide adequate punishment for it.

May I say a bit about the drafting of this amendment? I am, as ever, indebted to the Public Bill Office for its swift and helpful engagement with my proposed amendment, although I was somewhat disappointed at the changes that it insisted I make to it—as I say, it was based on an Australian version of treason—in particular the scattering in the amendment of the word “terrorist”. This apparently was to bring the amendment within scope. If you are fighting or aiding the fight against the United Kingdom outside the United Kingdom or inside it, there does not seem to be a significant distinction.

It would be odd if a British subject assisting the fight abroad was not guilty of a terrorist attack whereas the domestic equivalent constituted one.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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Could the noble Lord help me? Is he saying that his amendment covers an attack on British forces operating outside the United Kingdom? I do not read it in that way.

Lord Faulks Portrait Lord Faulks
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It does not, which is why I was expressing regret at the final form of the amendment. If we are to return to this amendment, I shall seek perhaps to expand its scope—I hope not having an undue squabble with the authorities—so that it comes squarely within what the noble Lord suggests. If it is necessary to bring the amendment back with further refinements, they may include additional conduct which might be regarded as treason, such as impeding the operation of Her Majesty’s forces or prejudicing the security and defence of the United Kingdom.

Clearly, a prosecution under this offence would be no small thing. It would need the consent of the Attorney-General to bring a prosecution since it is an offence against the state. I also accept that many offences which might be regarded as treason would be caught up in all the many other terrorist offences on the statute book, and thus I would not expect it to make a frequent appearance. Nor would I claim that the existence of this offence would be a panacea, but there is a significant gap and filling it might avoid some of the complications, say, of the designated area offence in Clause 4.

Those who live and benefit from life in the United Kingdom yet involve themselves in attacks against the United Kingdom either here or abroad are surely guilty of treason. Are we too timid to call it that? Is it because allegiance to our country is considered unfashionable? If so, that seems to me to verge on the decadent, or at the very least it shows a country lacking in self-confidence. Those who reject the values of this country have the option of relinquishing their citizenship. But while they remain here or regard it as their home, surely they owe a duty to other citizens, who have their own human rights. This new definition of treason is a way of underlining that duty. I beg to move.

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Lord Faulks Portrait Lord Faulks
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My Lords, I am grateful to all noble Lords who participated in the debate, including those who put their names to the amendment. There were some interesting diversions via the prosecution of William Joyce; whether he was correctly convicted is a matter for considerable debate many years afterwards. In fact, I think that the matter went all the way to the House of Lords, and there were dissenting speeches. There is a view that the only thing he did wrong—that is, that amounted to a criminal offence—was filling in inaccurate information on a passport application, which would normally attract a fine. Having said that, I do not think that anybody felt that the result was in any way unfair.

The question of whether other offences are adequate has been referred to. I accept that a considerable range of different criminal offences can be committed by those involved in terrorist activity. However, I respectfully suggest to the Committee that there is something more. My noble friend the Minister said that such criminals should be regarded not as at war with the state, but simply as criminals. With great respect, they are more than that: they are at war with the state. They may use criminal activities to wage that war but they are more than criminals. For example, there are those who thought that the murder of Lee Rigby was murder on any basis, but those prosecuting felt that there had to be something more by way of marking the seriousness of the attack on not only an individual but the state itself.

Similarly, one thinks of the Skripal poisonings. That was an attack on individuals; it was also an attack on our state. I am afraid that I do not accept my noble friend the Minister’s distinction in that respect. However, I am grateful for her saying that the Government are looking into the question of whether offences that currently appear on the statute book adequately reflect the very real and ever-changing threats that this country faces. Of course, I am conscious that there is always a risk that those charged with treason might elevate themselves to martyr status. That point can be made but it does not sufficiently persuade me that there is no force in the creation of an offence of treason.

I accept entirely what was said by the noble and learned Lord, Lord Judge. It is not a happy state of affairs to have a criminal offence in the 1351 Act that cannot realistically be relied on and should be repealed; indeed, he said that in his introduction to the Policy Exchange paper. However, that does not mean that it ought not to be substituted with something modern that can capture, in rare cases, an offence of sufficient gravity which reflects a total contempt for the state beyond ordinary criminal activity.

I await with interest what the Home Office and the Government decide about the future of offences in this field. Of course, I will consider whether to try to persuade the Public Bill Office that the scope of my amendment could be expanded, perhaps to bring it back on Report. In the meantime, I repeat my gratitude to all noble Lords for taking part and I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

British Servicemen: Vexatious Law Suits

Lord Faulks Excerpts
Wednesday 19th October 2016

(7 years, 9 months ago)

Lords Chamber
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Earl Howe Portrait Earl Howe
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As the noble Lord is aware, the Iraq Historic Allegations Team looks into these allegations, which have totalled more than 3,300 to date. The current case load is around 1,600 and it expects to reduce that number to 250 by next January. We cannot simply close it down, because that would mean leaving these allegations open to referral to the International Criminal Court in The Hague, with the possibility of trials there. We must therefore investigate properly in this country.

Lord Faulks Portrait Lord Faulks (Con)
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My Lords, of course it is absolutely right that all our troops should be subject to international humanitarian law. My noble friend has described the first step the Government have taken. I suggest two further steps: putting combat immunity on a firm statutory basis, as the noble and gallant Lord suggested—there is far too ambiguity about its scope—and considering restricting the territorial scope of the Human Rights Act, which it was once thought clearly applied only within the United Kingdom.

Earl Howe Portrait Earl Howe
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I am grateful to my noble friend. The proposal he makes is being looked at. We have no current plan to amend the Human Rights Act. As and when a British Bill of Rights is presented to Parliament, this is no doubt a matter that can be debated in that context.

Armed Forces: Legal Challenge

Lord Faulks Excerpts
Thursday 7th November 2013

(10 years, 8 months ago)

Lords Chamber
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Moved by
Lord Faulks Portrait Lord Faulks
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To move that this House takes note of the case for protecting the armed forces from vulnerability to legal challenge.

Lord Faulks Portrait Lord Faulks (Con)
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My Lords, it is entirely appropriate that today, as we approach Remembrance Sunday, we should be discussing the Armed Forces. The subject of the debate is their vulnerability to legal challenge or what is sometimes described as the increased juridification of military conflict.

It is an enormous privilege to bring the debate to your Lordships’ House. I am conscious of the fact that included in the list of those to speak in the debate are noble and learned Lords, noble and gallant Lords, and others with real experience of the issues which this debate involves and who can enlighten your Lordships’ House. I, on the other hand, am a mere lawyer. To be more specific, I am a barrister who has spent a considerable amount of the past 20 years of my professional life patrolling the borders of the law of negligence, acting for public authorities, the emergency services and professionals—but not the Ministry of Defence. I was also special adviser to the Department of Constitutional Affairs on the compensation culture.

The law of armed conflict is well established. It is no part of my argument today that we should be resiling from the Geneva convention or any other of our humanitarian international obligations or that war should in any way be a law-free zone. However, what concerns me and many others is the encroachment of our national law into the way our Armed Forces conduct themselves. The law of negligence in particular is far better suited to civilian life, such as accidents at work, or events that take place in a controlled environment, or at least one capable of being controlled.

The recent publication by Policy Exchange of The Fog of War provides a penetrating analysis of the way in which the law has developed and reaches the conclusion that,

“recent legal developments have undermined the Armed Forces’ ability to operate effectively on the battlefield”.

If this is correct, we must question whether it is time for a change in the law.

Many noble Lords will be aware of the Supreme Court’s decision this year in the case of Smith v Ministry of Defence, in which, by a majority of four to three, the court concluded that the claim should go to trial so that a judge could decide on the evidence whether the claims were covered by the doctrine of combat immunity, or could give rise to a claim based on the Human Rights Act. There are a number of reasons why I will not go into the detail of the facts of the case. First, it is not concluded. Secondly, it used to be a convention, not sufficiently honoured, that Parliament did not criticise judges. Thirdly, whatever the law should be, those who brought these claims have suffered bereavement or serious injuries and can only have our profound sympathy. Finally, even those like me who are alarmed by the implications of this judgment could not but admire the detailed and thorough analysis of the issues contained in the speech of the noble and learned Lord, Lord Hope, who spoke for the majority in the case.

However, the issues of principle which arise from that case are important and should be debated. Are judges to blame for the current situation? It is undoubtedly the case that the approach of the courts to difficult questions of immunity from claims has changed. For example, in Hughes v National Union of Mineworkers in 1991, the Court of Appeal decided that police officers who were quelling serious public disorder should not be liable for negligence on public policy grounds. The decision stemmed in part from the case of Hill v the Chief Constable of West Yorkshire in 1988, in which the House of Lords Appellate Committee decided that the police were immune from claims in negligence for failing to catch the Yorkshire Ripper, albeit that they may well have made mistakes which, if avoided, could have saved the life of the last victim or victims of Peter Sutcliffe.

The law in relation to combat immunity is judge-made. It was explained most recently in the cases of Mulcahy in 1996 and in Multiple Claimants v Ministry of Defence in 2003. It is not a neat and tidy area of the law. Its scope seems likely to be very closely confined in the future. It must be acknowledged that rather few of our judges have served in the military, whereas in the post-war period almost all would have done so. But this does not explain entirely the opening up of the law. Sir Alan Moses, in his thoughtful preface to The Fog of Law, suggested that the expectations of the public in terms of the care which should be taken in ensuring the safety of the military was a significant factor in judges’ thinking and that they probably reflected what much of the general public might think about the issue.

Another explanation is provided by Professor Anthony Forster, who points to the fact that recent developments have been,

“wars of choice rather than wars of national survival”.

One of the difficulties in the Smith case and its predecessors was the question of where so-called battlefield immunity begins and ends. There is no obvious reason why a common or garden accident which takes place at a training establishment should be any different from one that happens in an ordinary factory environment, although this may not apply to some of the more extreme forms of training which are necessary to be ready to fight in theatre. But if the doctrine of combat immunity is insufficiently precise for judges’ tastes, the effect of the Supreme Court finding is that a court will then have to examine in detail whether there was fault and, if so, whether that fault fell one side or another of the rather uncertain line which defines combat immunity or, as the Supreme Court preferred, whether it would be fair, just, and reasonable to conclude that no duty of care was owed.

In practice, this means a trial with witnesses having to justify their decisions and actions. I have recently been acting for the fire brigade in a case in which it was alleged that the incident commander was negligent in fighting a major fire in which firefighters died. It was suggested to him that the fire should not have been fought at all or that he should have ensured the evacuation of firefighters much earlier. Watching him being told that he was responsible for the death of his comrades who were close friends was an unedifying experience. That is what will happen with the military even if the case ultimately results in the exculpation of those concerned. I am driven to agree with the noble and learned Lord, Lord Mance, who gave a minority judgment in Smith. He said that the approach taken by the majority,

“will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British Army. It is likely to lead to the judicialisation of war, in sharp contrast with Stark J’s dictum in Shaw Savill (1940) that ‘war cannot be controlled or conducted by judicial tribunals’”.

One of the lawyers who is acting for a number of claimants in this rapidly growing field—and it is growing fast—was quoted as saying this in the Times on 19 October of this year:

“The court is the best place to decide these very difficult issues”.

I could not agree less. The studied calm of the Royal Courts of Justice, with vast numbers of documents and the luxury of time in which to consider issues, not to mention the benefit of hindsight, is a world away from the field of military activities. No fog, my Lords, in Court 12. Barristers like me, whose experience of military matters is restricted to an undistinguished period in the combined cadet force at school, will be seeking to second-guess military commanders facing life-or-death decisions based inevitably on less-than-perfect intelligence and almost certainly on less-than-ideal equipment at any one time. I am afraid that it is simply not enough to suggest that the courts can, in each individual case, sort out what is a purely policy matter, and therefore not capable of review by the courts, from a matter that crosses the boundary into combat immunity. The very process of deciding those issues will involve challenging military decisions on procurement, tactics and deployment, whether on a macro or micro scale. The noble and learned Lord, Lord Mance, is surely right.

We are thus entering a period where there is a risk that military decisions will be questioned and thus potentially affected by the decisions of judges. Civil servants are told to consider, when doing their work, to have regard to the hypothetical judge on their shoulder. Our Armed Forces will have such a judge with them, to paraphrase Winston Churchill, on the sea and in the oceans, in the air, on the beaches, on the landing grounds, in the streets and in the hills.

How does the Human Rights Act help? Clearly, the Strasbourg Court is not the appropriate venue in which to decide matters of fact and judgment. However, it is possible that the European Court of Human Rights may decide that any restriction on the liability of the Ministry of Defence potentially or actually violates Article 2 of the convention—or some other article, possibly Articles 3 or 8. I have real difficulty in understanding what Article 2, the “Right to Life”, really means in the context of armed conflict. There is something strangely poignant when the mother of a soldier says to the press, after the decision in Smith, “Now all those soldiers have the right to life”. Perhaps that is the effect on the public’s mind of the decision.

So what can the Government do about this? They can legislate to define combat immunity. They can consider reviving Crown immunity, something that is open to them under Section 10 of the Crown Proceedings Act 1947. They can legislate fully to exempt the MoD from corporate manslaughter and corporate homicide. They can derogate from the European Convention on Human Rights during deployed operations, as other countries have done. These are just some of a number of recommendations that Policy Exchange has put forward.

In answer to the noble and gallant Lord Craig of Radley, on 23 October, the Minister said that the Government were hoping,

“that the Court will provide clarification of combat immunity”.—[Official Report, 23/10/13; col. 1003.]

Whatever clarification is forthcoming, it will not be a solution to the problem that I have attempted to identify.

Nothing that I suggest should in any way derogate from the military covenant or diminish the Armed Forces Compensation Scheme, which provides compensation on a no-fault basis. However, to treat our brave men and women as subject to the assessment of the courts in the same way as a factory owner who has failed to fence his machinery is in my view highly inappropriate. The courts have given their response. It is not, in my judgment, the right one, and it is time for the Government and Parliament to respond.

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Lord Faulks Portrait Lord Faulks
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My Lords, I am very grateful to all noble and gallant Lords, noble and learned Lords and other noble Lords. This has been a remarkable debate, reflecting the experience and knowledge of military affairs and the law which are found in your Lordships’ House.

My noble friend the Minister has been very helpful in responding to a number of points made in the debate. He, the noble Lord, Lord Rosser, and many other noble Lords pointed to what may or may not eventuate from the decision in Smith and in other cases. The burden of expectation on the judge or judges who decide this case is considerable. The suggestion that clarity will emerge from one case is an expectation too much. Each case is decided on its individual facts and one cannot get away from the point of principle which is at stake here. In every case where there is a claim for negligence it will be said that, although something is possibly within the scope of battlefield immunity, it can be attributed to failures of training or inadequate equipment. So the line has to be drawn.

The noble and learned Lord said that the judge at first instance would have to take great account of the judgment of the majority in Smith and I am sure that he or she will do so. However, to take great care is not going to provide an adequate solution. To quote the noble and learned Lord, Lord Mance:

“To offer as a panacea … that courts should be very cautious about accepting such claims is to acknowledge the problem, but to offer no real solution”.

The wave of litigation will continue unabated, with all the consequences alluded to in this debate, unless and until Parliament intervenes. I hope and trust that the Minister will take back to the ministry the concerns expressed in the House and I look forward to a positive response.

Motion agreed.