My Lords, I thank the noble Baroness, Lady Massey of Darwen, and all other noble Lords for their contributions to a wide-ranging and—I certainly accept—thought-provoking discussion this afternoon. I have listened to the debate closely. We have covered extensive territory across the principles of the Bill. Before I turn to the individual amendments in the first group, I will address the range of Clauses 1 to 7 of Part 1, which a number of your Lordships would wish to remove. It may be helpful if I clarify the Government’s intent in proposing these provisions, and perhaps I should restate why there is a Bill at all.
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At Second Reading I was struck by the widespread recognition that there was an issue to be addressed. Much less transparent was how your Lordships would address it. Again, views were wide ranging. I realise that the noble Baroness, Lady Jones of Moulsecoomb, is the explicit exception to that general approbation. I respect her greatly, but I completely disagree with her. My noble friend Lord Lancaster of Kimbolton, with his pertinent experience, cogently gave us a perspective on the Bill by reminding us of what it does, what it needs to be about, what it is about and why we have it.
So the purpose of the measures in Part 1 is quite simply to give service personnel and veterans greater tangible reassurance and demonstrable certainty that the unique pressures of overseas operations—and they are unique—will be taken into account when decisions are made about whether to prosecute for alleged historical offences. Let me be clear: this does not mean that the Government consider the Armed Forces to be above the law. Whenever they embark on operations overseas, they must abide by the criminal law of England and
Wales, as well as international humanitarian law, including that set out in the Geneva conventions.
Our personnel serve with great courage, commitment and professionalism, and the vast majority undertake the very difficult and often dangerous tasks that we ask of them in accordance with domestic and international law. I am very grateful to the noble and learned Lord, Lord Falconer of Thoroton, for acknowledging that. However, where our service personnel fall short of these high standards, it is vital that they can be held to account. This is one of the reasons why we have not included measures in Part 1 that would amount to an amnesty or a statute of limitations for service personnel and veterans. I am heartened that many of your Lordships have now recognised this point.
Ideally, alleged misconduct by service personnel is dealt with most effectively if individuals are investigated and, where appropriate, subject to disciplinary or criminal proceedings at the time of the conduct. However, as your Lordships understand, that is not always possible. Where it is necessary to conduct repeat investigations into alleged historical offences, or where new allegations of criminal offences emerge relating to operations many years ago, the delivery of timely justice can be extremely difficult. However, that leaves our service personnel with the stress and mental strain of the threat of potential prosecution hanging over them indefinitely.
I say to the noble Baroness, Lady Smith of Newnham, who talked about vexatious claims, that what we are talking about and what we have seen as a history of activity affecting service personnel when they return from overseas duties do confirm that there is always a very real risk of potential prosecution in respect of their activities. They may deny wrongdoing and they may be ready to defend accusations of criminal charges, but that can hang over them indefinitely. The measures in Part 1 are therefore key to providing greater clarity and reassurance to our service personnel and veterans in relation to the threat of legal proceedings arising from alleged events many years ago on operations overseas. I hope that that clarifies for the noble Baroness, Lady Smith of Newnham, why there is support for the principles of the Bill.
This clause stand part debate covers the amendment that seeks to remove all the clauses in Part 1. However, as we will be going on to debate amendments against many of the clauses, at this point I will focus my comments on the purpose and effect of Clauses 1, 2, 3, 5 and 6—Clauses 4 and 7 provide definitions and interpretive provisions for terms used within Part 1.
I liken the clauses in Part 1 to the interwoven strands in a length of fabric, because they are all connected. The purpose and effect of Clause 1 is to set the conditions for when the measures in Clauses 2 and 3 must be applied by a prosecutor. Importantly, Clause 1(2) does not have an impact on the prosecutor’s decision on whether there is sufficient evidence to justify a prosecution; the first stage of the prosecutorial test will remain unchanged.
Clause 1 further details to whom, and in what circumstances, the measures will apply. That means that the measures will apply only to members of the Armed Forces deployed in operations outside the British islands as defined in Clause 7. Overseas operations are
defined as those outside the British islands during which personnel come under attack or face the threat of attack or violent resistance. I think we all understand that operations conducted outside the United Kingdom are vastly different from those conducted within the United Kingdom. Within the United Kingdom, the military operates only in support of the civil authorities. With the exception of Operation Banner in Northern Ireland, which was an absolutely unique situation, United Kingdom operations rarely, if ever, require our personnel to operate in the same sort of hostile, high-threat environments that they face on operations overseas. Excluding Northern Ireland, there are no outstanding historical allegations relating to operations within the United Kingdom.
I again reassure your Lordships, particularly the noble Baroness, Lady Ritchie of Downpatrick, that we have not forgotten our Northern Ireland veterans. The Secretary of State for Northern Ireland will be bringing forward separate legislation to address the legacy of the past in Northern Ireland.
The second condition for the measures to apply is of course that at least five years must have elapsed since the alleged offence, with the start date being the date of the offence. I think everyone understands why it is vital that investigations into historical allegations are brought to resolution without undue delay. To provide greater assurance to our service men and women in that respect, we took account of the views expressed in response to our 2019 public consultation that five years was the most appropriate starting point for the presumption. I will deal with that further when I address the specific matter of the amendments.
Clause 2 introduces the principle of the presumption against prosecution, so that it is to be exceptional for a prosecutor to determine that proceedings should be brought for an alleged offence occurring on overseas operations once five years have elapsed from the date of the alleged incident. The noble and learned Lord, Lord Falconer of Thoroton, questions the presumption and argues that the problem is investigations. Investigations are vital and are not impeded or obstructed by the Bill. In fact it is critical that no such impediment or obstruction to investigations is created by the Bill because that would indeed risk us coming before the International Criminal Court.
However, in response to the noble and learned Lord, I say that the presumption is also necessary. That is because, again for the reassurance of our service personnel, we owe it to them to explain that we understand the unusual nature of what they are asked to do and that only they are asked to do it, and that we recognise the difficulties that confront them, as my noble friend Lord Lancaster so eloquently explained, in conflict in overseas operations. That is why the effect of Clause 2 will be that when a prosecutor considers whether criminal proceedings should be brought or continued in relevant cases, there will be a presumption against prosecution and the threshold for rebutting that presumption will be high, though not insuperable. It is right that prosecutors identify and assess “exceptional” circumstances and we are confident that they will. It is for them to make that identification, and similar terms are used frequently in existing prosecutorial guidance.
We anticipate that the presumption will operate alongside the public interest assessment as part of the prosecutor’s consideration of the full prosecutorial code test. However, it does not create an absolute bar either to investigations, as I have said, or to prosecutions. It is not acting as a statute of limitations or an amnesty because the presumption is rebuttable, with the prosecutor retaining the discretion to prosecute. Where they determine that it would be appropriate to do so, prosecution is what would follow. Importantly, that could include cases where there is evidence that a serious offence has been committed, as the severity of the crime and the circumstances in which it was allegedly committed will always be factors in a prosecutor’s consideration of a case.
Therefore, I do not share the reservations of some that this presumption is unworkable, that it is a charter for lawbreaking with impunity or that it puts a foot on the accelerator of referrals to the International Criminal Court. My noble friend Lord Faulks spoke very powerfully about that; in fact, he comprehensively slew the dragon of the spectre of referrals to the ICC.
I think that the noble and learned Lord, Lord Falconer of Thoroton, quoted the chief prosecutor, but he certainly quoted the International Criminal Court as saying that as a result of the Bill we could see referrals to the court. If we neglected our duties—if prosecutors, faced with evidence of a justiciable case and satisfied that a serious crime had been committed, omitted to take that prosecution forward—that indeed would be the risk but, as my noble friend Lord Faulks indicated, why would a prosecutor, or the UK, want that to be the outcome? If a wrong has been committed and it merits prosecution, the filters applied under subsections (2) and (3) will ensure that the prosecutor can use his discretion and proceed with a prosecution.
Clause 3 sets out the matters to which a prosecutor must give particular weight when coming to a decision whether or not to prosecute. I accept that prosecutors may already take these matters into account as part of the public interest assessment, but Clause 3 ensures that such consideration is put on a statutory footing. Again, that will provide what I have referred to as a tangible reassurance to our service personnel that the unique context of overseas operations will always be given particular and appropriate weight in the prosecutor’s deliberations.
Clause 3 also requires a prosecutor to give particular weight to the exceptional demands and stresses of overseas operations and their adverse effect on service personnel. Those factors are not empty rhetoric or imagined challenges. They are intended to ensure that prosecutors give full recognition to the marked difference in the circumstances surrounding an alleged offence committed on an overseas operation, in contrast with situations where the alleged criminal conduct occurs in a domestic civilian setting. 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 in cases where there is no compelling new evidence; it is for the prosecutor to make that judgment.
Clause 5 covers the requirement to seek the consent of the Attorney-General of England and Wales or the Advocate-General for Northern Ireland when deciding to bring a prosecution in respect of alleged offences that occurred more than five years earlier. I clarify that the consent function in the Bill does not extend to Scotland. That is because all prosecution decisions in Scotland are already taken in the public interest by or on behalf of the Lord Advocate, the senior Scottish law officer. We have introduced the consent function in Clause 5 because, again, we believe it is important for service personnel and veterans to be confident that in the context of historical allegations their case will be considered carefully and at the highest levels of our justice system.
Clause 6 defines a “relevant offence” to which the statutory presumption, the matters to be given particular weight and the requirement for Attorney-General consent for a prosecution apply. It also details those offences that are excluded, which are set out in Schedule 1. In addition, Clause 6 enables the Secretary of State to amend Schedule 1, on “excluded offences”, by way of a statutory instrument, and sets out the requirement for any such statutory instrument to be laid before and approved by both Houses of Parliament.
I have endeavoured to explain to the House and tried to illustrate how these different sections are interwoven and interconnected. It is important that that provides the Bill with the necessary coherence. I will pay more attention to, and spend more time on, the excluded offences listed in Schedule 1, which, of course, are sexual offences, reflecting the Government’s strong belief that the use of sexual violence or sexual exploitation during overseas operations is never acceptable in any circumstances.
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I know that many of your Lordships have felt anxious about the omission of other crimes from Schedule 1, and the amendments tabled reflect these concerns. We shall deal with this part of the Bill in greater depth when we debate these amendments, but I emphasise that the exclusion of sexual offences does not mean that we will not continue to take other offences, such as war crimes and torture, extremely seriously. As I have indicated, the presumption against prosecution still allows the prosecutor to continue to take decisions to prosecute these offences. Again, I emphasise that the severity of the crime and the circumstances in which it was allegedly committed will always be factors in their considerations.
When service personnel deploy on operations overseas, they are in a completely different environment from their counterparts who are not on such operations or who are deployed in support of civil authorities in the United Kingdom. On overseas operations, service personnel act under unique pressures: there is a high degree of hostility, the threat of violence, the unknown, the unpredictable and the need to make instant decisions while at risk of death or injury. That is the reality of what they do, and it may give rise to a range of allegations of criminal activity. That is the reality of what our personnel may face when deployed overseas.
Finally, in relation to Clauses 1 to 7, I repeat that the measures do not seek to prevent any victims of alleged offences by service personnel bringing forward
their allegations, which will be investigated and, where appropriate, prosecuted. As I have said, there is no time constraint on investigations.
Clauses 1 to 7 are integral to the Bill: they combine to provide the greater certainty and reassurance that our Armed Forces personnel, in the unique environment of overseas operations, deserve. That is why these clauses are necessary and why they should stand part of the Bill.
I will briefly turn to the four amendments in group 1. I thank noble Lords, particularly the noble Baroness, Lady Massey, for their contributions. These amendments seek to change the starting point at which the presumption comes into effect from five to 10 years after the alleged conduct. Some background may be helpful.
In July 2019, the MoD undertook a 12-week public consultation on proposed legal protections for service personnel and veterans who served in operations outside the United Kingdom. This included a proposal for a statutory presumption against prosecution after 10 years. As these were proposals in a public consultation, they were not fixed policy; we were seeking the public’s view on them.
As we set out in our published response to the consultation on 17 September 2020, there was support for a 10-year timeframe, but, equally, there was also support for the presumption to apply immediately. We did not feel that we could justify applying the presumption immediately because our overall purpose was to address legal proceedings in relation to alleged historical offences in overseas operations. As one of the stated aims of the Bill is to help “provide greater certainty” and reassurance to our personnel and veterans, we felt that it was particularly important to take note of the comments provided by respondents to the questions about the timeframe for the presumption.
My noble and learned friend Lord Mackay of Clashfern spoke perceptively about the sanction of a prosecution. He wisely observed that it is a timely remedy to victims—but the strain on the potential accused also has be taken into account. In the consultation, we found that there were clear concerns that 10 years was too long a period of time to have this threat of prosecution hanging over a serviceperson’s head. These concerns are very much aligned with the concept of the public interest in finality—that cases need to come to a timely and final resolution.
To the noble and learned Lord, Lord Morris of Aberavon, and the noble Baroness, Lady Smith of Newnham, I say that the written responses indicated concerns with the 10-year timeframe: memories can fade, evidence can deteriorate and the context of events can change. That point was confirmed by my noble and learned friend Lord Mackay, and the noble and gallant Lord, Lord Stirrup, made helpful comments on it.
As such, given the strength of the views expressed, we felt that a timeframe of less than 10 years would be more appropriate, and five years was the most popular alternative. I hope that that explains where the five-year period came from. It was not a random choice plucked out of the air; it was based on an assessment of the responses to the consultation, which suggested that the five-year period was sensible and sustainable.
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.