Contribution
My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, and to the noble Baronesses, Lady Brinton and Lady Bennett of Manor Castle, for tabling these amendments. This group gives us an opportunity to discuss a complex but very important area of the law. I am also grateful to the noble Baroness, Lady Brinton, for standing in for the noble Lord, Lord Thomas of Gresford. I wish him a very speedy recovery. He is a nice guy.
The Visiting Forces Act 1952 establishes the legal framework that governs the relationship between the United Kingdom and those states that send members of their armed forces to our territory. The issue sits at the very intersection of national sovereignty, the rights of victims and this country’s long-standing alliance relationships. It is right that this House probes how this balance is struck.
I turn first to Amendment 53, tabled by the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Brinton. It would require publication, in unredacted form, of any part of a visiting force’s agreement touching on jurisdiction, together with the reasoning behind it. I merely observe that a statutory duty to publish in unredacted form is a very blunt instrument to apply to what are, in many cases, live diplomatic and security arrangements with partner nations. It may be useful if the Minister could explain what mechanisms already exist for Parliament to scrutinise these matters without compelling wholesale publication.
Regardless of the amendment’s fate, I hope the Minister will take away from this debate that, whatever one’s view on publication, in any case where a jurisdictional dispute arises between the United Kingdom and a sending state it must be beyond doubt exactly how that dispute is to be resolved, who takes the decision and on what criteria. Ambiguity at that point serves no one.
On Amendment 55, the noble Baroness, Lady Bennett of Manor Castle, is right to press the Government on how such cases are handled. Where I part company with her is on the question of necessity, because the outcome she seeks already exists in law. The Visiting Forces Act 1952 does not hand jurisdiction wholesale to sending states. Section 3 of the Act states that the sending state’s military authorities have the primary right of jurisdiction only where the offence arises out of official duty, is against another member of the visiting force or corresponding civilian component, or is against property belonging to the force, its members or dependants. In any case where a member of a visiting force commits a criminal offence against a dependent British citizen, the jurisdiction lies with British authorities. Thus, such an offence would be investigated by the territorial police force for the area and prosecuted by the Crown Prosecution Service, and the case would be heard in a British court. This is the case for all offences, however serious, including sexual offences. This position is unambiguously clarified in the Crown Prosecution Service’s published guidance.
Furthermore, where the NATO status of forces agreement is also engaged the position is, if anything, even stronger. The CPS guidance notes that, taken together with the 1951 NATO agreement, this produces dual jurisdiction in any case where the victim is a dependant who is either a UK national or habitually resident here. A dependant, rather than a fellow service member, is precisely the category of victim that I believe the noble Baroness’s amendment is designed to protect.
Where cases have an international dimension going wider than the visiting forces framework—as, for example, in dealings with the United States—the mechanism for resolving concurrent jurisdiction is also already in place. The guidance governing such cases between our two countries commits prosecutors to weighing each case on its individual merits, guided throughout by a commitment to fairness and objectivity.
I will not detain the Committee further on the remaining amendment in this group concerning the list of countries in Section 1(1)(a) of the 1952 Act, save to say that I believe that the United States is counted as a visiting force. The Visiting Forces (Designation) Order 1954 exercises the power in Section 1(2) of the 1952 Act to designate Belgium, France, the Netherlands, Norway and the United States of America as visiting forces. The US is also covered under the NATO SOFA. I would be very grateful if the Minister could confirm whether this interpretation is correct.