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.
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My difficulty with this amendment is that I am not convinced that it would in fact do so. The Secretary of State’s duty of care standard could set out what he or she thought were the obligations that were owed to service personnel involved in investigations or litigations arising out of overseas operations, and that is clear from the Statement made today, which set out in some detail the various ways in which our Armed Forces are supported. The comment made by the noble and learned Lord, Lord Stewart, about educating the Armed Forces to bring claims promptly was also helpful in that regard. However, the Secretary of State could not create by the duty of care standard any change in the law or provide any defence which did not exist either at common law or in statute. Any actual changes would have to be incorporated in the Bill or in some other piece of legislation.
There are ways in which the Bill could be improved, and in the course of debates various measures have been suggested, although none of them addressed the real mischief. That could really be achieved only if the Government and Parliament were to decide that the Human Rights Act should have no extraterritorial application. As I said in Committee, if that was the law—the then Labour Government who brought in the Human Rights Act thought that it was, and Lord Bingham in the Al-Skeini case thought that was the decision—the investigations which in turn generated vexatious litigation and repeated investigations would never have taken place. However, the European Court of Human Rights in the case of Al-Skeini, responding to an appeal brought by Mr Shiner, among other lawyers, was persuaded that the ECHR applied outside the individual state’s territory and indeed outside territories which were within the European convention: that is, outside the scope of members of the Council of Europe.
As the noble and gallant Lord, Lord Craig, pointed out, Sir Peter Gross and his committee are considering this very point at the moment, and I hope that in due course there will be a suitable amendment to the Human Rights Act which will provide considerable assistance in the future in preventing many of the abuses that took place in the past, such as the appalling victimisation of Major Bob Campbell. In the meantime, I fear we must satisfy ourselves with what modest gains can be obtained from this legislation. The presumption against prosecution after five years would provide some reassurance to our service personnel, as indeed was acknowledged by Major Campbell himself when he gave evidence before a House of Commons Committee. The long-stop provisions in Part 2 should put a more or less final line under potential litigation, which will have effect across the board whether the claimants are civilians, members of our Armed Forces, or actual or potential witnesses to some claim.
It seems that the amendment is effectively saying, “Bring us a better Bill.” I am sure that noble Lords have considerable sympathy for any such request—or is it more like an order? However, if this amendment becomes part of the Bill, I fear that it will be something of a declaration, without any true effect. Therefore, with very considerable reluctance, because I share the concern of all those who support the amendment, I fear I cannot support it.