Armed Forces Bill

Baroness Smith of Newnham Excerpts

Thursday 3rd March 2016 Grand Committee

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, as I indicated at Second Reading, I, too, am entirely sympathetic to the general feeling underlying this amendment. As the noble and gallant Lord has said, he is not wedded to this language. I am not clear, for example, whether,

“engaged in military operations outside the United Kingdom”,

would include peacekeeping operations in Northern Ireland, or matters of that character. However, I also see the basic difficulty, as my noble and learned friend Lord Hope indicates. This is certainly contrary and alien to English law down the years. We recognise the problems of delay, and if you can show plain and incurable prejudice through delay, you might well get the cases struck out. One would hope for a measure of fastidious thought before anybody launches prosecutions in these cases. It is deeply offensive to people that, in relation to the problems in Northern Ireland, amnesty was given to a whole lot of terrorists, but there is still a risk, apparently, on the part of the soldiers who were acting on our behalf.

I am a bit troubled by my noble and learned friend Lord Hope’s suggestion of a blanket immunity. What happens if there is a clear case of murder on the face of it? Should we really, with ample evidence and so forth, say that there can be no prosecution? I do not know: would Sergeant Blackman have taken the benefit of that? One must have regard to where these things go, but I certainly hope that the Government will give very sympathetic thought to this. A clever and ingenious lawyer might be able to find some formula whereby what I suspect all of us here feel could be reflected in some form of protection for those on active service abroad.

[Baroness Smith of Newnham (LD)]

My Lords, I was not able to speak at Second Reading, and I would like to briefly reassure the noble and gallant Lord, Lord Craig, that the Liberal Democrats have no intention whatever of trying to sabotage this Bill in any vainglorious or other way. We are committed to the Bill, and, like other Members of your Lordships’ Committee, to ensuring that the Bill becomes as good as it can be.

We do not wish to civilianise the Armed Forces, as the noble Viscount, Lord Slim, said on Tuesday: we certainly have no intention of doing that. However, there are some concerns about this amendment. Although I accept that it is a probing amendment, we share the concerns of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that there is a danger in either a blanket limitation or looking at things that are any sort of military operation. There may be cases that clearly should not be dealt with after 20 years; there may be other cases that need to be looked at. In cases of murder, rape or the sort of crimes that we were talking about in previous amendments, it would seem extremely strange to service men and women and their families if we somehow said, “If this happened in civilian life, you might get closure, but if it happens while your son or daughter is overseas engaged in military operations, there is a 20-year cut-off, and the rule of law no longer holds”. I ask the Minister whether it would be possible to find a way of dealing with the genuine concerns that have been put forward in the amendment that would ensure that service men and women and their families felt reassured that they were not going to lose the rule of law as would normally be expected.

[Earl Attlee (Con)]

My Lords, I share the concerns of the noble and gallant Lord, Lord Craig. I am particularly concerned about putting retired servicemen in the frame again after there has been a judicial inquiry. It might be that a subsequent judicial inquiry comes to a different conclusion, but once you have had a judicial inquiry and no prosecutions have arisen, servicemen ought to be able to carry on with their duties, retire and not worry about further legal action; they should not be worrying about further legal action for the rest of their natural lives. I very much support the general thrust of his amendment, therefore, but perhaps it needs some more tests—in particular, in relation to the case we are obviously talking about but not mentioning, that there has been a judicial inquiry.

--- Later in debate ---

General McChrystal, the US commander in Afghanistan, told a conference on 25 November last year that the advanced capabilities inherent in drones operated remotely could cause decision-makers to lower the threshold for intervention and make it less likely that the second or third order effects are considered properly. A clear and transparent casualty review procedure reflecting the highest standards of British practice and international law may be one way to understand and counter the second and third order dangers referred to by General McChrystal. I suggest that these issues deserve careful consideration about how we implement this obligation in current and future remote wars and how we might best encourage our partner states to do the same. I look forward to my noble friend’s response and I beg to move Amendment 22A.

[Baroness Smith of Newnham]

My Lords, I welcome the probing amendment from the noble Lord, Lord Hodgson. He is absolutely right to raise one of the issues that upsets huge numbers of the British population in any military intervention—the danger of civilian casualties. The idea that that should be added to the report that is brought quarterly is clearly welcome. I very much hope that the Minister will be willing to look into that. One advantage of the United Kingdom entering into the war in Iraq and over Syria was precisely that we have precision weapons. The suggestion that we have not caused any civilian casualties in the past three months is clearly welcome.

I realise that this is only a probing amendment, but I am slightly concerned that the noble Lord suggested that for the quarterly report there should be working definitions of the terms “civilian” and “combatant”. How do the UK Government define those terms? I would hope that it would be something in the glossary, not something that would be redefined every three months. There is a suggestion that perhaps the United States has a rather more generous definition of combatant that we would in the United Kingdom, and that males over the age of 15 are seen as combatants if they are in certain areas. I would very much hope that that is not a definition we would ever consider.

This is a welcome probing amendment, and we would very much like the definitions. My noble friend Lady Jolly has also asked whether the Minister could tell us what work has been done to assemble figures so far.

[Lord Thomas of Gresford]

The Minister will recall that I asked a Question on this topic two or three weeks ago. I support the amendment proposed by the noble Lord, Lord Hodgson. There is a danger, when we are concerned with a definition of UK deployment that includes,

“any airstrikes carried out by UK personnel operating manned or unmanned aircraft”,

that we may forget that we are part of a coalition under joint command. It is a joint operation and, in such a situation, we cannot say that we are responsible only for these bombs but not for other bombs dropped by other countries under the same command as ourselves. This country is bound legally and morally by the activities of all those operating in the coalition. We carry that responsibility for the deaths and maiming of civilians, whoever’s bomb it is. Civilians do not care whose bomb it is if they are maimed. If it is under joint command, we have a responsibility.