My Lords, it is with pleasure that I beg to move that this Bill be now read a second time.
I begin by paying tribute to the brave men and women of our Armed Forces, who protect this country and our security, day in and day out. These exceptional individuals are often called upon to perform their jobs under extraordinarily difficult and dangerous circumstances, enduring great hardship, being exposed to injury and risking the ultimate sacrifice of their own lives.
Similarly, I want to pay tribute to the families of current and former personnel. They keep homes together, bring up children and attend to the care of older relatives, giving the precious members of our Armed Forces the peace of mind to do their duty. We owe the Armed Forces and their families our utmost respect and support, and we must reflect that in how we treat them. They must know that, when they are taking necessary and appropriate action to protect us and the freedoms that we value, we in turn will not shy away from taking the necessary and appropriate action to protect them.
However, the reality is that, having asked these personnel to risk life and injury in the most unforgiving of environments in overseas conflicts, they have returned home to face a dark shadow of uncertainty: an enduring, corrosive uncertainty about whether or not they will be called into criminal or civil proceedings many years down the line. They do not know whether they will be required to relive the traumatic events of, and defend their actions in, a conflict that took place many years previously.
That shadow endures because such potential proceedings are not always constrained by the passage of time. That is neither reasonable nor appropriate. However, it reflects the increased pattern of the judicialisation of warfare, evident over the last 25 years. Equally, we must take action to ensure that our commanders on the ground in the field of conflict, having to make potentially life-or-death split-second decisions, do not feel inhibited, or, worse, distracted, by concerns about how their actions may be perceived many years later—that is clearly profoundly undesirable.
Let me also be crystal clear that those who commit criminal acts or behave negligently must face justice and must expect to be called to account. However, that should be done without undue delay: periods of delay stretching over years are simply not acceptable. Delay does not serve the interests of the victims, for whom the most certain route to justice is to bring forward a criminal allegation or a claim for compensation as soon as possible before evidence disappears or becomes stale or before memories become opaque.
The Overseas Operations (Service Personnel and Veterans) Bill seeks to address these issues. It deals with the issue of unreasonable delay, but it also endeavours to provide greater certainty to our service personnel and veterans that the unique pressures—and they are unique—placed on them during overseas operations will be taken into account when decisions are being made as to whether to prosecute for alleged historical offences. These are the objectives that the Bill seeks to deliver.
I have been struck by commentary on the Bill: some people think it is necessary but does not go far enough, while others think it is unnecessary and goes too far. The Government have endeavoured to strike a balance
that recognises the position of victims and our Armed Forces and seeks to be fair to both. In my discussions with many of your Lordships, I detect broad sympathy with the Bill’s objectives. I acknowledge that a number of your Lordships have concerns about some of the individual provisions in it and will wish to press the Government for clarification and reassurance as to how these will impact in practice. I look forward to this debate as an opportunity to explore these.
I make clear that the measures in this Bill are not the only work being taken forward in respect of these matters. The Government are progressing recommendations from the service justice system review, and the forthcoming Armed Forces Bill is expected to contain provisions relating to key recommendations from this. I am pleased to confirm to your Lordships that the review by Sir Richard Henriques of the conduct of investigations relating to overseas operations and the prosecutorial process, which was announced by the Secretary of State in October, is under way and due to report in the summer.
This is a journey that started in the early days of operations in Iraq and Afghanistan, and it is important to recognise that we have already come a long way since then. That journey has involved intensive scrutiny and legal challenge, and both the service police and the Armed Forces have learned important lessons on better resourcing, supporting and professionalising investigations on operations. The Ministry of Defence is also constantly reviewing its policies, training and practices to help to ensure that we comply with all applicable legal obligations on future operations.
I turn to the Bill itself and what it seeks to deliver. First, it is important to be clear about what it does not do, because it seems to me that a somewhat distorted version of the Bill has achieved a degree of currency. The Bill is not an amnesty or a statute of limitations: prosecutions can still go forward after five years from the date of the alleged incident and it does not prevent allegations of offences being made and investigated after five years. There may be circumstances where victims are unable to report their allegations quickly after the event, and that is recognised. The Bill does not abolish, eradicate or eliminate the rights of victims of crime, nor does it deny the rights of those who seek redress in the civil courts, whether they are Armed Forces personnel, MoD employees or other parties.
I will move now to what the Bill does. Part 1 introduces measures dealing with criminal matters, which includes a presumption against prosecution where five or more years have passed since an alleged offence on an overseas operation. With Part 1, the Government have sought to strike a balance: on the one hand, introducing protective measures that set a high threshold for a prosecutor to determine whether a case should be prosecuted and ensure that the adverse impact of overseas operations will be given particular weight in favour of the service person or veteran; and, on the other hand, ensuring that, in circumstances where our service personnel fall short of the high standards of personal behaviour and conduct that is required and expected of them, they can still be held to account. This is one of the reasons that we have not proposed an amnesty or a statute of limitations. Let me be very clear: the presumption against prosecution after five years
is not an absolute bar to prosecution. We have also sought to avoid fettering the prosecutor’s discretion in making a decision to prosecute and have ensured that the measures are compliant with international law.
Clause 1 sets out the circumstances in which the measures in Part 1 apply to decisions about whether or not to prosecute criminal cases. In short, the measures apply only once five years have elapsed from the date of an alleged offence by service personnel that took place on relevant overseas operations. For the purposes of Part 1, the Bill defines what constitutes relevant overseas operations.
Clause 2 introduces the presumption against prosecution, the effect of which is that it should be “exceptional” for a prosecutor to determine that a service person or veteran should be prosecuted for alleged offences that occurred on operations outside the UK more than five years previously. While the presumption introduces an “exceptional” threshold, it is important to note that the presumption is rebuttable; the prosecutor retains their discretion to determine that a case is exceptional and should be prosecuted.
Clause 3 requires the prosecutor to give particular weight to certain matters. These include the adverse impact of overseas operations on a service person, including on their mental health, and, in cases where there has already been a previous investigation and there is no new, compelling evidence, the public interest in cases coming to a timely conclusion.
Clause 5 requires the consent of the Attorney-General before a prosecution can proceed to trial. Clause 6 provides a definition of the “relevant offences” to which Part 1 applies and introduces Schedule 1, which lists the offences that are excluded from the presumption.
The offences listed in Schedule 1 reflect the Government’s strong position that there can be no conceivable link between operational duties and the use of sexual violence and sexual exploitation on overseas operations, and that the “exceptional” threshold in the Bill should not apply in such circumstances.
We have not excluded other offences, including torture, because, in the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. Where service personnel are engaged in combat, detention and interrogations, they have faced and will continue to face allegations such as of torture and war crimes because of the unique nature of warfare. They may deny and refute these allegations, but they can still expect to face them.
Critics of the Bill believe that this signals that the Government no longer view with gravity offences such as war crimes and torture. Well, we most certainly do: these crimes are appalling and, as I have already emphasised, the prosecutor retains their discretion to determine that a case is exceptional and should be prosecuted.
The measures in Part 1 will not therefore allow service personnel to act with impunity; they do not impact on the willingness or ability of the United Kingdom to investigate or prosecute alleged offences committed by our service personnel. These measures are consistent with our international legal obligations
and, as such, they will not put our service personnel at risk of being investigated by or prosecuted in the International Criminal Court.
Part 2 of the Bill makes changes to the time limits for bringing tort claims for personal injury or death, and Human Rights Act claims, relating to events that occur in connection with overseas operations. Again, the Government’s intent with the measures in Part 2 is to ensure that claims are brought promptly so that the courts are able to assess them when memories are fresh and evidence is more readily available. This will help to ensure that service personnel and veterans will not be called on indefinitely to recall often traumatic incidents that they have understandably sought to put behind them. It will also mean that, where such claims make allegations of criminal behaviour, these can also be considered expeditiously by the service police.
Clauses 8 to 10 introduce Schedules 2, 3 and 4, which introduce new factors that the courts in England and Wales, Scotland and Northern Ireland must consider when deciding whether a claim for personal injury or death can be allowed beyond the normal time limit of three years. These new factors ensure that the “operational context” in which incidents occurred is properly taken into account. They weigh up the likely impact of the proceedings on the mental health of the service personnel or veterans who may be called as witnesses.
The provisions also introduce an absolute maximum time limit of six years for such claims. For personal injury or death claims, that time limit will be calculated from the date of incident or from the claimant’s date of knowledge. The provisions also ensure that, where the law of another country is to be applied when the court is assessing the claim, the maximum time limit of six years still applies.
Clause 11 introduces three factors for the courts to consider when deciding whether to extend the one-year time limit for bringing Human Rights Act claims and an absolute maximum time limit of six years. It also introduces a date-of-knowledge provision for a Human Rights Act claim in connection with an overseas operation, so that it can be brought up to 12 months from the date of knowledge, even if that 12-month period ends after the six-year period has expired.
Finally, Clause 12 will further amend the Human Rights Act to impose a duty on government to consider derogating from—that is, suspending—some of our obligations under the ECHR in relation to significant overseas military operations. This measure does not require derogation to take place, but it requires future Governments to make a conscious decision as to whether derogation is appropriate in the light of the circumstances at the time. The Bill does not change any of the existing parliamentary oversight that currently applies to derogation orders.
These measures are consistent with court rulings that claimants do not need to be provided with an indefinite opportunity to obtain a remedy. Once again, the purpose of the limitation long-stops is to encourage individuals to bring claims promptly, while evidence and memories are fresh.
In conclusion, this a necessary and important Bill. It seeks to reduce the uncertainty faced by our service personnel and veterans and looks to the future, providing
a better and clearer legal framework for dealing with allegations and claims arising from future overseas operations and recognising the unique burden and pressures placed on our service personnel. It strikes an appropriate balance between victims’ rights and access to justice on the one hand and fairness to those who defend this country and our values on the other. It delivers on a manifesto commitment by the Conservative Party to our Armed Forces and veterans. It is based on strong support for the proposals, as evidenced in the response to the public consultation and by clear majorities in the other place. I therefore commend the Bill to the House.
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