Overseas Operations (Service Personnel and Veterans) Bill

Lord Russell of Liverpool Excerpts

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

I hope that that has assisted your Lordships in understanding the Government’s attitude to Clauses 1 to 7 and why we selected a period of five years. Therefore, I urge the noble Baroness to withdraw her amendment.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received two requests to speak after the Minister, from the noble Lords, Lord Naseby and Lord West of Spithead. I will call them in that order, so I now call the noble Lord, Lord Naseby.

[Lord Naseby (Con) [V]]

My Lords, I spoke at Second Reading, where I said that our Foreign Office should release

“dispatches from our observers who watch war anywhere around the world.”—[Official Report, 20/1/21; col. 1231.]

I realise that Part 1 is absolutely the key issue of the Bill. I ask my noble friend on the Front Bench whether she will confirm that, when the Bill becomes an Act, in whatever form, it will be drawn to the attention of the United Nations, particularly the UNHRC in Geneva and the International Criminal Court, as well as all other relevant official bodies involved with alleged war crimes, wherever they may be?

I ask this because of current evidence that the UNHRC has not been fully briefed by Her Majesty’s Government concerning British military attaché evidence taken in 2009 in relation to the war in Sri Lanka. Therefore, there is a lack of evidence in the report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, dated 12 January 2021. I thank the Minister for listening to this important but rather unusual dimension.

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[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

We now come to the group beginning with Amendment 3. Anyone wishing to press this, or anything else in this group, to a Division must make that clear in debate.

Clause 2: Presumption against prosecution

Amendment 3

Moved by

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[Viscount Younger of Leckie (Con)]

I am sorry to interrupt the noble and gallant Lord, but we cannot hear him very well. We shall come back to him later in the debate.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

Lord Boyce, we will come back to you later. I now call the noble and learned Lord, Lord Hope of Craighead.

[Lord Hope of Craighead (CB) [V]]

My Lords, I spent four years at an earlier stage in my career as a prosecutor in Scotland. I was one of the Lord Advocate’s relatively small team of Crown counsel, known as his advocate deputes. For much of that time, the Lord Advocate was the noble and learned Lord, Lord Mackay of Clashfern. It is a real pleasure to see him taking part in our proceedings this afternoon. It was part of my job to take decisions under his authority as to whether or not a prosecution should be brought, and to conduct the prosecution if it was decided that it should proceed. I therefore have some insight into how these decisions are taken.

Of course, there are differences between my job then and what we are contemplating now. I was working in Scotland, under its own system of criminal law, about 40 years ago. While nothing much was actually written down then, there were some well-understood principles to guide us. Much of this was based on the fact that we were acting in the public interest. We had to balance the interests of justice against the accused’s right to a fair trial. Within those broad concepts, there was room for a variety of other factors that we would take into account, guided by common sense and what we had learned by experience.

That having been said, I acknowledge that in today’s world there is the need for a more formalised system of rules. That helps to achieve consistency in decision-making, and it helps to reassure the public that these important decisions are soundly based. In the context of this Bill, I acknowledge that “the public” must include service personnel serving or who have served in operations overseas. After all, reassurance to them is what this Bill is all about.

That brings me to Amendment 3, and afterwards to Amendments 5, 6 and 28. The wording of Amendment 3 does not come as any surprise to me. It relates to the ability to conduct a fair trial, and makes a proposition that hardly needs to be said. As the noble Lord, Lord Lancaster of Kimbolton, said, this principle applies as a matter of course. I cannot imagine that the proposition would have escaped my attention had I been responsible for taking these decisions, but of course the real point of Amendment 3 is to challenge the presumption and replace it with something else which has equivalent force, removing the hard edge of presumption.

On the whole, I am uneasy about a presumption that applies after a particular time limit. Cases vary and the facts differ from case to case; what might be absolutely right in one case could be very unfortunate in another. There is a real difference, however, between the presumption in Clause 3, which uses the word “exceptional”, and the word “materially”, which is the key word in the amendment. It is a much softer alternative. I am uneasy as to whether it really is an adequate replacement for the presumption if the aim is to get rid of the presumption and replace it with something of equal force.

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I have also noted the suggestion by some that Clause 3 will grant de facto impunity to individuals who have been accused of committing criminal offences. I wish to repeat that the application of Clause 3, alongside all the other considerations, still leaves the prosecutor with discretion to determine that a case should be prosecuted, even when there is no compelling new evidence. My concern is that these amendments would effectively remove one of the matters to be given particular weight and undermine that reassurance to our service personnel that the operational context and the adverse effect that it can have on them will be taken into account by the prosecutor. That would be an unfortunate message for this Committee to send and, in those circumstances, I urge the noble Baroness, Lady Massey, to withdraw her amendment.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received no requests to speak after the Minister, so I call the mover, the noble Baroness, Lady Massey of Darwen.

[Baroness Massey of Darwen (Lab)]

My Lords, again I thank the Minister for her concern and detailed response. Many wise comments and questions have been made. I appreciate what the noble and learned Lord, Lord Mackay of Clashfern, is saying about lack of sound judgment developing under stress in adverse conditions in conflict situations. The point that I wanted to make was that I agreed that that would happen, but part of what I was saying was that people needed support to come to terms with that, which could take a very long time.

My noble friends Lord Dubs and Lord Tunnicliffe gave a response. The question that my noble friend Lady Chakrabarti asked on why Clause 3 has been drafted in this way is important. In response to the Minister’s final comments, I should like to read what she said. It is difficult to be persuaded that prosecutors would find it difficult to understand the condition and environment in which service personnel are working. It is fairly obvious to most people that those circumstances are difficult. However, I should like to read what she said, and read the full debate, and discuss with colleagues what action we want to take next. In the meantime, I beg leave to withdraw the amendment.

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Amendment 9 not moved.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

We now come to the group beginning with Amendment 10. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 10

Moved by

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[The Deputy Chairman of Committee (Lord Russell of Liverpool) (CB)]

The noble and learned Lord, Lord Morris of Aberavon, has withdrawn from this group, so I call the noble Baroness, Lady Jones of Moulsecoomb.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, that was quite interesting, actually, because of course these amendments are trying to create some sort of accountability for the Attorney-General. I thought the noble Lord, Lord Faulks, was going to say something about the Attorney-General being rather more political than in the past, because of course the office of Attorney-General has been sadly undermined in recent years, particularly last year with the Attorney-General’s quick defence of Dominic Cummings’ unlawful behaviour. That was, I fear, just one example, and the fact that she then so quickly rowed back from her position to a position of it being only her political decision and not a legal opinion shows how easy it is for an Attorney-General to step over that increasingly faint line. In that, I think that she mistakenly excused illegality in the name of political expediency. We, of course, cannot become complicit in that, so I was extremely pleased to sign the shadow Attorney-General’s Amendments 10, 11 and 12.

I am concerned that this triple lock in the Bill can actually lock justice out. Even if the power of justice is strong enough to overcome the first two locks, we have to trust the Attorney-General to make the right decision on the third lock, which of course would be very difficult. The Attorney-General therefore has to publish their reasons when making decisions, because these decisions should be made according to normal standards of administrative propriety and should rightly be subject to judicial review. Where the reasons for the decisions are irrational, unlawful or irrelevant, they should be able to be overturned. Where the decision is purely politically motivated and has no foundation in facts, the law or the interests of justice, equally it should be overturned. These amendments are essential to ensure that this is the case.

Such important decisions as those envisaged in the Bill must never be made on a whim or be purely political. Justice has to be done and be seen to be done. I would just like to add that various noble Lords have suggested that some things are impossible to understand if you have not experienced warfare or action of that kind. Of course, that is absolutely true, but we are not talking about a lack of sympathy for service personnel; we are talking about criminal acts. That is the basis of what this law is about; it is not to do with whether we have sympathy or not, it is about criminal acts, and it is important to remember that.

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Clause 5 agreed.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

We now come to the group beginning with Amendment 14. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Clause 6: “Relevant offence”

Amendment 14

Moved by