My Lords, the Government’s purpose in introducing the Bill, to provide greater certainty for service personnel and veterans regarding their potential criminal liability for purported actions taken during overseas operations, gives rise to two general questions. Is there a problem that needs to be addressed and, if so, how effective is the Bill in doing that? The answer to the first question is, I think, yes. The UK Armed Forces place the highest importance on carrying out their duties within the law. They fully understand that the rationale for having a uniformed military is that it, as an organisation, is permitted under international law to exercise destructive and lethal force, provided that it complies with the provisions of that law. In other words, adherence to the law is fundamental to the military’s very existence. This is why some senior serving personnel are nervous about the Bill. They do not wish there to be any doubt in people’s minds about their commitment in this regard.
It is also true that, despite this fundamental tenet, some military personnel do commit crimes on overseas operations. Our Armed Forces personnel in general exercise incredible judgment and restraint in the most dangerous and trying circumstances, but it would be unreasonable to expect that they should be entirely free of the faults and frailties that are part of the wider society from which they spring. When such crimes are suspected, they should be investigated thoroughly—and the investigation process itself would certainly bear improvement—and, if the evidence is sufficient, the perpetrators should be prosecuted. However, it is also the case that legal process has been increasingly used to pursue political and other non-legal objectives in relation to overseas operations. Members of the Armed Forces, who have often risked all at the behest of the Government and in the service of their country, have been caught in the middle of this procedural struggle. This has created immense mental stress for them and their families—stress that has been piled on top of the inevitable psychological impact of warfare with which they must already deal. We have a moral obligation to reduce that additional suffering to the maximum extent we can within the bounds of the rule of law.
So, how effectively does the Bill before us today achieve that objective? It attempts to strike a balance, but whether it is the best that can be done is not
entirely clear. It certainly will not achieve its aim if it simply moves the legal process from UK jurisdiction to that of the International Criminal Court—quite the opposite, in fact. In addition, the Bill focuses on the issue of criminal prosecutions, but I am not sure that they are really the most significant problem. After all, the tests that the Bill introduces for prosecutors are mostly ones that they follow already, and that generally protect all people, civilian and military, from speculative trials. The stress on personnel arises less from actual prosecutions and more from protracted investigations, even when these come to nothing. We need look no further than at the notorious Metropolitan Police investigations under Operation Midland to see the truth of this. The lack of an eventual prosecution is not necessarily a protection against mental suffering. There is a doubt in my mind as to whether the Bill really gets at this issue.
Then there is the question of the extent to which the Bill aims to support members of the Armed Forces, and the degree to which it seeks to protect the Ministry of Defence. A department of state is well able to deal with vexatious claims. It may find them irritating and frustrating, but it is not subject to mental anguish in the way that individuals are, and I would have thought that it needs no special provision under the law.
Having said that, I am not clear that the provisions of the Bill are quite so dramatic as some have suggested. They do not condone or permit torture; nor is there a new time limit on pursuing such cases, only a more tightly but not obstructively defined set of conditions for doing so.
I for one entirely understand the rationale for excluding sexual offences from those conditions. It is not that a particular kind of offence is worse than another, but in one case an admitted outcome—death or injury—may reasonably be the result of lawful military action, while in the other a sexual assault can never be anything but criminal, whatever the circumstances. This seems to me a valid basis for excluding that category of offence from the provisions of the Bill.
So while I welcome the Bill, I believe that it can and should be improved. I look forward to hearing the Minister’s response to the concerns that I have raised today, and to developing some of these themes further in Committee.
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