Overseas Operations (Service Personnel And Veterans) Bill
Wednesday 23rd September 2020
(3 years, 7 months ago)
Commons ChamberRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts
18:59 - The House divided: - Ayes: 331 / Noes: 77 - Question accordingly agreed to.
Madam Deputy Speaker (Dame Rosie Winterton)
No amendment has been selected, so I call the Minister to move the Second Reading.
The Secretary of State for Defence (Mr Ben Wallace)
I beg to move, That the Bill be now read a Second time.
The men and women of our armed forces are some of the most professional and capable people this country has. They risk their lives to keep us safe, uphold our values and support society whenever the call comes. I know the exceptional and often dangerous tasks that we ask them to do, and the war memorials sadly record the price of that sacrifice that they sometimes have to make. Our support for them should not be confined to the occasional act of remembrance, but should be real and should recognise the things that they do in our name.
In 2004, Phil Shiner, a lawyer, went fishing. He fished for stories, he fished for victims and he fished for terrorists. Phil Shiner and his company, Public Interest Lawyers, fished for people from whom he could make money and to accuse British troops of wrongdoing. By the time Phil Shiner and his like had finished, he had dragged before the courts 1,400 judicial reviews and 234 compensation claims against hundreds of troops. Alongside him on some of those occasions was another law firm that will be, I am afraid, all too familiar to some on the Opposition Benches—Leigh Day. From 2008, those types of firms hauled industrial levels of claims before the courts—never mind the fear and worry and the endless investigations triggered into the men and women of our armed forces. What mattered to the ambulance chasers was the money—the legal aid income, the commissions on compensation claims.
Mr Kevan Jones (North Durham) (Lab)
I agree with the Secretary of State’s comments about Phil Shiner, but I have asked his Department for the numbers of cases—as, I understand, have representatives from the Scottish National party—but it has not produced them. The explanatory notes say that there were 900 civil claims. When is he going to produce the figures?
Mr Wallace
They are in the Library. They were published last week and this is in the impact assessment, but I am very happy to write to the right hon. Member with the clear numbers. I can tell him now that overall, 1,130 compensation claims were brought between 2003 and 2009. One hundred and eighty-eight of the 244 claims put forward by Public Interest Lawyers were struck out by the High Court, and a further 32 lapsed due to inactivity, so we could say that they were found out and justice was eventually done, yet in the meantime, our troops had to endure repeated investigations, interviews and, in some cases, prosecutions.
The system as it stands provides an all-too-easy route for lawyers to spark repeat investigations and multiple claims, too many chances to earn fees and too many chances to drag yet another soldier through a witness box or an interview. If that all fails to produce a result, and most of them do not, there is always the opportunity to use the media to drum up more business, damaging our reputation across the globe with unsubstantiated allegations.
In theory, a veteran who served in Iraq and Afghanistan could have been involved in up to 13 investigations. The list is exhaustive: a coroner’s inquest; a commanding officer’s investigation; a service police investigation; the Iraq Historic Allegations Team, a judicial review, a service inquiry—the list goes on. Remember that in the middle of this are the men and women who risk their lives to ensure that we sleep safely in our beds.
Jim Shannon (Strangford) (DUP)
I welcome the fact that the Bill has been brought to the House. The introduction of measures and safeguards are very important, and one reason why is the mental health and wellbeing of those who are potentially prosecuted because of things that perhaps did not happen. It is very important that the welfare of soldiers, sailors and airmen is protected, is it not?
Mr Wallace
The hon. Member makes a really important point. Under the Bill, there are steps where prosecutors will have to pay due regard to the impact on soldiers and sailors of that type of further action.
We have been told that this Bill is controversial. Some have gone as far as to say that it decriminalises torture or prevents veterans receiving compensation. Both allegations are untrue. I have to question whether those making such points have actually read the Bill in full. As the former Attorney General for Northern Ireland, John Larkin QC, has recently written:
“It is clearly wrong to say that the Bill would forbid prosecution of serious allegations of torture supported by evidence.”
Gavin Robinson (Belfast East) (DUP)
The Secretary of State invokes the Attorney General for Northern Ireland, so I will invoke Northern Ireland at this point. He knows that of the 300,000 veterans who served in Northern Ireland, none can find comfort in this Bill, as it is about overseas operations. However, he also knows that when the Bill was introduced, there was an equal and comparable commitment given on 18 March that those who served in Northern Ireland would get equal protection. That Bill is yet to be introduced, but can he convince us this afternoon that that commitment still stands?
Mr Wallace
The hon. Member points to the statement made in the House, and the Government still stand by that. We will ensure that legislation comes forward as part of the overall package to address legacy issues in Northern Ireland.
Jonathan Edwards (Carmarthen East and Dinefwr) (Ind)
Notwithstanding the Secretary of State’s comments, he knows that some people who are very close to the military consider the Bill to be extremely controversial. Indeed, the Financial Times today leads with a quote that it is an “international embarrassment”. Does he agree with General Nick Parker, a former commander of UK land forces, who was quoted in the Financial Times today as saying:
“We shouldn’t be treating our people as if they have special protection from prosecution…What we need to do is to investigate properly so that the ones who deserve to be prosecuted, are”?
Mr Wallace
First, that is what we are doing. I do not agree with the point about torture. I absolutely agree with the point by the former Attorney General for Northern Ireland on that subject.
Several hon. Members rose—
Mr Wallace
I am going to make some progress. I know that there are lots of people down to speak in this debate and, although I am willing to give way as much as possible, I would like to make sure that other Members across the House get a chance to speak and make their points.
Let me set out what the Bill does and what it does not do. First, the Bill ensures that, in accordance with article 6 of the European convention on human rights, every member of the armed forces and Crown servant is
“entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Not my words, not the Government’s words, but the actual words in the ECHR itself. Note the phrase “reasonable time”. That condition runs right through this Bill.
Clauses 1 to 7 introduce new conditions on prosecution for certain offences. In particular, clause 1 sets out when the presumption against prosecution measures will apply, including that the measures will apply only to alleged events that took place on overseas operations more than five years ago. Clauses 2 to 5 create new thresholds that a prosecutor is required to consider when bringing a case. That will give service personnel and veterans greater certainty that the unique pressure placed on them during overseas operations will be taken into account when decisions are made on whether to prosecute for alleged historical offences. The first threshold is that, once five years have elapsed from the date of an incident, it is to be exceptional for a prosecutor to determine that a serviceperson or veteran should be prosecuted for alleged offences on operations outside the UK.
Stephen Timms (East Ham) (Lab)
When the Secretary of State’s Department consulted on the Bill in July last year, it suggested that there were two categories of offence that might be excluded from the Bill. One was sexual offences, and the other was torture. Sexual offences have been excluded; why has torture not been?
Mr Wallace
First, I took the decision that, if we look back at many examples of case law or challenges, the debate around torture and murder has often been about the excessive use of an action in doing something that is what a soldier may or may not think is legitimate. For example, it is an act of war to go and attack a target. It is, unfortunately, an act that a soldier may have to do, which is to use lethal force in defence. It is often a side effect or a consequence of an action that you detain people. Often, the legal debate around that has focused on whether the soldier has been excessive in that use of force. If a soldier uses an excessive amount of force in self-defence on duty, that is viewed as murder. That is where we have often seen challenges in courts around both investigations and decisions to charge.
What is not part of war in any way at all is sexual offences. It is not a debatable point. It is not a place where it is possible to turn on a coin and argue that there is a right and a wrong. That is why I took the view that we should exclude sexual offences from schedule 1 but in the main part of the Bill cover all other offences. It is not the case that, even after five years, someone cannot be prosecuted for torture, murder or anything else. It is absolutely clear that it is still possible to prosecute, and it is our intention, should new or compelling evidence be brought forward, to prosecute for those offences. The Bill is not decriminalising torture and it is not decriminalising murder in any way at all. I mentioned earlier the view of the former Attorney General of Northern Ireland, who is himself well practised in that type of law and an expert.
John Redwood (Wokingham) (Con)
I think that this is an excellent set of proposals, which the Secretary of State has thought through with great enthusiasm and common sense. It is of course right that people should be investigated fully, and prosecuted if necessary, close to the event, but we want to avoid double, treble or quadruple jeopardy by money makers who should know better than undermining the reputation of our armed forces. I thank the Secretary of State very much for getting the balance right.
Mr Andrew Mitchell (Sutton Coldfield) (Con)
I do think we are nearly there on this point, but my right hon. Friend knows that it is important, because it has been raised by some very senior members of the armed forces. I have talked to his excellent junior Minister, the Minister for Defence People and Veterans, my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), and we all want the lawfare that my right hon. Friend described, which is so outrageous, stopped. Mrs Thatcher brought in the Criminal Justice Act 1988, which made it clear that torture of anyone, anywhere is a criminal offence. It would be very helpful if my right hon. Friend now made it clear, in addition to his response to the right hon. Member for East Ham (Stephen Timms), that it is never acceptable, under any circumstance, for any act of torture to take place.
Mr Wallace
I fully agree with my right hon. Friend: torture is not an acceptable part of what any soldier or any citizen of this country should take part in. Where former Governments, of all colours, have been found to have not upheld those standards, they have either been prosecuted or faced the consequences. No one is excluding that and no one is decriminalising it.
Dr Julian Lewis (New Forest East) (Ind)
Does the Secretary of State accept that the primary problem is not repeated prosecution, but repeated reinvestigation? The Bill does little to rule that out. With the sorts of cases that he has outlined, the problem has been the innumerable investigations. They are what were so traumatic for the troops, not the tiny number of prosecutions. As the former Attorney General for Northern Ireland says:
“Nothing in the Bill limits the investigation of offences—even outside the period of five years…The Bill impliedly contemplates the possibility of multiple investigations.”
That, I am afraid, is where the Bill falls down.
Mr Wallace
First, the Bill deals with two parts of why often people are investigated. One is under civil proceedings, where they are investigated or interviewed, or involved in the inquest. Many of those personnel find themselves repeatedly interviewed, either as a suspect or, indeed, through constant summonses as a witness in an inquest. As we know from a number of cases, that has happened on multiple occasions. That is why the second part of the Bill deals with the civil route and the first part deals with the criminal bit.
On the criminal bit, one change is the requirement after five years for a number of thresholds to be gone through before a decision to prosecute is progressed. We think those thresholds are enough to make sure that investigators, or the prosecutor, before perhaps embarking on a repeat investigation—for example, if there has already been one—have to have regard that this is important new evidence. In my experience, investigators do not just investigate for investigation’s sake; they investigate to reach a point of prosecution. If they feel that a prosecution is unlikely, they will not pursue it. I feel that will therefore reduce the number of investigations.
My right hon. Friend also makes the point, in regard to the critics, that the Bill does not prevent prosecution in certain circumstances of egregious crimes committed either against humanity or our treaty obligations at all. That is really important. We will never prevent new evidence from producing a prosecution if a crime has been committed.
Several hon. Members rose—
Mr Wallace
I am now going to progress.
The second element of the first part of the Bill ensures that, when making a decision, the prosecutor must give particular weight to certain matters, such as the adverse impact of operations on our personnel and the public interest in finality where there has been a previous investigation and there is no compelling new evidence. If it is deemed that the case should proceed to trial, the third threshold requires consent before a prosecution can proceed. In England and Wales, for example, that will be from the Attorney General. In those cases, the Attorney General will be acting independently of Government, as guardian of the public interest.
Some groups such as Liberty have suggested that this is political interference. It is nothing of the sort. Given that the Attorney General already has decisions over prosecutions in statute ranging from the Auctions (Bidding Agreements) Act 1927 to the Theatres Act 1968, it is neither uncommon nor controversial.
Mr Wallace
If the hon. Gentleman is going to tell us about the Advocate General for Scotland—[Interruption]—or rather, the Lord Advocate in Scotland, who also sits in the Scottish Cabinet—and his role in directing prosecutions, I will be interested to hear.
Stewart Malcolm McDonald
Of course, the Advocate General for Scotland resigned just last week. I believe it is the case that the Department consulted the Lord Advocate in the Scottish Government. It is normally the case that the Government would not publish the advice of its own lawyers, but the Lord Advocate in Scotland is not a UK Government official; he is a Scottish Government official. Will the Secretary of State publish the opinion that the Ministry of Defence received from Scotland’s Lord Advocate?
Mr Wallace
We are not going to publish his opinion or anybody else’s.
We do not publish the opinion of our Attorney General. It is a long-held policy of most Governments not to publish the legal advice they receive, except in exceptional circumstances.
Part 2 of the Bill makes changes to the time limits for bringing claims in tort for personal injury or death and claims for Human Rights Act 1998 violations that occur in the context of overseas military operations. Clauses 8 to 10 introduce schedules 2, 3 and 4. Taken together, these provisions introduce new factors that the courts in England, Wales, Scotland and Northern Ireland must consider when deciding whether a claim for personal injury or death can be allowed beyond the normal limit of three years. The provisions also introduce an absolute maximum time limit of six years for such claims. These new factors ensure that operational context is properly taken into account, and they weigh up the likely impact of giving evidence on the mental health of the service personnel or veterans involved.
Clause 11 amends the Human Rights Act. This provision largely mirrors the changes that are being made for tort-based claims. It will change the rules governing the court’s discretion to extend the one-year time limit for bringing claims under the 1998 Act and will introduce an absolute maximum time limit of six years for human rights claims in relation to overseas operations. Again, critics of the Bill are trying to mislead veterans with tales that this somehow discriminates against our armed forces.
Let us put this six-year backstop into perspective. Currently, for claims in tort, where personnel may sue for personal injury in England, there is already a time limit. Mostly, that limit is three years from the date of the incident or knowledge of it. In other words, if a former soldier is diagnosed with PTSD 20 years after his service, the time limit starts then, not when the operation took place. The existence of time limits is commonplace and was upheld by the European Court of Human Rights in the case of Stubbings v. the UK. The UK Human Rights Act itself has a 12-month time limit for claims from the event happening but does allow for further judicial discretion, and the armed forces compensation scheme has a seven-year time limit.
Finally, clause 12 will further amend the Human Rights Act to impose a duty to consider derogating from—that is, suspending our obligations under—the European convention on human rights in relation to significant military overseas operations. This measure does not require derogation to take place, but it does require future Governments to make a conscious decision on whether derogation should be sought in the light of the circumstances at the time. We want in future the ability, if necessary, to allow soldiers to focus on the danger and job in hand when on operations, not on whether they will have a lawsuit slapped on them when they get home.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I thank the Secretary of State for giving way. He knows that my views on these matters are sincere. I abhor vexatious claims against former service personnel. I have witnessed the training of armed forces on the laws of war at first hand and seen how seriously they and their commanders take it. He will be aware that derogation from that section of the ECHR is used in very rare circumstances, and it would be helpful to have more clarification on that. Many people have spoken out on the Bill, including a former Chief of the Defence Staff, a former Commander Land Forces, former Conservative Defence Secretaries and Attorney Generals and learned and gallant Members on both sides of the House. Does he accept that they are expressing those concerns sincerely? I urge him to listen to them as the Bill goes into Committee.
Mr Wallace
I certainly recognise that people have concerns. Some of those people were doing the job that I am doing when these things were going on, so I would venture to ask them why they did not do anything about it at the time. It is a fact that there has been abuse of this system; we all know that on both sides of the House. It is a fact that we need to do more, rather than just talk about it, for our veterans. It is really important to include measures to recognise the very unique experiences of and pressures put on the men and women of our armed forces when they go on operations hundreds of miles away.
Tom Tugendhat (Tonbridge and Malling) (Con)
I want to pick up on the point made by the hon. Member for Cardiff South and Penarth (Stephen Doughty)—I am glad to see him wearing his Royal College of Defence Studies tie; there are quite a lot of military ties in the Chamber today—about the application of the ECHR. The derogation that we are asking for and that the Bill recommends is not new; it was included in the initial treaty when it was signed in the ’50s, and other countries have already used it. We are talking about recognising the provisions of a treaty that we signed in order to allow the military to act in a military way, because this treaty was written by people who had fought in the second world war and knew exactly what they were talking about.
Mr Wallace
My hon. Friend makes a substantive point, and one reason we find ourselves facing these challenges is because there is a clear conflict between international humanitarian law in some areas, and international human rights. The encroachment and growing reach of ECHR into areas of combat has created a clash, in some sense, between things such as the Geneva convention and individual human rights. That is why when the authors wrote the ECHR, they included some of those carve-outs as a way of accommodating the international laws under which they had been operating in the mass conflict of the second world war. Indeed, when the Defence Committee was chaired by my right hon. Friend the Member for New Forest East (Dr Lewis), it picked up on that very real clash, which is hard to resolve. In my view, some of the problems with lawfare is that people are exploiting that clash for financial gain. It is easy to hide behind a humanitarian law on one day and a human rights law on another, and we have a duty to try to make a difference.
We are not going as far as many countries under the jurisdiction of ECHR. Other countries in Europe have a statute of limitations on criminal offences. Germany and France both have a number of criminal statutes that are statutes of limitations. Other countries also do that, or have amnesties, but we are not going that far. We are trying to resolve that clash and see how we can ensure a proper threshold, so that there are no vexatious investigations and our men and women do not constantly find themselves the subject of them.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
Surely, the debate of the past five or 10 minutes has exposed the truth of this matter, which is that it is easy to build consensus in the House on provisions relating to civil actions—there is very little exception to that. However, may I take the Secretary of State back to the answer he gave to the right hon. Member for Sutton Coldfield (Mr Mitchell)? He is right in what he says about torture, but the logic of his argument is that torture should be listed in the first schedule to the Bill. He is right to put sexual offences in that schedule because, as the Government says, there are no circumstances in which sexual offences can be tolerated in war, but the logic of not including torture suggests that there are some circumstances in which torture is accepted. That is the logic. Will the Secretary of State tell the House what those circumstances are?
Mr Wallace
The right hon. Gentleman is a learned Gentleman and a former colleague of mine—
Mr Wallace
Well, he should be. Only a solicitor would argue the toss between a barrister and a solicitor; for us mere soldiers, they are learned gentlemen or women in this context. I am afraid that he is absolutely wrong in his assertion. Nowhere in the Bill prevents a prosecution for torture either under five years or over five years. If he can show me where in the Bill there is a decriminalisation or tolerance of torture, I would be delighted to hear which clause or subsection decriminalises torture. Will he show me the statute?
Mr Carmichael
The exclusion of torture from schedule 1 raises the inference for any court that—and this is a matter of logic, not of law—there are circumstances in which torture is acceptable. All the Secretary of State needs to do is include torture in schedule 1, and the Bill would have no difficulty.
Mr Wallace
Does the right hon. Gentleman therefore venture that beyond torture there is murder? Should we include murder in that schedule as well?
Mr Carmichael
Obviously not, because murder is dealt with by the common law of this country. The Secretary of State is perfectly aware that such a case could still be brought under the exceptional circumstances provisions. The problem he has is that there is no such thing as unexceptional torture.
Mr Wallace
I will crack on. The House has heard the point from the Liberal Democrat spokesman. I venture that I will side with the former Attorney General for Northern Ireland on his views regarding whether this provision does or does not prevent torture. I think his judge of the law is pretty succinct, although I have not always agreed with his views. [Interruption.] I shall carry on.
In conclusion, the Bill is about doing the right thing by our troops. Our soldiers and values must uphold the highest international standards. The Bill is not an amnesty, a statute of limitation, or the decriminalisation of erroneous acts. We will continue to protect the independence of our prosecutors and our service police, and we will investigate and, if necessary, prosecute service personnel who break the law. But what we will not accept is the vexatious hounding of veterans and our armed forces by ambulance-chasing lawyers motivated not by the search for justice, but by their own crude financial enrichment.
This House should reflect on how lawfare has ranged way out of control. All too often, the victims have been the very people who risked life and limb to keep us safe. The Bill is a measured step, making provision for the unique circumstances our troops find themselves in on operations overseas. I commend the Bill to the House.
Madam Deputy Speaker (Dame Rosie Winterton)
I remind colleagues that many right hon. and hon. Members wish to contribute to the debate, so Back-Bench contributions will be limited to five minutes to start with. We will have to review the limit as we go to allow as many people as possible to participate.
John Healey (Wentworth and Dearne) (Lab)
I start by also paying tribute to the role, dedication and work of our armed forces. They face exceptional risks, give exceptional service and require exceptional skills. As we face as a nation a second covid crisis, they are likely to be called on again, more heavily, including overseas.
I am pleased that we have come to the Commons debate on this legislation. I thank the Secretary of State for the way he introduced the Bill. The first duty of any Government is to protect the nation and its citizens, and the first duty of any Defence Secretary is to protect the men and women who dedicate themselves to the service of their country. We have our own British way of doing this. Since the days of Churchill and Attlee, when Britain led the global efforts to establish the rules-based international order after the second world war, we have been the champions of democracy, freedom and universal human rights. Our British forces uphold, unequivocally, international law and conventions. By adhering to the highest standards of legal military conduct ourselves, we can hold other countries to account when their forces fall short. The Bill calls into question Britain’s proud commitment to the Geneva convention, our duty as a “permanent five” member of the United Nations to uphold international law, and our moral authority to require the conduct of other nations to meet the standards set by those international conventions.
Since the end of the 2000s, all parties in this House have upheld a strong commitment to the armed forces covenant, which declares that those from the armed forces and their families
“should face no disadvantage compared to other citizens in the provision of public and commercial services.”
The Bill breaches that covenant by denying troops who serve overseas the same employer liability rights as are held by the UK civilians they defend. Our aim with this Bill is, first, to protect British troops and their right to justice from the MOD, and secondly, to protect Britain’s reputation as a force for good in the world, upholding human rights and the rules-based international order. We will work to help forge a constructive consensus through the Commons and the Lords for the changes necessary to achieve that aim.
Tom Tugendhat
The right hon. Gentleman must recognise—I am sure he knows this well, having spoken to his opposite numbers in socialist or left-wing parties around Europe—that many other countries follow this system of derogation and have national caveats. France itself has a reserve of emergency powers it can use to defend its troops against vexatious or inappropriate litigation. Is he seriously suggesting that France is not a law-based state, or that it is in some way immoral and has no right to sit as one of the P5? Surely he is not suggesting that.
John Healey
No, I am very clear that we want to and must protect our British troops against vexatious claims and repeat investigations. Important parts of the Bill are wrong; we can get them right and that is what I want to do. There has been a problem—I get that—arising especially from the conflicts in Iraq and Afghanistan, as the Secretary of State said. The al-Sweady inquiry chairman, when he finally cleared the troops in 2014, spoke forcefully of the “most serious allegations”—of murder and mutilation—that
“have been hanging over these soldiers for the past 10 years”.
The family of an Iraqi boy, Ahmed Jabbar Kareem Ali, who drowned in a canal in 2003 with British soldiers directly implicated, had to wait until the Newman inquiry reported in 2016 before they got the truth and the MOD issued a full apology.
Long-running litigation, repeat investigations and judicial reviews are indeed the signs of a flawed system—a system that has failed British troops and failed victims under successive Governments. I get this problem, and it must be fixed, but it is important to see it in perspective, not least so that we can see clearly the problem that we are legislating in the Bill to fix.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
My right hon. Friend was touching on an important point that Members on the Government Benches have touched on as well. The problem is, as it stands, the long investigations and the repeated investigations that allow double jeopardy not via the courts, but by intimidation of investigation. The Bill does nothing whatever to deal with some of those issues. Is that not a reason for the Government to go away and rewrite parts of the Bill or even issue proper investigatory guidelines to stop that kind of thing happening?
John Healey
I sincerely trust that the Government will rethink and will be prepared to rewrite parts of the Bill. If they do so, I think they will find broad consensus for some of the changes that could be made to the Bill to help protect our troops and protect Britain’s reputation worldwide at the same time.
Stuart Anderson (Wolverhampton South West) (Con)
On that point, I have seen successive Governments overlook the armed forces, having been one of those people thrown on the pile to fend for myself. This Bill is a massive step forward for any veteran who has served on the frontlines. We are playing politics with this issue, and I plead for all Members to put that aside and focus on the massive step this Bill is for our armed forces.
John Healey
I will come on to that matter in a moment, because the Bill does nothing for those troops who have served, as the hon. Gentleman describes, on the frontline overseas. It does nothing to deal with the past cases and the past problems.
Jim Shannon
On that point, the right hon. Gentleman is right about the armed forces covenant and the ability of members of the armed forces community to bring a claim for injury or death after six years. There is some concern about the unique deviation of the Limitation Act 1980 in the Bill that will place members of the armed forces community at a disadvantage compared with civilians. After six years, civilians can register a civil claim, whereas soldiers and Army, Navy and RAF personnel cannot.
John Healey
In his typical way, the hon. Member puts his finger on an important point. He understates his argument, as there is more than just some concern; there are, for instance, according to the Royal British Legion, very clear grounds for concern that the provision breaches the armed forces covenant, and I will come on to that point.
Let me deal with getting this problem, which does exist and must be fixed, in a proper perspective. My right hon. Friend the Member for North Durham (Mr Jones) was absolutely right about how hard it is to get hard, clear information out of the Government. Over recent months, I have had to prise figures out of the MOD. There is a deep resistance to releasing full, open information. The first important figures to give a broad perspective are these: over the past 15 years, there have been 25 cases brought by injured British troops against the MOD for every one case brought by alleged victims against our troops. You can see why, Madam Deputy Speaker, some of the veterans I have talked to about this Bill reckon it is more about protecting the MOD than it is about protecting troops. Britain deployed 140,000 troops to Iraq over six years. The Government cite—the Secretary of State did so today—1,000 civil claims, all against the MOD, not individual service personnel, as evidence for the Bill to end vexatious legal claims. One third of those cases—330—have had the MOD pay compensation. Clearly, they were not vexatious as the MOD rightly insists on only settling cases in which it accepts liability. [Interruption.] The Secretary of State says, “No, we don’t,” but if he looks at the annual report on the cases that the Department publishes and takes, he will see exactly that commitment and clarification. It does not have the power to settle claims where it judges that it would not be found liable in a court. However, one fifth of the cases—217—have been withdrawn or struck out. They may well have been vexatious cases—they were certainly baseless. They may have taken too long, but the system, even as it stands, has dealt with them.
Two fifths of the cases—414—are ongoing, according to the MOD, although that definition could mean that those cases are settled and the MOD has agreed to pay compensation, but there may still be outstanding arguments over legal costs. Those cases may again be long-running, but they are hardly vexatious if they have not been struck out by now.
On the criminal side, the Government cite 3,400 allegations. The Secretary of State referred to the Iraq Historic Allegations Team that looked into them. Despite deep flaws in that investigation, 70% were ruled out as there was no case to answer or no proportionate grounds for a criminal investigation. In other words, those allegations did not warrant a full investigation so got nowhere near the point of decision about prosecution. They would have been wholly unaffected by the Bill if the measure had been in place because, as the right hon. Member for New Forest East (Dr Lewis) said, it does not deal with investigations—as it should—but only with prosecutorial decisions and process. By the way, just seven prosecutions have been brought against British soldiers from the remaining allegations and investigations, and all but one have now been dropped.
On Afghanistan and criminal cases, the Operation Northmoor investigation in 2014 examined 675 criminal allegations from 159 people. The investigation closed and no charges have followed. Indeed, the investigation concluded a year before the MOD confirmed in public in June that it had closed.
On judicial review, the Government have cited 1,400 JRs of civil and criminal Iraq and Afghanistan cases as justification for the Bill. I can only find evidence that two judicial reviews are continuing. The court gave the MOD permission to strike many of the others out three years ago. Yet in April, the Minister told me in answer to a written parliamentary question that the MOD had still only notified fewer than half—630—of the court’s decision not to take the investigations further.
To put the matter in perspective, certainly some vexatious claims have been lodged and the current system has taken too long to weed them out, but the bigger, more serious, more consistent problems lie in the system of investigations, which lacks speed, soundness, openness and a duty of care to alleged victims and to the forces personnel who may be in the frame. Those are the problems, which occur well before the point of decision about prosecution, which is the point at which the Bill starts to operate. They are what the Bill should and can deal with. Our aim during its passage through Parliament is to help ensure that it does.
To pick up on the point made by the hon. Member for Wolverhampton South West (Stuart Anderson), I must confess that when I first looked at the Bill, I thought that it was designed to draw a line under the cases still caught up in the problem of so-called lawfare. The first paragraph of the explanatory notes gives the same misleading impression. It says:
“This Bill aims to provide greater certainty for Service personnel and veterans in relation to vexatious claims and prosecution of historical events, that occurred in the uniquely complex environment of armed conflict overseas.”
But this legislation will have no impact on any past or any continuing cases, and clause 15 on commencement makes that clear, so it offers no hope and no help of faster resolution either for the troops or for the alleged victims, who may still be involved in long-running litigation or in repeat investigations. I want to make sure that no one in this House and, much more importantly, in the armed forces and the veterans community is misled by what they may have heard or may have understood before now.
Similarly, nothing in this Bill applies to Northern Ireland, despite the same commitment in the Conservative manifesto, similar concerns on the Government side about drawing a line for British troops who served in Northern Ireland and the Secretary of State’s letter to all MPs last week in which he confirmed his eagerness
“to ensure also the equivalent protections of our veterans who served in Northern Ireland.”
The Secretary of State’s speech looked back, but we now legislate for the future. The Bill is not a framework fit for the future point when Britain must again commit its forces to armed conflict overseas. The Government have got important parts of the Bill badly wrong, and I want to see Ministers work with all parties in both Houses and with groups beyond Parliament who have expertise to offer on this—from the British Legion to Liberty—to get this legislation right.
There are problems. The Bill is silent on the command responsibility and the role of commanders in some of these cases. There is a problem, I think, with the Attorney General’s consent, as it risks political factors coming into prosecutorial decisions. There is nothing on the disclosure rights, responsibilities and duties of the MOD. Let me summarise our biggest concerns about the Bill.
Jonathan Edwards
I agree with many of the points the shadow Secretary of State has made during his very valid contribution. Does he agree that one of the fundamental weaknesses with the Bill was put forward by the UK’s most senior military judge, who has argued that the consequence of the legislation is that UK military personnel are more likely to find themselves in front of the International Criminal Court?
John Healey
I am grateful to the hon. Gentleman for conceding that I am making some valid points. His point is certainly valid, and it will be a point of central argument, probably in the debate today, but certainly as the Bill passes through both Houses.
Let me return to the biggest problems in the Bill. Part 1, as the Secretary of State said, introduces what the Government have called their so-called triple lock to make prosecutions for the most serious crimes harder. The presumption against prosecution for all crimes except sexual violence clearly creates the risk that the very gravest crimes, including torture and other war crimes, go unpunished if an incident does not come to light for five years or if the investigations are drawn out beyond that deadline.
Stephen Doughty
My right hon. Friend is making an extremely constructive and compelling speech, and I hope that all Members on both sides will listen to what he is saying. On that specific point about torture, may I commend to him the article by our hon. and gallant Friend the Member for Barnsley Central (Dan Jarvis), who has very clearly set out today the objection he has, as I do, to vexatious claims and vexatious investigations? He is also very clear that the prohibition on torture is absolute: there are no exceptions. We as a country are a signatory to a whole series of international conventions on that very issue, and the derogations we talked about under the European convention make it very clear that we have to comply with those international obligations.
John Healey
I am grateful to my hon. Friend for a very succinct and spot-on point, and I look forward to the contribution that I hope my hon. Friend the Member for Barnsley Central (Dan Jarvis) will be able to make in the debate.
John Redwood
Will the changes the shadow Secretary of State wants to make overall give more protection to our veterans, or will they actually reduce the protections in this legislation?
John Healey
The changes will give protections that are fit for the future. They will give protections that are required, and they will avoid parts of the Bill that at the moment put at a disadvantage in a unique fashion those British troops who serve overseas, which is why we argue that it breaches the armed forces covenant.
To come back to the presumption against prosecution, in the explanatory notes the Government maintain:
“Nothing in this Bill will stop those guilty of committing serious criminal acts from being prosecuted.”
That is a point the Secretary of State made, but many legal experts disagree and say that the Bill, as it intends, will be a significant barrier to justice. The Law Society’s briefing on this debate says:
“The Bill creates…a limitation period for a select group of persons in specific circumstances, i.e. armed forces personnel alleged to have committed offences overseas.”
Alongside the extra factors for prosecutors to take into account and the requirement for the Attorney General to give the go-ahead for such prosecutions, that clearly risks breaching the Geneva convention, the convention against torture, the Rome statute, the European convention on human rights and other long-standing international legal obligations. Where the UK is unable or unwilling to prosecute, the International Criminal Court may well act. So rather than providing relief for the troops accused, the Bill also risks British service personnel being dragged to The Hague, the court of Milošević and Gaddafi, instead of being dealt with in our own British justice system.
Let us just step back a moment from the technical detail. This is the Government of Great Britain bringing in a legal presumption against prosecution for torture, for war crimes and for crimes against humanity. This is the Government of Great Britain saying sexual crimes are so serious they will be excluded from this presumption, but placing crimes outlawed by the Geneva convention on a less serious level and downgrading our unequivocal commitment to upholding international law that we in Britain ourselves, after the second world war, helped to establish.
Mr Wallace
What is appalling is the straw man being put up time and again by a Labour party half-funded by these ambulance-chasing lawyers. That is going to damage our reputation. No apology for the money they took from a number of them—no apology whatever. What we should recognise is that many of—[Interruption.]
Madam Deputy Speaker (Dame Eleanor Laing)
Order. Do not shout in the Chamber.
Mr Wallace
Much of the mess we are having to come and clean up today is because of your illegal wars, your events in the past and the way you have run the safety of our forces. To put up straw men and make wild allegations that are wholly inaccurate, and disputed by people much more learned than the right hon. Gentleman, does a disservice to our troops and is all about making an excuse for not supporting the Bill. We will see tonight whether or not he supports the Bill.
John Healey
That is not worthy of the office of the Secretary of State for Defence. We are dealing with matters of torture, war crimes, MOD negligence, compensation for injured troops and compensation for the families who have lost their loved ones overseas. This is too important for party politics. It should be beneath the Secretary of State to reduce this to party politics. We on the Labour Benches will work with the Government to get the Bill right.
The Minister for Defence People and Veterans (Johnny Mercer)
This is embarrassing.
Madam Deputy Speaker
Order. When you speak, you speak standing up not sitting down. Now, we will just have a drop in temperature while we consider the facts of the Bill and let the emotions settle down somewhat.
John Healey
Thank you, Madam Deputy Speaker. The facts of the Bill are that it places torture and other war crimes on a different level to crimes of sexual violence. That is not embarrassing; that is unconscionable for a country with a proud record of upholding unequivocally the international conventions that we helped to draw up.
John Healey
No, I will not at this point.
Ministers must think again. No wonder that the former Chief of the Defence Staff, Lord Guthrie, says that the Bill as it stands would be a stain on Britain’s standing in the world. Ministers must think again. They must remove torture and other war crimes from the Bill. There are better ways of protecting our troops and Britain’s good name.
Part 2 creates a higher hurdle for civil cases after three years, as the Secretary of State said, with extra factors that a prosecutor must take into account, and a hard block on any case after six years. For British troops serving overseas with claims to make against the MOD, that does breach the armed forces covenant—a point that I made to the Secretary of State early in the summer, reinforced today by the Royal British Legion in its briefing for this debate, which says that in removing “the ability of members of the armed forces community to bring a claim for injury or death after six years, the Government will create a unique deviation from the Limitation Act 1980.” It denies those who serve our country overseas the same employer liability rights as the rest of us enjoy at home. It creates circumstances that allow the MOD to avoid claims when it fails properly to equip our troops or makes serious errors that lead to the death or injury of British troops overseas.
It is plain wrong that those who put their lives on the line for Britain overseas should have less access to compensation than the UK civilians they defend, and, since 2007, there have been at least 195 cases of troops who would have been caught by the Bill. Ministers have tried to play that down by saying that the clock on that deadline starts only at the point of diagnosis, but that is misleading because diagnosis is not in the Bill and the point of knowledge is in the Bill. That is another important provision that we must put right.
ln conclusion, we believe, and I believe strongly, despite what the Minister for Defence People and Veterans is chuntering under his breath, that the Government, Labour and the armed forces ultimately all want the same thing: we want to protect British troops and we want to protect British values, and that should not be merely a matter of party politics.
I say to the Secretary of State, during the Bill’s passage through Parliament we want to help forge a constructive consensus on the changes needed to overhaul investigations, to set up safeguards against vexatious claims that are entirely consistent with our international obligations, and to guarantee troops the right to compensation claims when MOD failures lead to the death or injury of our forces overseas. It is not too late for Ministers to think again about the best way to protect service personnel from vexatious litigation while ensuring that those who do commit serious crimes during operations are properly prosecuted and punished. As the Bill begins its passage through Parliament, I urge the Secretary of State and his Minister to work with us to ensure that it does just that.
Several hon. Members rose—
Madam Deputy Speaker (Dame Eleanor Laing)
The House will be aware that a great many people would like to speak this afternoon—far more than the number of people who are currently able to be in the Chamber. We have a waiting list. We therefore start with an immediate time limit of five minutes.
Mr Tobias Ellwood (Bournemouth East) (Con)
Thank you, Madam Deputy Speaker. I wish to make a declaration of interests. I am a current member of the armed forces and I did serve in Northern Ireland.
I very much welcome and support the Bill; it is a step in the right direction. We do not seem to have many opportunities to praise the armed forces; there are not enough relevant debates in this place. I am pleased that so many Members are speaking here today.
I join Members on both Front Benches in paying tribute to our entire armed forces community. They help define what this nation believes in and stands for. The versatility of our armed forces is reflected not only in times of conflict, but also when there are needs and challenges closer to home. I am pleased to see the Prime Minister instigate Operation Temperer, inviting the armed forces to support our constabularies. We will not be seeing the 4th Battalion the Rifles Regiment enforcing last orders at the Dog and Duck just yet, but we look forward to their supporting us as we tackle the pandemic.
The UK’s are volunteer armed forces. The gene pool from which we recruit is society itself, and we want the best and brightest to step forward and join the ranks of all three services. For that to be successful, we must not only train, equip and house them well, but provide the best possible care for the injured, for the bereaved, and also when members of the armed forces finally retire and rejoin our civilian society.
I turn to the Bill itself, the billing of which has been quite something, promising to end the vexatious witch hunts that have plagued service personnel who have served in Iraq, Afghanistan and Northern Ireland. I began by saying that that was a step in the right direction, and that is absolutely the case.
This issue was first raised back in 2013 by the former Defence Committee Chair, my right hon. Friend the Member for New Forest East (Dr Lewis). We have had the Iraq Historic Allegations Team put together by the MOD to deal with this matter, and we have also had consultation by the Government to see how we should move forward. One thing our soldiers are good at is smelling a rat. You learn that pretty fast when you are in the military. Do not attempt to try to bluff them: they will see you out, whether you call it political spin or otherwise. Let us be upfront, no matter how brutal the truth is, on what is the way forward and what we achieve here today. I politely ask the Government to follow this practice and not to over-promise.
Let us be honest: this Bill, as it currently stands, will not help any veterans who are currently under investigation. It is not retrospective, and it will not help anybody who served in Northern Ireland, as my Defence Committee colleague, the hon. Member for Belfast East (Gavin Robinson), said. It focuses on supporting those currently in uniform. However, it provides greater certainty, we hope, for service personnel in relation to crimes that may be committed in future to ensure that they are properly prosecuted. We understand that those who serve our country are not above the law—far from it—but we do ask those who stand in harm’s way on our behalf to do something quite extraordinary in making the toughest of decisions about the utility of lethal force. We cannot have any commander hesitate in carrying out his or her legitimate orders, and we cannot have any soldier hesitate in the heat of battle.
How did we get here? There seems to be a clash between international humanitarian law traditionally governing armed conflicts and human rights law, which is increasingly now applied in armed conflict situations— exactly what Phil Shiner choose to exploit. I ask the Secretary of State to clarify when the Northern Ireland legislation will come through. In choosing the last resort of war, we must follow, and be seen to follow, the rules of international law. If any British armed forces personnel ever fail to uphold these standards, it is entirely appropriate that their actions—potential war crimes—are properly and fairly investigated.
We are immensely proud of our armed forces. They may leave active duty, but they never leave the armed forces community. We must watch their backs if we are to ensure that the next generation of warriors step on to the parade square and wear their uniform with pride. I am pleased that this Bill is, in that sense, a step in right direction.
Stewart Malcolm McDonald (Glasgow South) (SNP)
I, like others, pay tribute to the armed forces, not least for the work they have done during the coronavirus crisis, particularly in erecting the extraordinary construction of the NHS Louisa Jordan Hospital in my own home city of Glasgow. I know they have done much in Members’ constituencies all across the UK, and I am sure we will expect more of them in the times to come.
I acknowledge at the outset of my remarks—this will probably be the only bit that pleases Government Ministers and Conservative Members—the sincerity with which Ministers have approached this, in that they recognise the problem and sincerely wish to fix it. Indeed, the Minister for Defence People and Veterans, the hon. Member for Plymouth, Moor View (Johnny Mercer) was a jolly advocate of getting this done way before he became a Minister, and I think I am right in saying that the Secretary of State himself was raising this when he was a Member of the Scottish Parliament in the first Parliament of 1999. I acknowledge their long-standing desire to fix these issues, but I am afraid I do not believe that this Bill does it.
Those who risk their lives for their country do so in some of the most unimaginable circumstances. There are gallant Members here who have gone through that. I certainly have not. Far from home, they are often surrounded by danger at the behest of this Parliament, and they have to make split-second decisions under circumstances that, as I say, I cannot imagine. Sometimes those decisions are wrong, and when they are wrong, there needs to be a means by which that can be righted and justice can be done. Sometimes many years later these incidents rear their heads in the form of legal claims that force claimants and former service personnel to relive some of those dark days in a search for answers, but no one, least of all service personnel and veterans of the armed forces, deserves to be accused of a crime that they did not commit, and far less to be harassed by investigation after investigation. As the Chairman of the Intelligence and Security Committee and former Chairman of the Defence Committee, the right hon. Member for New Forest East (Dr Lewis) has said, the Bill does not achieve that.
The Secretary of State has mentioned Phil Shiner, and other firms have also sought to cash in on this kind of behaviour. I do not deny that they have done so, and they are to be deprecated for it. Indeed, I believe that they are deprecated on all sides of the House. However, this legislation is not the way to deal with this. It is using the proverbial sledgehammer to crack a nut. I accept that the nut is deeply problematic, but I have to say that this looks like a Bill designed more to protect the Government, and in particular the Ministry of Defence, rather than anyone who dons a uniform. Indeed, it was the Minister for Defence People and Veterans, who we will hear from at the end of the debate, who said that
“one of the biggest problems…was the military’s inability to investigate itself properly and the standard of those investigations…If those investigations were done properly and self-regulation had occurred, we probably wouldn’t be here today”.
The Bill makes no provision whatsoever for an independent investigative body or for reporting accountability mechanisms of the kind that would help to address the historical claims that I believe we all want to address. We are asked to hope by the Government, and to trust and believe that a real solution will come later, after we vote to undermine international law and the rules that keep us safe. That is a promise that seems to be being made with increasing regularity from the Government Benches. That is why I believe that this Bill is bad, not just for our rules and laws but for the armed forces as well.
If we can agree with the Minister for Veterans, as I do, that the investigations process in the Ministry of Defence is flawed and needs fixing, let us bring forward a Bill to do that. If that does not require legislation, let us bring forward those proposals. Let us have that discussion first. Passing the Bill in this form or a form close to it would be to put the cart before the horse. If the Government truly want to protect the UK armed forces from legacy allegations of war crimes, they must create mechanisms for allegations, both contemporaneous and historical, to be properly addressed by independent investigators. I am horrified, as I am sure other legal minds in this place, the other place and outside Parliament will be, at the extraordinary powers that the Bill invests in the Attorney General, who is not an independent Law Officer of the Government, but a political appointment and part of the Government.
We believe that the ways that I have just outlined are the ways to ensure that we can deal with this properly, but instead, the Government have offered a Bill today that does not help the victims of these cases—by which I mean service personnel, veterans and their families—who feel that the courts are their only recourse to justice. I would argue, as do other Members, that this exposes UK forces more to the International Criminal Court. And I can tell the House what will happen then: Tory Back Bencher after Tory Back Bencher will be on their feet complaining about foreign judges intervening in UK justice. How long would it then be before someone made it mainstream within the Conservative party that the United Kingdom should withdraw from the ICC? I can see the start of a very slippery slope indeed.
Mr Carmichael
Is it not part of the problem that, where suspicion exists, there requires to be an investigation, and that if that investigation produces evidence, there should be a prosecution? By putting barriers in the way of prosecution, we do no favours to those who are accused of criminal acts in the first place, because no line is ever drawn underneath it for them.
Stewart Malcolm McDonald
The right hon. Gentleman is correct, so I do not need to expand on that. I am conscious of your points about time, Madam Deputy Speaker, but he is correct in what he says.
I want to go through some of the senior military, legal and political opinion that has come out against the Bill. I can accept that Conservative Members, probably those on the Front Bench, think that the Opposition—if not the entirety of it, my party—are just Guardian-reading, lentil-munching sandal wearers, but that can hardly be laid at the feet of Nicholas Mercer, can it? Nicholas Mercer, the former command legal adviser during the Iraq war, has pointed out that this Bill
“undermines international humanitarian law while shielding the government”.
The Bill serves one body, and that body is the Ministry of Defence.
I can also point to some other opinion against the Bill—indeed, one of the Secretary of State’s predecessors, Sir Malcolm Rifkind. The Secretary of State has managed to unite Sir Malcolm Rifkind with the Scottish National party, and he was a leading nat-basher-in-chief back in his day. He has said that the Bill risks
“undermining the UK’s position as a champion of the rule of law”.
That might be fashionable on Government Benches these days, but it is something that we in the Scottish National party will not stand for.
You could also quote the former Attorney General, Dominic Grieve. I hear the Government Front Bench often praying in aid the Attorney General for Northern Ireland. For a Bill that does not concern itself with Northern Ireland, you seem awfully keen on the Northern Irish Attorney General. As the shadow Secretary of State mentioned, we were told by the Secretary of State in a letter that he sent to all Members of the House that the Bill will be equivalent to what is brought forward in Northern Ireland. Well, good luck with that one!
We can also quote Field Marshal Lord Guthrie, although I understand he has taken some of what he said back. Again, he is hardly a lentil-munching leftie. He said:
“There can be no exceptions to our laws, and no attempts to bend them. Those who break them should be judged in court.”
He also stated:
“These proposals appear to have been dreamt up by those who have seen too little of the world to understand why the rules of war matter. If we start down the slippery slope of arguing that rules apply to others, but not to ourselves, it is we who will suffer in the end.”
Tom Tugendhat
To make a small point of clarification, Field Marshal the Lord Guthrie has rethought his words, having spoken to the Chief of the General Staff.
Stewart Malcolm McDonald
I do not believe that anything I read out is what he has withdrawn, however. If I am wrong on that, I am happy to be corrected. I thought I was going to be told that he was indeed a lentil-munching Guardian reader, but clearly not.
To come to how the Government are approaching this, I have listened to many of the sedentary chunterings that have come from the Treasury Bench this afternoon, and I had a call with the Minister for Veterans yesterday—he told me that he was not the “king of good ideas”, but I did not need to be told that—but all I have seen is arrogance. Any objection, whether adumbrated by people outside or inside the House—including people on his own side, by the way—is all met with, “Didn’t read the Bill”, “Doesn’t understand it”, “This is embarrassing”, or “It’s this way or no way.” I am afraid that unless we can amend the Bill within an inch of its life, beyond any recognition of what appears before Members this afternoon, there is no way that my party can support the Bill in this form.
I will say this, however: if the Minister wants to get the issue solved—which I believe we both do, as I said at the start—
Stewart Malcolm McDonald
I will once I have completed my peroration. Scrap the Bill and let us have a discussion about the way in which the Ministry of Defence investigates these things internally. I am more than happy to engage in that discussion with the Minister and with the Secretary of State, but to ask us to vote for a Bill so roundly condemned by senior legal, military and political opinion is something that we will not contemplate.
Mr Wallace
As ever, the hon. Gentleman makes reasoned points and a good speech. First, he has not mentioned it yet, but he will be aware that there was something called the Lyons review, which was the service justice review that has reviewed and continues to review. We are in the middle of implementing some of its recommendations on improving on exactly the points he makes about service justice.
Secondly, before the hon. Gentleman finishes his speech, I ask him within what parameters we should work when trying to come to a consensus with the Scottish National party. For example, does he except that in cases of civil law there is a need for tort limitations? Does he accept the statute of limitations on civil pursuit—that many of those cases should have a time limit? Does he also accept the line in the relevant article of the European convention on human rights that says people are entitled to
“a fair and public hearing within a reasonable time”?
If he accepts both those parameters, perhaps we can talk.
Stewart Malcolm McDonald
I have not disputed any of those things. I am willing to have that conversation, but the Secretary of State has introduced a Bill that is so egregious he makes it impossible for me to support it. Look, he has his majority so he will get it through in whatever form he wants, but if he wants to have, as we often do in defence discussions in this Parliament, a degree of consensus that most people outside this place probably do not think exists, it cannot come on the back of a Bill like this one. I understand that the review he mentioned at the start of his intervention is taking place; why not pause the Bill and let that review report first? Let Parliament debate it and then see what we can fix.
Johnny Mercer
I have a lot of time for the hon. Gentleman and recognise his allegations of how I have ridiculed some of the approaches. The reality is that we on the Government Benches have to deal in what is actually in the Bill and the reality of operations. We have a duty to these people. We have engaged both the hon. Gentleman and the shadow Secretary of State in trying to improve the Bill, and not once have you come forward with something with which I can improve the Bill. The Bill is moderate, fair and down the middle. If you are on the wrong side in the Lobbies tonight, you are clearly on the wrong side of history.
Madam Deputy Speaker (Dame Eleanor Laing)
Order. I am not entering into the debate, but I shall merely say that all day today Members on both sides of the House have been using the word “you”. They have been calling the Prime Minister you and they are calling Members on each side of the House you. In this Chamber, you means the occupant of the Chair. It is really important, in order to keep the right sort of distance in an argument of this kind, that we use the phrase “the hon. Gentleman” or “the hon. Lady”, or something along those lines. Mr McDonald, you have not committed this sin.
Stewart Malcolm McDonald
That is because I know what I am doing, Madam Deputy Speaker, as you well know.
Let me say this to the Minister for Defence People and Veterans. We always try to find the maximum consensus, but I rather suspect that we just cannot agree on this Bill. He is not willing to change it to the degree I would like to see it changed, which in essence would mean scrapping it and letting the review come forward. When we table amendments in Committee, it will be interesting to see what they say; I am sure the Minister will be interested to read them, and it will be interesting to see how the Government approach them. As I say, we all know what is going to happen: the Government have a huge majority and are not going to accept anything that they feel they do not have to. We do not agree with them that the Bill is moderate at all, which is why we will vote against its Second Reading tonight.
Joanna Cherry (Edinburgh South West) (SNP)
The Minister for Defence People and Veterans is keen that we look at the Bill itself. Does my hon. Friend agree that the Bill creates a presumption against prosecution for a class of defendants, placing one group above the other in the eyes of the law? Does he agree that that is unprecedented in our domestic legal systems, whether we speak of England and Wales or the separate and independent jurisdiction in Scotland? That is unprecedented and that is what is objectionable about the Bill: it does away with the idea of equality before the criminal law, and that is wrong.
Stewart Malcolm McDonald
My hon. and learned Friend is absolutely correct in saying that. I would go further and say that actually, in terms of the whole scope of the Bill and how it protects the Ministry of Defence from claims coming from members of the armed forces themselves, as brilliantly illustrated by the shadow Secretary of State in his speech earlier, it is not welcomed by those people who need protection. We all agree that they need protection, but we cannot agree with the Government that this Bill is the way to do it.
The context is this: this Parliament has no power to prevent the Government from entering a discretionary conflict. There is no war powers Act. When Tony Blair took the country to war—a war that, in an interesting contribution earlier, the Defence Secretary said he now accepts was illegal, but which his party supported at the time—he at least came to this Parliament and held a vote. When the airstrikes in Syria took place in Easter 2018 under the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), that was done away with; that discretion was used without any parliamentary consent.
On the issue of special forces oversight or lack thereof, we stand out as unusual, even by comparison with a country such as the United States with zero oversight of special forces operations. As my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) said earlier, this Bill creates two levels of playing field for people in this country. This is all unwelcome and highly unusual. There is a reason that no other country has a version of this Bill on its statute book or before its national legislature. Members of the armed forces are rightly expected to perform to a high standard and members of the armed forces are right to expect a high standard of us in this House, but for the reasons I have outlined we will vote against this legislation tonight. Members of the armed forces are entitled to a better standard than this.
Tom Tugendhat (Tonbridge and Malling) (Con)
It is a pleasure to see you in the Chair this afternoon, Madam Deputy Speaker, and to follow my friend, the hon. Member for Glasgow South (Stewart Malcolm McDonald), who made some interesting points, some of which—forgive me—I am going to disagree with. He will not be surprised to hear that, because we have often entered into many civilised, and sometimes lubricated, conversations on these very subjects. These issues affect the whole House and have been discussed by many Members in here and in other places, because they really matter.
I declare an interest; I got into politics on leaving the Army, after writing a paper for Policy Exchange in 2013 called “The Fog of Law”, which covered these very subjects and highlighted many of the issues raised in this debate. I appreciate that there are difficult decisions and that it is hard to balance what the right hon. Member for Wentworth and Dearne (John Healey) quite correctly said was the difference between the liability that a civilian employee could expect with their employer and that which a soldier on overseas operations could expect. I accept that that is different.
I accepted that it was different when I swore allegiance to Her Majesty and put on the uniform for the first time. I accepted it was different because the job that I had accepted to do was different; it was fundamentally different—different in every sense from any civilian job at all. Why? Because I promised, as the men and women of our armed forces still promise, to give everything even unto death. That is not something that any other employer asks of their team or their staff. Nobody who is not wearing the Queen’s uniform pledges to defend our people, our islands, our values, our country, our allies and our interests even up to their own life. That is different.
In recognising that that is what we need from our armed forces, we must also recognise that the law defending our troops and the law that applies to their terms of employment must also be different. It simply cannot be the case that civilian employment contracts are applicable to the invasion of Iraq or hard detention operations in Afghanistan, or even to training missions in other places that go wrong and become combat in ways that the people involved do not expect. Of course they must be different.
John Healey
Will the hon. Gentleman accept that this is a distinction not just between the armed forces serving overseas and civilians, but between armed forces serving overseas and armed forces serving and based in this country? To that extent, this legislation uniquely disadvantages the latter and reduces their rights.
Tom Tugendhat
I will accept that this is an overseas operations Bill and that being on patrol in Helmand is different from bringing on guard at Buckingham Palace, and therefore the rights that troops should accept in different places under different terms should of course be different.
I have served, as have many of my colleagues in all parts of the House. Indeed, my friend and former comrade in arms the hon. and gallant Member for Barnsley Central (Dan Jarvis) and I served in camps in places where the electricity could best be described as ropey and would fail any civilian investigation. We served in places where to walk outside the camp was to risk everything, from loss of life or limb to very real mental damage. We served in those places because the national security and the interests of our country—decided on by people here, by the way, not soldiers—was judged to be that important.
Mr Wallace
I listen with interest to what my hon. Friend says and to his example of unique circumstances. The hon. and learned Member for Edinburgh South West (Joanna Cherry) made the point that this Bill makes some people less or more equal before the law—that it was an unfair application—but it does not prevent anyone from being prosecuted for a crime that they have committed, nor does it introduce special defences for people, so that some of these offences allow them to have an excuse. All it does is ask a prosecutor to have exceptional regard for the circumstances that those concerned may find themselves in and also, where an investigation has already happened, to think about the level of new evidence that should be applicable.
Tom Tugendhat
I agree with my right hon. Friend, and the important point about the Bill is that it recognises the difference between a crime and an error. We all know that crimes should be prosecuted, and we all know that the difference between a crime and an error is a difference of understanding and, on some occasions, circumstance. It is not necessarily a crime for a missile, sadly, to go astray and kill civilians. It can be an error; it may be a terrible, regrettable error; it may be an error that we should learn from a thousand times. But it cannot always be a crime, otherwise the invasion of Normandy could never have happened, because if it was always a crime for civilians to die in combat, the troops could not have prepared that battlefield to land on those beaches.
If that was a crime, it would always be a crime to use force in situations where we cannot be absolutely certain of the outcome of that force. Of course, that is never possible, because the reality is that if we put such blocks on any use of force, what we are saying is that force can never be used.
Joanna Cherry
I am failing to follow this argument. Is the hon. and gallant Gentleman suggesting that torture is a crime that can be committed by error?
Joanna Cherry
That seems to be what he is suggesting. But let us focus on what we are talking about here. We are talking about torture—[Interruption.]
Tom Tugendhat
That is simply not what I am saying, and it is quite clear that it is not what I am saying. What I am saying very clearly is that there is a fundamental difference between an error and a crime, and there is a fundamental need in military law to allow soldiers to take the risks that we need them to take if they are going to keep our country safe. If we do not allow them to take those risks, what we are saying, fundamentally, is that the weak must defend themselves and the strong can look after themselves; because the point about military service, soldiering and our armed forces, fundamentally, is that they allow the strong to defend the week. They put the use of force under the rule of law, and they allow this country to be strong and safe, and partnered with others around the world.
Dan Jarvis (Barnsley Central) (Lab)
It is a great pleasure to follow my friend the hon. and gallant Member for Tonbridge and Malling (Tom Tugendhat). It is a great strength of the veterans community, both inside and outside this place, that we can debate these important matters and take a different view but do so with decency and humility.
I should declare an interest as a veteran. I know very well, and we have heard in the House today, the strength of feeling and the very high regard that Members from across the House have for those who serve in our armed forces. No one, whether they have served in the military or otherwise, deserves to be repeatedly investigated without good cause. If we allow that abuse to continue, we fail collectively in our lifelong commitment to support those who have sacrificed themselves for our country.
This Bill seeks to address such abuses, but however well-intentioned it is, it does require significant improving, otherwise it will be potentially damaging both to Britain’s standing in the world and to the reputation of our armed forces.
First, I wish to address the definition of “relevant offences” as laid out in clause 6. Subsection (3) states that an offence is not relevant
“if it is an excluded… by virtue of Part 1 of Schedule 1.”
The offences excluded are largely sexual offences. Although that is, of course, welcome, it is worrying to see the omission of other crimes against humanity and war crimes. I heard what the Secretary of State said earlier, but let us take torture as the obvious example. The prohibition of torture is absolute. There are no exceptions. Its use is illegal under numerous international treaties to which the UK is a signatory, including the Geneva convention.
Bob Stewart
Speaking as a commanding officer who has gone into the field, may I point out to the House that it is not just this Bill that we have to operate under? Let us take, for example, torture. Article 17 of the Geneva convention specifically prohibits torture, and we can be charged for that. I certainly used to make great emphasis of this point in training troops to go into the field. It is not just this Bill under which we operate.
Dan Jarvis
My friend the hon. and gallant Gentleman raises a very important point. The reality is that, despite what we have heard from some Members today, if this Bill is passed in its current form, a decision to allow a prosecution to proceed following an allegation of torture after five years had elapsed would be made virtually impossible due to the threshold imposed by the triple lock. This is not the way to rebuild our reputation on the international stage. It would mean the UK reneging on our international legal obligations and could well put us at odds with the ICC. At a time when we are witnessing an erosion of human rights and leaders turning their backs on international institutions, it is more important than ever before that we uphold our values and standards and not undermine them.
Through this Bill, the Government are seeking to right a wrong, but not by addressing the root cause of the issue. In an interview last year—we have heard the quote already, but it is worth hearing again—the Minister for Defence People and Veterans said that one of the biggest problems with this was
“the military’s inability to investigate itself properly and the standard of those investigations. If those investigations were done properly and self-regulation had occurred, we probably wouldn’t be here today.”
The Minister is absolutely right, and the underlying problem is how we have ended up at this point, but nowhere in the Bill does it mention the need to review how military investigations are conducted. If we had a credible investigatory system that dealt with allegations in an effective, impartial and timely manner—one that allowed us to refer back with confidence—we would not be in the position that we are in now.
There is, though, plenty of support across this House for measures that will protect members of our armed forces. We all know, and I am sure we all agree, that historical prosecutions of our veterans is an emotionally charged subject and one that urgently demands a solution, because nobody—surely nobody—wants to see a repeat of the decades of legal wrangling, the delay and the misery that are still ongoing following investigations into the troubles.
I conclude by saying that the overwhelming majority of members of our armed forces serve with distinction and honour, and they follow the rules, but no one—not one of us—is above the law, and that principle remains true whether or not somebody wears a uniform. One of the best ways to protect our troops is to ensure that we apply the rule of law in every instance. There is much work to be done to improve this Bill, and I hope very much that Ministers will listen to the concerns that have been expressed today and work constructively to improve it in Committee and beyond. I hope that we all agree that we owe the brave men and women of our armed forces—the people who serve our nation—a massive debt. Diminishing their hard-won reputation by reneging on our legal and moral obligations is not the manner in which to repay it.
Dr Julian Lewis (New Forest East) (Ind)
I greatly admire and respect the hon. and gallant Member for Barnsley Central (Dan Jarvis), but I fear that it would require rather more than just an improvement to the way in which service authorities investigate allegations to solve this problem, because the problem derives in large part from the application of the Human Rights Act abroad.
The purpose of this Bill should not be to stop sound cases being prosecuted, and it does not do so. Its purpose should be to stop unsound cases being repeatedly investigated, and that, I fear, it fails to do. The hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) seized on this point in his earlier intervention, in which he referred to intimidation by reinvestigation, and he is right; that is the nub of the problem. The Secretary of State conceded that only a small proportion of these many cases—most of them spurious—end up in a prosecution. He suggested that, if it were known that there would be less likelihood of a prosecution, there might be fewer rounds of investigation and reinvestigation, but I am afraid I do not find that wholly or, indeed, at all convincing. Something must be done to stop the repeated reinvestigations, which, in large part, happen because of the application of the Human Rights Act abroad.
I first became aware of the scale of this problem several years ago when I heard speeches from my hon. and gallant Friends the Members for Beckenham (Bob Stewart) and for Filton and Bradley Stoke (Jack Lopresti). The effect of that was to interest me in trying to take the matter further during the two periods for which I chaired the Defence Committee. In those two periods, we produced three reports. The first inquiry was carried out by the sub-Committee under the chairmanship of my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), now the Minister for Defence People and Veterans. That inquiry dealt with Iraq and reported in February 2017. The second one dealt with Northern Ireland and reported in April 2017.
The third one, dealing with the whole panorama of all these scenarios, reported in July 2019. That report warned that the European Court of Human Rights
“has gone far beyond the original understanding of the European Convention on Human Rights, and… its rulings have stretched the temporal and territorial scope of the Human Rights Act beyond Parliament’s original intentions”.
The report examined proposals by Professor Richard Ekins, now professor of law and constitutional government at Oxford University, in which he proposed to restore the former scope of the HRA and the application of the ECHR. As long as that legislation, which was never intended to be applied abroad when it was enacted by this House in 1998, persists in its extended application, we will not solve this problem.
Tom Tugendhat
Is my right hon. Friend aware that it is not only the United Kingdom facing an issue with the extraterritoriality of the ECHR? The French Conseil d’État —in which I must declare an interest, as my wife is a member—has also been investigating this, as has the German court, because this extraterritoriality was never envisioned by the signatories in the ’50s, nor was it envisioned by the then Prime Minister in the ’90s.
Dr Lewis
I absolutely accept that this is not a problem confined to us. It is something that has crept into the international scene. Law-observing democracies are finding themselves hamstrung because of the misapplication of what is essentially civil law to the battlefield. That is wrong. It was never intended to be the case, and until it is put right, we will not solve this problem.
It is true that the Government, in this Bill, are considering derogating from the ECHR; clause 12 encourages, but does not require, such derogations. That would help, but according to Professor Ekins, whose work with Policy Exchange I acknowledge, that would be no substitute for amending the Human Rights Act and providing that it should not apply outside the UK, or at least that it should apply only in strictly limited circumstances. Parliament should go back to what it intended in 1998. It would also be much better for Parliament to require the Government to derogate in relation to overseas operations and to amend the Human Rights Act so that it does not apply abroad.
With good will on both sides, the Bill can be improved, and I urge those on both Front Benches to work together in pursuit of an improved outcome.
Mr Kevan Jones (North Durham) (Lab)
I have been in the House for nearly 20 years, and I have always prided myself on being a strong advocate for defence and the support of our servicemen and women, both from the Back Benches and as a Minister. I am also no friend of unscrupulous lawyers. Older Members of the House will remember my campaign of the early 2000s against unscrupulous lawyers who defrauded my constituents who were claiming miners’ compensation. That led to the instigation of the Solicitors Regulation Authority, which took the disciplining of lawyers away from the Law Society. I am also, though, a strong supporter of the legal system and of the military justice system. I have served on the last three armed forces Bills as either a Minister or a Back Bencher, and I think I understand the system well and respect it.
Unfortunately, though, this Bill does not pass the Ronseal test: it does not say what it does on the tin. It excludes completely the arguments, with which I have a lot of sympathy, about prosecutions of those in Northern Ireland. The other issue is the need for the Bill. Its promoters give the impression that there is an army of vexatious lawyers out there who are pursuing veterans. I asked, in a parliamentary question, for numbers. I was told that they were not kept by the Department centrally. The explanatory notes say that there were 900 cases for Afghanistan and Iraq between 2003 and 2009; the impact assessment says the number is 1,000, but what they do not explain is the nature of those cases. How many were brought by vexatious lawyers? How many were compensation cases rightly brought by members of the armed forces or their families?
I accept the issues around the case of Phil Shiner. That individual was disgraceful, but I have to say that the Solicitors Regulation Authority, which was put in place by the last Labour Government, sorted that problem out. On the other main thing that has been raised today, I was a Minister in the Department at the time, and the problem was the way in which cases were investigated. The Bill will not address that.
The other point that I would like to address is my fear that the presumption, as outlined in the Bill at the moment, that prosecutions will not go forward outside a certain timescale will lead to members of our armed forces going before the International Criminal Court. That cannot be acceptable. If we had that presumption against prosecution, the court would perhaps conclude that the UK was either unwilling or unable to initiate a prosecution. I do not want to see that, and I do not think the Minister does either, but it is an unintended consequence of the Bill and it has to be changed.
I also have problems with clause 3, which says that prosecutors should take into account “exceptional demands and stresses” in cases after five years. If it is good enough after five years, why not before? There is no need for the clause, because that is already taken into account. The Judge Advocate General, in his letter to the Defence Secretary, outlined the case of Marine A, where evidence of unique circumstances taken at the first court martial and then at the appeal meant that the sentence was reduced to manslaughter.
Stewart Malcolm McDonald
Does the right hon. Member not agree that it diminishes the Government’s standing when they come to the House and cast to one side all these concerns from experts such as those he mentions, when there probably is a reasonable Bill that the House could gather around?
Mr Jones
I think there is, but I also say that people should talk to those in the service justice system, because they do this every day of the week. They are an independent judiciary—that is recognised internationally. They do a job in ensuring that people get justice and I think that this Bill will complicate that. One of my fears is that this will undermine the military justice system, of which I am a passionate supporter. I know that some people want to do away with it, but I certainly do not. I also agree with the points that have been raised by the Royal British Legion and my right hon. Friend the Member for Wentworth and Dearne (John Healey) concerning conditions around the ability of veterans to make compensation claims later.
I will not vote against the Bill tonight, because I think it can be improved. However, I will also not fall into the political trap that has been set, where it will be said that if someone is against the Bill or criticises it in any way, they favour ambulance-chasing lawyers over our armed forces. I am sorry but I take great exception to that, and I am in good company, along with a lot of other people, such as Field Marshal Lord Guthrie, Nick Parker, whom I have huge respect for—I worked with him in the Ministry of Defence—and the Judge Advocate General.
Stuart Anderson
I respect the right hon. Member and sit with him on the Defence Committee. We have mentioned a lot of names today, but none of them is below General. I have served on operations with some of those people. None of the riflemen, junior non-commissioned officers and young officers has been mentioned, and their fear of ambulance-chasing lawyers and this lawfare should be brought in as well.
Mr Jones
I do not disagree with the hon. Gentleman, but I am saying that these are people of higher rank, and others, who understand the command of that justice system. You cannot get a higher person than the Judge Advocate General. He was not even consulted on the Bill, which I find remarkable. The most senior lawyer in that system was not actually consulted.
Mr Jones
Not really, no, because I am about to conclude.
The Bill is not perfect. It can be improved, but the Minister who is taking it through the House has to change attitude. He has to be open-minded to change. He has to not play politics on the basis that anyone who criticises the Bill is somehow against the armed forces, because we are certainly not, and I include myself in that.
I will finish on this point: in the letter that the Judge Advocate General sent to the Defence Secretary, he said:
“The bill as drafted is not the answer.”
I agree with him on that.
Bob Stewart (Beckenham) (Con)
I have the greatest respect for the right hon. Member for North Durham (Mr Jones) and I accept what he said, but I emphasise the point that my hon. Friend the Member for Wolverhampton South West (Stuart Anderson) just made. He made the first reference to the people who are really affected by what we are talking about—that is, the young men and women who are normally charged. Let us remember, colleagues, how bloody awful it is to undergo some of these investigations time and again. Let us remember how dreadful it was when we saw those ambulance-chasing lawyers going after units and individuals in Iraq, and later in Afghanistan.
Jim Shannon
In my constituency, there are many people with mental health issues—indeed, one of my constituents, unfortunately, died just within the last month. Does the hon. Gentleman believe that the Bill can enshrine in law the support for those being maliciously and wrongly dragged through the courts, which definitely affects the mental health of those people in their service to Queen and country?
Bob Stewart
I hope so, but I am not sure that it can retrospectively. We all know that a lot of money was made—3,400 allegations were made about our servicemen and servicewomen, and 65% of those were made by Mr Shiner’s company, Public Interest Lawyers, which made a heck of a lot of money. With every accusation, the Ministry of Defence had to back it up with legal aid. The lawyers got four hours of legal aid; probably about £1,000 was given to these lawyers. Actually, the people who were under investigation did not have much support when they were going through it.
Jamie Stone (Caithness, Sutherland and Easter Ross) (LD)
I have no particular love for lawyers, particularly of the grasping variety, with the right honourable exception of my colleague, my right hon. Friend the Member for Orkney and Shetland (Mr Carmichael). Does the hon. and gallant Gentleman agree that what he is talking about is ultimately counterproductive to recruitment to our armed forces?
Bob Stewart
Actually, I do not. What is counter- productive is if people joining the armed forces feel that they will be under this sort of pressure and they will be investigated unfairly. If they believe that they will be investigated fairly, that will encourage recruitment.
I am appalled by the idea that the Ministry of Defence had to pay out £40 million for fallacious claims and another £10 million on Operation Northmoor, which was about Afghanistan. I am pretty appalled that the Iraq Historic Allegations Team within the Ministry of Defence did what it did. It did not help our armed forces, and that is held against the Ministry of Defence. It should have sorted that out a long time ago. Obviously, most claims were fallacious. Shiner was struck off in 2017, but not before he, with 65% of the allegations, had done huge psychological and mental damage to our servicemen and servicewomen.
I am pleased that these two organisations have been closed down. It cannot happen again. That is the purpose of the Bill. It may not be 100% perfect, but as my hon. Friend the Member for Wolverhampton South West said, it is what our armed forces want to happen. There are about 2 million veterans in this country and they want this to happen, and it will encourage, not discourage, people to join the military.
I did seven tours in Northern Ireland and I totally understand that Northern Ireland has to be dealt with. The Government have promised to deal with it this year, and will somehow get it sorted out. The Bill is not about Northern Ireland; it is about what happened overseas. I personally am delighted that the Bill has been brought forward. I congratulate my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), although if he wants to continue as a Minister in the Ministry of Defence he should get a haircut. I think I have said enough. I will sit down.
Carol Monaghan (Glasgow North West) (SNP)
It is a pleasure, as always, to follow the hon. and gallant Member for Beckenham (Bob Stewart), whose hair is looking glorious this afternoon as well. I declare an interest because, as most Members will know, my husband is a veteran. [Interruption.] He is also an Ulsterman: I thank the hon. Member for Strangford (Jim Shannon) for pointing that out.
I must pick the hon. and gallant Member for Beckenham up on one thing. It is not true to say that all members of the armed forces want this Bill, as that is not the case. None of us wants a repeat of the shameful Phil Shiner episode, and no person in this House would disagree that we need protections in place for our personnel and veterans. Unfortunately, however, the Bill is not the vehicle to do that. Our armed forces are the gold standard for militaries around the world and that must include the structures we have in place to deal with behaviour that falls short of our expectations.
Like the right hon. Member for North Durham (Mr Jones), I have submitted a series of written questions to try to get a feel for the scale of this problem. I was hoping for a bit of information, but I have yet to have any answers to these questions. The Minister has not been in touch. Despite what the Secretary of State said— it is a pity he has gone now—about the Library impact assessment having all those numbers in it, it does not. It has numbers relating to part 2 of the Bill, not part 1. It is worrying that we are bringing forward legislation to tackle the industrial scale of vexatious claims, but we cannot get a handle on how many there actually are.
As we know, many conflicts involving our personnel are in parts of the world that are now experiencing a fragile peace. To put in place a statute of limitations on prosecutions assumes that normality and the structures of a democratic society will be promptly established post conflict. This, of course, is not the case. If we are to rely on investigations that have taken place, we must have confidence in those original investigations.
Tom Tugendhat
I appreciate the hon. Lady’s point about the confusion of post-conflict societies and therefore about the statute of limitations, but would she not accept that this goes both ways? There is also the difficulty people can have in defending themselves when evidence has been lost, burned or destroyed in exactly those post-conflict societies, and therefore time works both ways on this question. This is essential for the defence in justice, because justice must not only be for the prosecution, but for the defence.
Carol Monaghan
There are two things: that is not unique to conflict—that happens in many things—and that is also why the original investigation must be carried out properly. If we want to minimise the opportunities for these vexatious claims, such investigations should be independent. They should be collecting accurate evidence, and without this we really do leave the door open.
If the conduct of our personnel is as we expect, why should anyone fear this transparency? This legislation undermines our international standard the more so because it includes, as Members have already mentioned, unlawful killing and torture. Judge Blackett, the Judge Advocate General of the armed forces, has warned:
“This increases the likelihood of UK service personnel appearing before the ICC in the future.”
Is this what any of us want?
Part 2 of the Bill has not had much mention this afternoon, and it should. It is ironic, when we have the Tory chest-thumping going on about protecting our brave soldiers, that part 2 is actually an attack on these very personnel. It removes many of the rights of those who have been injured through the negligence of the MOD to claim against it. Here is the nub of this Bill: it is about protecting the MOD, not personnel.
In the urgent question on 16 July, the Minister for Defence People and Veterans said:
“I will be honest that I cannot, off the top of my head, think why individuals would be diagnosed and choose not to do anything about it… I have not come across that in all my experience in the field, but I am happy to learn. If that is the case, I am happy to change the Bill”.—[Official Report, 16 July 2020; Vol. 678, c. 1675.]
Well, that is great, because it needs changing. There are many reasons why claims are not brought forward promptly, such as a culture in the military meaning that personnel may be told they cannot pursue a claim while serving or told by their chain of command they do not have a valid claim. If part 2 of the Bill becomes law, those injured through negligence will no longer have the full discretion of the court to allow a claim to proceed after the limitation period has expired.
Sir John Hayes (South Holland and The Deepings) (Con)
Will the hon. Lady give way?
Carol Monaghan
No, I am short of time.
Instead, those who have served overseas, potentially risking their lives, will have an absolute six-year time limit. Given that people can live with conditions such as deafness, asbestos poisoning and the impact of radiation exposure, with the severity increasing over years, how many personnel would pursue a claim within that time limit? The Government say this Bill will be beneficial to personnel and veterans, so perhaps the Minister can give us some real examples of how.
Personal injury claims are important not only in securing justice, but in holding the MOD to account. The unsuitability of Snatch Land Rovers would never have come to light if it had not been for bereaved families pursuing claims against the MOD. The Bill is contrary to the armed forces covenant, which is a promise by the nation to ensure that those who have served in the armed forces, and their families, are treated fairly. The removal of human rights protection is not treating armed forces personnel fairly.
James Sunderland (Bracknell) (Con)
It is a great privilege to be called so early in this debate, Madam Deputy Speaker. I might be new to this place, but I spent three decades in uniform. I have worked with many veterans charities across the UK, not least in my previous role as commander of the Army engagement group at Sandhurst and in my Bracknell constituency where our armed forces champions are working wonders.
The Bill needs to be considered for what it is, not for what it is not. Given that it is groundbreaking, it needs to start somewhere and is therefore bound to attract negative interest. For those who have not noticed, the architect of the Bill is a veteran. I cannot think of a single Minister who has invested so much of himself against such a tough backdrop and I commend the Minister for Defence People and Veterans, my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), for everything he has done this far. He has fulfilled his promise, to date, to our veterans and it is incumbent on us in this place to be objective, because we will not be forgiven if we fail. I do not believe that anybody can be a supporter of our armed forces and vote against the Bill.
Stewart Malcolm McDonald
I will not have that. The armed forces look to this place to get this right—the hon. Gentleman is correct on that—but they expect and deserve a better standard than the comment he has just made. I know he is new, but I like him and I just ask him to withdraw it. Please withdraw it.
James Sunderland
I am a great fan of the Bill and the Bill is right. We need to put it through.
At its simplest level, the imposition of a presumption in law against prosecution after five years will provide greater certainty for our service personnel. Since 2002, the MOD has faced 1,400 judicial review claims and over 2,000 civil claims relating to operations in Iraq and Afghanistan alone. Many are valid, but about 3,400 allegations of unlawful killings have also been received by the Iraq Historic Allegations Team, of which at least 70% have been filtered out as being spurious. Members will also be aware of the al-Sweady inquiry, which cost the taxpayer £31 million and was proven to be based on
“deliberate lies, reckless speculation and ingrained hostility”.
That was just the tip of the iceberg, and it is right that public interest lawyers, such as Phil Shiner, should have been struck off. But that is nothing compared to the anguish of our veterans, many of whom are innocent.
Mark Eastwood (Dewsbury) (Con)
Does my hon. Friend agree that the measures in the Bill will reduce the uncertainty and anguish of both current armed forces personnel and veterans?
James Sunderland
I agree very much. The bottom line is that veterans I have spoken to over the years are worried about the next knock at the door. I believe that the Bill will give certainty to the current generation and to who those come afterwards.
To tackle the conjecture, if I may, the Bill does not absolve any member of Her Majesty’s forces from the obligation to operate within the law. It does not impact on criminal investigations and it does not create, or come close to creating, any de facto immunity for service personnel, as the few bad apples will always be brought to justice. As for the downright fabrication, the Bill does not place our troops on a collision course with the Geneva convention or The Hague, and it does not break international law.
James Sunderland
I have read the Bill.
In fact, I cannot think of a more robust institution than the MOD for upholding the law, and the UK has a proud record of overseas military service which is to be applauded, not undermined.
As for part 2, I comfortable that the six-year long stop of civil claims for personal injury and death is about right given that 94% of all claims since 2007 have been settled within five years. However, we have Committee stage to unpick that further if we need to. I also understand that the long stop applies to the point at which legacy issues, such as hearing loss, PTSD and physical illness first come to light, therefore providing a safety net.
Most important for me, the Bill requires that, when making legal judgments, the courts must consider the unique circumstances of overseas operations and any adverse effect on our personnel. Those who have served will know that warfighting is dangerous and terrifying, with confusion all around, friends falling beside you, sweat dripping into your eyes, the ground exploding, people moving in every direction, images of family flashing before your eyes and abject terror everywhere. What would you do? Fortunately, the training is good, the loyalty and camaraderie in HM forces are unparalleled and our soldiers do operate within the law of armed conflict. I salute all those who got closer to danger than I did.
Despite what others would have us think, the Bill does not provide blanket immunity for soldiers to commit war crimes. Indeed, the suggestion in some of what I have read that the best trained and best led armed forces in the world are somehow predisposed to inflicting torture or sex crimes on operations is ridiculous. It is deeply offensive to those who serve, and the people who peddle this nonsense just need to stop. [An Hon. Member: “Nobody has said it.”] I have seen it.
To those who seek to judge our veterans after many years of service from the sanctity of their courtroom or the comfort of their armchair, I say, “Ladies and gentlemen of the jury, whatever notion you have of idealism, it may be that you just don’t get it.” That is why the Government need to provide the protection in law.
To conclude, I pass on three messages on behalf of many of our 2.2 million veterans who have contacted me to offer support. First, to the esteemed figures who have chosen to unpick the Bill by writing divisive articles for the national media, I regret, you do not speak for me. Secondly, I say to those dishonourable lawyers who have pursued the victims of a witch hunt into their later years, “You need to be struck off.” To my esteemed colleagues on the Opposition Benches, I say, “Please pay heed today, to stay on the right side of this. Unlike the thousands of soldiers I was proud to serve with, your constituents might not be quite so forgiving.” Let us do the right thing for those who have endured so much for so long and put the Bill through.
Martin Docherty-Hughes (West Dunbartonshire) (SNP)
My constituents clearly live in a very different country from the hon. Member for Bracknell (James Sunderland). I declare an interest, as it seems that everyone else is, in that my brother is a member of the armed forces, as is my nephew. Unlike the hon. Member for Wolverhampton South West (Stuart Anderson), a fellow member of the Defence Committee, they are not generals, members of senior command or part of the officer corps. [Hon. Members: “Not yet!”] Yes, hopefully in an independent Scotland.
Let us start with what we do agree on. Those of us who have close family members who have put themselves in harm’s way overseas, such as in the illegal war in Iraq that the Secretary of State mentioned earlier, know the feeling of dread when that loved one leaves and the utter relief when they come back. The very idea that that dread should be extended long after they have left the battlefield simply on the whim of vicious lawyers is unconscionable. I think we all agree about that. Vexatious claims are rightly illegal, not only because of the psychological duress they inflict on the veterans they target, but because they seek to paint the actions of those who serve and the overall conduct of our armed forces in a negative light purely for profit.
Let us also be clear that while those instances of serving UK personnel breaking international human rights law are well documented, as they should be, they are exceedingly rare. The improvements that the Army in particular has made in the past few decades in ensuring adherence to international human rights law and the rules of engagement should give a sense of genuine achievement and be a matter of pride. Hard fought for, through conventional and non-conventional conflicts, those advances should be jealously guarded by the Government.
However, the fundamental divergence between me and Conservative Members is about how we deal with an intractable issue. Her Majesty’s Government believe that issue is best solved by putting members of Her Majesty’s armed forces beyond the law. Perhaps it is the working-class boy in me—or the fact that I am from a socialist tradition —who thinks that it would be better spent examining the rare lapses of leadership, failures in the chain of command and imbalances in the power structures that led to the crimes being committed in the first place.
I can think back to when I brought forward a ten-minute rule Bill on the formation of an armed forces representative body. I see the former Chair of the Defence Committee, the right hon. Member for New Forest East (Dr Lewis) in his place, and he will know a lot about that. For many veterans I have spoken to since and for many civilians, the principle that serving members of the armed forces deserve the same rights as civilians was self-evident. Just as NHS workers and the police on the frontline protecting our security have certain obligations that cannot be abrogated, so do the armed forces.
When I introduced that Bill, what surprised me was the lack of understanding among Government Members of the idea that there might be a better way to fulfil the solemn contract that a state has to those who place themselves in harm’s way to defend that state. I think that Ministers would agree that this state has not always done that in the best way possible. At the same time as the number of those with experience of military service is at a historic low, as therefore is the number of people like me with direct family experience, too, this Government have consistently taken the path of creating a discrete military caste remote from the communities they have sworn to protect.
I and those I have spoken to in my party wish to see a country where veterans and serving personnel are given top-class medical care because top-class medical care is available to all. We want to live in a country where veterans and serving personnel can access affordable and liveable housing for their families because that is available to all. That also means a country where veterans and serving personnel are accountable for their actions in the line of duty, because we are all accountable for our actions in the line of duty.
Sarah Atherton (Wrexham) (Con)
I stand here as a veteran. Under current legislation, hypothetically, I could be investigated for spurious claims made against me for my service in the Army back in the ’80s. I therefore have a personal interest in the Bill. I have also spoken to many veterans at surgeries, breakfast clubs and legions, and I am acutely aware of the pressures our veterans are placed under and the injustices they feel right now. Many of the veterans I have spoken to were junior ranks, and I concur with the statement of my hon. Friend the Member for Wolverhampton South West (Stuart Anderson).
The Bill represents a huge milestone for military personnel. To be incorrectly accused of wrongdoing is an unacceptable burden. For our veterans and our veterans of the future, the Bill represents an opportunity to combat that cycle of reinvestigation and vexatious claims and to support our service personnel, who have risked their lives to defend our country and our freedoms overseas. I thank the Secretary of State and the Minister for Defence People and Veterans for bringing the Bill to the House today.
I would like to address the first part of the Bill. For me, the triple lock is the most crucial part of the Bill. The presumption against prosecution for alleged offences committed more than five years ago will both curb the often baseless claims made against veterans and stop lawfare by those who seek to abuse the legal system. Critics of the Bill cite that that provision will protect service personnel from wrongdoing. The Bill does nothing of the sort. There is no debate in this House, nor should there ever be, about the fact that if service personnel commit a crime, they must be called to account. The Bill does not give service personnel de facto immunity from prosecution. There are still provisions to allow for prosecutions of historical cases where there is compelling evidence.
I have had conversations with veterans living life on the edge, with constant anxiety, thoughts and fears that engulf their post-service lives and the lives of their families. We have lost too many veterans to incapacity and suicide. I am committed to veterans’ health and wellbeing, and I know the veterans Minister is, too.
Sir John Hayes
I hesitate to interrupt my hon. Friend’s compelling and persuasive speech, except to say that she is absolutely right: the Bill is a huge leap forward and the Minister and the Government deserve great credit. As she may know, I am the champion of and have led the parliamentary campaign on behalf of the British nuclear test veterans. Will she ask the Minister to give an absolute assurance that those who fought a long time ago, if evidence emerges that they were damaged through that service, will not be disadvantaged by the provisions of part 2?
Sarah Atherton
I thank my right hon. Friend for that intervention. I think the Minister heard it loud and clear.
I am passionate about veterans’ health and wellbeing, and the Bill goes a long way to offering security and peace of mind. The requirement for prosecutors to consider the circumstances of warfare is a welcome element. War is not black and white; it is grey and involves instant judgments and assessments under life-threatening pressure. It is right that the law reflects that reality. Although I am extremely supportive of the Bill, I accept that there are certain limitations. I would welcome further reassurance from Ministers on how we ensure that rogue lawyers do not bypass the legislation in favour of the international criminal courts to have claims heard. How will the Bill affect service personnel and veterans who are already subject to claims? The six-year longstop in part 2 has drawn criticism. Will the Minister assure me that that will not disadvantage the armed forces community compared with civilians?
We in this House are responsible for sending young men and women into harm’s way, and we rightly expect them to uphold the highest standards of the British armed forces. Despite limited reservations, the Bill will protect our service personnel in the future. It is wrong that servicemen and women we send into conflict should be hounded for years after their active service is over. I understand this legislation will not apply to Northern Ireland, but I am grateful for the Government’s commitment to pursue that separately in Northern Irish legislation. For the current and future service personnel and veterans of my Wrexham constituency, I will support the Bill today. To vote against it would be to deny our service personnel the support of their politicians and this country.
Gavin Robinson (Belfast East) (DUP)
It is a pleasure to follow the hon. Member for Wrexham (Sarah Atherton), not only because she made an eloquent speech but because it has been a pleasure to serve with her on the Defence Committee for the past few months. She is a welcome addition to our group. She followed the hon. Member for West Dunbartonshire (Martin Docherty-Hughes). Although our opinions on the Bill may differ throughout our proceedings, it is right to acknowledge that on the Defence Committee, there is great sense of collegiality and a great degree of cohesiveness. We work well and sincerely in the interests of our armed forces and all those who serve our country.
I see the right hon. Member for New Forest East (Dr Lewis) in his place smiling at me. A former Chair of our Committee, he expertly navigated the way through two of the three reports published by the Committee. I was a member of the Committee during the passage of the two substantive reports, and I commend them to Members, not just in relation to the Bill but in relation to future provisions that we hope to see apply to Northern Ireland, because they outline the complexity of the legal arguments that are engaged. Not once have we heard mentioned in the debate thus far the rationale for Northern Ireland not being included in an overseas operations Bill. It is not because it is expedient, but because we operate in entirely different legislative frameworks. International treaties and the Geneva convention do not apply to domestic deployments.
I listened very earnestly to the hon. Member for Bracknell (James Sunderland) and thought that he made a good speech, but he wanted to focus on what is in the Bill rather than on what is not in it, and I am afraid I cannot do that. I cannot say to the 300,000 veterans who served in Northern Ireland during Operation Banner —the longest continual deployment in our country’s history—that they do not count today. I recognise that those 300,000 do not all live in Northern Ireland. In fact, the majority live in constituencies in England, Scotland and Wales. Yet they are hearing us debate issues about protecting those who protected us without recognising fully that they are not included.
Tom Tugendhat
I am very pleased to hear the hon. Gentleman talking about this because it matters so much to many of us. But there is a difference, surely, between overseas operations and domestic operations that he has touched on. The very nature of what we are dealing with, with citizens of countries from around the world rather than citizens of the United Kingdom, means that the legal framework must be different. While I appreciate that he is absolutely right that the Bill should go further, or indeed the Northern Ireland Secretary should bring forward a Bill that covers similar issues, does he not recognise that it at least addresses part of the lacuna, even though not the whole?
Gavin Robinson
I have enormous respect for the hon. Gentleman, and he is right that there is a different legal framework. That is the point I was making, and I acknowledge it. However, I am not prepared to let this Second Reading debate go by without saying that there is a compelling and equal argument that needs to be made for those who served in Northern Ireland: his constituents and mine. When this Bill was introduced for its First Reading on 18 March, a written ministerial statement was also tabled in this House giving equal provision and commitment to the people who served in Northern Ireland. If that was necessary on the day of its first introduction, the very least we could ask is that we would today have had clarity and further sight of that, and potentially its introduction, so that there was some parallel progression of the commitment that was in the Conservative party’s manifesto, and veterans are looking to see how it will be brought forward.
Jamie Stone
As I have mentioned in this place before, both my brothers-in-law served in the Ulster Defence Regiment. The risk to life was as great for them, if not in some ways greater, than in overseas operations. I can remember them both having to shine a torch under the car every morning. I just make that point for the record. It needs to be remembered.
Gavin Robinson
That is an absolutely compelling point, and I am glad that the hon. Gentleman made it. There has been no progress on the commitment that was given for veterans who served in Northern Ireland, and I am concerned that that commitment is being watered down.
Johnny Mercer
We are very clear that we will not leave Northern Ireland veterans behind. The commitment of equal treatment in any Northern Ireland Bill that comes forward will be absolutely adhered to. This Government will not resile from their commitments to those individuals. We recognise, value and cherish the service and sacrifice of everyone who served in those operations.
Gavin Robinson
The Minister will probably make points like that when he concludes the debate. There has been no progression for Northern Ireland today. The right hon. Member for New Forest East—and, indeed, the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle); I rarely agree with him—were absolutely right that nothing in the Bill will frustrate investigations. That process is so burdensome and cumbersome for those who are subjected to it, with repeated inquiries and repeated investigations. Veterans in their 70s and 80s have had their doors knocked in dawn raids or, on one occasion that I can think of, have been taken from their home and flown to Northern Ireland to answer questions for investigatory purposes about an incident on which they have been through two or three investigations in the past. In considering what will come for Northern Ireland, and as fundamentally part of the Bill, we do not believe in the conferment of an amnesty, and I do not believe that what is contained in the Bill does that. I am pleased that that is the case.
When we consider the principles underlining statutory protection for veterans, we must understand that such protection should always be given in a case where there has been a satisfactory investigation previously and, in our domestic context, where the state has discharged its duty under article 2 of the European convention on human rights. I am therefore slightly concerned that clause 4(1)(c) envisages circumstances where an investigation may have commenced previously but not concluded. That should be reflected upon in Committee. It is unwise to offer levels of protection through a presumption of no prosecution, on the basis that an investigation may have commenced but resolved no outcome whatsoever.
I highlight that issue now because it is worthy of further exploration but, in principle terms, having highlighted the need for more progress for Northern Ireland veterans, no amnesty and no equivalence with paramilitarism, which is another concern this evening, I will give my support to the Bill this evening.
Richard Drax (South Dorset) (Con)
It is a pleasure to follow my hon. Friend the Member for Belfast East (Gavin Robinson). As he said, I too am honoured to sit on the Defence Committee. We have a very cohesive Committee, which is doing some fascinating work on behalf of our armed services.
May I point out to my hon. and gallant Friend the Member for Beckenham (Bob Stewart) that once a commanding officer, always a commanding officer—of course I refer to the mention of the hairstyle of the Minister for Defence People and Veterans, my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer). I thank the Minister while he is sitting on the Front Bench, and the Secretary of State, for the huge amount of work that they have both done to get the Bill before the House. I would like to show my appreciation for all the armed service personnel in another country, and to those in South Dorset in camps such as Bovington and Lulworth, the headquarters of the armoured force nowadays. There are many thousands of troops and their families who serve with great distinction and honour, in Dorset and around the world, and we owe them a huge debt.
It is those of us in this House who send troops to war—no one else; we do. We sit here on these green Benches, or at home in our comfortable armchairs, armed with a gin and tonic perhaps, watching the men and women we sent fight for their lives in places like Iraq and Afghanistan. Can we possibly, with few exceptions—honourable exceptions—really understand what they have gone through and are going through? I do not think we possibly can.
The law had until recently covered warfare very well. Things like torture and sexual assaults and so on are already covered by international law, under which our troops serve. Unfortunately, other laws have crept into military law and are being exploited, as we have heard, in some cases by unscrupulous lawyers, and even scrupulous lawyers who genuinely feel that they have a legal duty to protect their clients’ claims and investigate them.
The Bill, we have heard, gives immunity to those who commit crimes—or, some have said, amnesties. Hon. Members may remember the case of Marine A, Alexander Blackman; I sought his permission to mention his name today. I was honoured and privileged to form part of a small team that fought for him for three years to get his conviction for murder reduced to manslaughter. In that case, if hon. Members remember, he shot a member of the Taliban while serving in Afghanistan. He was convicted of murder and sent to jail for 10 years. Under a very able QC and his team, we took the case to the Appeal Court, where it was reduced to manslaughter with diminished responsibility.
What I find encouraging in the Bill is that—if I may read the notes that I was helpfully given by the Minister—it will require prosecutors, when deciding whether to prosecute, to take into account the unique circumstances of “overseas operations” and the “adverse effects” that those can have on personnel.
In the Appeal Court, five of the top judges in the land listened to the case that I have mentioned and decided that it was not murder. So, having served four years of his life, and having served 16 years with great distinction and honour for Queen and country and for us, Mr Blackman was released.
Richard Drax
I will not give way, because 70 Members wish to speak, and the hon. Gentleman has had plenty of time to say his bit.
The point I am trying to make is that this man did not get away with it. He was convicted for four years of his life. He paid for a terrible mistake in the heat of battle after a long tour. When the circumstances were investigated by the lawyers at the Appeal Court and the experiences that he and others had been through came out, and the psychiatrists had their say, it was discovered that this man had been pushed to a point that none of us in this place can understand.
Next time—and there sadly will be another time—we send our men and women into harm’s way, we must remember what we are sending them to. This Bill, which I totally support, is being introduced to protect them from new aspects of law that our forebears in world war two and other battles did not have to cope with. I shall be voting with the Government tonight. I thank the Minister and the Secretary of State for bringing this Bill to the House, and I look forward to the Northern Ireland Bill coming to the House before Christmas.
Claudia Webbe (Leicester East) (Lab)
This is the second piece of legislation that the Government have brought forward this week that is predicated on breaking international law. It is alarming that this is the global Britain that was promised in such glowing words by the Prime Minister and his allies over the last few years—a Britain that alienates itself on the world stage and is driven by bluster, tub-thumping and a form of nationalism that endangers both our armed forces and civilians around the globe.
The Defence Secretary has boasted about going to war on lawfare, but preventing acts of torture is not some burdensome red tape. The UK military has opposed torture for decades, and that principle is enshrined in the Army field manual and the Ministry of Defence doctrine, yet the Government wish to provide a triple lock amnesty which would ensure that acts of torture cannot be prosecuted if they took place more than five years ago. The Bill would also enshrine direct political interference from the Attorney General in such cases.
Many human rights groups, including Amnesty International, Freedom from Torture, Liberty, Reprieve and Rights Watch UK strongly oppose the Bill on the grounds that it contravenes international humanitarian and human rights law. The organisation Redress warns:
“The Bill risks creating impunity for serious offences including torture, and thus will result in the UK being in breach of its international treaty obligations… The Bill makes the mistake of assuming that all victims are fake, and that British soldiers are always in the right. That is not borne out by history.”
Indeed, it is believed that thousands of allegations of torture and mistreatment from Iraqis and Afghanis have been lodged against British soldiers serving in the invasion of Iraq and Afghanistan. Earlier this year, the International Criminal Court prosecutor determined that there was a basis to allegations that the UK armed forces committed war crimes against detainees in Iraq. Rather than face up to any wrongdoing, the Government now wish to silence victims by introducing time limits for civil claims in connection with overseas operations.
The Bill would also place a duty on all future Governments to consider deviation from the European convention on human rights in relation to significant overseas military operations. That reveals what this legislation is truly about: slashing away crucial protections on human rights under the guise of macho patriotism. Even if we agree with the Government’s argument that those involved in controversial overseas operations should not be left in uncertainty for years, the solution is not to issue a blanket amnesty for potential war crimes.
Claudia Webbe
We have 70 people speaking in this debate.
The solution is for the Government to reverse their severe budget cuts to criminal investigations and to increase accountability and scrutiny of their military interventions.
The Government claim to be standing up for British troops, yet the erosion of global rules against torture would put UK personnel at risk by endangering British soldiers who are detained by foreign forces overseas. Not only that, but the Bill breaches the armed forces convention by preventing British armed forces personnel from holding the Ministry of Defence to account for negligence, personal injury or death. Therefore, despite all the Government’s bluster, this legislation does much more to protect the Ministry of Defence than it does service personnel.
Sir John Hayes
On a point of order, Madam Deputy Speaker. The hon. Lady may have inadvertently misled the House, and I would not want her to do that. She made the point just now that the Bill meant that serving personnel could not be prosecuted for war crimes. That is fundamentally untrue, as the Minister no doubt will confirm. If she withdrew that remark, we could all make some progress.
Madam Deputy Speaker (Dame Eleanor Laing)
I appreciate what the right hon. Gentleman is saying, but he knows that it is not a point of order for the Chair but the very point that we are debating. The hon. Lady thinks one thing, the right hon. Gentleman thinks another.
Claudia Webbe
I guess I now do not have the time.
If the Government really cared about the wellbeing of veterans, they should pledge today to invest in mental health services and tackling the scourge of homelessness, which affects 3,500 veterans. According to the No Homeless Veterans campaign, this legislation also increases the likelihood of UK service personnel being tried at the International Criminal Court in The Hague, instead of being dealt with in our British justice system.
Madam Deputy Speaker (Dame Eleanor Laing)
The hon. Lady has exceeded her time.
Mark Eastwood (Dewsbury) (Con)
My constituency has a proud history of supporting our veterans. I would like to start by congratulating VetRun 180, a veterans charity based in Mirfield, on raising a significant amount of money for injured servicemen following its 13-day expedition from John O’Groats to Land’s End. Mirfield is also home to what is reportedly the largest remembrance parade outside London, with Dewsbury not far behind and large services also held in Kirkburton and Denby Dale. I hope that Ministers will give assurances that remembrance services, albeit with smaller numbers, can go ahead this year, so that we can show respect for the war dead and our veterans.
I am pleased that the Bill has been introduced, as it delivers on our manifesto pledge to tackle vexatious claims against armed forces personnel. We owe it to our veterans to ensure that they are protected against these claims and that the circumstances of their judgments are taken into account.
I have seen at first hand the impact that serving in conflict zones can have on someone. When I was a teenager, a friend of mine joined the Army and went on to serve in Northern Ireland during the troubles. Having seen his colleague and friend killed in front of him, he came home and looked a shadow of his former self, clearly affected by that traumatic experience. As a result, he distanced himself from our friendship group and could only seek solace and comfort from his Army colleagues. I cannot begin to imagine what my friend went through during his time in the Army, with his life constantly under threat and having to make snap decisions under extreme circumstances.
Of course, the Bill does not deal with Northern Ireland, and I echo the sentiment expressed by the hon. Member for Belfast East (Gavin Robinson) in his speech earlier. However, I expect the Government to honour their manifesto commitments and bring forward legislation relating to Northern Ireland veterans in the not-too-distant future.
That aside, those on overseas operations will have endured similar trauma to my friends. Such experiences can affect people’s judgment and I would be hesitant to criticise people who have made decisions in such gruelling circumstances when I have not been in such situations myself. It is absolutely right that the Bill will ensure that such conditions are taken into account when prosecutions are considered.
I am satisfied that five years is a sufficient period within which to bring forward a prosecution. The impact on veterans of the looming threat of court action can be horrific and they do not deserve to be hounded for many years after they have left service. Many of the inquiries and organisations set up to investigate allegations found little basis in the vast majority of them. Operation Northmoor discounted 90% of investigations into the allegations it received, and none were referred for prosecution. The sort of vexatious claims that prompted many of the investigations could ruin the lives of veterans, placing an enormous burden on their mental health.
It is important to recognise that the Bill includes a presumption against prosecution, not a total exemption. Many of the scenarios put forward by the Bill’s critics— including gruelling torture, which has been discussed by many Members—would certainly still be dealt with, and rightly so. We have a top-class military with dedicated personnel who put their lives on the line in circumstances that many of us will have little understanding of, and we owe it to them to provide the support and peace of mind that they need. That is why I fully support the Bill.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
From the point at which I first became aware of its proper formulation, I have been a supporter of the military covenant. It has always seemed to me to be a statement of decent common sense. The covenant has been important for the past two decades because of the way in which it has shaped and, indeed, changed the debate in politics on matters relating to the military. It has given us something around which we can all unite and is a common starting point for us all. The debate in this House and in the community at large has been much the better for that.
It is for that reason that I have particular regret about the way in which the Bill has come to the House today and—I have to say—about the way in which we have debated it. There has been a degree of heat and asperity in this debate that does not serve this House, or those in our armed forces whom we seek to protect, well. I ask the House, and not just those on the Treasury Bench, to reflect on that. I am aware that I may even have been part of it myself, but on reflection I think those who serve in the armed forces deserve better than this.
As I said to the Secretary of State, there is an easy consensus to be built around taking action against vexatious civil dreams. Unfortunately, what we have heard in support of the Bill does not really build that consensus; we have heard a conflation of civil and criminal procedure, with a view to justifying the otherwise unjustifiable changes to criminal procedure. I have very little problem with the part of the Bill that relates to the regulation of claims. What Phil Shiner did was absolutely unconscionable. If we want to stop that sort of thing, the first point ought to have been to call in the regulatory authorities in the legal profession. If we really want to address that problem, that would be the first place I would start to look.
I wish to put on record the concerns that my right hon. and hon. Friends and I have about the Bill. First, there is the question of a presumption against prosecution. The Secretary of State said earlier that I was a right hon. and learned Member; he was not quite right: I was but a humble solicitor. In fact, in the early stages of my legal career, I served as a prosecutor—as a procurator fiscal depute—and it was useful experience. I cannot think of any other example of this presumption in legislation, and I counsel the House that it is a dangerous one.
I want to focus on the use of torture, because this illustrates very well the lack of logic in not having torture in schedule 1 to the Bill. Where there is evidence of torture, no prosecutor sitting in his or her office should say, “Well, there is clearly evidence of torture, but it is presumed that we will not prosecute it.” What sort of signal does that send? But if we read the Bill, we see that its architecture is such that torture is clearly designed to belong in schedule 1, along with sexual offences. That makes perfect sense. As I have said, that is a matter of logic, not of law. The provisions in schedule 1 cover eventualities whose use is never in any circumstances acceptable, so surely that is where torture belongs. Not to put it there suggests that the use of torture in warfare is in certain circumstances acceptable, and that is a proposition for which there should be no support in this House. In suggesting that, we risk doing ourselves serious damage and, worse than that, we ill serve those whom we seek to support and to help through the passing of this legislation. The people who will be most damaged by the application of that presumption against prosecution in relation to torture are those who serve and have served in our armed services. As I said in my intervention on the hon. Member for Glasgow South (Stewart Malcolm McDonald), the purpose of prosecution is to prove beyond reasonable doubt that something has or has not happened. This presumption will work against that, and at the end of the day, the people who will lose as a result are those against whom suspicion exists.
Madam Deputy Speaker (Dame Eleanor Laing)
After the next hon. Member to speak, the time limit will be reduced to three minutes so that we can try to give an opportunity to as many people as possible to participate in this important debate, but now I call Stuart Anderson to speak for five minutes.
Stuart Anderson (Wolverhampton South West) (Con)
Thank you, Madam Deputy Speaker, for the extra few minutes. I declare an interest as a veteran who has served on multiple overseas operational tours and successfully taken the Ministry of Defence to court over injuries sustained in my time. In my maiden speech I spoke about what was best described as a hatred of this place and the decisions that were made here. After those decisions were made, I had to go and fight in those conflicts and saw them at first hand. But I think we need to move on from that and say, “There are new Members in; let us help to educate the House from our perspective”. We do not all have the same views, but we have been given that opportunity, so I want to show hon. Members a day in my life as a young soldier.
At the age of 22, I had been shot, rehabilitated, learned to walk again, returned to active duty, spent several years on different operational tours, gained promotion and got married. Then Kosovo erupted. We were chosen to go at the start of the conflict, so on returning from my honeymoon, I kissed my wife goodbye and said, “See you in six months.” As we entered Pristina, we did not know what awaited us. I was a proud junior NCO—that meant I could read a map—with the formidable R Company of the 2nd Battalion the Royal Green Jackets. I worked alongside professional, battle-hardened men, and we knew our job and did it well. There was no proper accommodation when we arrived, so we put our doss bags down in what could best be described as rat-infested, disease-ridden derelict buildings. We worked all hours round the clock, so sleep was a real bonus if we got it. Within a couple of weeks of the tour starting, it was clear that we were stretched thin, had unsuitable kit and lived in the worst conditions imaginable. We did not complain. We got on with it.
One evening, I was a quick reaction force commander, and our temporary base was burned down. It would have been a blessing to get rid of the place if my friends had not been so badly burned in it. As we were trying to put the fire out, the conflict raged all around us. We had to go and deal with that, regardless of the fact that all our stuff was getting burned as we did so. My brief over the radio on the way to the incident was: “Several armed men have entered a house. Civilians inside. Serious threat to life. Deal with it.” That was the brief.
There are all kinds of ways of dealing with such situations in training, and loads of support agencies that can be brought in. Not one was available then, so I and three of my colleagues arrived at the location. I briefed the team by saying, “Make ready.” For those who do not know, that means put a round in the chamber and prepare to engage the enemy. We entered the building and had a split second to decide whether these men were armed. Were they waiting for us? Were they even in there? What were they going to do? We were sleep deprived, under pressure and had just watched our mates burn. We knew the rules of engagement. We knew what we could and could not do. If we made the wrong decision, we went to prison or we died.
On that occasion, we were able to get the men to surrender and prevented any loss of life. That incident is nothing unusual in the day of a soldier on operational tour. That is what they do—day in, day out. They never want to be held above the law. They do not want to be treated differently. They want to do their job without fear of being chased decades afterwards. If a crime is committed, they must be prosecuted and they all get that, but this lawfare culture is a disgrace to this country. It will damage the military and it must be stopped.
This Bill is a major step forward for veterans and soldiers. It will bring back reassurance for our troops that they can move in operations without that fear of prosecution. I welcome everything that my hon. Friend the Minister for Defence People and Veterans has done to get this legislation here. It is a major step forward. I also welcome the Northern Ireland Bill that is coming forward. We must see that through.
Tom Tugendhat
I just wondered whether my hon. Friend would like also to praise the Minister’s hair.
Stuart Anderson
Like me with the long beard, the Minister has long hair; we are leading the game in this House.
I am new to this game. I have only been a politician since last year. As I said, I had never voted before 2015. I hated politics and the decisions made. I have watched some of the debates and have honestly found myself angry at some views, but I have to put that to one side because we have to debate this matter fairly. I have seen the impact of these issues on soldiers’ lives; some of my friends are not here now because they took their own lives. We have got to put that above everything else. I am asking the House to put egos and political parties aside, and to support this legislation tonight. We will be judged by our actions, not our words.
Taiwo Owatemi (Coventry North West) (Lab)
It is right that we protect our armed services personnel and veterans. These men and women have served us and our country, and it is only right that we serve their needs. It is our duty to prioritise their welfare and mental health, and to support them and their families in every conceivable way, not just when they are in service, but after they return home—for as long as they need it.
It is our intention to work supportively with the Government to improve this Bill for the better protection of our service personnel and veterans. Unamended, the Bill leaves Army personnel with less power to protect themselves once they have completed service. What are the Government more concerned about—protecting the Ministry of Defence as a Department or protecting our honourable service personnel on the ground, who risk their lives day in, day out to make sure that the people of the United Kingdom and citizens across the world are kept safe? As it stands, the Bill does more to protect the Ministry of Defence than it does for our troops and veterans.
The Labour party is determined that we will absolutely stand up for our troops’ rights to justice from the Ministry of Defence should it fall short in protecting our forces. Members of the armed forces have given years of their lives and sacrificed memories with their families to protect us and our great nation. It is utterly unfair to place a time limit on their right to hold the Ministry of Defence to account if they develop later in life mental and physical disabilities as a result of their time in service. It is well documented by numerous organisations and armed forces veterans themselves that, in many cases, duty-related ailments, injuries and mental health issues do not develop until years after they have left service. Many service personnel and veterans have spoken out about their horror at the Bill’s intention to introduce a six-year time limit on claims for personal injuries and/or death. Will the Minister accept that one reason for a delay in soldiers bringing cases can be the impact of trauma? As we know, tragically, there can be extremely high rates of PTSD in the military. The Bill penalises our wonderful service personnel and is a flagrant breach of the covenant.
There is no reason why we should be under-protecting our service personnel and veterans, who have sacrificed so much to protect us. Personal injury claims are incredibly important not only in securing justice for injured people or bereaved families, but in holding the Ministry of Defence to account.
As I mentioned, our intention is to work with the Government and to strengthen the Bill. The Government can do that by increasing protection for our own forces while, crucially, still adhering to international obligations and frameworks that determine best practice of behaviour and standards for all armed forces across the world. As an MP for many service personnel and veterans in Coventry North West, I am here to protect them, to speak up for them and to stand up for them. We should focus on looking after them on their overseas missions and when they return home, when many face an uphill battle to survive. We must protect and uphold their rights when they return home from service, and provide them with the dignity and respect that they deserve.
Andrea Jenkyns (Morley and Outwood) (Con)
I welcome the Bill, as it delivers on our election manifesto promise to deal with a long-standing injustice. It paves the way to a new framework that puts justice at its heart.
I have always been proud of our armed forces. My late father was in the Royal Scots Greys and the 2nd Royal Tank Regiment, and my husband, my hon. Friend the Member for Filton and Bradley Stoke (Jack Lopresti), is an Army veteran who served in Afghanistan. I am also very proud of how my constituency supports our veterans, especially the Royal British Legion in Morley, where Gail and her team of volunteers raise tens of thousands of pounds per year for our veterans. Veterans are part of all our communities and it is crucial that we value their contribution to this country. We must seek to protect them as they put their lives on the line to protect us and our country.
The Bill finally finds a solution to end the injustice of vexatious claims. For too long, veterans have been the victims of lawyers’ profiteering ventures, in which profits were made from the constant threat of reprosecution. A new five-year limit on the time in which our troops can be subject to legal claims, apart from in exceptional circumstances, will help to stop unfounded allegations.
We ask much of our armed forces, yet, as things stand, they face an unending trauma from persistent reinvestigation. In essence, the Bill acts to remove that injustice and creates a new legal framework that puts justice at its core. The Bill will achieve that with a triple lock to protect and secure the welfare of our armed forces personnel.
Sir John Hayes
My hon. Friend, as ever, makes a strong case. Will she confirm that, far from the irresponsible, scurrilous and unpatriotic claims of the hon. Member for Leicester East (Claudia Webbe), the Bill does not mean that soldiers can do as they please? It simply protects them from those very malicious and vexatious charges long after they have served, which they have been plagued by for too long.
Andrea Jenkyns
I thank my right hon. Friend for his comment. That trauma has been inflicted on veterans by disgraced lawyers should be a source of shame to us all. Many veterans’ lives have been put into a state of unending misery.
The Bill will require that prosecutors take into account the adverse effect that overseas operations can have on service personnel. It recognises that, in the interests of justice, there should be reasonable and swift resolution of cases that have already been investigated and in which there is no compelling new evidence. There is justice in having certainty about the future for our armed forces—they deserve that. This is a legal framework that provides clarity in dealing with these allegations. I welcome the Bill not only for removing the injustice of repeated investigations, but for being a measured step—
Andrea Jenkyns
No, I am running out of time.
The Bill will not put our armed forces in any legal privilege. The same laws, both domestic and international, will always apply. The Bill’s statutory presumption against prosecution does not prevent justice being served in cases where armed forces personnel have committed genuine crimes. This is a Conservative party manifesto promise and, as a party, we will always stand up to fight for our servicemen and women. Most importantly, however, the Bill ends the blight on the lives of our veterans with sensible and fair measures. My constituents will welcome its contribution to guaranteeing justice for those who have protected our freedom.
Stephen Timms (East Ham) (Lab)
I am pleased to follow the hon. Member for Morley and Outwood (Andrea Jenkyns) and I share her objective of ending vexatious claims. But it is to our shame that Governments of which I was a member, in circumstances that we still do not fully understand, participated in rendition leading to torture. That should not have happened and it must not be allowed to happen ever again. That is the aim of the all-party group on extraordinary rendition, of which I was recently elected Chair. I am afraid that this Bill will not help with that shared objective. I am troubled, for example, that, in the Bill, the presumption against prosecution will extend not just to the battlefield, not just to the sort of circumstances that the hon. Member for Wolverhampton South West (Stuart Anderson) very powerfully explained to us a few minutes ago, but to peacekeeping operations and to a worryingly undefined category of operations dealing with terrorism. We could so easily slip back to repeating what went so badly wrong before.
The House’s Intelligence and Security Committee has carried out two investigations on extraordinary rendition. There is still a great deal that we do not know, but the Committee has identified hundreds of cases linked to the UK. Many of the people involved still do not know that the UK was involved in what happened to them, and it would be quite wrong to cut them off now from any legal redress. There will one day need to be a judge-led inquiry into what happened with that extraordinary rendition, but, for now, the Government seem to have set their face against that. It may well fall to the Front Bench of this party to do the right thing, but let us not now choose to downgrade the seriousness with which we regard acts of torture. I asked the Secretary of State why, having floated the idea of excluding torture from the remit of this Bill along with sexual offences, the Department did not exclude torture. Sexual offences, I am pleased to say, have been excluded. The Secretary of State did not give an answer. He simply said that that was the decision that he had made. In the case of sexual offences, it is absolutely right: those are not acceptable in any circumstances. Surely the same is true for torture. That must surely be the view of this House and of the British Government as well.
Ian Levy (Blyth Valley) (Con)
I must declare an interest, as I am a member of the Royal British Legion. I will be brief as I know that time is short. I pay tribute to the work of the Secretary of State for Defence and the Minister for Defence People and Veterans for their unwavering support for the veteran community both nationally and in my home constituency of Blyth Valley.
Blyth has a long history of supporting our armed forces. Members of my own family have served in both the regular and the youth branches of the Army. My father served in the RAF in the post-war years. The Blyth shipyards built many ships for the Royal Navy, including the first aircraft carrier, HMS Ark Royal. During both world wars, the port of Blyth served as a submarine base and today it plays host to the 203 Elswick Battery Royal Artillery and Army reservists and many of their families.
I am a proud member of the Royal British Legion, which ensures that ex-service communities have a voice here and their concerns can be heard by the Government. With this Bill, the Government have shown that they have listened to our veterans and serving personnel and have taken their concerns seriously. Our armed forces perform exceptional feats in incredibly difficult circumstances to protect this country and I am proud of the fact that they uphold the highest standards when doing their job overseas.
We have some of the most committed and professional service personnel in the world, who not only adhere to the rule of law, but promote it through their conduct while on operations and we should not second-guess their actions from this House. There seems to be confusion in much of the reporting about the difference between investigations and prosecutions. This Bill does not give free rein to our forces to behave in a way that would bring our services into disrepute and it will not prevent the prosecution of any service personnel found to have committed illegal acts on operations overseas. Despite suggestions by Opposition Members, it does not provide immunity from torture, but it does make provision for the prosecution of any service personnel found to have been involved in such acts.
The Bill does not act as a pardon, amnesty or statute of limitations. Prosecutors will have the ability to prosecute for criminal offences, including torture, taking into account factors such as sufficiency of evidence and public interest. Furthermore, service personnel are subject to criminal law in England and Wales and to the disciplinary framework of service law, and have a duty to uphold both wherever in the world they are serving. Indeed, the people we have failed in recent years, whom we now deny the protection of law, have—
Mr Deputy Speaker (Mr Nigel Evans)
Order. I am terribly sorry, Ian; we have to leave it there.
Margaret Ferrier (Rutherglen and Hamilton West) (SNP)
As co-chair of the all-party parliamentary group on human rights, my comments will be heavily focused on human rights. Perhaps not surprisingly, when I see a Bill come forward from this Government that seeks to achieve a derogation from the ECHR, I am sceptical about its intentions. This Bill is another example of the Government trying to get around our international legal obligations in a specific and limited way, and in so doing opening up a whole can of worms for our armed forces personnel overseas.
There can be no doubt that our armed forces carry out incredibly sensitive and dangerous work overseas, and they have our gratitude for doing so. They do not deserve to be repeatedly investigated for vexatious claims against them. The internationally agreed rules of warfare simply must be adhered to. That includes prosecuting war crimes and crimes against humanity when there is evidence to suggest that those serious offences have been committed in the course of armed conflict. Doing so not only upholds our commitment to the rules-based order but offers armed forces personnel crucial protection from torture and abuse themselves. It is hypocritical of us to demand of others that they should obey international law if we do not follow it ourselves, and the consequences for serving personnel on the battlefield are serious if we undermine our commitments to human rights.
I have considerable concern about the impact that clause 12 will have on our human rights obligations. In its current form, the Bill enables the Secretary of State to derogate from article 15 of the ECHR under certain circumstances, even though article 15 is one of the provisions of the ECHR where derogation can take place. I am concerned about the concentration of power in the hands of the Executive on matters pertaining to states of emergency, especially as the clause only places a duty on the Secretary of State to consider whether an overseas operation is significant enough to merit derogation. At the very least, additional parliamentary oversight is required before such a derogation is made, given the existing notification requirements to the Council of Europe for such a derogation to take place.
Our armed forces deserve protection but should not be above the law. Unfortunately, the Bill creates far too many unintended consequences for the UK’s reputation as a country that upholds human rights and the rule of law. I do not believe that the Government have adequately addressed those issues in the Bill as it stands, and it is for that reason that I will join my colleagues on the SNP Benches in voting against the Bill tonight.
Carla Lockhart (Upper Bann) (DUP)
My constituency is home to many veterans. Their service to our nation is valued by me as their MP and by the overwhelming majority of the local community. For their service, we owe them a great debt of gratitude, and central to that gratitude is the full implementation of the military covenant right across the United Kingdom—something on which we in Northern Ireland still have a way to go.
At the core of that covenant—that promise between society and our military family—is the principle of fairness, and I believe that the Bill before us is no different. At the heart of this should be fairness. Is it fair that our military personnel are targeted through vexatious actions that are proven to have no legitimacy when they reach a court but, in the period up to that point, come at a mental and financial cost that is a heavy burden to bear? Likewise, would it be fair for those who have committed wrongdoing to be able to escape justice? Would that be fair on victims? Absolutely not.
I am conscious of the concerns raised both by hon. Members in this House and by constituents that this Bill could exempt soldiers from justice in relation to heinous acts such as torture. No one wants that. At all times, the punishment, whether or not the alleged offence is within a five-year period, must fit the crime. There should be no amnesty for those who abuse the uniform when serving Crown and country.
One area that still remains unresolved by this Bill, despite a promise and platitudes from the Government, is the vexatious prosecution of those who served in Northern Ireland. These veterans must not be left behind.
Paul Girvan (South Antrim) (DUP)
There are still many veterans who are awaiting the knock on the door. As has been mentioned, 80-year-old men are receiving a knock on the door. When the Minister is summing up in winding up this debate, will he give assurances on the progress of implementation and forward movement of inclusion within the Northern Ireland Bill?
Carla Lockhart
I thank my hon. Friend, and I agree entirely with his sentiments.
On 18 March, in a statement to this House, the Secretary of State for Northern Ireland did give a commitment that there would be equal treatment for Northern Ireland veterans, yet today we have no sign of a Bill that will give that equal treatment to the veterans who served in the streets and laneways of Ulster. Such delays create suspicion, so I urge the Minister to commit that, before this Bill becomes law, veterans in Northern Ireland will have that equal treatment.
Mr Deputy Speaker (Mr Nigel Evans)
Order. I am sorry, Mr Shannon, but you cannot make an intervention from there.
Mr Deputy Speaker
Take 2! Mr Shannon, you must come here more often and you will find out how this place works. [Laughter.]
Jim Shannon
It is always a learning curve, Mr Deputy Speaker, and I am still learning.
On the issue our veterans in Northern Ireland—I declare an interest as one of those veterans, having served in the Ulster Defence Regiment in Northern Ireland—the Minister gave a commitment previously that, by the end of this year, a Bill would be coming through on Northern Ireland veterans’ issues. Does my hon. Friend, like me, want to see the Minister committing himself at the end of this debate to giving veterans in Northern Ireland the same protection as those here on the mainland?
Carla Lockhart
I thank my hon. Friend for his intervention, and I wholeheartedly agree with him. I think the Minister will have got the message loud and clear from the Ulster Benches that we want that clarity today. Those who served in Operation Banner, who stood firm against terrorism and who defeated those terrorists must not be left behind as prey for unscrupulous lawyers, emboldened by smears and innuendo from self-styled rights activists, republican politicians or investigative journalists. To do so would be wrong.
In Northern Ireland, we have the ludicrous scenario where terrorists were freed from prison having served only 18 months for the murder of police officers and soldiers, yet we are here having to debate why we do not pursue elderly men who have served their country by standing against those very terrorists. These same terrorists now want to be paid compensation for the injuries they suffered carrying out their illegal and murderous deeds. I want to put a marker down in relation to this Bill: there can be no consideration and no legal framework to offer a level of equivalence between the perpetrator and the innocent victim.
In conclusion, this is a matter of fairness—fairness to our servicemen and women, fairness to victims and the fair application of the law of this land, but also fairness within the ranks of service personnel. Northern Ireland veterans must be treated fairly, and in that regard this Government must step up and live up to their prior commitment—no more lip service, no more delay.
Jack Lopresti (Filton and Bradley Stoke) (Con)
I welcome the clear intention to support our service personnel, whom we send into harm’s way on operations overseas quite often these days, with this Bill. First, I would like to congratulate my hon. Friend the Minister for Defence People and Veterans on all the incredible hard work he has done on veterans’ issues and on the work he has done to bring this Bill before the House.
I would like to declare an interest as a veteran. I was proud to serve our country in Afghanistan on Op Herrick 9 as a mobilised reservist in the Royal Artillery. One of my sons, Michael, is currently serving in the Royal Artillery as a lance bombardier in 1RHA—1st Regiment Royal Horse Artillery—having just returned this week from a six-month deployment to Estonia. I am looking forward to catching up with him at the weekend and having a few beers.
While I anticipate the important legislation that will follow this Bill and address the great injustice of the treatment of our Northern Ireland veterans, I hope that this Bill will end the vexatious and repeated claims that some of our service personnel have had to endure following their service in Afghanistan and Iraq. I will support the Bill, although I have some questions about which I hope Ministers will reassure me.
Will the Minister assure me that the Bill will not lead to an increased risk that our people will be pursued through the International Criminal Court? We must be careful not unintentionally to give the impression that our armed forces do not operate to the highest possible standards, as we know they do, or that some sort of immunity exists for them while on operations. We must make that point throughout, and be clear that if a service person commits a crime on an overseas operation, they will be held to account legally.
Service personnel are taught about the law of armed conflict and their obligations under the Geneva convention, which they take incredibly seriously. Colleagues have drawn attention to the fundamental difference between an error in the fog of war, and a crime. Even with all the modern technology now available to our armed forces, sadly, we will never eliminate the risk of civilian casualties.
In a recent interview, General Sir Nick Carter drew attention to the need for better records to be kept on operations, and for service personnel to know that any incident that occurs on operations and leads to an investigation will be dealt with quickly by the MOD. As my right hon. Friend the Member for New Forest East (Dr Lewis) said, it is not entirely clear that the Bill will be able to stop repeated investigations. I hope Ministers can assure me that once an investigation has closed, it will not be repeated unless there is more compelling evidence that specifically relates to that case. That will put an end to repeated investigations and interviews by various boards of inquiry that can drag on for many years, with both service and civilian police.
I was proud to serve on the Armed Forces Bill Committee, which enshrined the armed forces covenant into law for the first time and means that military personnel will not be disadvantaged by their service. Will the Minister reassure the House that the Bill will not inhibit the ability of any veteran who seeks legal action against the MOD?
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
It is a privilege to speak in this debate on an issue that is of great importance to me and my constituents. Indeed, it was a manifesto commitment, and I congratulate my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer) on his considerable energy in delivering the Bill. Lincolnshire is the proud home of much of our air force and its heritage. Sleaford and North Hykeham is lucky to have a number of RAF bases, including RAF Cranwell, at which the next generation of officers are trained. Through the armed forces parliamentary scheme, I have seen at first hand how our armed forces personnel train night and day, so that they are fully prepared to protect us in the most difficult circumstances imaginable.
Although our armed forces put their lives on the line to protect us in conflict overseas, there has been a collective failure to protect them from vexatious claims when they come home. The strong emotions on that topic cannot be understated, and like many colleagues, I have received much correspondence about this issue, which is often raised in conversations with veterans, service personnel and families. I believe that the Bill cannot come soon enough, although tragically, for many veterans it will have come too late. In 2014, the al-Sweady inquiry found that the vast majority of claims made against the British military were the product of “deliberate and calculated lies.” Those lies came at a huge personal cost to soldiers who were victims of them.
Our brave men and women in the armed forces do not want to be, and should not be, above the law, and the Bill will not make them above the law. They want to be protected from vexatious claims, however, and we should ensure that they are. At the core of this issue has been the expansion of human rights law under the ECHR to apply outside the UK, and its conflict with international humanitarian law. The Bill will protect our personnel from vexatious claims, and I proud to see the Government fulfilling their manifesto commitment to protect the armed forces.
As other hon. Members have said, the Bill does not cover Northern Ireland veterans, but earlier in the debate I heard the Minister’s assurances in that regard, and I hope that further legislation will come forward soon. I welcome the introduction of the Bill, and will support it this evening. I look forward to the day our veterans no longer need to worry that their brave and honourable service for this country will be tarnished by repeated intimidation by investigation.
Christian Matheson (City of Chester) (Lab)
Let me say at the outset that although I did not agree with all his conclusions, I found the speech by the hon. Member for Wolverhampton South West (Stuart Anderson) to be stark, powerful and illuminating. I pay tribute to him for his service.
Chester is a proud garrison city. The hon. and gallant Member for Beckenham (Bob Stewart), who is in his place, served as leader of the Cheshire Regiment and is still highly thought of there. Many of the men who served with him are now veterans, and I have a large veteran community in Chester. I seek to represent them because they served us, and we owe them a debt for that service. We owe it to them to look after them, which is why I have in the past called for measures to protect veterans from vexatious claims. Consequently, I will not vote against Second Reading tonight.
None the less, it is the role and the right of the Opposition to point out errors and holes in legislation and to try to improve it. I was disappointed by the response from the Secretary of State, particularly his outburst when my right hon. Friend the shadow Secretary of State pointed out some of the holes and criticisms. There are clear reasons to include torture in the scope of the Bill, but that was rejected.
My hon. Friend the Member for Brighton, Kemptown (Lloyd Russell-Moyle) and the right hon. Member for New Forest East (Dr Lewis) both talked about the fact that the legislation will not prevent investigations, and in that respect there is a particular group I want to talk about. When there is a knock on the door at 7 o’clock in the morning, it is not just the veteran who suffers; it is his or her family as well. We need to remember the families of veterans.
I was especially disappointed when, in response to my right hon. Friend the shadow Secretary of State, the Secretary of State tried to associate ambulance, tank or armoured personnel carrier-chasing lawyers with the Labour party. My right hon. Friend had taken a constructive approach and will continue to do so. I ask the Minister to consider carefully: these lawyers, who deserve obloquy, have no support from us. Those of us who represent areas where there are high numbers of honourable ex-servicemen want to find a way to protect them. The Bill may be the right way, but it needs to be considered carefully in Committee. I hope the Minister and his colleagues will take into account our genuine and heartfelt concerns about its failings, so that they can be amended during the Bill’s passage through Parliament.
Chris Clarkson (Heywood and Middleton) (Con)
It is a pleasure to follow the hon. Member for City of Chester (Christian Matheson), who made a reasonable and moderate speech. In our debate on the Bill today, we have heard some powerful stories based on personal experience, not least from my hon. and gallant Friend the Member for Wolverhampton South West (Stuart Anderson), as well as some fairly strong accusations based on the belief that the Bill will somehow undermine this country’s enviable legacy in respect of human rights.
I read John Larkin’s article, and I have to concur with the conclusion reached in relation to Felix Frankfurter’s tripartite test for deciding whether a law does what it says on the tin:
“1. Read the statute, 2. Read the statute, 3. Read the statute”.
The Bill does not give, or even approach giving, immunity to service personnel in respect of serious crimes. There is no special provision to prevent prosecutions for torture, and those who claim otherwise should be ashamed of themselves. We hear a lot of Opposition Members paying lip service to supporting our forces, and I believe that some of them genuinely do, but when asked to do so, some have demurred. Failing to support the Bill will be a serious breach of faith on their part.
What the Bill does is create a new framework for prosecutions of alleged offences that take place on overseas operations. It requires exceptional grounds for bringing such prosecutions, and factors relevant to overseas operations must be taken into account in deciding whether it is in the public interest to prosecute. Specifically, prosecutors must take into account the negative effects on mental health and decision-making capacity arising from being exposed to the overwhelming stress of continuous threat to life or commanding those who are so exposed, from seeing colleagues killed or maimed, or from the myriad other harsh realities of overseas service, which most of us in this place should be grateful for never having seen.
Lloyd Russell-Moyle
Can the hon. Gentleman tell me how those things are not already taken into account under current provisions in courts and when deciding to prosecute?
Chris Clarkson
I thank the hon. Gentleman for his question, but if they were taken into account and taken seriously, we would not need legislation such as this.
What I described should dispel suggestions that the Bill will create immunity from prosecutions. The Bill only creates a test of exceptionality for prosecutions after a period of five years has expired. What is exceptional within the scope of the Bill is determined by an independent prosecutor, the Attorney General, who is still accountable to this place. It is clearly wrong to say that the Bill would forbid prosecutions of allegations of torture supported by evidence.
The Government are seeking with the Bill to provide some reassurance to service personnel that they are unlikely to be prosecuted many years on from events, where no new evidence has come forward. To paraphrase my right hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat), we the powerful must protect the strong—
Chris Clarkson
Only honourable? Very honourable indeed. We the powerful must protect the strong in order to protect the weak. In welcoming the Bill, I join others in the House and veterans in Heywood and Middleton, many of whom served on Operation Banner, in encouraging the Government to move quickly to provide similar protections for those who have served in Northern Ireland, where comparable prosecutions are a serious concern. I welcome the Government’s indication that legislation will be forthcoming before the end of the year.
Jonathan Gullis
I concur with my hon. Friend’s viewpoint. Veterans in Stoke-on-Trent, Kidsgrove and Talke have talked relentlessly about the need to bring an end to these vexatious claims, and especially veterans who served in Northern Ireland, where the Staffordshire Regiment was strong. I want to put on record my full support for his comments; we must have this Northern Ireland legislation soon.
Chris Clarkson
My hon. Friend is entirely correct. I say with no shame that I am a law graduate, but I am extremely offended by the behaviour of some of my compatriots, and their wings need to be clipped quite severely.
A lot of people in this country are extremely grateful for the role that our armed services play. I would like to associate myself with them in saying that passing this Bill will go some way to ensuring that the dedication, patriotism and selflessness that our forces show are not undermined by those who seek profit in doing so.
Stephen Farry (North Down) (Alliance)
Sadly, I rise to speak in opposition to the Bill, but at the outset, I place on record my enormous respect for all those who have served the UK in uniform and have acted in various theatres around the world with great honour and distinction, and from my perspective, for those who served under Operation Banner in Northern Ireland. In saying that, we have to recognise that at times things have gone very badly wrong in Northern Ireland, and there are legitimate issues around accountability and investigations in that respect.
The Bill is regrettable in its own terms, but we are seeing quite a lot of Members referring to the pending legislation regarding Northern Ireland, and I want to make a couple of comments on that at the outset. Dealing with the legacy of the past in Northern Ireland is an even more thorny and difficult issue than Brexit, to put it in some context. It is something that people have been wrestling with for over 20 years. We have had the basis of some type of agreement through the Stormont House agreement from 2015, which the Government have struggled to implement over the past five years. I want to say this very loud and clear, so that everyone is aware: if this Parliament acts unilaterally over one aspect of legacy in Northern Ireland—around veterans—they will destroy any prospect of an agreed way forward to deal with the contentious past in Northern Ireland. This has to be a rounded process, and it has to involve all the parties in Northern Ireland, the victims’ groups in Northern Ireland and the Irish Government. Those have not been the characteristics of what we have seen so far with the statement from 18 March.
The narrative of vexatious prosecutions is one that I do not recognise. We have seen many claims of this from Ministers and others, but we never hear any reference to particular cases, so it is a narrative. Indeed, it has been debunked on many occasions by eminent persons—most recently, by the Lord Chief Justice in Northern Ireland. I have to say, I am somewhat bemused to see the references to the former Attorney General for Northern Ireland, John Larkin, as somehow the intellectual force behind what is happening, because he has been far from infallible, as many people in Northern Ireland will recognise, over the past number of years.
The triple lock in the Bill will make things more difficult, because it undermines the whole legitimacy of the people who served in Northern Ireland and overseas. They feel they do not need the system to be rigged and changed to give them an advantage. They can stand on their legacy. They were serving to uphold democracy, human rights and good governance—the values we need to project around the world.
Lloyd Russell-Moyle
Does the hon. Gentleman think it might also cause difficulty because part of the triple lock is a political decision, which might, particularly with the balance in Northern Ireland, cause real mistrust?
Stephen Farry
Indeed. I see a lack of accountability around those measures. The checks are very ill defined. We have had a pattern of substandard investigations, and that is often what lies behind some of the concern arising around the narrative of vexatious claims: the standard of investigations catches up with that. There will, of course, be the opportunity for more rigorous investigations to happen sooner, when issues are raised, and hopefully that will address the issue. However, whenever I hear references to human rights potentially having to be compromised to get the Bill through and have a new basis for dealing with claims, we should all be extremely concerned.
It is worth recalling that one of the very few rights under the European convention that cannot be qualified in any circumstances is the freedom from torture. We should reflect very heavily on that. It is eminently possible for people to serve and have clear rules of engagement that can be respected without going into situations that compromise either human rights law or humanitarian law.
Peter Gibson (Darlington) (Con)
I am grateful to the Minister for bringing forward the Bill and for the fantastic work he does with veterans in our country.
Like many in this House, I have family who have served this country and put themselves at risk for our peace and security. In my view, it is essential that the Government take steps to protect our armed forces from a long shadow of vexatious claims. As our veterans return to the peace of home, we must ensure that they enjoy the peace of mind they deserve.
There has, sadly, been much misinformation circulating in advance of the Bill. The Bill is not a licence to torture. No one in this House would condone such behaviour. The is Bill is not an amnesty providing a window of immunity. The Bill has a very clear limitation period for the longstop of prosecution and litigation. Britain’s armed forces are held to the highest standards of conduct and international reputation. The Bill does nothing to undermine that, but simply serves to update the law in light of an increasingly litigious landscape.
As a lawyer, I have acted for both claimants and defendants in civil matters. Litigation is not an enjoyable process for any party involved. I can only imagine the distress, anguish and mental health problems that must arise in our veterans who are subject to claims long after they have concluded their duty and service. Just as they have protected us, and as they face increasing speculative litigation years after events, we must play our part to serve them and provide them with the peace that the Bill seeks to bring.
There will be those who worry, wrongly in my view, that the Bill will prevent genuine victims from using legal avenues of recourse open to them. That is not the case. As figures from the MOD reveal, over 94% of claims made within the past 15 years would have still been able to have been made within the time limits set down by the Bill. Our armed forces serve our United Kingdom with exemplary conduct in the toughest of situations. To suggest that the Bill will give them free rein to abuse established international treaties on conduct in warfare is dangerous and damaging both for our reputation and to our service personnel.
In conclusion, the Bill does not undermine the UK’s commitment to human rights, nor does it undermine our commitment to our international obligations. The Bill strikes a proportionate balance between the rights and wellbeing of our service personnel, and ensuring that genuine victims can access justice in a reasonable time. I believe we should support the Bill. I urge Members on all side of the House to support it and to show their support for our armed forces.
Mr Laurence Robertson (Tewkesbury) (Con)
I have been in the House for 23 years, and the hardest decisions that I have had to make in voting have been when we have been asked whether we want to send our armed forces abroad to conflicts in Afghanistan, Iraq, Syria or Libya. When making those decisions, I have known, as all Members have known, that our armed forces would have to put their own lives at risk, they may have to kill people and they may be killed themselves. We have had to think very carefully about the justification of such actions. As I say, those have been the hardest decisions that I have taken in the House.
As we consider this Bill, it is right to applaud what our armed forces do for us. They strive to keep peace, they strive to protect us as individuals, and they strive to protect the United Kingdom as a country. In the same way that we have rightly applauded our NHS workers and other vital workers recently, it is right to remember what our armed forces have done for us and continue to do for us.
It is also right to remember that, when our armed forces are acting on our behalf, they uphold very high standards, and that is right. The difficulty is that the people they are fighting against do not uphold those very high standards. They can be indiscriminate. They really do not care who they kill—men, women, children; innocent people. That puts our armed forces at a disadvantage. It is still probably right that we uphold those standards, but it is surely wrong that those soldiers should face vexatious claims many years afterwards, when they have been under such tremendous pressure.
I would say the same about our veterans who served in Northern Ireland. I served as Chairman of the Select Committee on Northern Ireland Affairs for seven years, and it greatly troubled me that our armed forces who served there were fighting against an enemy who called it a war. They used the term “war” so that they could excuse their indiscriminate murder of men, women and children, yet members of our armed forces had to abide by the yellow card—they had to abide by very strict rules. It is wrong that they are facing prosecution up to 40 or even 50 years after events, and even more of them may face prosecution. That is very wrong, so I urge the Minister to introduce legislation similar to this to cover Northern Ireland as soon as possible.
Joanna Cherry (Edinburgh South West) (SNP)
I will confine my comments to the presumption against prosecution for serious criminal offences contained in part 1 of the Bill. I believe that the way in which this is framed will make prosecutions close to impossible for some of the most serious crimes under international law. I am also concerned, as are many lawyers, that it will create a presumption against prosecution for a class of defendants, which is unprecedented in our domestic legal systems.
In cases where UK personnel have committed crimes such as torture, the triple lock will apply no matter how grave the conduct involved is or how detailed the evidence is. The Government claim that this measure is designed to protect soldiers, but in fact, it runs counter to everything that our military personnel stand for. I respectfully remind Government Members that many Opposition Members have family members who have served in the armed forces as well. My paternal grandfather served in the Royal Air Force.
After the second world war, our armed forces helped to update and expand the Geneva conventions, which protect captured personnel. Both the Army field manual and the Ministry of Defence doctrine explicitly forbid torture or cruel treatment. Torture has been prohibited in Scotland since the Treason Act 1708 and in England for more than 300 years, since the Long Parliament’s abolition of the Star Chamber. Even Margaret Thatcher—not somebody I am normally given to praising—fought to preserve the ban on torture, and in 1988 she made it a criminal offence, no matter who committed it or where it was committed. Right-thinking Conservative Members might wish to bear that in mind when considering the part of the Bill to do with the triple lock.
Tom Tugendhat
I know that the hon. and learned Lady has a much finer legal mind than mine, but I merely draw her attention to clause 3(2)(b), which refers to “no compelling new evidence”. Surely the Bill does envision the possibility that there could be compelling new evidence, and therefore this is not the absolute lock of which she speaks.
Joanna Cherry
I have not said that it is an absolute lock. It does envisage some possibilities. But the bottom line is that you do not create a triple lock against something if you are expecting to encourage it or to allow it in. It simply cannot be right not to prosecute criminal acts of a crime as serious as that of torture if there is strong evidence that it took place. Torture victims have a right to see their tormentors brought to account, and there should be no time limit on justice.
This is not just a matter of domestic law. As we have heard from other hon. Members, our international legal obligations under the UN convention against torture and the Rome statute consist of recognising prohibitions against torture, which are absolute. That was the point of my intervention on the hon. Member for Tonbridge and Malling (Tom Tugendhat). The prohibition against torture in international law is absolute, and it ill behoves us to pass a statute creating one class of defendants in the United Kingdom wherein there is a presumption against them being prosecuted for that crime.
I have no time for vexatious litigation. I can say, as somebody who practised at the Bar for many years, and also someone who prosecuted, that vexatious litigation is a pain in the neck. What I am concerned about is the international reputation of the United Kingdom, for so long as Scotland remains part of it. Indeed, I will be concerned about the international reputation of England even when Scotland is no longer in a union with it. International law may not mean much to this Government, but they forget at their peril that it keeps all of us safe. If this is what the Government meant by their manifesto promise to update human rights laws, then we should all be very concerned.
Mr Deputy Speaker (Mr Nigel Evans)
I remind Members that if they intend to press the Second Reading to a Division, it would be very useful if the Chair got the names of the Tellers in advance, please
Kate Osborne (Jarrow) (Lab)
I have listened to the views of my constituents, the experiences of former service personnel, and various human rights groups, and I am of the view that this Bill fails in its primary purpose, in that it does not provide greater legal protections to forces personnel who have served on overseas operations. The Bill denies public transparency and accountability for military intervention overseas. There is an assumption within it that all allegations made against the MOD and UK forces are vexatious, and that the MOD and UK forces are always in the right. We know from history that this has not always been the case. Opposition to the use of torture is enshrined in the MOD doctrine, so why are the Government now trying to exclude the use of torture from the triple lock against prosecutions? As the human rights group Liberty has stressed, if this Bill goes through in its current format, it will result in the effective decriminalisation of torture and many other breaches of the Geneva convention.
We also need to look to the future. We know that this Government are no strangers to violating international law, and this Bill in its current form seeks only to diminish our global reputation further.
Kate Osborne
I am afraid I do not have enough time.
How can we as a nation criticise and hold states to account for engaging in torturous practices if we are happy to set laws that would allow us to do exactly that?
There are also issues with the part of the Bill that relates to civil matters. UK service personnel should be afforded the same employment rights as those they seek to defend. The Bill gives the MOD a free pass. Stress disorders can manifest many years after the original trauma. Therefore, the fact that the Bill allows a time limit on claims being introduced denies service personnel the ability to hold the MOD to account.
I listened to the argument made by the hon. Member for Bracknell (James Sunderland) that one cannot be a supporter of our armed forces and vote against this Bill. Frankly, that is extremely offensive: there is nothing patriotic about undermining and letting down our veterans. They have been let down by this and previous Governments for too long. The available care and services are just not adequate for those who have served this country. Ultimately, the Bill fails those who have served our country and seeks to further diminish our global reputation.
Jo Gideon (Stoke-on-Trent Central) (Con)
I am grateful for the opportunity to speak in this incredibly important debate. I commend the Minister for Defence People and Veterans, my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer); his commitment to standing up for the rights of veterans has been evident ever since he became a Member of Parliament in 2015. The Bill reflects that commitment, which is shared by me and many parliamentarians from all parties, to better protect those who have served our country and to offer reassurance to those contemplating a career in our armed services that we are on their side.
One of my earliest conversations in Stoke-on-Trent Central during the election campaign was with local veteran Alan, who asked me to ensure that the law was changed to protect veterans from vexatious claims. He said, “Why would anyone sign up to serve their country if they thought that years later they would be hounded and threatened with legal action simply because they obeyed orders in a conflict? It is not right and it needs to stop.” I promised him that I would campaign for and back legislation to put this right. For Alan, and all those like him who want greater protection for our veterans and service personnel, I speak today in support of this much-needed Bill.
The measures in the Bill are a proportionate solution to the existing problem and strike an appropriate balance between victims’ rights and access to justice and fairness for those who have served this country. Time and again, we have seen investigation after investigation into the conduct of service personnel, but they have not led to prosecution. This supposed lawfare benefits the specialist legal firms that cynically profit from the misery caused. It is time that we redressed the balance.
The Bill is not intended to be an obstruction of justice; instead, it will be easier for families of victims to find out what happened to their loved ones. Access to family reports is vital in ensuring that that happens. The triple lock in the Bill, enforcing greater legal protections for armed services personnel and veterans, will provide certainty that the pressures placed on them while deployed will be considered when prosecution decisions about historical offences are made.
I am pleased that long-standing campaigners for veterans have praised the Bill’s objectives and the outcomes it will have. I know that the Minister has worked diligently to ensure that the balance between justice for veterans and for victims will be respected. I will be pleased to vote for the Bill.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
There are two substantial parts of the Bill: the criminal part, which in my view puts an unnecessary burden on the prosecution of war crimes and other crimes; and the civil part, which protects the MOD more than it protects veterans.
The Royal British Legion and numerous others have said that great sections of the civil part need to be rewritten. My view is that so much needs to be rewritten that the Government should come back with another proposal. Let us be clear: there is currently a presumption of three years, but that can be extended; a hard line of six years for civil actions, with no ability to extend, will potentially reduce the ability of our veterans to take action and seek compensation.
As an example, let us use a scenario in which a veteran is slowly going blind. Blindness can sometimes take 10 years from the initial act. The blindness comes on, but veterans are patriotic; they do not go running to the courts immediately. Only 10 years down the line does the veteran realise that it has ruined their lives and that they need support or compensation, but it is too late. In my view, that is wrong and that provision is totally wrong.
Stuart Anderson
I know that the hon. Gentleman speaks with passion, having worked with him in all-party groups. There is the timeframe to consider, but it is also about the point of knowledge. It was 15 years before it was recognised that I had post-traumatic stress, although I had seen the problems many years before that. Under the Bill, there would be time for me to take that forward.
Lloyd Russell-Moyle
That is why I used the example of blindness: the point of knowledge would be the first time that sight is lost, but total sight loss could take much longer. [Interruption.] The Minister for Defence People and Veterans can come back come in his usual style.
On the criminal part, I think the Bill threatens our service people with being more likely to be investigated by the ICC. I am not convinced that prosecutions would be sought in the ICC, but the very risk of investigation by the ICC defeats the whole point of this Bill, which in my view—I have said this a few times in the Chamber tonight—was to tackle a series of vexatious investigations. We need a system where cases, once they are fully investigated, can be closed and not reopened unless a significant bar is met. This Bill does nothing at all about that and fails in its very purpose. That is why it is a great shame that this wording—not the concept; I think we all agree this issue must be tackled—is what the Government have brought forward.
I also want to touch on the time limits. France has a 30-year time limit for serious crimes, while crimes under international humanitarian law are never given a time limit. In the USA, time limits are exempted for the law of war and also for serious crimes or murder. This Bill would put us at odds with how the French and American systems protect their veterans. It would seem extremely odd to take that approach. We should be learning from our allies, not trying to diverge from their approach.
I am extremely disappointed with the wording of this Bill. If it passes tonight, I will work extremely hard to try to amend it. I do not think it will ever be an amazing Bill, because it started from the wrong point and is answering the wrong questions, but I will work with others to try to get the best out of it. Given its drafting, however, I am not convinced that it deserves to go forward in its initial form. The Government should come forward with an alternative plan that hits the nail on the head, because this certainly does not.
Mr Deputy Speaker (Mr Nigel Evans)
I am terribly sorry to the 23 Members who were unable to get in, but I am afraid there was a lot of interest in this debate. I call Stephen Morgan to start the wind-ups.
Stephen Morgan (Portsmouth South) (Lab)
I would like to start by paying tribute to our armed forces and joining colleagues from across the House in expressing gratitude to those who serve. They truly give us reason to be proud of our country.
There is consensus across the House today. Labour, the Government and our armed forces all want the same thing. We all agree that we must protect our troops from vexatious claims, and we all agree that we must defend those who serve our country overseas with courage and distinction. The Government promised to bring forward legislation to do just that in the first 100 days of government. Now, 284 days later, they have disappointingly got crucial elements of this Bill badly wrong.
The question we must be asking is: what does this Bill mean for our troops? It risks breaching the armed forces covenant and rolls back on their employment rights. It fails to properly protect against vexatious claims and undermines Britain’s proud adherence to international laws, such as the Geneva convention, that we helped to create. However, it is not too late. There is still time for Ministers to work with us to get this right.
A number of powerful points have been made in the House today. It would probably be unwise of me to single out any of them, but let me just mention my right hon. Friends the Members for East Ham (Stephen Timms) and for North Durham (Mr Jones), and my hon. Friend the Member for City of Chester (Christian Matheson), who all spoke commandingly on the importance of our nation’s national standing; my hon. Friends the Members for Coventry North West (Taiwo Owatemi) and for Jarrow (Kate Osborne), who spoke about ensuring that we always think about the impact of this Bill on our armed forces personnel and veterans; my hon. Friend the Member for Leicester East (Claudia Webbe), who spoke about the need to invest in mental health services and tackling homelessness; and my hon. Friend the Member for Brighton, Kemptown (Lloyd Russell-Moyle), who spoke about the concerns raised by the Royal British Legion.
I also congratulate, and pay tribute to, the Chair of the Defence Committee on passionately saying that we do not want the Government to over-promise and that the Bill in its current form will not help a number of veterans. Finally, my hon. Friend the Member for Barnsley Central (Dan Jarvis) said that Britain must uphold its commitment to human rights. I agree with him that we cannot afford to become an outlier among our allies by refusing to investigate allegations of some of the gravest crimes imaginable.
I am most concerned by the Bill’s potential infringement of the rights of Her Majesty’s forces. I share the view of the Royal British Legion—an organisation with an unwavering commitment to service personnel—that the Bill constitutes a possible breach of the armed forces covenant. I urge other armed forces groups to share their views on what the Bill means for our forces community. Our troops must be at the heart of this debate.
The Government’s introduction of a six-year limit for bringing civil claims will prevent troops who suffer injury from taking cases to court. As we heard earlier in the debate, over the past 15 years there have been 25 cases brought by injured British troops against the MOD for every one case brought by alleged victims against our forces. That means the main beneficiary of this Bill is the MOD, not our personnel. The Bill should be designed to protect troops, not the purse strings of Government. I put this to the Minister: if this Bill is for our armed forces community, why does it deny them the same employment rights as civilians?
Labour is also deeply concerned that this Bill does not meet its primary objective. It does not do enough to protect our troops from vexatious claims. Months of letters from the Defence Committee to the Defence Secretary —the Committee only received a reply yesterday—made the point that the Bill does nothing to prevent arduous investigation processes; it just protects from prosecutions. It does nothing to deal with the serious failings in the system of investigating allegations against British troops, something that Defence Ministers have themselves admitted. Had those allegations been dealt with properly and self-regulation had occurred, we probably would not be here today. Perhaps the toughest, most intrusive aspects of the vexatious claims process are not being dealt with in this Bill, and that is not the only way in which it leaves our troops open to so-called lawfare.
By going back on our commitments under the Geneva convention, the Bill risks dragging our people in front of the International Criminal Court. I put it to the Minister: does he really want to make it more likely that the ICC can open investigations against British troops?
There is also a set of wider issues. Vexatious claims are not the only problem that our forces face. Action on the issue is not licence-e to neglect others, such as low pay, 10 years of falling morale, a decade of falling numbers and a housing crisis across the tri-services. If the Ministers are serious about tackling the poor track record on defence, we need to see action on all those issues. The Bill presents an opportunity to turn the tide, to break the mould and to work with Labour to get it right.
In this country, we are proudly patriotic, and reinforcing that patriotism—that love of our country—is the high regard in which our armed forces are held. When we see Union flags on the shoulder patches of service personnel overseas, that means something: it means honesty, it means respect for the rule of law and it means justice. From Sandhurst to Britannia Royal Naval College, there is a reason that countries around the world send their officers to be trained in our military institutions.
This Bill puts all that at risk. It is at odds with the rules-based international order we helped to create. In its current form, the Bill would make Great Britain the only nation among our major allies to offer a statutory presumption against prosecution. As the previous Chief of the Defence Staff but also the ex-Attorney General and a former Defence Secretary have said, the Bill undermines Britain’s proud, long-standing adherence to the Geneva convention.
Great Britain has proudly stood and must stand against the use of torture and against the use of rendition. I urge the Minister: do not undo the work of Churchill, do not undo the work of Attlee and do not chip away at our nation’s proud reputation. I put it to the Minister: how can we expect Great Britain to speak with authority on international law to China, Russia and Iran if we go back on our own commitments? In years gone by, a commitment made by our proud nation meant something. Last week, the Government tarnished that reputation by breaking international law with the United Kingdom Internal Market Bill. I urge the Minister to commit to working with us to ensure that this Bill does not do the same.
Unfortunately, the Government have got important parts of the Bill badly wrong. In its current form, it risks damaging our reputation and failing to protect Her Majesty’s armed forces, but it is not too late. As I said, there is consensus in the House today. There is still time for Ministers to work with the Opposition to get it right. Protecting troops from vexatious claims does not need to be at odds with our commitments to international law. Labour stands foursquare behind our troops. We want to work with the Government to build the broadest consensus possible around a Bill tailored to support our armed forces and to safeguard human rights. Let us work together to get this right, protect our troops and their reputation, and our country’s international standing.
The Minister for Defence People and Veterans (Johnny Mercer)
It is a pleasure to finally be able to speak in the debate. I have not heard such a lot of vacuous nonsense for a long time from the Opposition. They talk about protecting our troops while invoking a litany of things that I am afraid are not true. I started writing them down, but I got bored after about two hours: “almost impossible to prosecute”; “independent investigations”; “breaks the armed forces covenant”; “time limit on prosecutions”. None of that is in the Bill. I have written down those phrases word for word, and it is disgraceful that Opposition Members try to build on the back of our armed forces personnel a caricature of the Bill that is totally false.
We have heard some good speeches today and there were some challenges for me to take away as the Bill Minister. I will address some of those now. The Bill delivers a promise made to brave individuals that we will deal with the threat of prosecution for alleged historical offences many years after the event and help put an end to the vexatious civil claims that undermine our armed forces. It delivers that promise in a proportionate way by ensuring victims’ rights and access to justice on the one hand and fair treatment of those who defend our country on the other.
I will deal with a couple of detailed points. The question of Northern Ireland veterans was quite rightly raised on a number of occasions. We are clear that we will deliver our commitments to Northern Ireland. In a written ministerial statement on 18 March, we committed to equal treatment for those who served on Op Banner. We will not resile from that position.
Regarding any perceived disadvantages to service personnel and veterans, as I have said before I do not anticipate the measure having a significant negative impact. Let me address the point about the armed forces covenant. It was designed to ensure that there is no disadvantage for people who serve in the military. It was never designed to compare somebody who works in Tesco with somebody who is asked to go away, serve on operations and sacrifice their life. The Bill applies to both civilians and military personnel who are deployed on operations. I totally refute that it is any way a breach of the armed forces covenant—something I worked hard to produce and will be the first Minister to legislate for, next year in the armed forces Bill.
I have noted the concerns many hon. Members raised about part 1 of the Bill and the fact that it does not address the problem of reinvestigations. We could not run a Department if we did not take seriously every allegation that came in and investigated every single one. The problem comes when that is advanced further and starts impacting on veterans’ lives and way of life. That is why we have introduced a very low bar for prosecutors to get over. To say, as my friend the hon. Member for Barnsley Central (Dan Jarvis)—he knows he is a great friend of mine and I have a huge amount of time for him—said, that it is almost impossible to prosecute, is simply incorrect. It is a low bar. It asks for consideration of the circumstances under which the House asks servicemen and women to operate. It is asking for consideration of whether it is really in the public interest to prosecute repeat allegations with no new evidence, and it is asking for Attorney General’s consent.
Several hon. Members rose—
Johnny Mercer
No I will not give way.
Any allegation that has a very low quality of evidence will clearly be investigated. There is no time bar on murder. There is no time bar on any of the offences in the Bill. That is a low bar that we are asking prosecutors to get over. Unnecessary? Seriously? Say that to Lance-Corporal Brian Wood, who I was with yesterday. When his kid comes home from school, he goes upstairs and cries in his room. Why? He says, “Daddy, at school they’re all saying that you’re a murderer.” Every single one of those allegations was found to be completely false and generated simply to build the financial position of solicitors.
The shadow Defence Secretary made some comments about the Secretary of State. Let us get this absolutely clear and into the open. Many colleagues here have been very quick to declare interests seeking associations with the armed forces, but not with the lawyers who pursued them. The shadow Secretary of State failed to declare his interests when referencing the much criticised law firm Thompsons Solicitors, from which he received £2,000 for his direct mail campaign literature in 2017. In fact, since 2001 Labour and its MPs have received £229,000, including £80,000 from solicitors Leigh Day. It is all on the record, including tens of thousands of pounds to the shadow Attorney General, the right hon. Member for Islington South and Finsbury (Emily Thornberry).
Several hon. Members rose—
Johnny Mercer
I will not take interventions. Members have had hours and hours to whine away on these points.
The reality is that over a consistent period of time, the Labour party—
Christian Matheson
On a point of order, Mr Deputy Speaker. The Minister is not giving way, but he is making allegations about these firms that are simply incorrect. Thompsons Solicitors works exclusively for trade unions. Leigh Day has taken class actions against trade unions. Frankly, the Minister does not know what he is talking about.
Mr Deputy Speaker (Mr Nigel Evans)
That is not a point of order for the Chair; it is a point for debate. Let us have no more points of order on that subject.
Johnny Mercer
It is not a point of order. It is yet another effort to waste time in a very important debate. [Interruption.] I hear the complaints about my attitude towards Opposition Members. Let me be absolutely clear. I have said in private a number of times that I will engage with the individuals who are so loud this afternoon. Not once have they chosen to do so, and not once have they come up with a proposal.
Several hon. Members rose—
Johnny Mercer
Absolutely not; I am not giving way.
It is very clear to me that this is the first Government to come to this House and not to say, “What a difficult problem this is, but we will hand all our soldiers off to the human rights lawyers.” This is the first Government who are actually going to do something to protect our servicemen and women. I am proud of that and I make no apology for it at all. [Interruption.] There really is no point in whingeing on at me because I am not going to give way.
I came to this place because I loathed the way it treated cheaply my generation of servicemen and women as we fought for the freedoms and privileges that Members of this House enjoy every day. Summer after summer, I served with what was and is this nation’s finest product—our fighting men and women—in some of the most testing circumstances that this House has deployed for generations. Yet when they came home, this House was not there for them. In those heady days, Members will remember the pain of our veterans’ families as they fought for decent prosthetics or effective mental health care. We are light years away from where we were—
Johnny Mercer
“Absolute rubbish”, the Labour party says—amazing.
I still cannot describe what it was like sitting with the family of a young man who could not cope with the trauma that he suffered as a result of what we asked him to do on our behalf and who took his life. I cannot describe what it is like to visit the parents of a soldier who died in your arms 48 hours earlier, thousands of miles from home, and tell them that it is pointless. This Bill is different. It is fair, it is proportionate and it is balanced. It is good legislation. Members can match words with actions and vote for this Bill tonight.
Question put, That the Bill be now read a Second time.
Mr Deputy Speaker (Mr Nigel Evans)
I now have to announce the results of the deferred Divisions.
On the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) Regulations 2020, the Ayes were 337 and the Noes were 6, so the Question was agreed to.
On the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 3) Regulations 2020, the Ayes were 340 and the Noes were 1, so the Question was agreed to.
On the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No. 2) Regulations 2020, the Ayes were 335 and the Noes were 6, so the Question was agreed to.
On the Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) (Amendment) Regulations 2020, the Ayes were 335 and the Noes were 1, so the Question was agreed to.
On the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) Regulations 2020, the Ayes were 334 and the Noes were 6, so the Question was agreed to.
On the Health Protection (Coronavirus) (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020, the Ayes were 332 and the Noes were 5, so the Question was agreed to.
On the Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) (Amendment) (No. 2) Regulations 2020, the Ayes were 332 and the Noes were 1, so the Question was agreed to.
[The Division lists are published at the end of today’s debates.]
Overseas Operations (Service Personnel and Veterans) Bill (First sitting)
Tuesday 6th October 2020
(3 years, 6 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 6 October - (6 Oct 2020)
The Chair
Before we begin, I have a few preliminary announcements. Please switch all electronic devices to silent. Tea and coffee are not allowed during the sittings. As I indicated before the sitting, please adhere to the social distancing requirements for the room. Date Time Witness Tuesday 6 October Until no later than 10.30 am British Armed Forces Federation Armed Forces Support Group Tuesday 6 October Until no later than 11.00 am Hilary Meredith Solicitors Limited Tuesday 6 October Until no later than 11.25 am Major Robert Campbell Tuesday 6 October Until no later than 3.00 pm Professor Richard Ekins, Policy Exchange Dr Jonathan Morgan, University of Cambridge John Larkin QC, Policy Exchange Tuesday 6 October Until no later than 4.00 pm Association of Personal Injury Lawyers Centre for Military Justice Tuesday 6 October Until no later than 5.00 pm Liberty Human Rights Watch Thursday 8 October Until no later than 12.15 pm Cobseo - the Confederation of Service Charities The Royal British Legion Thursday 8 October Until no later than 1.00 pm General Sir Nick Parker Thursday 8 October Until no later than 3.15 pm Princess of Wales’s Royal Regiment Association Thursday 8 October Until no later than 4.00 pm His Honour Judge Jeff Blackett, Judge Advocate General
Today we will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication, followed by a motion to allow us to deliberate in private about our questions before the oral evidence sessions. In view of the time available, I hope we can take these matters without debate. I call the Minister to move the programme motion standing in his name, which was discussed yesterday by the Programming Sub-Committee for the Bill.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 6 October) meet—
(a) at 2.00 pm on Tuesday 6 October;
(b) at 11.30 am and 2.30 pm on Thursday 8 October;
(c) at 9.25 am and 2.00 pm on Wednesday 14 October;
(d) at 9.25 am and 2.00 pm on Tuesday 20 October;
(e) at 11.30 am and 2.00 pm on Thursday 22 October;
(2) the Committee shall hear oral evidence in accordance with the following Table:
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 6; Schedule 1; Clauses 7 and 8; Schedule 2; Clause 9; Schedule 3; Clause 10; Schedule 4; Clauses 11 to 16; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 22 October.—(Johnny Mercer.)
Resolved,
That subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Johnny Mercer.)
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Cttee shall sit in private until the witnesses are admitted.—(Johnny Mercer.)
The Chair
We will now resume our public sitting to hear evidence from Douglas Young from the British Armed Forces Federation and Michael Sutcliff from the Armed Forces Support Group. Both join the sitting remotely. May I confirm with Douglas and Michael that they can both hear us?
Douglas Young: Yes, I can, Chair.
Michael Sutcliff: Yes, Chair, I can hear you.
The Chair
If at any point during the meeting when members of the Committee ask you questions you cannot hear them, please indicate so that we can make the necessary arrangements.
I remind all Members that questions should be limited to matters within the scope of the Bill. We must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 10.30 am.
Do any members of the Committee wish to declare any relevant interests in connection with the Bill?
Stuart Anderson (Wolverhampton South West) (Con)
To err on the side of caution, I should say that I have served on overseas operations. I have also made a successful claim against the Ministry of Defence for my injuries during service.
Peter Gibson (Darlington) (Con)
I am a former member of the Association of Personal Injury Lawyers, who are one of the witnesses.
The Chair
Will the witnesses please introduce themselves for the record? We will start with you, Douglas.
Douglas Young: I am Douglas Young, the former chairman of the British Armed Forces Federation. I am still a member and a member of its executive council. I have been asked by colleagues to present evidence today on behalf of the British Armed Forces Federation. We did submit detailed responses to the Ministry’s consultation last year.
Michael Sutcliff: Good morning, everybody. My name is Michael Sutcliff. I am the chairman of a small group called the Armed Forces Support Group, based up in Lancashire. Our worries are a conglomeration of things. We are a signposting group, and questions have been coming in regarding the Bill. Basically, it is déjà vu—we are here again. This has happened a number of times, and we would like to know how confident you are of getting these things through.
The Chair
Thank you for introducing yourselves. I think there are some issues with the audio, because some Members are indicating to me that they cannot hear well what you are both saying. I propose asking Chris Evans to begin asking questions, and we will hope that we can improve the audio as we go along. If Members feel that the audio is unsatisfactory, we will pause proceedings to see what we can do.
Chris Evans (Islwyn) (Lab/Co-op)
Q
Both my questions are directed at both of you. The first question of the day is, does the MOD do enough to provide a duty of care to those service personnel who go through investigations and litigations at the moment?
Douglas Young: In our opinion, the answer is no. Undoubtedly, the MOD has improved steadily. A lot of work has been done, but we are simply appalled by the experiences of some people who have absolutely been through the wringer for many years. One case, in particular, has only just come to an end, with a report by the Iraq fatalities inquiry. You can absolutely weep at the experiences of Major Robert Campbell and others who have been subjected to repeated investigations. Baroness Hallett’s report was very clear that everyone involved in the British forces’ deployment was completely innocent, and yet people say their lives have been ruined. That is awful. It has been recognised that a lot of work has been done, but it has not helped people who were already in the wringer. We certainly very much welcome the stated aims of this legislation.
Michael Sutcliff: I have to agree with the previous speaker. There is a great disappointment, Mr Chairman, that over the years there has been absolute chaos with this. If you look at the situation where Phil Shiner was allowed to spuriously bring all those cases so many times, this begins to really rot the trust within the MOD. A lot of senior officers seemed to have sloping shoulders at one time. Hopefully, these things are getting better. I take the case of the Major who has, I think, been lined up 14 times—14 times he has been exonerated, and here we go again. As I said earlier, we seem to be looking at this situation that has been gone through a number of times, and hopefully this time will be successful.
Chris Evans
Q
Douglas Young: We said that it should be 10—I think 10 is the absolute cut-off and the absolute longstop. That certainly was an option in the MOD’s original consultation. If you introduce shorter time limits, even more attention will have to be given to investigation and recording at the point that something occurs. I accept that this has been improved—I have no doubt that it has—but of course we are not currently subject to the intensity of operations, compared to the theatres where these cases first arose.
If you have a very short time limit of, say, five years, then there must be a huge effort in everyone’s interests— in the interests of potential victims, but also very much in the interests of the personnel involved—to absolutely record everything and to interview people. It can be an absolute pest, and it can be very grim going through all that, but it has got to be done at the time, rather than relying on people’s recollections afterwards, when, of course, they may have gone through a whole series of incidents during a six-month tour or longer and it can be very difficult to pick one out. So investigation and recording will be even more important than ever if you reduce the longstop time limit. I think we support the 10 years.
Michael Sutcliff: Just doing a quick poll, the team up here in the north seem to go for five to seven years, although I do not disagree with the previous speaker. But one of the dangers that there appears to be that, if you give it too long, the memories fade. We are struggling with memory-fade systems on the Bloody Sunday situation—that is a very good example.
If there is an accusation, it needs to be examined quickly and it needs to be sorted. But first of all—this is the difficult bit—somebody, somewhere, has to verify that it is real and it has not been made up by somebody, because there has been too much of that.
Chris Evans
Q
Michael Sutcliff: I cannot give you any examples of that. Talking among the team that we look after here, I have not heard of or seen any association with that sort of behaviour, so it would be unfair for me to comment on something that I really do not know about.
Douglas Young: There certainly are a number of very legitimate reasons for delaying. One would be simple concealment—perverting the course of justice and deliberate attempts to withhold evidence. Another one is where victims or complainants become aware of some evidence only later on because witnesses have been moved by the exigencies of war—they are refugees in another country or they are in a refugee camp—and people never had the chance to obtain information until after a substantial delay.
Of course, the other side of that is that people are then vulnerable to stories that are not actually true. If something happens in a crowd, for example, bereaved relatives later become aware of different stories flying about among that crowd that may not be true. That is the other side of it. But there are legitimate reasons for possible delay, because we are always assuming that, following our well-intentioned intervention supporting another country in operations, there will then be a period of peace and organisation, which may not actually be the case.
Chris Evans
Q
Douglas Young: References to the battlefield are sometimes misleading. A battlefield is a very specific thing. Quite often, when these sorts of issues have been discussed over the past few years, commentators talk about the battlefield in relation to everything that happens anywhere in the deployment area. There is no doubt that if you are deployed anywhere, you are in harm’s way, and your possibly peaceful base environment may actually become a battlefield at very short notice—there is no doubt about that. Being in harm’s way is different from normal life in the peaceful United Kingdom, but, quite often, commentators have discussed these issues as if everything consisted of fighting through the enemy objective, which is a very long way, for example, from injuries or illness that occur in barracks or in other areas directly controlled by the United Kingdom forces. I do not know whether that answers your question.
Michael Sutcliff: I agree. The term “battlefield” is often misleading. The battlefield could mean the backstreets of Basra or Belfast. It could mean the peacekeeping guys out in the far beyond place where we have them at the moment, where, theoretically, there is no war but where, sooner or later, the rebels will come out of the bush. Those are battlefields. Identifying a battlefield only as somewhere with tanks, aircraft, ships and everything else is incorrect. To answer your question, this should be very wide ranging—safely.
Chris Evans
Q
Douglas Young: The aim is that fewer personnel and veterans will be dragged through them in the future. Personally, I have had limited involvement with individuals who have been supported by the British Armed Forces Federation, although I have certainly spoken to individuals. I have some experience myself that is sensitive and which I cannot go into.
There is no doubt that talk about being dragged into an investigation is accurate. However willing one might be to serve the ends of justice and truth, it is a strain, and it hangs over you for a very long time. It forces you to continuously go back over what at the time was a stressful, difficult and challenging event. It possibly causes one to have to review one’s own actions and decisions in a confusing situation, because nobody does everything absolutely right when things are going wrong.
One is faced with a mixture of getting approaches out of the blue—a phone call saying, “We’d like to talk to you about this, that or the other” or “Something is coming up,” which can come at you at any time—and also dates that you know about, such as a court hearing on a particular date. All that, even for a perfectly innocent witness, hangs over you for a very long time. That is part of criminal justice, and armed forces personnel are not the only ones who may have to face this, but it has a real cost. The fact that one is really only a witness does not get you off the hook.
I believe that there has been a lot of exaggeration in the language used about claims. People have often spoken about a vast number of prosecutions. I think all of us—lay people, ordinary soldiers—understand prosecutions as criminal prosecutions. In fact, there have been very few of those, which we all know about, relating to recent operations. Some of these so-called prosecutions are actually civil claims by members of the armed forces and veterans. We have to be aware of exaggerated language. However, it is a strain and a stress, and being caught up in long-running investigations can have an impact on one’s family as well.
Michael Sutcliff: My personal situation regarding this is that I act in my role here as the welfare officer. Without going into too much detail, I can tell you about two individuals who were both involved with serious fighting and who both caused death to the opposite number—in-house. The fact that they had been through the wringer a few times was fairly obvious when you listened to their options—it was either them or the other. At the end of the day no charges were made, but the pressure put on those two guys was appalling.
On the other side, I have two guys who, even today in their early 70s, are looking over their shoulders and sleeping not too well at night, waiting for a knock on their door. I do not think the knock is going to come, but nevertheless, this situation is out. That is in a tiny little place where I live, so what is happening out in the big wide world, I do not know, but it is not very satisfactory. I hope that gives you a reasonable answer, sir.
Chris Evans
Q
Douglas Young: I think six years is a reasonable presumptive time limit for civil payment, and corresponds pretty much to the legal system in the different parts of the United Kingdom, but we would be concerned about the absolute longstop. As I mentioned before, claims of this type often originate during conflict or in post-conflict periods, when the claimants may be refugees or internally displaced persons. Perhaps a robust administrative payment system operating in-theatre would help to speed things up, because, clearly, some people have perfectly legitimate claims that should be met, and claims do not always imply criminal liability, which is what we are sometimes led to believe.
Imposing an absolute time limit places armed forces personnel claimants themselves at a disadvantage compared with civil claimants in ordinary life, where the court has discretion. Of course, the Minister has made it perfectly clear, absolutely correctly, that the time limit for this particular part of the Bill only starts to run at the point of knowledge. That is completely understood. That point of knowledge, diagnosis or whatever, could be many years later. Nevertheless, I would have a worry about an absolute longstop as proposed.
Chris Evans
Q
Michael Sutcliff: I take your point there, sir. Funnily enough, I am ex-Navy, and a number of my colleagues now are beginning to pick up the old asbestosis problem—I cannot remember the posh name for it—
Chris Evans
I can’t either.
Michael Sutcliff: They are being compensated for it, so you are right that if we had a very early backstop, they would have lost that. Not being the lawyerly mind, I do not know whether you can split the two things up. Let us just take the asbestos as an example, which is a workplace situation that was or is found particularly in the Royal Navy, and the difference between that and an action situation. I do not know whether you can divide the two, but on one side, I am looking at the fact that you do not want it to go on forever, and on the other side, of course, in the example that we are talking about, forever is needed before you suddenly find you have it. That is the best muddled answer I can give you.
Chris Evans
Q
Douglas Young: Various aspects of the covenant may be engaged by this legislation. Whenever we mention the covenant, it is worth saying that the stated aim of the legislation is to improve the position under the covenant, or to be guided by the covenant in removing what is considered to be unfair treatment of members of the armed forces compared with other, ordinary people who are never subjected to quite the same lengthy legislation. But there is certainly the argument that restricting the right of armed forces personnel and veterans to sue their employer for an injury or illness caused by a fault during their employment is against the military covenant, so there are two sides to that.
Michael Sutcliff: I entirely agree. The covenant is fairly new, and as we progress and go through this, we will have to tweak it here and there. I see what is in front of me in the Bill as quite positive, but we need to look at these little things to ensure that service personnel are not limited or restricted any more than civilians should be. The idea of the covenant is to help and support you in the civilian life you have just entered, so having sticking blocks in it is not a good idea.
Chris Evans
Q
Douglas Young: There is no doubt that the Bill and its principles have been widely welcomed. I think a lot of people will see the headline that, as promised by the Government, action is being taken to put a stop to the industrial level of claims. As I mentioned before, I think there is some exaggeration behind some of that, although there is absolutely no doubt that many have suffered disgracefully and that should never have happened. However, I have some doubts about the scale of what is involved.
The Ministry has at times understandably encouraged the idea of prosecutions and welfare, and some of it is claimed by members of the armed forces. Let us not forget, of course, that there are perfectly genuine and reasonable claimants who have sought compensation for something that did happen to them, but across the board I would say there is a qualified sigh of relief. A lot of people welcome it.
I have seen pretty strong views against as well, and these views are not all from, if you like, the usual suspects who are suspicious of the armed forces or not particularly sympathetic to the armed forces. Some of the criticism has come from people with a lot of relevant experience. For example, the field marshal and the general who wrote the letter were described by some as “meddling generals”, and they probably knew very little about the two individuals concerned, who certainly know what a battlefield looks like and the consequences of putting people in harm’s way. I want to encourage this Committee in its scrutiny of the Bill in case of unintended consequences, or even intended consequences, that might trick the Ministry of Defence but might not be quite what those involved are looking for.
Michael Sutcliff: From our point of view, it starts with a big hope. We have been here before, as I said at the start, as there have been several attempts. They all seemed to be Ministers saying, “We are going to do this, that and the other,” and then suddenly some bug is found somewhere and it never happens. There is a hope that this is going to go through. I take the great point just made to the Committee: please scrutinise the Bill as carefully as you can. Often the MOD is seen as the enemy of its men, which is the wrong way to see it and really is a bit of an issue. Do not let the Leigh Days of this world anywhere near it, because they will screw it up.
The object of the exercise is to look after your service and ex-service personnel in the best way you can. If you read the papers about a number of MPs voting against it, I hope you will see that there is concern out here in the big wide world and we are at your mercy—do a good job.
Miss Sarah Dines (Derbyshire Dales) (Con)
Q
Douglas Young: I think we have touched already on the dire mental health effects of repeated investigations, for example, and even simply of participation in combat operations. The British Armed Forces Federation has been involved in many of these issues. In campaigning about mental health in the armed forces in the past, we have given evidence to a parliamentary inquiry into healthcare for members of the armed forces. I have some experience myself, because I am a qualified caseworker and office bearer in a major national charity that supports armed forces personnel, veterans and their families.
Not all mental health problems among the armed forces and veterans are attributable to combat; there are many other factors. There can be a different pattern in illness between armed forces people and people outside. Obviously there is a huge overlap, but they can present slightly differently.
Years ago, not long after BAFF was formed, we had the case of an individual who had sought psychiatric support through the NHS. He had been assigned to take part in group therapy. In the group therapy he described the incidents to which he attributed his illness, but after a while he was asked to stop coming because he was making all the other patients worse. There is a need for targeted mental health support where people are willing to accept tailored support. Of course, some people may not wish to be in any way associated with the armed forces, even though their problems may be attributable to that.
We certainly support everything that has been done. Things have improved. The Ministry of Defence has been doing a lot in this area, as have charities such as Combat Stress, but there is always more to be done. I frequently meet people—not directly through that, but at veterans breakfasts and the like—who are clearly suffering. It is a huge problem, which we need to understand and perhaps not exaggerate. The vast majority of people who have served in the armed forces are very effective future employees, marriage partners and so on. They tend to do well. Our veterans are not all weighed down by problems.
Michael Sutcliff: To answer your question from my end, I have been doing this job for about 16 years now. I would put it this way: the stress from being in the armed forces is very different from that of the outside world. What does it do to marriages? In some cases, of course, it breaks a marriage, and it would be quite wrong to say that it does not. There are an enormous number of very supportive wives out there who help their husbands through. Certainly, if the family is mixed up and falling out, it affects the children.
I have to tell you that, from my personal point of view, I was not suffering from anything other than the fact that I joined the services at 15 and came out at 30-something into the big wide world. My wife and I were strangers—that was an example. It worried me so much some years ago that I have actually taken a course on service mental health, so that I can understand myself. [Inaudible.]
I agree that it is getting better. There are a number of groups out there that can help in this situation. The local NHS here is very good. We have some good doctors. We operate here in our little world. The door is open and we say, “If you have a problem, come and talk to us about it.” We get people who do that. We have dragged one or two back from the brink, which I am very happy about, but it is not thousands. Do not get too carried away with that. I have spoken to the local colonel and he said to me, “Everybody thinks that every soldier, sailor and airman has PTSD, and it works out at about 3% of us.” However, that 3% goes back to Cyprus and everywhere else—there is a lot in the 3%.
We are doing better, and we can do better. All of us are beginning to understand things better, and there are clever people out there coming up with good ideas every day. Hopefully that gives you the situation. But yes, obviously it destroys families and puts great stress and strain on them—there is no getting away from that.
Miss Dines
Q
Michael Sutcliff: The quick answer to that from me is yes.
Miss Dines
Q
Douglas Young: Given that endless investigations and the fear of prosecution—sometimes unfounded fear—have had an effect on individuals’ mental health and that of their families, it follows that if that at least can be reduced, then fewer people will suffer from the same deleterious effects on mental health.
Miss Dines
Do you agree, Mr Sutcliff? I think you said yes earlier.
Michael Sutcliff: I agree 100%. They let these things run on and on forever, going round and round in circles. It is utter nonsense and has destroyed many people, so yes, they will be cutting out, and that is good.
Miss Dines
Q
Douglas Young: [Inaudible.]
The Chair
We did not hear the start of your answer, Mr Young. Will you start again? We had a technical issue.
Douglas Young: There have been very serious allegations concerning the approach taken by investigators earlier on, under the IHAT investigation. We do not know fully the truth of those, but certainly in cases investigators who had no actual police powers acted excessively. I do not believe—or, certainly, I have not been told—that that sort of thing has been happening more recently.
The Bill should not affect that, except perhaps by removing scope altogether, but it will not have a direct effect on the treatment by investigators arriving at the door. It is an important area, and the Ministry of Defence, in so far as it has not already done so, should certainly take that on board.
People who are being investigated or engaged as potential witnesses have said that they do not feel supported by the MOD. The MOD arranges them—in some cases, they have some legal support—but the MOD is not actually on their side. I can understand that—you cannot tell a witness what to say—but a number of people have written, and I have now heard it myself directly, about how they did not feel adequately supported by the MOD. Sometimes, if they were still serving, they were told, “Well, your unit should be supporting you,” but that unit might not be the one that they have a particular connection with. The question of support and attitudes towards potential witnesses and suspects requires close attention, but is perhaps not directly addressed by the Bill.
Michael Sutcliff: I have not seen that. We have had a couple of instances here. One guy had literally barricaded his house. He was worried about these guys turning up, but they never did. It took a while to calm him down. I have a couple of chaps who are still a little worried about a knock on the door, but they have not come. But I have not heard about these people knocking about for a while—at one time this was hitting the headlines quite often, but it is not at the moment. Of course it has an effect on people, and it is wrong. It is not being done properly.
Miss Dines
Q
Douglas Young: I have no direct experience of a member of the British armed forces who has been accused of torture; I have no direct knowledge. I have personally interviewed a very recent victim. I say “very recent”; it was years ago, but he had very recently been tortured by foreign armed forces and I saw his injuries.
I have very serious concerns about torture being treated differently from sexual offences—that sexual offences have been singled out as not subject to the same time limits that torture is. I would say that the two broad areas of offence are very similar. They may take place for base motives. They are certainly inappropriate. They are about using power against someone who has no control over the situation. And they very often take place behind closed doors, so it may be very difficult to take evidence—if torture or sexual offences have occurred within a base, other people in the area may not know about it at the time. So I have very serious concerns about the exemption, if you like, for torture and it being treated differently from sexual offences. The suggestion is that that is for reasons of political correctness: “Sexual offences? Oh no, we must keep them aligned, but torture we won’t oppose.” I do have worries about that.
Michael Sutcliff: My answer is that I have absolutely no experience of it and have not heard any comments from any of my colleagues or visitors, so it would be unfair for me to comment.
The Chair
We are tight for time, so I will call Carol Monaghan next, and then, if we can, we will squeeze in Liz Twist and Stuart Anderson, who have both indicated a wish to speak. Gentlemen, could you, at the other end, give short, sharp answers as well?
Carol Monaghan (Glasgow North West) (SNP)
Q
Douglas Young: I cannot quantify it, but I certainly have seen a suggestion that a large proportion of actual claims has been on behalf of forces personnel—[Inaudible.] Only the MOD can really answer that. I have mentioned before my concern about some of the language. Lawfare actually exists and it is a threat, but many of the cases are not lawfare at all in the sense of being employed by bad or malicious actors in order to make things difficult for the United Kingdom. Many of the cases are not like that at all. If people feel that they have a claim, they will make a claim. It is exactly the same in this country. Why wouldn’t you, if you were in Basra or Helmand and you thought you had a genuine claim? People exaggerate. I have absolutely had experience of that in the Balkans. People tell stories and it is difficult to get to the truth.
Carol Monaghan
Q
Douglas Young: “Industrial scale” refers to large numbers. The numbers mentioned by the MOD are high. I would like to see the breakdown and how many were settled, in which case presumably there was something in it, and how many were not by indigenous residents but by members of our armed forces.
Carol Monaghan
Q
Douglas Young: I think six years is a reasonable presumptive time limit, but the absolute limit, the longstop, should be longer than that.
Carol Monaghan
Q
Douglas Young: On the first point about coming to light, we are all right with that. The time limit only starts at that point. I do not have any experience of facts that came to light.
Carol Monaghan
Q
Michael Sutcliff: The example I gave you is exactly that. I can see it for everyday injury, but when you are using equipment, machinery and things like that—this problem with asbestos literally only started raising its head many years ago. To be fair, the MOD dealt with that very fairly. There are always exceptions to the rule. You should be able to make a submission as something that arrives and is seen by the necessary medical people or scientists as an issue. I am not sure that that answers your question, but you cannot just shut things down like that, or else we would have been in trouble.
Carol Monaghan
Q
The Chair
Gentlemen, this will be the last question, so if you could both answer succinctly, that would be helpful.
Douglas Young: One thing about a shorter period is that, properly described by the MOD and by lawyers and others, a shorter time, if properly used, would actually remind people that the clock is ticking and that they need to get in. So there is that case for shortening that limit, but we should be careful.
Michael Sutcliff: I accept that. That is a reasonable comment.
The Chair
Thank you to the witnesses. We have reached the end of the time. I apologise to the two Members who wished to put questions but were unable to do so. Thank you, gentlemen, for joining us and engaging with the technology successfully.
Examination of witness
Hilary Meredith gave evidence.
The Chair
We are now going to hear from Hilary Meredith, of Hilary Meredith solicitors, who is joining us in person. We have until 11 am for this session. Hilary, could you introduce yourself for the record, please?
Hilary Meredith: Yes, I am Hilary Meredith.
The Chair
Thank you. As you have seen from the previous session we have some logistical issues, because Members who wish to question you will have to move to a seat where there is a microphone, or we have a standing microphone just behind you. I hope that you will bear with us as we move forward with those logistics. The two Members who have indicated that they wish to question you during this session are Emma Lewell-Buck and Carol Monaghan. If there is anyone else—Sarah Atherton, I will take you as well. So, Emma.
The Chair
I suggest that we might logistically arrange for people who do want to ask questions, or anticipate asking questions, to be at the table where they would have access to a microphone. It makes it so much easier. Emma Lewell-Buck, I call on you to start the proceedings.
Mrs Emma Lewell-Buck (South Shields) (Lab)
Q
Hilary Meredith: No, I do not, and that is one of my issues with the Bill—that it mixes civil and criminal law together.
Mrs Lewell-Buck
Q
Hilary Meredith: One of the issues with the Bill is that we need to look backward to find out how we got into the present situation, before we can cure it. Most of the criminal allegations arose out of civil proceedings by Iraqi foreign claimants against the Ministry of Defence. Great caution needs to be taken when criminal allegations arise out of a compensation cheque carrot being dangled. For that reason alone there needs to be a separation with the two—criminal and civil law.
Mrs Lewell-Buck
Q
Hilary Meredith: I think that leads on to it: because many of the criminal allegations arose out of a civil compensation claim, great caution should have been exercised. I cannot believe that extra care was not taken, and under those circumstances I can quite see there should be a presumption against guilt. It was not helped by the Ministry of Defence then paying cash to civilians in Iraq by way of compensation, which almost indicated guilt. That led on to the criminal prosecutions.
Mrs Lewell-Buck
Q
Hilary Meredith: I am against any cut-off, to be honest. I think the reason why the cases became historic is not the date of the accusation—any of the criminal accusations under human rights law, for example, came within 12 months of the incident taking place. It was the prolonged procedure that was bungled afterwards that made those cases historic. It is the procedure and investigation in the UK that need to be reviewed and overhauled, and not necessarily a time limit placed on criminal or civil prosecutions.
Also under that heading, I have an issue with the longstop applying to civil cases where personnel are overseas on operations and military personnel have a longstop placed on their claims as well. I understand that that has been put in on a equitable basis, so that if there is a longstop for a criminal prosecution, it also has to apply to civil law, but I am not sure about that.
Mrs Lewell-Buck
Q
Hilary Meredith: The answer to that is that I do not actually know. I think that lawfare instance came mainly from one or two lawyers. Phil Shiner was a one-off. He brought civil claims for compensation first, and as a result of that the prosecutions followed. If we had a robust procedure for investigating those cases and, for example, an independent advocate who has the back of the individual member of the armed forces and supports them, many of those cases would not have been advanced to the point that they were, with the subsequent criminal allegations.
Mrs Lewell-Buck
Thank you, Chair—I will leave it there so others can come in.
Stuart Anderson
Q
Hilary Meredith: I think the overarching view of the Bill is correct, but there does need to be protection in place. When criminal prosecutions arise out of civil compensation cheques being dangled, there should be a presumption of innocence and no prosecution should really take place without extra care and caution.
I think that the time limit is a bit of a red herring, to be honest. We do not need time limits on it; most of the allegations were brought in a timely manner. I have searched to see whether our courts ever exercise their power of discretion under the Limitation Act for human rights allegations—they have to be brought within 12 months. I cannot find a single case on a preliminary investigation in which the courts have extended a 12-month time limit under the Human Rights Act. I can see one case where they have extended the date that time begins to run, and in multiple proceedings, that is not at the beginning of the process but at the end.
For example, under IHAT, it was only in June this year that we found out that of those 4,000 vexatious criminal claims, there was not a single prosecution. In those circumstance, if a member of the Armed Forces wishes to bring their own human rights claim for lack of a speedy trial, that time runs from June this year.
Carol Monaghan
Q
Hilary Meredith: The investigations that took place following the civil claims were shambolic to be honest. I know that you will hear from Robert Campbell after me; he would have liked to have been heard in the European courts, because our system was so shambolic and went on forever. That is a very extreme viewpoint to take—we cannot investigate properly in this country.
The Royal Military Police need special training. You have to understand that they are investigating crimes overseas and in a war zone. It is extremely difficult. It may be that they take training from, for example, the Metropolitan police on investigating crimes. It is a very difficult area to investigate. We need to have a robust system of procedures to investigate crimes, rather than putting time limits on it.
Carol Monaghan
Q
Hilary Meredith: For example, if I can use the case of Major Campbell, the investigation against him included a drowning in the river in Iraq. That allegation came within a year of the incident. He was told by his commanding officer not to worry about it because it would be cleared—it would be sorted. Then began a process where over 17 years, he was investigated 11 times for the same incident. That is the shambolic system of procedure that we are operating in this country and that is what needs to be reviewed and overhauled.
Carol Monaghan
Q
Hilary Meredith: I think the original investigation was by the Royal Military Police. It was perceived that they were not independent enough, so the IHAT team was formed. Under the IHAT team, we then had this terrible form of investigation through Red Snapper, which Parliament has heard about before. Its methods of investigation and what it put those accused through was quite horrific. Had there been an independent advocate that had the backs of the individual members of the armed forces—not the Ministry of Defence, which cannot act; there is a conflict—there would have been a buffer between the Red Snapper team and the IHAT team and the individual person. I think that would have solved a lot of mental health issues as well.
Carol Monaghan
Q
Hilary Meredith: There is a difficulty putting a time limit on the Human Rights Act—I do not even know whether we can do that constitutionally, because it is a European convention. If there is a six-year time limit on criminal allegations, I have concerns about that. I think most of those criminal allegations were brought well within time anyway; as I said, it is the process that was wrong.
For civil claims against the Ministry when people are injured or killed in service overseas, I do not think a longstop should be applied. There are tremendous difficulties in placing people in a worse position than civilians. In latent disease cases—diseases that do not come to light until much further down the line, such as asbestosis, PTSD, hearing loss—it is not just about the diagnosis. Many people are diagnosed at death. It is about the connection to service. That connection to service may come much later down the line, and by that time they will be out of time to bring a claim.
Mr Kevan Jones (North Durham) (Lab)
Q
Hilary Meredith: That is a really interesting point, actually. I had not thought of a time limit on investigations. Certainly under the Human Rights Act, there is a right to have a speedy trial, and that did not happen in these cases. There were no speedy trials. A limit on the time that an investigation takes would, I think, be really welcomed. Sorry, I cannot remember your second question.
Mr Jones
Q
Hilary Meredith: Parliament had an inquiry into what support they were given. Basically, there was none. It is not so much the serving personnel, but the veterans—there was no telephone number for them to phone. At one point, I was told, “Phone the Veterans Agency.” The Veterans Agency deals with pensions. If you are arrested and in a police cell at midnight, you cannot phone a pensions department for help. The penny dropped when I said that to the Ministry of Defence.
If someone was appointed independently from the Bar Council or the Law Society, and it was freely advertised, even given to personnel before they go on operations, then they would have a telephone number to phone for support and advice. I think that is crucial. The process of the investigation may have been reduced if they had had an advocate in their corner, questioning why this was going on for so long.
Mr Jones
Q
Hilary Meredith: I think that part 2, on the time limit, should be taken out and scrapped completely. It is the time limit for the procedure. It went on too long, with multiple investigations. We have not got our system right there. In fairness, the decision in the Al-Skeini case that opened the floodgates to the Human Rights Act applying overseas, outside our territory, took us all by surprise. It took the MOD and everybody by surprise. We were not geared up for the consequences of that.
Mr Jones
Q
Hilary Meredith: I worry that it is not, actually. I think the Bill will have a rough passage if that part is not tailored slightly. There is a presumption not to prosecute where the allegations of crime arise out of a compensation cheque carrot being dangled, but in the majority of these cases the MOD are paying compensation. Payment of £145,000 was made to the father of the drowned boy in Major Campbell’s case, indicating in Iraq that there was guilt there. Why was that payment was made, who authorised it and why was it so much—it is a huge amount of money—when he was exonerated completely? Some 4,000 allegations of criminal activity under IHAT were completely dismissed, without a single prosecution. Why was the MOD paying out compensation?
Mr Jones
Q
Hilary Meredith: I think those payments fuelled the allegations of crime. Maybe there should be a review of why large amounts of money are paid in compensation when there is no guilt there.
Joy Morrissey (Beaconsfield) (Con)
Q
Hilary Meredith: I am not quite sure I understand the question.
Joy Morrissey
Q
Hilary Meredith: I think there are two issues. The Human Rights Act civil cases were brought for abuse and detention. When you look at the charge sheet, there are masses—hundreds—just as abuse and detention. The civil human rights were brought by the Iraqi civilians against the Ministry of Defence. That, then, culminated in human rights criminal activity against individual members of the armed forces. Which takes precedent? I think you will have to ask a constitutional lawyer, but my concern is that if we are putting time limits on the Human Rights Act 1998, I am not sure if in the UK we have the power or authority to do that. A constitutional lawyer would be able to advise you better.
Joy Morrissey
Q
Hilary Meredith: Nobody.
Joy Morrissey
No one.
Hilary Meredith: No, there was nobody there to help them.
Joy Morrissey
Q
Hilary Meredith: No, and I think one of the issues that the members of the armed forces have is that they have to step out of the military environment into civvy street and find a civilian lawyer or even know that they are allowed to find a civil lawyer, there was no information there for them. That is why I am suggesting there should be an independent civil advocate from the Bar Council or the Law Society with criminal knowledge to help them.
Joy Morrissey
Q
Hilary Meredith: I do not know. I am not a criminal lawyer, but I think that many of those—imagine that you are completely innocent and you are accused. First, there are so many different laws now that affect you on the battlefield, so many different conventions, and then throw in human rights as well. It is a difficult, complex scenario.
Sarah Atherton (Wrexham) (Con)
Q
Hilary Meredith: Going back to the Al-Skeini case: the decision that opened the door for human rights in a foreign territory where we had control, and the situation where we had control was detaining prisoners. Of those who claimed civil compensation—I keep using Major Campbell’s case. That was not in detention but that was somebody who was said to have drowned in a river. These prosecutions just go on and on. I have forgotten the question.
Sarah Atherton
Q
Hilary Meredith: As a result of those civil claims that were brought—I do not know how many civil cases were brought against the Ministry of Defence; it would be interesting to know—they led to over 4,000 accusations of crime under the IHAT team, which happened to be investigating. Of those 4,000, there was not a single prosecution.
Sarah Atherton
Q
Hilary Meredith: I understand that, out of the 4,000, there were possibly 30 worth investigation. Of those 30, it was whittled down to around five, and of those five, there was insufficient evidence to say whether there was any issue or not. Somewhere along the way, somebody decided that the British military were “rotten to the core” and they were not given a chance, so they were almost guilty before being proven innocent. That is where the presumption against prosecution is so important.
Joy Morrissey
Q
Hilary Meredith: There are two scenarios, depending on whether you are still in service or you are a veteran. If you are a veteran, there is nothing—there is no chain of command. A number of times, the MOD said to me that veterans can go and see the chain of command, and I say that they are retired and are veterans, so there is no chain of command, or their commanding officer has retired. Who do they contact? If you are in service and have a good commanding officer, you can go and seek help through them. I know that the Army legal services tried to help in some instances, but I think there is a conflict of interest with the Army legal services protecting the Ministry of Defence and trying also to protect individuals.
Mr Jones
Q
Hilary Meredith: That is one thing I considered. The remit of the ombudsman would have to be extended to do that. To look into 4,000 falsely brought accusations is a big job. Whether the ombudsman has the resources and the remit would have to be looked at, but I think that is a good idea.
Mr Jones
Q
Hilary Meredith: If their remit is extended and they could cope with the volume, yes, definitely. My idea is for an independent person, which the ombudsman is, or somebody from the Bar Council or the Law Society, or even a panel appointed on a rota basis that could assist.
Joy Morrissey
Q
Hilary Meredith: I agree; it is extremely difficult. When I am putting forward an independent person, I am talking about somebody in civvy street, which would be even more difficult. Unless you sign up to the Official Secrets Act and there is a full cards-on-the-table procedure, it would be very hard to defend.
Stuart Anderson
Q
Hilary Meredith: The time limit, on the face of it, is welcomed by most veterans and military personnel, but the reading of it is a concern. For example, time limits will be introduced if military personnel serving overseas are killed or injured in service. Putting a time limit on that puts them in a worse position than civilians. That alone outweighs the prospect of a time limit on a criminal prosecution. Most criminal prosecutions were done in a timely manner. It was the process that caused them to be historical. Differentiating between the two and sorting out the process is more welcome than actually putting a time limit on an allegation.
Stuart Anderson
Q
Hilary Meredith: In civilian cases, with the date of knowledge of, for example, of PTSD, you may consider that there is something wrong post service, but it can take up to 15 years for PTSD to actually raise its head. An example of that is the young men and women who came back who have lost limbs. People were surviving triple amputations and went on to do fantastic things; they climbed mountains, they skied, they had great prosthetics—they all did remarkably well. But as the ageing process takes place, they cannot walk on prosthetics; they become more wheelchair-bound, they put on weight, the Invictus games is not available to them, and that is when PTSD sets in. PTSD is not just the diagnosis; it is the date you realise it is connected to service, and 15 years down the line it can be difficult to differentiate between, “Yes, there is something wrong with me,” and, “Ah, but it’s also connected to service.” It is the causation issue—the service caused the PTSD.
The Chair
Thank you, Hilary. With that, we have reached the end of the time period that was allocated for your evidence. On behalf of all the members of the Committee, we are very grateful to you for the evidence you have given and for bearing with us and the logistics we have to follow to comply with social distancing. Thank you very much for your evidence.
Examination of Witness
Major Bob Campbell gave evidence.
The Chair
Our next witness is Major Bob Campbell, who is giving evidence remotely using sound only. We have until 11.25 am for this session. Major Campbell, could you just confirm to me that you can hear me, and could you speak so that we know you can hear us?
Major Campbell: I can hear you fine. I will just say that I have hearing loss in both ears, so may I ask for the questions to be spoken clearly? You do not need to shout, but just speak clearly, and then we will probably get through this more quickly.
The Chair
Excellent. You are pre-empting my good self in giving that instruction to those asking for evidence. Major, could you just confirm your name formally for the record?
Major Campbell: My name is Robert Campbell, former Army officer.
The Chair
Thank you very much, sir. I have four Members who have indicated that they want to ask questions: Stephen Morgan, Kevan Jones, Carol Monaghan and Stuart Anderson. If anybody else wants to ask a question, please indicate. I will go first to Stephen Morgan, who I am sure will follow the Major’s instructions.
Stephen Morgan (Portsmouth South) (Lab)
Q
Major Campbell: No, there was none. Depending on which investigation you wish to address, in the early investigations under the Royal Military Police we were told just not to think about it and to get on with stuff. No concession was given to us in our day-to-day duties. Later on, when the Aitken report was written in 2008, we were not approached prior to the publishing of the report; I heard about it on the radio like everybody else, while I was driving home. It is rather unpleasant to discover on the radio that your own Army accuses you of killing somebody in Iraq, three years after you have already been cleared of that allegation.
Moving forward to the later investigations, there was a civil claim made by Leigh Day in 2010, in which we were ordered to give another statement and we were ordered not to seek our own legal advice by the Treasury Solicitors. We ignored that instruction: we got our own legal advice, and we declined to assist the Ministry of Defence in defending the civil claim, because frankly we thought they had rather a cheek after previously accusing us of committing that offence.
When IHAT came in 2015, I had just started my intermediate officer education at staff college. I knew IHAT was going to come and arrest me and question me, so I approached the course colonel to ask whether I could defer the course, because I had to concentrate on this allegation. He wrote to me in an email, “Based on the version of events you have described to me, which would doubtless be corroborated by your colleagues, I do not believe you have anything to fear. Given the utter discrediting of Iraqi witnesses in al-Sweady, I believe you can take further confidence. I know this is extremely unsettling business for you, but I would urge you to try to put it to one side and focus on this course. That in itself will be a distraction and help you get on with your life.” So, to briefly answer your question, no, we were not offered any type of meaningful support other than some rather unhelpful advice to try not to think about it.
Stephen Morgan
Q
Major Campbell: No. Again, that last instance was my direct line manager—okay, it was slightly different from the normal chain of command because I was on a course. Their belief was—this is what kept being told to me—if you have done nothing wrong, you have got nothing to fear. While I tried to explain to them, “Look, I have been through many investigations and, trust me, they are very, very unpleasant” they would not have it.
I pushed it up the chain of command to Army headquarters, and again they were not really interested in helping. They expressed to me that they were being told by the directorate of judicial engagement policy not to get involved. In terms of hindering me, if you like, I was appalled to discover that the Army personnel centre had handed over my service and medical records to IHAT without my knowledge or consent.
Apart from the military chain of command, I wrote to Penny Mordaunt, Mike Penning, Mark Lancaster and the Secretary of State, Michael Fallon, in response to some of their public statements in order to correct some things they said that were not entirely accurate when they were making claims that everybody was fully supported. They all responded back to me, “You don’t understand—we have to do this because we have to be seen to be doing something.” The impression I got was that me and my two other soldiers being multiply investigated was necessary for the reputation of the United Kingdom or the Army.
Stephen Morgan
Q
Major Campbell: The Army is a large and compartmentalised place. For example, when public statements are being made about these investigations, nobody actually checks with us or our solicitors if they are indeed true. Certainly, Brigadier Aitken did not think to check with us or our solicitors if we might wish to dispute anything that he was going to write in his report. He wrote retrospectively that our case was included in another load of cases, some of which were true and some of which, I believe, were false. However, I think a greater degree of a direct communication would have been better.
I also suggested in my letter to Michael Fallon that an officer at least of colonel rank should be set up somewhere like Army headquarters—I will focus on the Army because I am not too sure about the other two services—to be the one-stop shop for anybody who is under investigation. I was told that that was not necessary. Both Michael Fallon and Sir Stuart Peach in the Defence Sub-Committee on this matter said there is no need for such a thing because there is the chain of command, which will do everything. The chain of command folded at the first hurdle. The administrative process in place to apply for our legal fees to be reimbursed failed at the first hurdle, because the form did not have a box for an IHAT investigation.
On top of that, there was just to be no concession on how we were supposed to conduct ourselves in our day-to-day life. Because there was no single point of contact, we had nowhere to address our concerns. I had a very tedious series of correspondence, again with all those people I just named, who all responded, “If you’ve got a problem with it, complain to IHAT.” That is not the most helpful piece of advice.
Stephen Morgan
Q
Major Campbell: In terms of legal protections of soldiers, I would not change anything in terms of historic allegations, let me make that point clear. Had the Bill been in place during my case, it would have meant, at the absolute worst, that our torment would have ended in 2009, and neither IHAT nor the Director Service Prosecutions would have had any method of dragging it out further. For me and my two soldiers, SO71 and SO72 as they are cited in the IFI report, that would have meant that we could have at least enjoyed the last 11 years in peace.
Secondly, if the Bill had been in place during my time, Leigh Day would not have been able to bring about false allegations. That would never have got off the ground. I am no legal expert, but if the Bill was in place, it would make the vexatious, scattergun, “throw a thousand allegations at the wall” process unprofitable, and people like Leigh Day and Phil Shiner would have to find some other human misery to exploit.
The last point about this hard stop of five years is that it would be a useful device, because it would focus the minds of the MOD and the investigators. It was the MOD that dragged it out for the last 17 years. If they had this hard stop, they would have to really focus and decide whether they are going to prosecute or not. Putting them under a bit of pressure would have saved us a lot of angst in the years past.
Stuart Anderson
Q
Major Campbell: I fully welcome the Bill, both in its intent and in its content. Again, in my amateur legal opinion, there may be a legitimate argument to be had over whether the Attorney General is the correct address in terms of being the final arbiter of further prosecutions, due to the advice he gives to the armed forces on the legality of a conflict.
My other slight concern is that previous Attorneys General have done us no favours at all. Lord Goldsmith had a lot on his shoulders for how we ended up in Iraq and the manner in which we conducted operations there. When I appealed to Jeremy Wright, and when he gave evidence to the Defence Sub-Committee on this several years ago, he took the view that this was an entirely fair process and that there was absolutely no reason to stop IHAT or even to scrutinise it any further than necessary.
The last point I would make about the Bill is that I cannot really adhere to some of the arguments against it. When I wrote to all these people, such as the CGS, the Adjutant General and previous Ministers Mordaunt, Penning, Lancaster and Fallon, they would all express a variation of, “Well, we have to be seen to be doing something.” I do not believe that public relations and being seen to be doing something are a good enough reason to destroy a soldier’s life or to drive them to suicide. I do not think that is morally acceptable in any way, but apparently they thought that was a price worth paying.
To answer your question, yes, I support the Bill. There may be some minor tweaks here and there, but, in principle, and in the absence of anybody doing anything to help us in any way, it has my full support.
Stuart Anderson
Q
Major Campbell: From my very unscientific survey of veterans, I think that generally—in my orbit—the Bill is welcomed. If the words of the Bill are not welcomed, the principle of attempting to improve the lot of veterans and service personnel is welcomed. There is deep anger and distrust between the veteran community and the MOD. It is all very well for the MOD to blame Phil Shiner and Leigh Day for this, but it was the MOD that carried out the repeated investigations.
To answer your question, I think that if the Bill were to be squashed, it would send a very depressing message to the veterans community—probably one that has been felt quite harshly by the Northern Ireland veterans—that we are not important enough to get any type of assistance when facing legal assault.
Stuart Anderson
Thank you for your comments, and thank you again for your service.
Sarah Atherton
Q
Major Campbell: I think that is a false allegation, and I will tell you why. Again, when I wrote to all these people—even internally within the Army—I was told repeatedly that if IHAT was interfered with in any way, the International Criminal Court would swoop in and clamp us in leg irons, and we would all be off to The Hague. Michael Fallon repeated in the Defence Sub-Committee that he had no power to stop such investigations and that, if he were to do so, the ICC would get involved.
I decided to test that theory, and I wrote to the chief prosecutor of the ICC, Ms Bensouda, asking in exasperation whether I, SO71 and SO72 could surrender ourselves to the ICC rather than go through several more appalling years at the hands of the Ministry of Defence. Ms Bensouda responded that our allegation does not fall within her remit, because her job is not to prosecute individual soldiers; her job is to prosecute commanders and policy makers for the most grave crimes. In her orbit, manslaughter, which is what I was accused of, is not a war crime. It is a domestic crime—a regular crime, as opposed to what she would normally deal with. I reported that rejection to the Ministry of Defence, which continued to repeat that the ICC would fall in.
The second point I would make is, what would be so terrible about the ICC being involved? We kept getting told that the ICC has a bit of scrutiny over IHAT and is keeping a very close eye on it. Personally, I do not have a problem with that. Like I said, the ICC was not going to ruin our careers, the ICC was not going to harass our families, and the ICC was not going to go and bully soldiers who had left the Army for a witness statement—not even a suspect’s. The ICC would conduct itself professionally, and it would have no incentive—no financial incentive—to drag things out for years, like Red Snapper, which provided most of the detectives to IHAT, did. Finally, the ICC would probably not use the investigative technique that IHAT used, which was to pay Phil Shiner’s gofer to be the go-between between them and witnesses because IHAT was too scared to go to Iraq.
So regarding the whole spectre of the ICC, first, I do not find it remotely as scary as people make it out to be and, secondly, it is completely false, because I attempted, with my two soldiers, to surrender ourselves in order to spare us another several years of the MOD fannying about, and the offer was refused. So to answer your question, I do not see that as an issue at all.
What I would say, though, is that I think I understand why the Government would be reluctant for the ICC to be involved, because the scrutiny would not be on Tommy Atkins; the scrutiny would be on General Atkins and Minister Atkins. Those are my thoughts on the ICC.
Carol Monaghan
Q
Clearly, a lot of this is still very raw for you, and you have talked about the MOD dragging it out over the last 17 years. Can you tell me how you think this Bill will actually tackle the MOD’s actions and inactions, which you have been subjected to over the last 17 years?
Major Campbell: Like I said in the previous response, if there was a time limit within which these things can be actioned, then I feel that a higher level of scrutiny and decision making would be necessary to make them work. I also think that the kind of dithering manner in which this process has been carried out to date would be nullified. If there is a time limit within which they have to get on with it, get it done right the first time and get the correct legal advice, I think that would improve matters no end.
Carol Monaghan
Q
Major Campbell: That is a good question, because I do not know. The reason I say that is that I do not believe that there is a police force in the United Kingdom that would be able to carry out such a contested, political and adversarial investigation. If you think about the way that it has been done in the past, when IHAT got this group of ex-detectives who were used to domestic crime, and they are asked to investigate an allegation in a country they have never been to, in a culture they do not understand, in a combat environment they have never experienced and in a language they do not speak, I just think that you are already on a hiding to nothing if those are your parameters.
I do not know how a war crimes investigation can be done effectively while hostilities are ongoing. For example, if there was an allegation against our forces in Syria, I really do not understand how you are supposed to be able to gather good evidence in an area that may be occupied by the regime, Russia or ISIS, and I do not understand how you would achieve the right level of evidence. But what I do know is that the way they did it in the past was an absolute shambles.
Carol Monaghan
Q
The Chair
This needs to be a very short answer, Major Campbell.
Major Campbell: I would argue yes, because otherwise, if you make it longer, you are just handing another incentive to the Leigh Days and Phil Shiners of this world to drag it out, because they have got absolutely nothing to lose. All of their funds are provided by the taxpayer, and all of the funds of the claimants are provided by the taxpayer. They can take a punt, and it is a win-win for them.
The Chair
We do have a time limit, which I am afraid we have reached, Major Campbell. But again, on behalf of all the members of this Committee, I thank you for your evidence this morning. Thank you very much indeed.
Major Campbell: Thank you.
Overseas Operations (Service Personnel and Veterans) Bill (Second sitting)
Tuesday 6th October 2020
(3 years, 6 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 6 October - (6 Oct 2020)
The Chair
I hope that Professor Ekins can now hear proceedings. Will witnesses say for the record their name and designation, so that we may confirm that we can hear you?
Professor Ekins: I am Professor Richard Ekins. I am head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government at the University of Oxford.
John Larkin: I am John Larkin QC. I am in private practice now in Belfast—[Inaudible.]
The Chair
Your sound is not very clear, Mr Larkin, so I am going to see whether we can have that adjusted. Will you repeat what you have just said?
John Larkin: I am John Larkin QC. I am counsel at the Bar of Northern Ireland, and practising there.
The Chair
Please try to get as close to your microphone and to speak as robustly as you can.
John Larkin: I apologise in advance, Chair. I am afraid that you have the alarming choice of seeing me leering forward or perhaps not hearing me. We will sacrifice aesthetics in favour of audibility.
The Chair
We will take hearing you—that is our priority. If our two witnesses online will bear with us on the logistics, we are joined in the room by Dr Jonathan Morgan. Dr Morgan, will you introduce yourself for the record?
Dr Morgan: Hello. I am a reader in English law at the University of Cambridge and a fellow of Corpus Christi College. As you might be aware, I co-authored with Richard Ekins a paper called “Clearing the Fog of Law” for Policy Exchange in 2015. I imagine that that is why I am here, but you might be able to tell me better.
The Chair
Excellent. I am going to call Kevan Jones to start the questions, and I would ask that he and others indicate whether they are addressing a question to a specific witness or to all the witnesses.
Mr Kevan Jones (North Durham) (Lab)
Q
The Chair
Perhaps, if the question is to everyone, we will start with you, Dr Morgan, in the room, and then go to Professor Ekins and Mr Larkin.
Dr Morgan: My expertise is in private law—so, tort law—and I imagine that we will come on to that later. There, you have time limits of three years, six years, one year. In my view, there is no ultimate principled way of defending a particular time limit. Five years is obviously some kind of compromise. Ten years was originally proposed; that has been reduced to five. There seems to be no logical answer, certainly, as to that particular time period. It is a balancing act.
Professor Ekins: I agree with everything that Dr Morgan has just said. All I would add is that I presume five years has been chosen with a view to allowing a sizeable period of time to pass during which—[Inaudible]—can be brought in the customary fashion. After five years, a somewhat different regime obviously applies, although it might be too strong to call this a cut-off period. There is always something somewhat arbitrary about procedural time limits. As Dr Morgan said, three years and six years are used in civil law; the criminal law does not tend to do this so often, so I do not think this is a salient number—to my knowledge.
John Larkin: I agree. There is no magic in the number five; that is a matter of policy choice.
Mr Jones
Q
Dr Morgan: On the second of those questions, which is whether the Attorney General’s decision not to prosecute could be challenged in court, I think that, yes, absolutely there is a risk of that, and I think the Minister, in a letter that he wrote to the Defence Committee, accepted that that was the case, but expressed the view that the courts would have to take account of the context that it is a quasi-judicial decision, and that they should respect the Attorney General’s decision. But I suspect that it is very strongly likely that it would be reviewed. How successful that would be is hard to say in the abstract, but it could be challenged, in my view.
Mr Jones
Q
Dr Morgan: Criminal procedure is not my area, but I am not aware of any others in UK law. There are references to limitation statutes in other jurisdictions. I think that the example given is that, in French law, there is a 30-year period, which is very much longer and which apparently does not apply to war crimes, so that is almost the mirror image of what is in the Bill.
Mr Jones
Q
Dr Morgan: It says that only exceptionally will there be a prosecution, so it is not a total amnesty after the five years. But even having the presumption after a time period is, as far as I am aware, unique in English criminal law. When we are talking about tort law, which is much more my area, limitation periods are absolutely standard, but in criminal procedure it is much more exceptional. I think that is why this has received so much more attention, media attention and public criticism than the civil law proposals.
Professor Ekins: As Jonathan Morgan says, there are precedents elsewhere for statutes of limitation in the criminal sphere in other jurisdictions, but they have not been a feature of English law, although, of course, this is quite a soft statute of limitations in so far as it provides no obstacle or bar to prosecutions after the five years. It certainly does not stop investigations. In fact, if one were to make a criticism of the Bill, one might say that it places no obstacle on continuing investigations, which might be thought to be one of the main mischiefs motivating of the Bill. If there has been no investigation, the fact that there is an investigation, and cogent evidence arises of a crime, will tend to beat back the presumption against prosecution, if one wants to call it the presumption against prosecution. So it is not quite right to my mind to say this is putting the cart before the horse and deciding against prosecution before one investigates.
In relation to the Attorney General and consent to prosecute, there are two stages. One is the prosecuting authority deciding whether or not the prosecution is warranted, and the Bill looks at some of the factors that should be taken into account in making that decision. That might be one way to think about part 1 of the Bill—it is framing the determination by the prosecuting authority. In addition to that, the Attorney General’s consent is required. They are not necessarily the same stage or the same act.
As to whether the Attorney General giving or withholding consent—more likely the withholding, although I suppose either—will be challenged in the courts, I think, very likely, yes. How much risk is there? I think that is an open question. I think there must be some risk that there will be a Human Rights Act challenge arguing for a narrow and restrictive reading of the Attorney General’s power to give or withhold consent, and that might end up requiring the Attorney General to give consent in circumstances where one might not otherwise expect it. It is possible the courts will not take that course, but I think it is a risk that parliamentarians should be aware of.
John Larkin: Yes. I am in agreement with Professor Ekins. Classically, the decision of an Attorney General to give consent to prosecution has been subject to very light-touch review. Here, although it is described in the clause heading as “Presumption against prosecution”, it is really more the establishment of an exceptionality test, and that of course gives a handle to anybody seeking to challenge the Attorney General, because what is or is not exceptional will be a matter ultimately for judicial determination. I think that challenges are almost inevitable, but they are by no means to be regarded as inevitably successful. I think the approach of the courts—one can see that in the Supreme Court challenge a year or so back to the certification by the Director of Public Prosecutions for Northern Ireland in the Dennis Hutchings case—tends to be associated with the bestowal of a good deal of latitude to the responsible law officer.
Mr Jones
Q
John Larkin: The law is full of operative presumptions, from time to time, but the precise model here is something that I have not seen either in the UK or elsewhere.
Professor Ekins: I do not think the UK has tended to legislate about the decision to prosecute. There are a great many statutory requirements for Attorney General’s consent before prosecuting, so that is by no means unique, but the legislating to frame the prosecutor’s decision as to whether to initiate the prosecution is unusual.
Mr Jones
Q
Professor Ekins: Not to my knowledge, but it is difficult to sever it from the point about time. There is a difference between a Bill that does what you see in part 1 from day one and a Bill that does so after a certain period of time has passed, which is why the Bill refers, understandably, to the importance of finality if you have an investigation and further evidence has arisen. Those are all considerations that a prosecutor might well take into account anyway; it is just that Parliament is requiring them to be taken into account, framing when and how—[Inaudible.]
Stuart Anderson (Wolverhampton South West) (Con)
Q
John Larkin: I possess no qualifications to judge the reputational effectiveness of the Bill and its impact on military operations. What I have said to Policy Exchange is that many of the criticisms of the Bill are quite misplaced. It is not a blanket amnesty; in fact, it might be regarded as a fairly modest, proportionate measure.
Stuart Anderson
Mr Ekins?
Professor Ekins: I suppose the best case one can make for the positive benefit of the Bill is that it may provide some assurance to personnel. If no application has been made after five years, they are unlikely to be prosecuted. However, in one sense that is too strong, because if cogent evidence arises, it can be investigated. It probably will be—there is no bar to it in the Bill—and it may well result in a decision to prosecute.
Having said that, prosecution is the major risk for people who have been serving on operations abroad. It is a major problem in relation to Northern Ireland—we have been getting prosecutions 40 or 50 years after the fact, which are very difficult to conduct fairly, and which understandably cause an enormous amount of stress. In recent years, the problem in relation to people who have been serving abroad has been, in a sense, a seemingly never-ending cycle of investigation and reinvestigation. The Bill does not really do anything about that, so in that sense it will not provide much help.
Stuart Anderson
I should have referred to as “professor”—sorry, I did not want you to feel left out. Doctor Morgan?
Dr Morgan: The answer is, up to a point. It really depends on what kind of allegations we want to defend service personnel against. In the Second Reading debate, there were many references to Phil Shiner—we can take him as shorthand for spurious claims being brought. But you might say that if spurious claims are brought within six years, if it is a tort action, or within five years, if it is leading to a criminal prosecution, the Bill is not doing anything about those. It is not doing anything about promptly brought spurious claims. Indeed, it seems to me that the Shiner claims were actually brought promptly. There were many problems with them—namely, that people were making up the evidence—but they were not being brought many years later.
The Bill addresses one particular problem: very old and stale allegations being revived after a long period, which are either brought as a tort damages claim—that is part 2 of the Bill—or lead to criminal prosecutions, which is part 1. It seems to me to be part of a solution to what is actually quite a big and complex problem with a number of different strands in it. It is not the total solution, but it addresses that aspect of it.
Stuart Anderson
Q
John Larkin: I have given my view on that. The short answer is that it does not.
Professor Ekins: I agree with John.
Dr Morgan: I think “blanket amnesty” is a very overblown way of putting it, if we are talking of criminal prosecutions after the five years. It is establishing presumption, and that is what should be referred to. Having said that, the stronger the presumption is against prosecution, the closer it approaches that. The weaker the presumption is, the less protection it gives to the service personnel in question. So there is obviously a balancing act, but, as it stands, I do not see it as an amnesty; that is a misdescription.
Peter Gibson (Darlington) (Con)
Q
Professor Ekins: To my mind, the major problem of the Bill—this is a major absence, but it would be quite a substantial policy change to introduce it—is that it does not really address the extraterritorial application of the Human Rights Act. That is the main driver behind some of the difficulties we have seen in the last 10 or more years in a whole range of ways. That includes requiring continued investigation and litigation—sometimes from enemy combatants relying on the Human Rights Act while UK forces have been in the field. The Bill could be improved—although, as I say, it would be a major change—by limiting the extraterritorial application of the Human Rights Act.
That would be, in a sense, restating the position that our senior judges understood before the European Court of Human Rights extended how jurisdiction was understood. I think that would also be much more consistent with the way in which Parliament understood the Human Rights Act when it was enacted in 1998. The ECHR and the Human Rights Act really have been extended by a series of problematic judgments, and a Bill on this subject could usefully roll that back. That might mean that the Human Rights Act simply applies in the United Kingdom, or alternatively—this may be more plausible as a prospect for enactment—it might allow for limited extraterritorial application, in the limited way that was understood to be possible in 2003 when the European Court of Human Rights gave a significant judgment on the point, as well as by the House of Lords and the Supreme Court in the years to follow. That would address the problem of being unable to stop investigations and being exposed to litigation that requires the continuation of investigations, when the Government think that that is unfair to the personnel. The Bill does not address that—save, perhaps, by encouraging Ministers to derogate from the ECHR.
John Larkin: There is a lack conceptual clarity in part 1—[Inaudible.]
The Chair
Mr Larkin, we are sorry but we are not hearing you very well. Do you want to try to speak a bit closer to your microphone?
John Larkin: There is a lack of conceptual clarity in part 1 of the Bill with respect to the prosecutorial task. As the Committee will know, the prosecutor’s task breaks down into two parts. First, they ask themselves whether the evidential test is met. If it is, they consider whether a prosecution would be in the public interest. That is the approach taken in all three UK jurisdiction—[Inaudible.]
The Chair
We are still struggling, I am afraid.
John Larkin: Clause 1 of the Bill puts no time limit on assessment of the evidential test. But then, when one looks at clause 3, subsections (1) and (2) tend to reduce the person’s culpability. Culpability is at the core of criminal liability—it is synonymous with criminal liability. There may be value in amending the Bill to permit the prosecutor to take a global view.
The Public Prosecution Service for Northern Ireland, in its code for prosecutors, permits the public prosecutor to take a view based on the public interest test, sometimes—exceptionally—in advance of full consideration of the evidential tests, so if one has a sense from the beginning that the case is going nowhere, one should not have to go through what might seem to be a very empty exercise of none the less carrying out the evidential test in full. There could be an expressed power, by amendment, given to prosecutors to determine in advance of consideration of the full evidential tests. As you rightly note, clause 3(1) sits ill with clause 1’s exception of the evidential consideration.
Peter Gibson
Q
The Chair
Are you happy to do that, Mr Larkin? We did not hear all of what you said. Members may have got the general thrust of what you were saying, but we did not get the detail.
John Larkin: I am happy to do that. It is a technical point, so it might be of assistance to Committee members if it were reduced to writing.
Peter Gibson
Q
Dr Morgan: I would approach the question in two ways. One would be, “How would I improve this Bill?” and the other would be, “What would I do if I was starting with a blank sheet of paper?” You would get two quite different answers, but I will start with the second one.
Peter Gibson
Let us have both approaches.
Dr Morgan: Okay. To start with the second one, it seems to me that the problem in this area is lawfare or the judicialisation of war—whatever you want to call it. The extension of the European convention on human rights into this area as a result of the European Court’s decision in Al-Skeini, and the decision of our Supreme Court in Smith v. Ministry of Defence, which confirmed that and extended the law of tort into the battlefield, led to the erosion of combat immunity. To me, that should be the priority for any legislation on this difficult and multifaceted problem.
The section of the Bill that partly deals with the issue is the derogation provision and the duty on the Minister to consider derogation. It is not a duty to derogate; it is a duty to consider doing it, which is putting into statute the Government’s policy. It seems to me that that is valuable, although it does not change very much.
In its consultation paper published in June 2019, the Ministry of Defence said it was going to look at restatement of combat immunity, hand in hand with a no-fault compensation scheme for service personnel to pay damages on the full tort measure. Those two things should go together. I regret that last month, in reply to the consultation, it said that legislation on the issue is
“not being taken forward…at this time.”
I think it should be. The priority should be to restate combat immunity and, hand in hand with that, to have no-fault compensation for service personnel on the full compensation measure that you get if you bring a claim in law.
If that were done, it would help with the problem about the shorter limitation periods for tort claims—damages claims—that was raised several times at Second Reading. The British Legion has been quoted several times saying that that breaches the armed forces covenant. I do not want to get into that particular debate, but there is no question that service personnel might, in some fairly unusual situations, find their ability to bring damages claims caught by the proposals in part 2 of the Bill as it stands.
If the Ministry of Defence took forward the proposal that it called “Better combat compensation,” to have full compensation through the armed forces compensation scheme, those worries would fall away. If there was full compensation available without the need to bring a tort claim or negligence action against the Government, any limitations on the time periods for bringing tort claims would be an irrelevant question for service personnel.
Those are two reasons why I would revive what seems to have been the Ministry of Defence’s approach at one point, which was restating combat immunity and ensuring full, no-fault compensation. If you want me to give more detailed comments on the provisions of the Bill I can do that, but I would approach the issues in a quite different way than in the Bill that we have.
Mr Jones
Q
Dr Morgan: The proposal to make that switch is in the joint paper produced by Richard Ekins, Tom Tugendhat and myself that I mentioned at the start. We said in that paper that that there is a case for having a more generous strand within the armed forces compensation scheme applying to those soldiers who cannot bring tort claims at law. In other words, if Crown immunity in warfare were to be revived—the Government already have the statutory power to do that, they do not need an Act of Parliament—and it was decided that you cannot bring claims at all, there would be a case for having a more generous approach within the armed forces compensation scheme to those people. I would not necessarily say the whole armed forces compensation scheme should be upgraded—I am aware of how expensive that would be. If we are going to restrict tort claims of a certain sub-category of injuries to service people, then it would be a good idea to balance that out by having full compensation.
Mr Jones
Q
Dr Morgan: Yes. I confess that I have not looked at the limitation rules of the armed forces compensation scheme. It certainly does ensure cover.
Mr Jones
Q
Dr Morgan: It also gets away from what we see in Smith v. Ministry of Defence: the allegation that the Land Rovers were not the right ones. Once you go to court investigating that in a negligence claim, it is getting into areas that should not be dealt with by a court in a negligence claim, it seems to me. If you are going to stop people from bringing such claims, you had better give them at least as good a compensation scheme without them needing to prove fault. That was our argument in the paper five years ago.
Carol Monaghan (Glasgow North West) (SNP)
Q
Dr Morgan: I was going to comment on Major Campbell; I read about him in the newspaper on Saturday. It seems to me that his case would not have been addressed by these proposals. He was prosecuted in 2006 about an alleged offence in 2003, so that would have been within the five-year period for bringing the prosecution. It is only in 2020, after 17 years, that he has finally been cleared. The point was made in the Second Reading debate by a number of Members that perhaps the real vice is not so much very late prosecutions but the continued investigations by the Ministry of Defence without necessarily leading to a criminal prosecution at all. If I have understood the facts of Major Campbell’s case, it rather shows how a five-year soft cut-off for prosecutions is not going to solve that kind of problem at all.
Carol Monaghan
Q
Dr Morgan: There is a rule in criminal law that if you have been tried in a criminal court for an offence and you are either acquitted or convicted, you cannot be tried again. That is double jeopardy. What I do not understand is why the double jeopardy rule is not applying, by analogy, to these repeated investigations within the Ministry of Defence. That needs to be urgently addressed, and it is not within the Bill. Maybe the Bill cannot do everything, but the Campbell case shows that there is a gap.
Carol Monaghan
Q
Dr Morgan: Yes. Whether this needs fresh legislation or whether it can simply be done by changing the rules, I do not know. I know what Professor Ekins will say, which is that because the Human Rights Act requires investigations into deaths, we are currently limited in what we can do. Perhaps he will comment on that.
Professor Ekins: I am sure the Ministry of Defence has had many failings across the years, but in one sense it needs to keep investigations going and to be open and avoid plodding along. It has done a lot under the threat of litigation—sorry, the reality of litigation—where it is exposed to a duty to investigate in accordance with changing standards over time. Something similar has happened in Northern Ireland, which John Larkin knows much more about than I do. It has been a particular feature of the legacy and the legal cases around Afghanistan. Those conflicts were fought on a pretty sound legal position and on the understanding that the European convention did not apply. The ordinary rules of the law around conflict and service law applied, yet subsequent decisions about investigation or not investigating have been challenged in the domestic courts by way of the Human Rights Act. I cannot see how we deal with that prospect recurring over time without addressing the territorial reach of the Human Rights Act.
The Bill deals with the issue incidentally and in part in so far as derogation, if there is derogation, in advance of future conflicts might help, and in so far as there are time limits on Human Rights Act applications or proceedings. That might deal with some of the risk of historical allegations being made and investigations rolling on. In terms of the problem of people being investigated repeatedly and a prosecution never being mounted, that is not a problem the Bill deals with directly, although I think it probably is the main mischief.
John Larkin: I agree with Professor Ekins that the Bill is somewhat silent on the duration and repetition of investigations. In some cases, that leads to real mischief. It is not much fun for anyone to be finally vindicated after 10 or 12 years have elapsed. They would much rather be vindicated promptly—this applies both in terms of ordinary criminal civil justice as well as in the issue of service personnel—after a thorough and expeditious investigation.
Carol Monaghan
Q
Dr Morgan: It is the point I made, so I agree that it will not solve all of the problems as it stands.
Professor Ekins: Yes, it is a real concern.
John Larkin: I think it is wrong to see a so-called independent investigation as the answer. The issue is not the independence or otherwise of the investigation. In fact, investigations are substantially independent at present. The issue is efficiency and the fairness of what is investigated.
Joy Morrissey (Beaconsfield) (Con)
Q
Joy Morrissey
I would welcome feedback from each of the witnesses. How would you limit the territorial reach of the Human Rights Act within this legislation? You mentioned it as a point, and I wanted to hear how you would do that.
Dr Morgan: The Human Rights Act would have to be amended to say that the Act itself did not apply extraterritorially. Parliament could do that; what Parliament cannot do is of itself reverse the decision of the European Court of Human Rights. The nearest thing to do is for the Government to derogate using the process in the European convention. Those powers are already there in the Human Rights Act.
Joy Morrissey
Q
Dr Morgan: In my view, this is nothing to do with the European Union. This is purely a European convention matter, so Brexit, thankfully, is out of the picture on this particular issue. It is purely a decision of the European Court of Human Rights in Strasbourg, which extended the extraterritorial reach of the convention in the Al-Skeini case.
There are two things that one could do about it. One is to derogate in future conflicts, which the Government have said they will consider doing. Another thing is for the Government vigorously to fight cases, such as Hassan v. United Kingdom, where the Government rather successfully argued that the European convention should be interpreted in line with the law of armed conflict or international humanitarian law.
Those are two things that one could do. A third thing, which would require fresh primary legislation, would be to amend the Human Rights Act so that domestic UK courts may only hear claims relating to things that happen within the territory of the UK. That will not stop the Strasbourg Court from hearing claims against the UK. Parliament cannot unilaterally change the meaning of the European convention on human rights, but it can change the meaning of the Human Rights Act. Richard Ekins is more expert than I, so I would like him to answer.
Joy Morrissey
Q
John Larkin: May I come in on that point? The Member is referring, I think, to decision 2/15 of the Court of Justice of the European Union—[Inaudible.]—incompatible with the European treaty. Many of us smiled at that decision, because it showed the Court of Justice of the European Union was not particularly enthusiastic about being subject to the jurisdiction of the Strasbourg Court—[Inaudible.]—
The Chair
When you write to us on the previous point, Mr Larkin, will you also set out your thoughts on the question that has just been asked? We come to you, Professor Ekins.
Professor Ekins: It was a surprising decision of the Court of Justice of the European Union, holding that the EU was not really able to make a treaty commitment to join the ECHR. It shows that the EU legal order guards its legal autonomy jealously, but I do not think that it helps in this context.
In answer to the question about how one limits the territorial reach of the Human Rights Act, one thing would be to include a clause in the Bill that amends the Human Rights Act to specify its territorial reach. That could be the more limited reach of only applying in the United Kingdom, or it could effectively restate the position as it was held by the European courts in 2003 and accepted by our senior judges for many years thereafter, that the convention applies in the United Kingdom and in some very limited extraterritorial circumstances. I drafted a provision to that effect, if anyone is interested, in submissions to the Defence Committee and in other papers to the Policy Exchange. It is open to question, obviously, but it is certainly possible to frame a limitation in a clause that could be adopted in the Bill. It is not impossible; it depends on whether Parliament wishes to do so.
As Dr Morgan says, though, that would not change the UK’s position in relation to Strasbourg, the European Court of Human Rights. Derogation is an important addition to the meaning of the Human Rights Act. If you want to deal with the prospect of continuing litigation, investigations and reinvestigations, you have to address the scope of the Human Rights Act. The same thing is true in relation to Northern Ireland and those historic allegations as well. The intention is that that should be dealt with in a separate Bill.
Mark Eastwood (Dewsbury) (Con)
Q
Thank you for coming to this session. We referred to Major Bob Campbell previously, and I wanted to follow on from the point made by Carole Monaghan and the evidence given by Major Campbell. He said that he gave evidence after several years of being investigated and reinvestigated, and he wrote to the International Criminal Court to ask them to prosecute him. The ICC actually refused that request. On Second Reading—I am sure you all witnessed the debate—a number of concerns were raised relating to veterans being hauled before the International Criminal Court as a result of the Bill being passed. Do you expect any veterans to be put before the International Criminal Court if the Bill goes ahead?
Dr Morgan: There is a risk that it could happen. I have read the Government’s comments on this, and they point out that prosecutors will remain independent, that it is not an absolute bar, and that it is not an absolute amnesty. All of that is true; but if, in a particular case, a war crime is alleged against a person and it is after five years, and the prosecutor decides not to bring a case because it is not sufficiently exceptional, then in that situation there must be a risk either that the International Criminal Court would seize jurisdiction, or that another member state could apply for extradition of that veteran.
Professor Ekins: I am not an expert on the International Criminal Court, but it is probably correct to stay that there is a risk. That said, prosecutors have a discretion as to whether to bring prosecutions even without the Bill. If a decision is taken not to prosecute in a particular case, then there is a risk that the ICC may take a different view. The ICC should not be taking over prosecutions if the UK—as I think it will even if the Bill were enacted—remains a country that does take its obligations seriously, that does investigate credible cases promptly and that does retain a system of deciding which cases to prosecute, rather than having a rule that they will all be prosecuted regardless of strength of evidence or other considerations such as the passage of time. There have, however, been types of cases in which the ICC has proved to be somewhat political in its decision making. It might turn on who the prosecutor is at the relevant time. It probably does increase the risk. If you ask me whether I expect there to be prosecutions before the ICC, I would say, “Not really,” but that is amateur speculation and not bankable.
John Larkin: I think the risk is modest because, as the Committee knows, offences that are excepted from the reach of clause 1 include genocide, crimes against humanity and war crimes as defined in articles 6, 7 and 8 of the Rome statute respectively. Given that those are not subject to the five-year exceptionality rule, I think it is quite likely that those more serious offences would be prosecuted domestically, because they would benefit from the five-year exceptionality filter.
Mark Eastwood
Q
Dr Morgan: It would have to fall within the definition of war crimes, so one hopes that it is unthinkable that credible evidence of this would ever be laid but, if it were—this is a hypothetical situation—if such evidence existed, because it related to events a long time before, perhaps long before five years, and if the sole reason for not prosecuting was the change that the Bill is making, namely that it was after the five years, then the risk is there. It is probably quite small because, as you say, the kind of situation that will trigger the ICC jurisdiction we all hope would never happen anyway, but that does not mean it cannot.
Mark Eastwood
Q
Dr Morgan: The only point that I would add is that the fact that what is being proposed is internationally unusual I think increases the risk. I probably agree with Mr Larkin that the risk is modest, but I think the fact that it is a five-year time period, which to my knowledge is not visible in any other signatory state of the ICC, increases the risk.
Professor Ekins: The ICC should be focusing on allegations of atrocities, widespread wrongs and so on, rather than on what you might call manslaughter or questions of where the allegations are much more fine-grained, such as excessive force and so on, but there is a risk that the ICC does not always observe the limits that we apply in law to its jurisdiction. There have been instances of somewhat politically motivated decision making. There might still be a modest risk of the ICC going into the kinds of case that are likely to arrive at a place where a decision is made that it is not worth prosecuting because of particular circumstances, a lack of evidence and so on. The risk is probably quite—[Inaudible.] This will only arise if after five years a prosecutor decides that the public interest in prosecuting is not really there. I think it would only be possible for the ICC to justify intervention if there is a sufficiently strong case that would result in a conviction, and disagree about the public interest. That would sound like a surprising ground on which to debate a disagreement on whether a prosecution is warranted. I think it is possible but not very likely.
John Larkin: My point is that genocide, war crimes and crimes against humanity are not subject to the five-year time limit, so if the evidence emerges at eight years, for example, the process envisaged by this Bill—exceptionality assessment—simply does not apply; it will be determined as if it had occurred last week. That is an important point that is lost in legal—[Inaudible]—the international—[Inaudible]—of the Bill, but it has not been sufficiently appreciated that part 2 of the statute of Rome makes an exception for genocide, war crimes and crimes against humanity. They will be prosecuted if the evidence exists domestically, and therefore the risk of a lance corporal being hauled in front of the International Criminal Court seems to me to be fairly minimal.
Mr Jones
Q
Dr Morgan: indicated assent.
The Chair
I think you have to speak as an answer, Dr Morgan, because we cannot otherwise hear what it is.
Dr Morgan: Retrospection is obviously going to add a further layer of controversy on top of this. The question really is whether it should apply to Iraq and Afghanistan after this lapse of time. If you believe that the Bill is the right solution to the problem, then it seems to me odd that that is not being proposed, but I am not convinced it is the right solution to the problem, so I am not going to argue for it to be retrospective.
Mr Jones
Q
Dr Morgan: We have to wait and see what it says. It would be curious if the Northern Ireland situation and the Iraqi and Afghan situations were dealt with in a different way on that issue of retrospection, so I agree with your point.
Professor Ekins: I would question the premise of the question, because as I read the Bill, it does apply to actions taken in the past. It will not foreclose prosecutions or proceedings already under way. It is a procedural change; if the Bill were enacted, say, tomorrow, a prosecution brought the day after that, more than five years after the events in question, would be subject to the regime in the Bill. I think it will apply to Iraq and Afghanistan, save insofar as there are prosecutions that have been initiated or proceedings that are under way. It will not apply to ongoing legal proceedings, but it will be a question sometimes, if I wanted to continue proceedings, where it might apply.
John Larkin: The Bill is, as Professor Ekins has said, significantly retrospective. If one looks at clause 15(6), it says:
“None of the provisions of Part 1 applies to proceedings instituted before the day on which the provision comes into force.”
As [Inaudible.]—
The Chair
Sorry, I think you were looking away from the microphone when you answered.
John Larkin: Clause 15 makes it clear that the Bill does not apply where proceedings have begun or are under way before the day it comes into force, but if they are not under way—[Inaudible]—clearly defined rules can crystallise shortly thereafter, and—[Inaudible]—subject to the exceptionality—[Inaudible.]
The Chair
I think we are going to ask for that answer in writing, as well. The Minister has a very quick question—
The Minister for Defence People and Veterans (Johnny Mercer)
I am happy to pass on it; it has been answered by Dr Ekins.
The Chair
Thank you very much indeed. If no one else has any further questions, we have reached the end of the time allocated. I thank each of the witnesses for their evidence and for being with us in the technical circumstances. Mr Larkin, I am very sorry that we were not able to hear some of your responses; if you are able to write to the Committee on the matters we have come back to you on, that would be very helpful indeed.
John Larkin: I am happy to do that, Chair.
Examination of Witnesses
Ahmed Al-Nahhas and Emma Norton gave evidence.
The Chair
Before we move to our next set of witnesses, I should say that in the event that there is a Division in the House during this session, which there could be—this is for the information of the witnesses as well—we would initially suspend the sitting for 15 minutes. If the vote takes longer than that and Members cannot get back, we will deal with that pragmatically.
We are now joined by Ahmed Al-Nahhas and Emma Norton. Mr Al-Nahhas, perhaps you could say who you are so that we can confirm that we can hear you. I know from my mispronunciation of your name that you can hear me.
Ahmed Al-Nahhas: My name is Ahmed Al-Nahhas. I am a representative of the Association of Personal Injury Lawyers, which is a not-for-profit organisation that campaigns for victims of injuries and negligence. I am also a solicitor advocate.
Emma Norton: My name is Emma Norton. I am the director and lawyer at the Centre for Military Justice. I have developed a dry cough in the last two days, which is why I am appearing virtually—I apologise in advance for any coughing that I may do.
The Chair
Thank you very much in advance for giving evidence today. I will ask Emma Lewell-Buck to start the evidence session.
Mrs Emma Lewell-Buck (South Shields) (Lab)
Q
Ahmed Al-Nahhas: No, APIL’s position is that the Bill does not afford that. We acknowledge the good intentions behind the Bill. However, in respect of part 2 of the Bill, which I am here to discuss—the civil claims aspect—we believe that it strips service personnel and veterans of certain rights in relation to civil claims and their rights under the European convention on human rights.
Emma Norton: I would agree with that and I will not repeat it. I would say that one of the major flaws in the Bill is that it does not address the issue of the investigations that gave rise to all the problems that we are dealing with today. I think you heard that in the previous evidence; it has been a thread that has been running throughout the evidence that the Committee has heard today.
Mrs Lewell-Buck
Q
Ahmed Al-Nahhas: I may pass that question to Emma, who is here primarily to deal with those issues in respect of investigations. My remit is in respect of civil claims.
Emma Norton: I think there were very serious problems with the original investigations that took place into the allegations of harm in Iraq and Afghanistan. That is what made it relatively easy for courts to find that, time and again, fresh investigations needed to be conducted, which then gave rise to further litigation. The responses from the Ministry of Defence to those adverse findings did not go far enough. The investigations that we had had time and again never got to the bottom of what had happened.
As witnesses have said, the longer period of time that you get between the event and the investigation, the harder it is to get to the bottom of what happened. If we were serious about really addressing the issues that Mr Campbell and other veterans have described, we would be looking at what kinds of systems and structures that we could build now and that would ensure that this does not happen again. What kinds of investigations could we set up and design that could function in the context of overseas operations? I am afraid that until that happens, these problems are going to recur and I do not think the Bill addresses them.
Mrs Lewell-Buck
Q
Emma Norton: I am happy to say that I would, personally. That would have been a sensible way to go about it—to have a consultation that would really hear from individuals who had been directly affected by investigations, as well as victims, and to speak to experts who can talk to the challenges of building a really good system of investigations overseas, because it is really difficult and we do not underestimate that. There are lots of things that could be done and could be done better.
There was a service justice review, and I know we are expecting some further responses to the recommendations in that review, but that was published in February and it had taken two years to get to. That contained some really interesting ideas about how we could improve service policing and the quality of prosecutorial decision making. I know that there are lots of other ideas—ideas about maybe getting greater degrees of civilian oversight and input into military policing overseas, or possibly having judicial oversight of decisions to detain insurgents and reviews of those kinds of decisions. It would have been more sensible to have those discussions first and then look at what was needed by way of amendments to the criminal law. It feels very much—we have heard this a couple of times today—that this is a cart before the horse situation.
Ahmed Al-Nahhas: I would add my agreement to that. APIL’s concern is that the impact assessment does not go far enough and is not clear. I would welcome a pause so that a proper impact assessment can be taken and further expert evidence explored.
Mrs Lewell-Buck
Thank you both. My colleague, Kevan Jones, wants to come in quickly on investigations as well.
Mr Jones
Q
Emma Norton: I do not think you can have a set time limit for an investigation. I think an investigation needs to take as long as it takes, as long as it is being conducted expeditiously. The problem with the original responses to allegations of really serious abuse overseas was that those allegations were not responded to sufficiently, certainly in accordance with our convention-compliant obligations, which are that they needed to be sufficiently independent, sufficiently well-resourced, sufficiently prompt, adequate—all those kinds of things. I do not think that setting an arbitrary time limit on what would be criminal investigations is necessarily helpful. If we think about how police conduct criminal investigations domestically, although there are time limits in terms of issues around police bail and things like that, there are no hard and fast time limits within which police need to complete those investigations, although obviously they should do them as quickly as possible, because otherwise the defendant is prejudiced.
Mr Jones
Q
Emma Norton: In terms of how that would function overseas, I can see the benefit. It may be that when you have sufficient levels of civilian input into those investigations or oversight into those investigations, or judicial oversight into decisions to detain in theatre, then that may not be necessary; you could inject that level of requisite independence in those ways. This is something that would really benefit from a wider consultation with experts in criminal law and procedure, who are experienced in criminal law and procedure but also in the challenges of having investigations overseas. We have not had that.
Mrs Lewell-Buck
Q
Ahmed Al-Nahhas: I am sorry, I cannot comment on criminal matters.
Emma Norton: I am not an expert in international criminal law, but if an otherwise credible allegation of a war crime was not proceeded with because of the Bill, that by definition increases the risk that those matters would be taken up by the ICC. That is something, of course, that our Judge Advocate General Jeff Blackett has very real concerns about and has spoken about. I know a lot of others also have very serious concerns about that.
We have heard a lot about veterans and their understandable fear and anxiety. We have heard less from very senior and formerw members of the armed forces who are really concerned about these provisions—the criminal side of the Bill as well as the civil side—and feel they are not in accordance with the Army’s values and standards. The message the Bill will project to the rest of the world about how the Army wishes to conduct itself is really serious, and they feel quite despairing about it. I was speaking to a former brigadier this morning who served 36 years, and he said that he was really ashamed of the Bill. So I think there is a real concern.
Sarah Atherton (Wrexham) (Con)
Q
Emma Norton: What is necessary is for what happened in the past never to happen again—definitely. I just do not think that the Bill will fix it, for the reasons I have given. I will not go over them again, but they go to the lack of willingness inside the MOD to look at those allegations at the time.
I think we are in a different place now. The MOD has learned a huge amount from all those errors. I would say that the MOD has learned from some of the litigation; there have been some very positive outcomes from that, and that is missing from the debate. I just do not think that the Bill fixes those problems sufficiently.
Sarah Atherton
Q
Emma Norton: Hilary Meredith mentioned this morning that the ombudsman could have a role here. I think she was looking at whether some sort of compensation or ex gratia payment scheme could be made or some form of redress could be given to the soldiers subjected to this cycle of investigation. That was a really interesting idea. I know that, separately, the ombudsman is very under-resourced, so that would need a whole separate discussion as well.
The interplay with the service justice system is something you should ask the Judge Advocate General about when you speak to him later, because—obviously—he has huge amounts of experience of issues arising where somebody is not convicted of the main charge but is perhaps convicted of a lesser charge under the court martial.
Liz Twist (Blaydon) (Lab)
Q
Ahmed Al-Nahhas: Good afternoon. I think it is a feature of military claims that service personnel are largely unaware of their legal rights to bring a civil claim. I often find in my own practice—many of our members have also reported this—that they will, in fact, be misinformed of their legal rights. This may be because there is confusion in their chain of command. Indeed, we have heard of many cases in which the chain of command will misinform them and say that they should wait until the end of their service before bringing a civil claim, which usually means that they are out of time by the time they bring a claim. In other cases there is confusion between civil claims and the armed forces compensation scheme, which is a separate, no-fault scheme, which has a much longer period of time in which to apply—normally seven years. In answer to your direct question, I think they are very unaware and, in fact, a lot of the time they are misinformed.
Liz Twist
Q
Emma Norton: Just that that is entirely my experience as well. I have not advised people about overseas claims, but I advise them about claims arising in other respects, and that is a very, very common observation, yes.
Liz Twist
Q
Ahmed Al-Nahhas: There is often a delay. In fact, I have dealt with many hundreds of inquiries, or at least many of the lawyers who APIL and I work with have dealt with many hundreds of inquiries, that are many, many years out of time. You will have calls from service personnel who have just finished their 22 years in service, and they will call up and inquire about the opportunity to bring a civil claim, and you have to tell them that actually they are about a decade out. So, it does vary, but more often than not they are quite a few years out of time.
Liz Twist
Q
Ahmed Al-Nahhas: Absolutely—forgive me for interrupting you, but absolutely I think they could. In fact, at the moment I do not think that they do anything to inform service personnel of their rights to bring a civil claim. I am not suggesting that as an organisation they should be shouting from the rooftops and saying to service personnel, “You should really explore your opportunity to sue us”. However, I think that the Ministry of Defence has an obligation under the armed forces covenant to be fair to service personnel. They do provide them with information about the AFCS, but, as I said, there is a much longer period of time to claim under that scheme.
I think that we also need to bear it in mind that service personnel are quite unique legal creatures in a way. For example, they are not allowed, if we are comparing them to civilians, to join a trade union. So, if you were a civilian and you were injured, you might speak to your trade union and get some advice about what claims you might bring. They may even point you in the direction of a solicitor. That often does not happen with service personnel. So, yes, I think the MOD needs to address this and be fairer with service personnel about the information available to them.
Liz Twist
Q
Ahmed Al-Nahhas: I think that the Bill, as drafted, is potentially in danger of breaching the armed forces covenant, and I will explain why. As I mentioned earlier, service personnel are quite unique legal creatures. They do not actually have the same legal rights as civilians. So, just to take an example, service personnel have very limited rights to bring a claim in the employment tribunal, save for issues such as discrimination. However, if this Bill were to be passed, they would not—beyond the six-year longstop—be able to rely on section 33 of the Limitation Act 1980 in respect of civil claims. They would not be able to bring those claims, which may be worthy but are actually brought very late in the day, whereas civilians might have the opportunity to use section 33 of the 1980 Act.
Of course, the other aspect of the Bill is the stripping away of reliance on the European convention of human rights. So, in many senses, if this Bill were to pass, service personnel would have less civil rights and less human rights. By analogy, they will have less rights than a prisoner, so I do not see how that squares with the armed forces covenant. I am very concerned about that.
Liz Twist
Q
Ahmed Al-Nahhas: If I may, I will answer your question in two answers, because I think that there are two parts to it. The first is the difference between the date of knowledge and the date of diagnosis. The date of knowledge is the date when the courts will infer that a claimant realises that they have a significant injury and makes the connection between that injury and the person whose fault it was. The three-year time limit in civil claims starts from that date of knowledge. A date of diagnosis is a factor that may be taken into account when the court considers the date of knowledge. The court may assume that, if somebody is diagnosed with a condition and is told by a doctor what they have, that will move them a long way toward obtaining their date of knowledge. I think that there has been some confusion about that in some aspects of discussions.
Could I ask you to repeat the second part of your question, please?
Liz Twist
How clear cut are those questions about the date of knowledge and the date of diagnosis?
Ahmed Al-Nahhas: They are not clear cut at all. In fact, they are incredibly complex, because it is about the date of knowledge relating to a particular claim by that particular service person in their circumstances. The facts will change from case to case. You cannot prepare arguments for this sort of thing. You have to assess their merits on a case-by-case basis. They are very complex arguments, and they may well lead to satellite litigation within civil claims.
I wish not to take up too much time on this question, but I will just explain that normally in civil claims you issue a claim and it will proceed on the way. It will take a certain amount of time, evidence will be exchanged and you will end up in trial. When you have date-of-knowledge arguments or limitation arguments, it may well encourage the courts to order a split trial, or indeed the parties to apply for one, so that this issue of the deadline is determined first. That invariably leads to increased costs, in my experience.
Liz Twist
Q
Ahmed Al-Nahhas: Invariably. The MOD has very robust lawyers who do a good job. Like any lawyer, they look to take advantage of the law and to act in their client’s best interests. I am certainly not suggesting that they are doing anything wrong by using these arguments. However, I have never had a case—never—in almost a decade of litigating exclusively against the Ministry of Defence in which limitation is an issue and the lawyers have not raised it or sought to take advantage of that argument in order to either strike out my client’s case or to negotiate a settlement downwards. My answer to your question is: invariably.
Liz Twist
Q
Ahmed Al-Nahhas: That is a difficult question to answer. I think it will definitely have an impact. I do not think that the impact statement that has been released really explores it fully, because it ignores a large proportion of civil claims brought against the Ministry of Defence, which may include elements of overseas operations.
If I can give you just a quick example, the impact study does not take into account noise-induced hearing loss claims. These are complex claims that may involve exposure to harmful noise at any point of the serviceperson’s service, and at different points of overseas operations in different countries. The impact study that has been released ignores all of those claims. In the last year alone, I think the figures released by the Ministry of Defence suggested that 1,810 claims relating to noise-induced hearing loss were brought against the MOD.
My answer to your question is that I think there will be an impact, but we do not know the extent of that impact, and that needs to be explored further.
Liz Twist
Q
Emma Norton: We are talking about civil claims. I am not aware of any evidence that the courts cannot do that. They do it all the time; it is a fairly standard part of civil law procedure. Civil procedure rule 3.4—I think—says that if a claim discloses no reasonable prospect of success, the defendant can apply for strike-out, and the strike-out can be given. There are some really good examples of that happening where the MOD has been the beneficiary. A good example was the second batch of the Kenya litigants’ claims, which were thrown out a few years ago now. Something like 40,000 claims were dismissed on the basis that they were too old and it would be unfair on the defendant, which was the Ministry of Defence, to defend the claims because it no longer had the evidence available to have any reasonable prospect of defending them. The courts are perfectly capable of striking out stale claims and they do it all the time.
I want to pick up on a couple of Ahmed’s points, which were excellent. The point about the Limitation Act is really important. The Limitation Act contains a range of different criteria that, in my opinion, are duplicated by the new criteria that are set down in the Bill. Section 33 of the Limitation Act enables the court to consider whether allowing the claim out of time is going to prejudice the defendant, in particular, or anybody else. It requires the court to have regard to all the circumstances of the case, which would include the fact that the claim arose from overseas operations, and all the difficulties and complexities of that environment. I think the courts have more than enough powers.
Liz Twist
Q
Emma Norton: No, they do not, and I respectfully disagree with the previous witnesses on that issue.
In the Smith case, which Dr Morgan cited, the Supreme Court made it very clear that the principle of combat immunity is absolutely sound. In that case, the Ministry of Defence was trying to expand combat immunity to cover a range of factors that the court said were never intended to be covered by that. It was just heat of battle, in theatre. The families of the deceased—remember, they were young soldiers who got into those Land Rovers, or other vehicles that had been procured, and suffered dreadful injuries and death—wanted to challenge the decisions made by individuals back here in Whitehall, behind a desk, to procure that equipment for use in Iraq. That was the decision that they wanted to challenge. All the court said was that combat immunity did not go that far. It has not been chipped away or reduced. So no, I do not agree with that.
Stuart Anderson
Q
Ahmed Al-Nahhas: I am not going to comment on the criminal aspect, but from my perspective there is a need to protect service personnel from spurious criminal claims, which we are looking into. That brings forward a lot of people who want this Act in place. I am not sure whether that is the incentive behind part 2 of the Bill, which is the civil aspect.
I can share with you, as a representative of APIL, that many of our members have many hundreds of clients who are service personnel. I have been doing this for a long time. The people we act for come to us seriously injured and needing compensation. The tools that are available to us as lawyers are the civil claim route and the Human Rights Act. If you start taking those rights away from veterans and service personnel then you will be, in my view, doing them an injustice.
I do not envy you. I can see that this a fierce debate and there are different sides to the argument. I would caution that that should be a sign to all of us that there should be a pause to the Bill and further exploration. I wonder to what extent the confusion is caused by the fact that the Bill tries to do two things. It tries to resolve the issues in respect of criminal law and it also addresses civil issues, which are incredibly different. That is a cautionary word that I would pass to you.
Emma Norton: We heard some compelling and moving testimony this morning. I was particularly struck by the gentleman from the British Armed Forces Federation—in fact, both witnesses spoke about the fear in the veteran community about being dragged off to court and having knocks on the door at 3 o’clock in the morning. Both of them indicated that they felt that that fear was ill founded and based on misunderstandings of what is actually happening.
Looking at the number of prosecutions that have actually been brought, let alone the number of convictions, it is quite stark. It is a very small number, and it is not reflected in the level of fear and anxiety in the veteran community. I do not underestimate that, but I think the question becomes: what do we do to meet that fear and anxiety? How do we reduce it? We reduce it by being honest with them about the real extent of the problem and by addressing the causes of the problem, which were the failures, early in the day, which the Minister acknowledged—the early failures to investigate these allegations. Had that happened, the unfairly accused would have been exonerated years ago and the victims would have had justice as well.
That is my concern about the Bill: veterans think that they want it, and I understand that, but I am not entirely sure. Indeed, the previous witnesses all agreed that it does not address the issue of investigations—the Attorney General for Northern Ireland has said it does not address the issues of investigations.
Stuart Anderson
Q
You say these things amplify the fear. The veteran community is very small, so we all know someone who is expecting a knock on the door. That is really amplified, because there is a brotherhood and sisterhood that has gone through the forces. When one person is affected, everybody is affected. Nothing has been brought in so far, and now we are at the start point. A major fear I have is that I keep hearing people saying stop. It has taken decades to get here. I do not know how long I will be a politician, but if I have a long career, we could still be saying stop, because people will never find a perfect Bill.
I hear what you are saying, but I think it goes against what the veteran community wants and is crying out for. As you have heard today, and with the greatest respect—I value what you are saying—every person we are seeing has a different view on this. As politicians, we need to find the best way to get the Bill through. If the Bill were to be stopped, I know the absolute lack of trust and heartbreak that the veteran community would feel. We have to use what we have and move that forward. I respect what you have said, but I felt that it was important to express how the heart of the veteran community is feeling about this.
Emma Norton: I do understand that. You say that every person that has appeared before you has a different view; in fact, it has been a running thread throughout all of this. Everybody seems to agree that the problem is the lack of independence in those early investigations, and we still have a lot of questions, and need to have discussions, about how to improve that. If we addressed that, it would be a much safer basis to proceed and face the future. It would also be litigation-proof for the MOD; if you have investigations that are solid, independent and secure, they would be litigation-proof. That would be good for the victims, and it would be excellent for the soldiers.
Carol Monaghan
Q
Ahmed Al-Nahhas: Yes, I believe so. What you are giving veterans with one hand, you are taking away with the other. That is a confused approach to legislation, and I am very concerned about it. Does that answer your question?
Carol Monaghan
Q
Emma Norton: I do not have much to add to that, except to say that I agree and that it is quite extraordinary that part 2 will only benefit the Ministry of Defence, and the Ministry of Defence is the defendant in all those claims. That is quite extraordinary.
Carol Monaghan
Q
Ahmed Al-Nahhas: There is definitely a risk with any hard stop. APIL’s main concern is that taking away the flexibility of section 33 is a real danger. You are touching on accountability here; I heard your question to the previous academics about that, and it is important.
May I share an example from a case of mine? It was the wife of a serviceperson who died in Iraq in 2005. At the time he died—he died in a Snatch Land Rover due to an improvised explosive device—she had no idea whatsoever that the Ministry of Defence was culpable in any way. It was not until more than a decade later, when the Chilcot report came out, that fingers started to be pointed towards the Ministry of Defence. That report stated that the provision of Snatch Land Rovers was woeful and put service personnel’s lives at risk.
The wife later sought to bring a civil claim for her and her children. At that stage, 10 years after the death, her claim was already technically out of time. We had further delays because she was dealing with cancer and going through treatment. That sounds like quite an exceptional case, but we have had similar situations—I brought a claim that technically was out of time, and if this Bill had been in place, that claim could not have proceeded. The claim was settled for several hundred thousand pounds, and brought her some justice and some compensation.
I mention that example for two reasons. First, you are talking about the accountability of these investigations that take so long; secondly, adding to that the complexity and problems of a Bill that introduces a longstop is opening the doors to some real problems here.
Emma Norton: May I make a quick point on that? Another thing that is overlooked is the benefit of some of this litigation that we are discussing now to soldiers and the MOD more widely. The Snatch Land Rovers are a good example of that, because those Land Rovers are no longer used in those kinds of conflict. If those families had not brought those claims, we would not be in this much-improved situation. That is an example of the positive outcomes of litigation, and that is worth reminding you of.
Carol Monaghan
Q
Ahmed Al-Nahhas: Yes, potentially. It would not encourage people to come forward and bring claims. It is normally a very brave lawyer who takes on a case that is out of time in the first instance; the reason section 33 is there is that it allows flexibility only in the most exceptional of cases. If you were to take that away and introduce this Bill, you would see less litigation on these issues. Emma raises an important point; it is certainly my experience and the experience of our members that it is primarily through litigation that organisations such as the MOD listen and change. That is one of the aspects of removing those protections that causes us great concern.
Carol Monaghan
Q
Ahmed Al-Nahhas: That is one of the big problems with this Bill: it will encourage a great deal more argument. As I said in my answer to the previous question, I think the Ministry of Defence will seek to use this Bill to strike out claims. Using noise-induced hearing loss as an example, as you did, that is a very typical injury that service personnel suffer. They normally get compensated through the AFCS, but where there is negligence, they can get significant compensation. By “negligence”, I mean where the Ministry of Defence has, for example, not provided sufficient training or sufficient equipment to protect that serviceperson’s ears.
Those exposures to harmful noise can happen throughout a career. It becomes very complex, because as a lawyer you are investigating the entirety of someone’s career, with their medical records in one hand and their personnel file in the other. You are looking at overseas operations, maybe in Iraq or Afghanistan, and you have to explore whether they were exposed to a certain level of noise that may have been harmful. If I can put it simply, they are complicated enough as they are. Introducing this Bill will only do two things: it will increase the challenge to service personnel in bringing claims, and it will complicate claims unnecessarily.
Carol Monaghan
Q
Emma Norton: No, I do not have anything to add on that. I was just going to say that there are often references to the armed forces compensation scheme, and it might be worth briefly mentioning on behalf of service personnel how dreadful they find it to try to operate that scheme. Ahmed has more experience of this than I do, but a lot of my clients have described to me how bureaucratic, difficult, slow and stressful it is, and it is true to say that the awards you would generally expect to recover from that scheme are significantly lower than those you would expect to recover if you succeeded in court. Ahmed will correct me if I am wrong about that, but I think it is a point worth making.
Carol Monaghan
Q
Ahmed Al-Nahhas: I am struggling, to be honest with you. As Emma pointed out, this is all about civil claims that are brought against the Ministry of Defence; it is not about civil claims that are brought against service personnel, so I am really struggling to find any advantage for service personnel. When you are stripping away their access to section 33 of the Limitation Act, you are ignoring those exceptional cases in which a judge may think, “You know what? This case is out of time, but there are really good reasons why we should proceed with it.” It may be for reasons of accountability, which we have touched on, or it may be because that particular claimant deserves some justice. When you start stripping that away and then start stripping away the protections under the Human Rights Act, service personnel are left vulnerable—more vulnerable than civilians, more vulnerable than prisoners. I do not understand what advantage they are getting out of this.
Emma Norton: I agree with that. I do not have anything to add to that.
Mr Jones
Q
Ahmed Al-Nahhas: There are, sir. They are published by the MOD on an annual basis. The MOD split the figures according to the type of claim that is being brought. What you are looking for is what they term employer’s liability claims. The figures are available online. I am happy to provide them, but I am sure you have quicker access to them than I do.
Mr Jones
Q
Ahmed Al-Nahhas: They do split them. I do not have them to hand, unfortunately, but they separate them out, so maybe you will glean more from that. I am sorry that I cannot assist further. My understanding is that the Bill will affect the vast majority of the civil claims that are brought against the Ministry of Defence, which are the employer’s liability claims. The main provisions that the MOD break them down into are non-freezing cold injury claims, which are a mainstay of civil claims that are brought, and are in relation to negligent cold exposures, and noise-induced hearing loss, in relation to negligent exposure to loud noises. The others relate to industrial disease—things like asbestos—and then they have a quota that is defined as “other”. With a freedom of information request, we may be able to dive a bit more into those statistics. I hope that helps.
Sarah Atherton
Q
Ahmed Al-Nahhas: That is a very good question. It depends on what they agree with their lawyer. In the industry, the norm is to provide something called a conditional fee agreement. Where you can establish that a claim has good prospects of success, you may, as a lawyer, offer a service person’s family, in relation to your example, a CFA, where you do not charge them unless you win. It is conditional on certain terms. These days, there are a lot of rules that regulate how much lawyers can charge. Normally, for example, and taking a rule of thumb, they cannot exceed the damages that you recover for the individual. In the past, there were fewer constraints on the extent of lawyers’ fees.
There are lots of lawyers out there who are specialists and who offer no win, no fee agreements to service personnel and their families. The only way that service personnel or their families may be required to pay legal costs normally is that they sometimes have to pay a chunk of their costs, related to what lawyers would define as unrecovered costs, which are things that they cannot recover from the Ministry of Defence, but as long as the claim is successful, in this context, it would be the Ministry of Defence that pays the lawyer’s bill. I hope that answers your question.
Stuart Anderson
Q
Ahmed Al-Nahhas: It depends on the terms offered by the lawyers. They can vary, typically between 15% and 25% of the damages that are recovered. There are certain caps, but that is typically what you might find in the industry.
Peter Gibson
Q
Ahmed Al-Nahhas: As I am representing APIL, I would not be able to share specific numbers, but I am very happy to share my experiences on section 33. I would say that it is a small fraction of cases that are pursued that will have to rely on section 33.
Peter Gibson
Q
Ahmed Al-Nahhas: To give you an idea, it may be that two out of 100 cases that we manage would be at risk of being out of time—maybe 5% at most. On whether or not you succeed with a section 33 argument, well, the only time I went to court on a section 33 argument, I lost. I took it to the Court of Appeal, and I lost there, too. I think that might indicate to you how difficult it is to succeed there. The judges really do not engage in a liberal application of section 33.
As a lawyer, if you are partaking on a case that is out of time, you need to be brave, and it is very rare. Often or not, in some of these cases where there is a section 33 argument, they may be settled along the way, but the fact that the claim is out of time might be a factor that affects the settlement figure. I hope that answers your question.
Peter Gibson
Q
Ahmed Al-Nahhas: In answer to your direct question, yes, it is incredibly rare that you use it, but that is dependent on the lawyer and whether they are willing to take on riskier cases. On the whole, it is not something that lawyers engage in easily. But the key about section 33 is that you will come across those cases, like the one I explained earlier involving the widow of the serviceperson, where they are demanding justice. They are worthy cases, and you use section 33 because that is the flexibility in the system. That is the conduit through which judges can achieve justice, even if you are out of time.
Peter Gibson
Q
Ahmed Al-Nahhas: That depends on the definition of win. What is interesting is that most of the claims—civil claims in this area—will tend to settle. The MOD will publish, with the same document I mentioned earlier, the figures in respect of settlements that it pays out. I think that last year it spent £131 million in respect of compensation and legal costs. I do not think it has separated what is legal costs—
Peter Gibson
Q
Ahmed Al-Nahhas: I could not give you an accurate estimate here. I am a representative of APIL, representing hundreds of solicitors across the country in this field. It may be that I can provide written evidence, if that would assist the Committee.
Peter Gibson
That would be welcome, thank you.
Ahmed Al-Nahhas: Of course. I am sorry that I could not assist you immediately.
Stuart Anderson
Q
Ahmed Al-Nahhas: I have no idea. They may need to rely on charity. They may need to rely on family. They have very limited options. Actually, they often have a big challenge: they need to find a specialist in this field to begin with, because it is not easy to sue the Ministry of Defence and it is not easy to understand the specialties and complexities of such cases. They will often go to another lawyer for a second opinion, and one hopes that that lawyer would take on their case, but there are no guarantees, and particularly on cases that are out of time. You may be going around the houses to tens of lawyers who will all say to you, “I’m really sorry, but you are out of time. There is nothing I can do for you.” That is one of my concerns with the Bill.
Stuart Anderson
Q
Ahmed Al-Nahhas: I would say, on average, in my own practice, probably between 70% and 80% of inquiries that come in will be rejected because they are out of time. Forgive me, that is anecdotal and off the top of my head. I was not expecting that question but, if it gives you an idea, the vast majority of the inquiries we get are from people who are frankly out of time.
Mr Jones
Q
Ahmed Al-Nahhas: It should not—it definitely should not. You are taking away legal rights from service personnel who already have fewer legal rights as it is. You really are stripping the tree there.
The Chair
If no other Member wishes to ask a question, I thank both our witnesses for their contributions to the Committee this afternoon. Thank you very much indeed.
Examination of Witnesses
Martha Spurrier and Clive Baldwin gave evidence.
The Chair
Q
Martha Spurrier: Hi, everyone. I am Martha Spurrier and I am a lawyer and the director of the human rights organisation Liberty.
Clive Baldwin: I am Clive Baldwin, senior legal adviser with the international organisation Human Rights Watch. It is perhaps also relevant to the Committee that I was previously involved in training the UK armed forces and other armed forces on detention practices and international law.
The Chair
Thank you. We are expecting a vote in the House imminently; I will have to suspend proceedings for about 15 minutes in that event. We will begin the questioning with Chris Evans.
Chris Evans (Islwyn) (Lab/Co-op)
Q
Given that the Government have managed to exclude sexual offences from the Bill, do you see any reason why torture should not similarly be excluded?
Clive Baldwin: No, there should be no reason. Not just torture but other international crimes should not be excluded, particularly war crimes, crimes against humanity and, indeed, any other international crimes, such as enforced disappearances that the UK is obliged to investigate and prosecute. For the reasons given by the Secretary of State, sexual offences have no place in armed conflict, and neither does torture or war crimes. The exemption should be very clear. Even in international crimes, particularly war crimes, it is a very clear principle of international armed conflict law that there should be no statute of limitations on war crimes, because of the difficulties in investigating them. Anything that starts to look like a statute of limitations on war crimes risks the UK violating its international obligations.
Martha Spurrier: I entirely agree. I cannot see any legal or moral justification for not including torture and other war crimes in that schedule.
Chris Evans
Q
Clive Baldwin: The triple lock, as it is set out, is quite worrying, particularly for those international crimes, because it seems to be creating a block to prosecution. The first element is the five-year limit, together with the presumption against prosecution, which is quite unique. I am not aware of any other country having something similar, especially for those international crimes.
The third part of it—the increase in the powers of the Attorney General—is a position that we at Human Rights Watch have objected to for some time. The Attorney General is an unreformed legal position that essentially remains a member of the Government and should therefore have no role in determining individual decisions on prosecutions, although of course the Attorney General still has some of those powers. The increase in the power to effectively block prosecutions gives the risk of all this appearing to be a political attempt to make it extremely difficult in an exceptional situation—as the draft Bill says—for war crimes, torture and other international crimes to be prosecuted.
The second element in the triple lock is the taking of facts into account. Those are relevant factors—the situation on the ground and the situation of forces personnel—but those are situations that should be taken into account anyway, particularly when prosecuting war crimes, as war crimes are designed to be crimes that apply on the battlefield and in situations of armed occupation. There are many other issues that should be taken into account as well, not least the need for justice, the seriousness of the offence and the seniority of the person responsible.
Martha Spurrier: On the stated intent and whether the triple lock is a rational answer to that stated intent, as far as I understand it the stated intent of this Bill as a whole is to deal with so-called vexatious claims. It is clear from the statistics that it is not a significant number of civil claims that are, in fact, properly termed as vexatious. Of course, it is also important not to conflate civil and criminal cases. There is not really such a thing as a vexatious criminal case. That would bring suggestion that the state was abusing its powers in prosecuting something, and I do not understand that that is being suggested.
The way to meet that stated intent is to deal with the inefficacy of investigations as they currently stand; it is not to impose a triple lock on dealing with very serious crimes committed by military personnel. That deals with an entirely different proposition, one that we say is deeply problematic—that there is no justification for the five-year time limit, no justification for a list of factors to be taken into account by a prosecutor, which exclude things like the public interest in upholding the accountability of the military and the public interest in victims having their voices heard, and there is no public interest in there being an Attorney General’s veto in what is often a very highly politicised context.
The triple lock does not meet the stated intent, but in and of itself it is not something that Liberty and other organisations can stand by, because it amounts to a chilling effect on prosecutions for serious crimes and effectively a culture of impunity in the armed forces.
Chris Evans
Q
Martha Spurrier: Absolutely. If you have a triple lock on prosecution, it must be right that your intention is to make prosecutions harder to bring. If you have been the victim of an injustice, whether that is because you are a civilian victim abroad or you are a serving man or woman who has been the victim of an abuse of justice by the UK military, those three locks on you getting justice could very easily act as a bar. They are an additional three hurdles that an ordinary, if you like, victim of crime would not have to cross in order to seek justice, accountability and punishment for what they have suffered.
Chris Evans
Q
Clive Baldwin: Absolutely. Particularly in the situation of crimes that may have been committed overseas, it is very difficult for victims to achieve justice, for many understandable reasons, in those cases. This makes it even more difficult, in that after five years it becomes the exception rather than the rule to prosecute. This is just focusing on part 1, the criminal side. It does run the serious risk of creating injustice.
Mr Jones
Q
Clive Baldwin: No, I am not aware of any international law or even system that has something like that. Some countries have statutes of limitations—absolute time limits for the prosecution of minor offences, or relatively minor offences. Certainly, when it comes to war crimes, as I have said, there is a very strong international law, under the law of armed conflict, that there should be no limitation period for war crimes.
As you say, this is quite a strange law. It would create a very strange situation and I think, as Martha was saying, that it will have a very chilling effect, not just on prosecutions but even on criminal investigations, because those doing the investigation will know that there will be a presumption against prosecution.
Mr Jones
Q
Clive Baldwin: Internationally, there are standards, as with the independence of the judiciary, that prosecutors should be independent and not subject to interference by politicians or Ministers on individual cases. Of course, Ministers may be at the head of the prosecution system. Some countries do this better than others, and there are very different types of systems. In the United States, for example, Attorneys General are elected, which creates its own political problems. However, the move has generally been very much towards making prosecutors, and that prosecutorial decision to prosecute or not, as robustly independent as possible.
One country that had a similar system to the UK was Kenya. When it had a major constitutional reform, it made sure that the Attorney General became a very apolitical, non-political position, because of the importance of the Attorney General in making these decisions about prosecutions.
Chris Evans
Q
Clive Baldwin: Yes. As an organisation that works very closely on international criminal justice, including with the International Criminal Court, I would say that this Bill, unamended, would probably significantly increase the risk of UK service personnel and others facing investigations from the International Criminal Court, or perhaps in other countries, on the principle of universal jurisdiction for international crimes such as war crimes and torture—universal jurisdiction being that principle that a crime like torture should be prosecuted anywhere. There is a duty under international law that countries have to criminalise, or make it possible to prosecute, or extradite, anyone suspected of torture found in their territory.
The Bill, unamended, would increase that risk because it does not exclude all forms of international crimes—war crimes and torture. The International Criminal Court and others will consider whether the UK is willing and able to genuinely prosecute such offences, and given that the Bill would include those offences, would create this triple lock and would create effectively a presumption against prosecution after five years for those offences, it creates the serious risk that the UK would not be considered willing to prosecute offences after five years. That would increase the risk that the ICC or other countries would seek to prosecute such offences.
Martha Spurrier: I agree. The phrase to remember is that, when looking at whether to prosecute, the ICC will think about whether the home country is willing and able to bring forward a prosecution. If you have a stated legislative intention from Parliament, with a triple lock and with a schedule that you have said you are not going to include torture and war crimes in, that telegraphs pretty clearly to the ICC and others that the UK Government and UK prosecutors are unwilling and unable, and therefore that those prosecutions would have to take place elsewhere.
Chris Evans
Q
The Bill obviously extends beyond the traditional battlefield. Are you thinking of areas where we have deployed UK troops on peacekeeping missions and they may or may not have committed offences there? That is just an example.
Clive Baldwin: It is difficult to say; I have not seen any indication from the Government of where they would intend this. Of course, if the Government made a very specific commitment to exclude all international crimes, they could exclude new international crimes. Enforced disappearances would be one, and perhaps others that might arise and that the UK may sign up to. However, I worked for several years in Kosovo on justice issues during the peacekeeping operations and, as you mentioned, in situations of peacekeeping many issues arise about day-to-day crimes—traffic offences, even, and elsewhere—that the Government may or may not choose to exclude, depending on the nature of the peacekeeping mission.
If a peacekeeping force is part of building a justice system and there is a functioning justice system in the country, it may be that the Government may choose to make some of those crimes part of it. On a wider picture, giving that power to the Secretary of State, when it is done on an ad hoc basis, mission by mission, will produce uncertainty and lack of clarity about what crimes will be prosecuted. That is something it is quite important to be really clear on, because if anything is amended in the Bill now, it is a very clear and simple statement that no international crimes are part of this Bill; they are all excluded.
Martha Spurrier: The danger of secondary legislation for lawyers is, of course, that, as the Committee will be aware, it simply does not receive the parliamentary scrutiny that primary legislation would. The very real concern with this delegated power is that, as Clive said, you could end up taking away or adding really serious international crimes; you could also conceivably say that the Minister might, by secondary legislation, make changes to the Human Rights Act. That would be pretty unprecedented in parliamentary terms. We have seen over the past few months with the coronavirus regulations how much the state can do without parliamentary authority. We are deeply concerned about the extension of the use of secondary legislation to make such substantive changes that will impact on people’s rights.
Chris Evans
Q
Clive Baldwin: No, for the reasons you say. My organisation works a lot on these situations of violent conflict and the intersect between human rights law and the law of armed conflict, and we are seeing a breakdown in what is the beginning and the end of an armed conflict, what is the battlefield and what decisions are made in which country—you mentioned drones, but there are other decisions made within a country, and cyber-warfare is coming.
The artificial distinction of an overseas operation with a clear beginning, a clear theatre and a clear end is one that is very much breaking down. The distinction of when an armed conflict begins and ends is becoming murkier in many ways, especially non-international armed conflict. The idea of having one rule for overseas operations and one for domestic operations will be increasingly artificial, and that lack of clarity about the real application of such situations and such laws will be another danger of this Bill.
Martha Spurrier: The definition, as Clive says, is unclear but it is also over-broad. In my mind, there is no justification for including in that definition things such as peacekeeping missions. What the definition should be focused on is restricting those powers to active hostilities, which could then include, as you say, a future-looking way of envisaging modern warfare, but should still be restricted only to active hostilities. There is simply no justification for taking these extraordinary powers any wider.
Mr Jones
Q
Clive Baldwin: Speaking from personal experience in Kosovo and Bosnia, and from the experience of my organisation, the rules and laws that apply to overseas armed forces in these operations vary very much from time to time. You may have formal peacekeeping operations, where the armed forces have to act as domestic police officers and do domestic policing work, or you may have a strange and unclear overlap. To some degree, that was the situation in Iraq in the last decade, especially as the occupation formally ended after one year in 2004, although British forces remained for four or five years after that with special powers. Sometimes you have stated forces agreements between countries, and sometimes you do not, so it is very unclear. The actual criminal law, and crimes that have been committed by forces or that are alleged to be committed by forces also vary from war crimes in the battlefield to war crimes in occupation, but if you—[Interruption.]
The Chair
We cannot hear you, Mr Baldwin, because we have a Division in the House of Commons that requires the bell to ring. I am suspending the sitting for 15 minutes and we will come back to your answer to that question. The Clerks will remain in the room, so if there are any unexpected issues they will remain in contact with you.
The Chair
We are formally resuming proceedings. I ask Chris Evans to continue his line of questioning. When Mr Jones comes back, I will ask him whether he wants to resubmit the question that he asked before the suspension.
Chris Evans
Q
Clive Baldwin: If the Bill were made retrospective, and I think it is not quite clear whether it would be for existing investigations that have not proceeded to prosecutions, but even if it were, I think that creates even more problems. With the ICC, there is currently a preliminary examination, which might then proceed to an investigation, for the reasons previously stated. More broadly, we would say that the Bill does not fix any of the problems about criminal investigations, because part 1 is trying to limit prosecutions, and there have been so few prosecutions in any event. We would say the problem recently in Iraq and Afghanistan lies with the lack of prosecutions dealing with the evidence that some more crimes—limited, but some—were committed. That has been the problem.
Martha Spurrier: I agree with Clive. The Bill is a huge barrier to victims, as I have said, whether they are civilian or service personnel seeking justice. It has no bearing on the problem that it is purporting to solve and it will make accountability for human rights violations and serious crimes harder. To make it retrospective would simply enlarge the scope of what is already going to be a bad law.
Chris Evans
Q
Clive Baldwin: Not at all. We have been following and looking at the issues in Iraq, particularly, and in Afghanistan, and not just with the UK, but also with other countries. The problem on the criminal side is that the military criminal justice system has not shown itself fit for purpose in these particular situations of overseas investigations, which are very complex. We need a system that is fair, speedy for size, transparent, effective and independent. We would say that you start with trying to look at the problem and fixing that, so that there are investigations on the criminal side first that are as speedy as possible and fair. Once you fix that, you can look at what other measures might be needed. This problem starts with the prosecution side, which, as I said, has not in itself been the issue, because there have been so few prosecutions.
Martha Spurrier: That is absolutely right. The answer to the stress faced by service personnel is to deal with investigations: to make them thorough, to make them independent, to make them fast, to get them done to a high standard, and also to offer proper support to service personnel and victims. You heard from Major Campbell today, and he has been clear in his public statements that he does not feel that the Ministry of Defence supported him through the repeated investigations he faced. Presenting the Bill as a solution to what people like Major Campbell have faced is, frankly, offensive to the trials he has been through. It is not an answer to that problem. Nowhere on the face of the Bill does it deal with investigations.
Chris Evans
Q
Clive Baldwin: To answer the second question on the law of armed conflict, you say “pushed to the limit”, and, as I said on one particular element, if it starts to look like or resemble a statute of limitations on war crimes, that does violate a basic principle of the law of armed conflict. If you are suggesting that anyone would then feel that they could push any other crimes, or commit crimes with impunity, that may or may not be the case, but it would certainly encourage people to delay investigations to cover up, which is something that we have seen in Iraq and Afghanistan.
Also, the UK has a fairly poor record in actually prosecuting crimes committed overseas, despite there being public inquiries and investigations. Only when you have some of the clear cases of torture being prosecuted do people become aware of what is or what is not torture. One example from Iraq relates to torture practices, such as sensory deprivation and hooding, that the UK said in Northern Ireland 40—then 40, now 50—years ago were unacceptable, and should not recur. They started recurring in Iraq. You might say that that was because there has not been a clear prosecution of such cases as torture. It took an English judge in one of those civil claims in the past few years to say that these practices should have no place in the 21st century. That is why you need some litigation. Of course, the innocent and the accused who have not committed any crimes also get tarred with the same brush if these investigations go on and nobody gets prosecuted. You need a prosecution to clearly identify the few people responsible for war crimes, and to make sure that those individuals are held responsible and not the armed forces as a whole.
Martha Spurrier: Clive has covered the second question, so I will take the first one. When you start with a Bill that does not deal with the problem you are trying to solve, it is quite difficult to answer the question of how to make it deal with that problem. There are lots of practical things that the Government could do to try to make investigations better. The recommendations from the Service Justice System review would be a good place to start: issues about things such as independence and fast pace, and doing basic investigative things like taking witness statements promptly, gathering forensic evidence effectively, and so on. All of those things can and should be done, and they should be a matter of priority. The Bill cannot and will not do any of those things.
You could amend the Bill to knock off some of its most egregious aspects. You could include torture, war crimes and crimes against humanity in the schedules. You could remove the triple lock by taking away Attorney General consent, by removing the presumption against prosecution in relation to the time limit, and by balancing out the factors that a prosecutor would have to consider before proceeding with a prosecution. That would not cure the Bill and would not make it a good piece of legislation, either from the perspective of accountability, justice and human rights, or from the perspective of trying to solve the problem that the Government purport to be wanting to solve.
Stuart Anderson
Q
Clive Baldwin: To clarify, I was not saying that it would encourage it. I am responding to the question that seemed to be saying, “Would it lead to anyone trying to stretch the law of armed conflict?”. If a law creates impunity for offences and makes sure no one gets prosecuted, it may make those offences more likely. I would repeat that torture was admitted but never prosecuted in Northern Ireland in the 1970s, and the same techniques—the same type of torture—was repeated in Iraq in the 2000s. That is because you need prosecutions. You need people to be aware that they will face prosecutions for an offence. If they perceive that an offence will not be prosecuted after five years, it will make it more likely even for the investigations to be delayed to that moment and for offences not to be seen as, very clearly, “This is criminalised. This is unacceptable. These are crimes that will be prosecuted.”
Stuart Anderson
Q
Clive Baldwin: I do not think anyone would be briefed. When I was involved in training the armed forces in detention we were very clear, and everyone was very clear—these are the crimes. What has been interesting, as well, though, is that there are some elements which are just, traditionally, not being prosecuted in the United Kingdom. One of the keys is that senior people do not get prosecuted for war crimes in the United Kingdom—senior military people, even Government Ministers—under the principle of command responsibility, which is an international element of war crimes. It was put into the International Criminal Court Act 2001 in the UK, but to my knowledge and others’ no one has even been investigated under that.
It was only when I used to brief people in this country and other countries about that element, people sit up and take notice, because it makes people aware that as a commander you could be criminally liable if you fail to prevent war crimes or if you fail to prosecute them. It is elements like that—you only become aware of that when you actually see people being prosecuted for it and know that it is liable. Again, if it comes after five years it is much more difficult and there is a presumption against prosecution: that is why the words matter. Something like a presumption against prosecution—it sounds like it would be very difficult, it would be exceptional, to prosecute. That would send a very difficult message, both internally and externally in the rest of the world.
Stuart Anderson
Q
Martha Spurrier: I absolutely would support a Bill that protected service personnel, because, as I am sure you know, Liberty has done a lot of work supporting military personnel and their families to find justice. What I think about this Bill, as I have said, is first that it is setting up a solution to a problem that is often mis-stated; and then the solution does not fit the actual problem.
In my view what service personnel need, to be protected, is to have an absolute assurance that any investigation that they face will be dealt with fairly and independently, and to an extremely high standard. One would hope, therefore, that that would mean that they do not have repeat investigations hanging over their heads for many years, which obviously is an unenviable and miserable situation for any human being to find themselves in—but that Bill will not deal with this.
I appreciate the lens of saying that it will create a culture of impunity, in the sense that I do not think anyone is suggesting that you would go out to the battlefield and commit a crime in the hope that you could delay being noticed for five years; but the fact is that there are plenty of reasons why five years might elapse before an effective independent investigation can be undertaken, either to exonerate someone who has wrongfully been accused, or to convict them. That could go for torture survivors, for example, who are often not able to come forward for a number of years because of the trauma they have faced, and for serving military personnel, who often do not feel able to come forward, including if active hostilities have been continuing for that whole period of time.
I do not think it is about saying, “Well, let’s just bin the Bill, and then do nothing.” There are plenty of constructive things that one can and should do in order to support military personnel. I just do not think that this Bill achieves those things.
Mr Jones
Q
Clive Baldwin: It is important to distinguish between the three types of investigation that the MOD and service personnel have faced in the last 20 years. One is public inquiries, which should be about the general situation and general problems. They should be for learning lessons and to find out the truth about what went on. There are then civil claims that are brought against the Ministry of Defence, sometimes by service personnel and sometimes by others who have claimed to be victims, some of which have been upheld and some of which have not. Then there are criminal investigations.
I am not sure about this Bill. Improving investigations would be better done in a wholescale reform of the military criminal justice system, which we hope will happen in the next armed forces Act and has been promised for many years, that is based on rights, fairness to the accused, those investigated and alleged or real victims, and some basic human rights principles, such as double jeopardy, which has already been mentioned. Generally, no one should be prosecuted twice, once finally acquitted or convicted for the same offence, and they should not face repeat investigations for the same offence.
Strengthening of those conditions and some fundamental principles, not just of human rights law but of English tradition, such as habeas corpus, having judges control detention and having every detainee brought before a judge, not only deters abuse but protects those doing the detention, because they can say, “We had a record and the judge controlled the detention.” Records made at the time make it much easier to investigate afterwards. There are a lot of recommendations for the justice system. They are probably better done in a military justice reform Act rather than in this Bill.
Martha Spurrier: I agree with Clive. There are plenty of good and constructive things that one could do to the military justice system in order to make it fairer for all concerned. This Bill does not do that.
There is a danger in saying that the way to cure the deficiencies in the Bill is to effectively add a section on investigations. That would deal with the fact that investigations are missing, but it would not deal with the fact that what you have in the rest of the Bill is a system being set up that creates a culture of impunity in the armed forces. It means that bringing criminal prosecutions for the most serious offences imaginable will become much harder. That is why I think both Clive and I are now saying that this simply is not the vehicle.
This Bill cannot be cured by adding things in about investigations. That is something that will have to be done separately. There is a real danger of losing focus on the egregious parts of this Bill, which will damage the standing of the armed forces abroad and damage the UK’s reputation as a leader in human rights. That is why you have seen many people, including people from the military, coming out with grave concerns about this Bill, whether you take Lord Guthrie or the Judge Advocate General. These are people with high standing in the military who have real concerns about what this piece of legislation could do to the integrity of the British armed forces.
Chris Evans
Q
Clive Baldwin: On the international side, which is what my organisation works on—I will be brief, because Liberty’s focus is on this—there are many reasons why claims, brought both by members of the armed forces and by others in different parts of the world, may take some time. We have seen them on rendition cases and others in the last year. It is partly because people may not be aware of damages in a case, or because evidence did not come out, as the only people aware of the crimes that may have been committed were those who suffered them and the persons who were responsible, or because other types of claims could be made. There are many reasons why, particularly for overseas operations, flexibility around time limits would be vital in order to secure justice.
On an international level, particularly when it comes to torture, there are quite a lot of international standards that say countries need to give an effective remedy to people who suffer torture allegations. It needs to be a fair system. Sometimes it is not possible to have trials—this has been mentioned about the Kenya cases from 70 years ago—but it still needs to be a fair system that has a degree of flexibility. Something that looks like a very hard time stop perhaps risks creating some severe injustice.
Martha Spurrier: As someone who has practised law and argued these kinds of cases before judges, equitable is the watchword. Bright-line rules, in the context of what are often extremely complicated textured cases, very rarely give out justice or achieve something equitable for either victims or perpetrators. The courts have a whole range of powers available to them, in [Inaudible] and beyond, to prevent cases from being brought—be it before or after a time limit—if those cases are unmeritorious or are being brought for abusive reasons. For example, you can have your legal aid certificate removed, or your claim can be struck out. You can have your funding withdrawn if any dishonesty offences are proven. There are a whole array of tools that judges can and do use routinely to make sure that justice is done, and that includes justice being done in a timely fashion.
The danger of putting a hard stop is that the kinds of cases that you have alluded to—whether you are talking about noise-induced hearing loss, some other complicated medical issue or an issue entirely beyond the control of any of the parties to the litigation. That case, falling three days the wrong side of that rule, would not be heard even it was a meritorious case. That seems to me to be arbitrary injustice. What should instead continue is judicial discretion over what is equitable for both parties. Of course, both parties will be represented and they can—and, believe me, they do—argue very forcefully on both sides, either to extend or not extend time limits. Again, it feels to me as though people speculate that this is a problem that exists in the justice system, but it is certainly not one that is statistically significant or that I have ever experienced as a lawyer.
Chris Evans
Q
Martha Spurrier: Sorry, could you say that again?
Chris Evans
Q
Martha Spurrier: Yes, in the sense that at the moment, everyone is equal before the law, and that is how it works. You can pitch up and argue that a case should be struck out because it is out of time, or that it should not be struck out because it is out of time. There is no weighting according to whether you are a civilian, a claimant, a defendant or a member of the armed forces. Of course, the proposal in the Bill is that civilians will be disadvantaged more greatly than service personnel by the longstop. That is an unjustifiable weighting in favour of service personnel, in the same way that the weighting works on the criminal side, where presumption goes all in favour of military personnel and all against victims of military crimes.
Chris Evans
Mr Baldwin, do you have a view on that?
Clive Baldwin: I have nothing to add to what Martha said.
Chris Evans
Q
Martha Spurrier: If the six-year time limit came in, it would benefit the Ministry of Defence and the Government, because these claims are, by and large, being brought against the Ministry of Defence, either as an employer or as a detaining official, or against the Government as a policy maker. It is absolutely critical that the forces of the state—again, I have acted for countless individuals and families where bringing a claim against the state is no mean feat. You are usually against a range of senior and powerful lawyers, and any additional disadvantage that you face makes it incredibly difficult to seek justice. So, unquestionably, this is a power that plays in favour of the state, and state agencies, and plays against individuals, whether those individuals are service personnel or civilians.
Clive Baldwin: To add to that, it is so clear, when it comes to civil claims, because they are public claims, that the beneficiary of any limit to those powers would be the British Government and normally the Ministry of Defence, because that is what the claims are made against. That includes service personnel bringing claims; it includes people in other countries bringing claims who in some cases have been the subject of abuses. That is the beneficiary. Of course, you still have to have a fair trial, but in most cases it is going to be the MOD.
When it comes to the investigations, the Government, when it is a civil claim, which is not against individual personnel, have a duty of care towards their personnel and ex-personnel. Those are not investigations and claims against those individuals; they may have to give evidence and that has its own degree of severe stress, but it is not a claim against individuals. That is why it is so important to separate the public law issues, the civil claim issues, and the criminal law issues.
Chris Evans
Q
Clive Baldwin: On the broader issue of derogation from human rights, that is part of human rights law; that is part of the European convention. It is actually something I proposed in Kosovo 20 years ago—that there would be a derogation then to reflect the realities of the situation and still be able to detain people according to the law. It is also important to realise that derogation is not exempting anyone from human rights law; it is just modifying it to deal with emergency situations. That is the case particularly on detention: it does not remove the need for detention according to law. It does not remove the need for habeas corpus, to bring someone before a judge. It could mean that someone is before a judge within weeks rather than days, perhaps. This does not mean that human rights law does not apply.
Chris Evans
Q
Clive Baldwin: Effectively, Governments always have to consider derogation, so I do not think that legally it changes anything. Human Rights Watch proposed some years ago to Government that they should consider this when dealing with the issue of detention overseas. You have to prepare it—I do not know of any situation where a Government has actively declared a state of emergency, which is what you need for derogation, in another country, and a lot of these situations are multinational peacekeeping and other operations, so you cannot really have one rule for the UK armed forces and one for others, normally.
So it is quite a complex situation. Also, derogation changes the law; it changes the law that applies, so again, it should not be done by just a secondary declaration by a Minister or Secretary of State. It would need a change in law. But we would say that preparing for these situations, preparing for detention in armed conflict or peacekeeping, and having a law that is clear is something that people have been saying that the armed forces need for the last 20 years. The armed forces I know say that they want clarity when they go to detain, which means knowing what law they should apply, how they detain and to whom they should apply. Giving them that clarity in advance would be of great interest. Derogation, when applied properly, is a strengthening of human rights law. It is not an exclusion of human rights law, but only when it is applied carefully, properly and not by just some ministerial fiat, as it could risk becoming.
Martha Spurrier: As Clive says, the power to derogate is a really critical part of the human rights framework; it is the power to suspend rights or to restore rights, and that is why it is tied to a state of emergency. Writing that requirement to consider into the Bill, on a narrow view, changes very little in relation to the legal position.
The concern, of course, is when you take a wider view and look at this Bill as a whole, which very much signals the desire to water down the human rights arrangements; and then you look at the wider agenda more generally, which is a Government with a manifesto commitment to update the Human Rights Act and an ongoing process to look at access to judicial review, and whether certain Government decisions should be shielded from that mechanism of accountability.
So, our concern is not so much about the narrow wording of that clause, but about a culture of watering down Executive accountability that crops up manifestly in this Bill but also in other places in the Government’s agenda, which we would say overall will make it very much more difficult for ordinary people—be they soldiers or civilians—to hold powerful people to account.
The Chair
I will call Carol Monaghan, because we can go on until 5.15 pm, and I want Carol to have the opportunity of asking her questions.
Carol Monaghan
Q
I just want to ask a few questions about part 2 of the Bill. In the briefing sent by Liberty and Human Rights Watch, Amnesty International and I think a few other organisations, one thing it says is,
“It is notable that by far the largest proportion of claims against the MOD between 2014 and 2019 were brought by service personnel seeking compensation for injuries.”
I asked the last witnesses about this, as well. Have we got a Trojan horse situation, where part 2 of the Bill has been snuck in off the back of part 1, so veterans and personnel think this Bill is about helping them, but in actual fact it is putting barriers in their way?
Clive Baldwin: The submission was actually from Liberty and Amnesty; I will not have Human Rights Watch take credit for that. However, in some ways, absolutely, by removing the power of anyone, or by having this backstop, to take action against the Ministry of Defence, it will definitely affect members of the armed forces. So, for some it will be removing protection.
Carol Monaghan
Q
Martha Spurrier: This Bill protects the MOD and the Government much more than it protects anybody else.
Carol Monaghan
Q
Martha Spurrier: Yes, I think there are plenty of circumstances in which there would be entirely fair and honest reasons for not starting a claim promptly. The one example that I have already alluded to is the case of noise-induced hearing loss, where an injury may develop over a matter of decades of service, and the date of knowledge may occur after the six-year time limit has already elapsed, and then you may be prohibited from bringing a claim for really no good reason.
That is why you need to be able to have flexibility in the hands of the judiciary when considering these claims. That is not to say that claims that could have been brought promptly but were not should be allowed to proceed; maybe they should not be allowed to proceed. However, that is not what this longstop will do. This longstop will just create a bright line that creates injustice for people who fall the wrong side of it, even though they may have perfectly good reasons for doing so.
Carol Monaghan
Q
Clive Baldwin: Just to add that, although some time limits on civil claims are quite common in systems, there needs to be that element of flexibility or fairness. Can we imagine situations in which there are good reasons not to bring claims within that time limit? Quite a few, particularly for overseas operations in which, as we said, the situations are complex and people may not even be aware of their rights, or rights to bring a claim, until later, or even until they have left the armed forces. That is why the overriding principle has to be one of fairness. People may need to justify why they are bringing a claim later than they could have done, but they may have good reasons to do so, and the judiciary needs that element of flexibility to respond to those situations.
Carol Monaghan
Q
Clive Baldwin: Quite possibly. You would have to ask the veterans. The idea is that the Bill will protect veterans, but as we said, on the civil side, it will clearly take away some rights, and on the criminal side, it will not stop investigations; it may stop prosecutions, but very few have been happening anyway. It increases the risk of international criminal investigations against members of the armed forces and others if the UK does not appear to have a credible system of prosecution of international crimes. Yes, the Bill, in its current state, does not seem to strongly protect veterans and other members of the armed forces from some of the real injustices that some of them have suffered.
Martha Spurrier: I agree with that proposition. The Bill does nothing to deal with slow, ineffective or unfair investigations, which is what service personnel are complaining about. Certainly, the families and the people who Liberty has represented are often bringing cases against the Ministry of Justice or against the Government after years of banging their head against the wall of institutional power. The Bill will do nothing to help those people seek justice and accountability.
The Chair
If there are no further questions, I thank our witnesses, on behalf of the Committee, for their evidence this afternoon. That brings us to the end of our oral evidence session today. The Committee will meet again in this room at 11.30 am on Thursday to take further evidence.
Ordered, That further consideration be now adjourned. —(Leo Docherty.)
Overseas Operations (Service Personnel and Veterans) Bill (Third sitting)
Thursday 8th October 2020
(3 years, 6 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 8 October 2020 - (8 Oct 2020)
The Chair
Before we move into the evidence session, are there any declarations of interest?
Stuart Anderson (Wolverhampton South West) (Con)
I served with General Nick Parker in the same battalion.
Liz Twist (Blaydon) (Lab)
I do not know whether I need to declare this, but I am a member of the British Legion.
The Chair
It is always best to put these things on the record.
Thank you, Mr Byrne, for joining us in person. Will you say who you are for the record, and who you are here on behalf of?
Charles Byrne: I am Charles Byrne, director general of the Royal British Legion.
The Chair
We are joined online by General Sir John McColl, who is chairman of the Confederation of Service Charities. Will you also confirm your name and designation for the record, General McColl?
General Sir John McColl: I am General (Retired) John McColl. I am the chairman of Cobseo, the Confederation of Service Charities.
The Chair
For your information, in case you are not aware, we have a witness here in the room, Mr Charles Byrne, so we will be alternating between you and Mr Byrne. We have some logistical challenges, because we have to adhere to social distancing, so I am sure you will bear with us if those arise. We have until 12.15 for this session. I call on Stephen Morgan to begin the questioning.
Stephen Morgan (Portsmouth South) (Lab)
Q
Charles Byrne: Thank you for the question. We welcome and understand the good intent behind the Bill. However, we have raised concerns that the six-year longstop could be a breach of the armed forces covenant, because it restricts the ability of armed forces personnel to bring a civil claim against their employer. As far as I understand it, that longstop limit does not apply elsewhere. That is the concern we have exactly.
Stephen Morgan
So it would breach the armed forces covenant, in your view?
Charles Byrne: That is what we think, yes.
Stephen Morgan
Can I put the same question to the general?
General Sir John McColl: First, I absolutely agree with Charles’s support for the intent of the Bill. The pernicious harassment of servicemen by the legal profession following the campaigns in Iraq and Afghanistan was absolutely disgraceful. We commend the efforts of the Government in bringing forward this legislation to try to address that issue.
In terms of the advantages and disadvantages, we absolutely acknowledge that the six-year cut-off will disadvantage some elements of the community—we understand that it is about 6% of cases. Of course, there is a judgment to be made between that disadvantage and the disadvantage experienced by the 94%, or the significant number of people, who may be subject to harassment. That is the balance of advantage.
I just observe, sitting in front of you as the chairman of the Confederation of Service Charities, that we members of the service charity community are not experts in law, human rights or legislation. Those are the remit of politicians, officials and lawyers. We can talk in broad terms about the interests of our community. We cannot talk about the detail of how to achieve the laudable intent of trying to put a stop to this appalling harassment.
Stephen Morgan
Q
Charles Byrne: Anything that can be done to address the fundamental concern about that six-year longstop. As I say, we support the intent behind the Bill and welcome that the impact on mental health is explicitly called out; that is very good. While there is good there, we think that the Bill could be improved if it is possible to address the six-year longstop that limits the ability to bring civil cases. There is some difficulty in the numbers as well—the 6% that Sir John refers to. We could look into the detail that sits behind that.
General Sir John McColl: We encourage continuing consultation to find ways of ameliorating the difficulties of the 6%. However, we observe that the overriding requirement is to ensure that this harassment ceases.
Stephen Morgan
Q
Charles Byrne: No. To be honest, I have not been through it in detail.
The Chair
I think the Minister has a follow-up question, which he will have to deliver from the microphone.
The Minister for Defence People and Veterans (Johnny Mercer)
Q
You argue that someone serving in the armed forces will have that limitation and will therefore be disadvantaged, breaking the armed forces covenant. Service personnel will of course be able to serve in operations, where they may get killed or lose limbs, and some would argue that that is a disadvantage. The Government would argue that that is a misapplication of the armed forces covenant, and that, actually, if you compare a service person with a civilian in the same situation, there is no breach of the armed forces covenant. What would you say to that?
Charles Byrne: You have always been very clear about welcoming our challenge as a constructive effort, so we have had this conversation before, Minister. Thank you for the chance today.
For me, it is fairly simple. In the armed forces covenant, the principle of no disadvantage is not caveated to say, “It must be no disadvantage in directly comparable situations.” It is a principle of no disadvantage much more generally than that. This Bill would effectively prevent a member of the armed forces from being able to bring a case against their employer, which would be different from a civilian—
Johnny Mercer
Q
Charles Byrne: Not in quite the same way. I was looking at it much more generally—
Johnny Mercer
You do not think it is a disadvantage?
Charles Byrne: I think this Bill would be a breach of the armed forces covenant. If you look at the general principle, when we say that we do not want someone to be disadvantaged by their service, and think of a really straightforward example—one that you will well know—about people who move house regularly because of deployment, they therefore go to the back of the queue for dentistry or primary schools. That is where you are comparing somebody who works nearby—in a shop or a hospital—in a direct comparison, where we do not want the disadvantage. I think it does apply in very general terms.
Johnny Mercer
Q
Charles Byrne: No. The intent behind the armed forces covenant was that there should be no disadvantage, and it looks—
Johnny Mercer
But is being killed a disadvantage?
Charles Byrne: Is that an inherent risk of—
Johnny Mercer
Of military service—I think most people would argue that it is.
Charles Byrne: Exactly.
Johnny Mercer
Sorry.
Charles Byrne: What happens if this Bill goes through is that it protects the Ministry of Defence from civil action—from someone bringing a case. That longstop does not protect the armed forces personnel. Is not that the intent behind the armed forces covenant—not to protect the MOD, but to protect armed forces personnel?
Johnny Mercer
On overseas operations.
Charles Byrne: On overseas operations.
Johnny Mercer
Q
Charles Byrne: Even that number is questionable, though, is it not?
Johnny Mercer
It is not questionable—it is the data.
Charles Byrne: No, it is based upon a sample. Of the 70 cases that fell outside of the six months, only 39 were investigated—not all of them. Of those 39, 17 were found to have—so those were 17 actual cases. There could be another 31 from that sample size, which is taken only from Afghanistan and Iraq, as you know. There is a whole area of exclusions within that. So that number is a little bit—
Johnny Mercer
Well, the numbers are the numbers. We cannot argue with them.
Charles Byrne: They are, but they are questionable numbers, potentially.
Johnny Mercer
Q
Charles Byrne: Is that not exactly what this Bill is potentially doing? It is choosing to apply it in some cases, and not in others.
Johnny Mercer
No, because what we are looking to do is to protect, and to ensure that our servicemen are not disadvantaged.
Charles Byrne: I think it is protecting the MOD, rather than the service personnel—that is the debate that we have had.
Stephen Morgan
Could we go back to constructive questions, rather than an interrogation?
The Chair
Indeed. I think we will have the opportunity for some of the issues that the Minister has raised in the parliamentary debate and in the subsequent discussion in Committee.
Stuart Anderson
Q
The Chair
Just to explain it to you, General McColl, that bell is not a fire alarm or for a vote; it signals the fact that the House of Commons has suspended its sitting in the Chamber for three minutes. We will hear another bell shortly, so just be aware of that.
Stuart Anderson
If that one year from point of knowledge was not in there, I would get your argument. I believe that we are here to try and get the best for our service personnel and veterans. However, that one year from point of knowledge has to have the weight. That is why it has been put in there—it could be 20 to 30 years later. We heard the other day about asbestosis. That is not within a six-year period. There will be things that some in the veteran community experience in 20 years that we do not yet know exist.
Charles Byrne: We recognise and understand that there is that point of knowledge, which is a really powerful and important principle in there. Then we look at the recent sample survey of that limited pool of data and we find 19 cases where, even from point of knowledge, they would have fallen outside that six-month period. Even allowing for the point of knowledge, there are still 19 families and veterans who would not have been able to bring a case under the Bill.
Stuart Anderson
Q
There has to be education about the Bill as well. I really respect the work your organisation does, but within and outside the military there is a need to educate our troops and let people know about this. How do we connect with people who are now 60 or 70 years of age and let them know about the point of knowledge? It is not all about the Bill. I believe we have a role to educate the community, which we know well, about the point of knowledge. At the armed forces breakfasts and through all the different routes of communication, we can try to reduce that number. There will always be people who fall through, but we should do everything to stop them and there is a role for education. Do you see that role?
Charles Byrne: The Legion was always the organisation that championed and brought the armed forces covenant into law, so education is part of that. In an ideal world, we would get all that is good in the Bill and we would also address this area of concern, because we would not want anybody to fall out of that. We are looking to make sure that no veteran or member of the armed forces community is disadvantaged by a six-year stop, even allowing for the point of knowledge. It does not exist today. If we were to introduce it, it would be a limit that does not exist today.
Stephen Morgan
Q
Charles Byrne: Can you say that again?
Stephen Morgan
Do you think a legally binding covenant is compatible with what we see in the Bill, in terms of the proposals that will be brought before Parliament next year?
Charles Byrne: It is an interesting question. On the general principle of strengthening the force of the armed forces covenant, I welcome that. In all honesty, on the considerations of how this might play out in that situation, I cannot give you an answer now.
Stephen Morgan
The proposals for next year are to bring the armed forces covenant into law. Do you believe that a legally binding covenant and this Bill would be compatible under English law?
General Sir John McColl: We are in consultation with the Government at the moment in relation to bringing the covenant into law. We have raised a number of issues with them, which the Minister who is sitting with you is very well aware of. Charles can support me here in terms of the concerns we have.
The first concern is that initially there was no mention of special consideration, in other words, for those who had given the most—those who had suffered bereavement or very serious injury. I understand that may now be in it. There was also a concern that it was limited, in that it dealt with three specific areas rather than the totality of the covenant. We continue to have concerns in that area, and we also have concerns that it seems to focus the effort on local government rather than central Government. Those are our major concerns. I am not sure whether I have answered your question, but those are the concerns that we have. We will be watching the consultation and participating in it.
Sarah Atherton (Wrexham) (Con)
Q
Charles Byrne: No, we are not opposing the Bill. We think the Bill can be improved, which is why we are focusing on this particular element in the second part of the Bill. To be categorical, no, we are not opposing the Bill.
Sarah Atherton
Q
Charles Byrne: We certainly welcome the intent behind what we see the Bill is trying to do in, as the general said, trying to reduce pernicious, vexatious claims. However, we are looking to say, “Can we achieve those aims without disadvantaging service personnel?” If we can do both, both should be done.
Sarah Atherton
Q
Charles Byrne: Is that a way of saying that there is not the appetite to try to address those who would fall out of the Bill?
Sarah Atherton
Q
Charles Byrne: The answer is the same: if there is good being done, we should aim to make that good go as far as possible and not exclude those who would be excluded by the six-year longstop allowing for the date of knowledge.
Sarah Atherton
Q
Charles Byrne: That is the concern that we have brought forward, yes. If that can be addressed through further consultation work, that would be a good development.
Sarah Atherton
Thank you, Charles. By the way, your new TV poppy appeal is very good. I saw it this morning.
Charles Byrne: Thank you.
Carol Monaghan (Glasgow North West) (SNP)
Q
Charles Byrne: In terms of specific examples, I cannot at the moment. I know from the sample size that was taken that there were, I think, 19 individuals or families who fell outside that. I do not have specific examples.
Carol Monaghan
Q
Charles Byrne: This is difficult, because what are the effects of loss or injury that might make somebody find it difficult and challenging to bring forward their cases? The obvious one that comes around is hearing loss, which I think was excluded from those numbers as well. When it is that small percentage, that excludes hearing loss. You can imagine that if there are conditions that are developed over a period of time that do not relate to just one field of operations, and that is a whole area that could fall outside the Bill. If the hearing loss is established over a period of time over a number of operations, you might not be able to trace it back to a particular overseas operation. That is just one example.
Carol Monaghan
Q
Charles Byrne: Of course, yes.
Carol Monaghan
Q
Charles Byrne: Absolutely, and this cuts both ways. We recognise that if we are asking that the armed forces maintain the highest standards when they go out and serve in difficult situations, there is an equally fair onus on their employer, the Ministry of Defence, to provide them with what is needed do that and the support that is needed.
Carol Monaghan
Q
Charles Byrne: The Minister has been very clear and welcoming of our disagreement with him over this point. He knows well that we have a different view around the impact of this on the armed forces covenant.
Carol Monaghan
Q
Charles Byrne: Why does it put them at a disadvantage? Because, in my understanding, unless the civilian is being employed by the MOD in overseas operations, there is nowhere else where there is a similar time limit for cases of injury or death that could be brought to an employer. That is the difference.
Carol Monaghan
Q
Charles Byrne: It is an interesting question. I think there will be support for the intent behind this Bill, because—
Carol Monaghan
I am talking specifically about part 2.
Charles Byrne: Yes, indeed. I think there is a level of understanding that is required, but when people understand the potential for limiting the ability of veterans and armed forces personnel to bring claims, that would not be welcome.
Liz Twist
Q
Charles Byrne: The point we have been working around so far is that at the moment there is no time limit, even allowing for point of knowledge. This would introduce a time limit. That time limit does not apply more widely in other civilian cases, so we see that as a disadvantage. What impact might that have on morale? Good question. Would it possibly make those who get caught in this situation feel less valued? That would be my conclusion.
Liz Twist
Q
Charles Byrne: I am glad you called that out, but I do not think I am in any way qualified or able to answer that question.
Liz Twist
The Bill requires additional weight to be given to the stresses of operations when deciding to prosecute. To what extent do you think service personnel are adequately trained to deal with these stresses?
General Sir John McColl: My personal opinion on that is that the training that service personnel receive generally for conducting operations is absolutely first class. Indeed, that will reflect on their conduct on operations and that conduct will be affected by the role of the chain of command. I think they are well prepared. I am sure there are exceptions and that there will be difficulties, but in general terms that is what I would say. It is a question that you should really be asking of the serving chiefs within the Ministry of Defence, rather than a retired general, such as myself.
Liz Twist
Q
General Sir John McColl: Training can always be improved, there is no doubt about that. After every operation there is always analysis of the training people go through to ensure that they are prepared for whatever they may have to deal with. I am sure that is the case. The area where training has particularly improved over recent years, but continually needs to be improved, is that of mental resilience. If I am being honest, that is something we did not pay significant attention to in previous decades. We need to do better in that particular area.
The Chair
I think Mr Byrne wants to say something.
Charles Byrne: I think this is an area I probably need to be careful about. Echoing John’s comments from the personal perspective, I was with friends last night, one of whom is still serving with the Royal Marines. He spoke very passionately about how well their training goes and a new element of the programme, I think called Regain. It is taken very seriously and good work is being done to recognise and address the mental stresses, the mental health and mental strain.
The Chair
I am going to call Peter Gibson on a supplementary and then I will come to you, Mr Anderson.
Peter Gibson (Darlington) (Con)
Q
Charles Byrne: I think this is a point we have covered previously, so forgive me if I repeat myself. I think it is the same sort of question. We have seen the evidence that there are 19 cases where veterans’ families would not be able to bring a claim against the MOD because it would fall out of the proposed six-year time limit after the point of knowledge and all those other caveats. Those are the examples that we think would follow from the Bill and that is only of the ones that we know, and the ones where the data exists, for Afghanistan and Iraq.
Peter Gibson
Q
Charles Byrne: That is a good and fair question, which the Minister has also asked us, to which we say, in fairness, that we think that is your job. It is our job to try to point out where it can be improved, but not how. That is a bit unfair, but that is the way it works.
Stuart Anderson
Q
General Sir John McColl: Both Charles and I started off this hearing by saying that we welcomed the intent of the Bill. What veterans want to see is the pernicious harassment of veterans following operations by the legal profession stopped. If the Bill achieves that, they would regret the fact that it had been stopped.
I accept that there may be some trade-offs in doing so. Whether or not it is a breach of the covenant, there will be roughly 6% of people who may have brought cases against the MOD or the Government who can do so now and who will not be able to do so in future. We would wish to see that ameliorated. We would wish to see that in some way worked around. It is up to the Government to see if they can do that. The bottom line—I think that is what your question is getting at—is that we want to see harassment stopped. There may be some compromises required in doing that.
Stuart Anderson
Thank you very much, General. I know I said veterans, but I also mean serving personnel.
Charles Byrne: Thank you for that response, John, which helps to lay it out. The point of this process, and the consultation and the debate that we had, is to produce a better Bill at the end of the day. As I said before, the Minister has always been very clear that he welcomes our constructive challenge and disagreement.
You said that if this Bill addresses everything the Legion is looking for, it might not get through. There is not everything in there; there is a single focus point. There is a restriction introduced by the Bill, and if it can be removed, the Bill will be better. It seems to me that that is a good thing to do. As Sir John says, everybody wishes vexatious, pernicious claims against veterans to be addressed and reduced, and we fully support that intent. We want to make this better, which is why we have contributed and have always been very clear about our concerns in this area. If the Bill can be made better, I am sure you and veterans would welcome that.
Stuart Anderson
Q
Charles Byrne: Is this the Government offering to pay for a massive campaign from the Legion?
Stuart Anderson
That is outside my remit.
Charles Byrne: We are just about to go into our poppy appeal in the most difficult time we have ever had, so I would not give a commitment to any campaign. We do a lot to drive awareness of the armed forces covenant as it is, and we always have done. We are trying to build the awareness of all our services. We would welcome any support and help that you are able to give us on that.
The Chair
Are there any further questions for either witness? As there are no further questions, I thank you, General McColl for your appearance online, and thank you, Mr Byrne, for your appearance in the room. I am grateful for your forbearance with the logistical issues we are managing today. Thank you, on behalf of the Committee, for your evidence.
Examination of Witness
General (Retd) Sir Nick Parker gave evidence.
The Chair
Q
General Sir Nick Parker: I can indeed. Thank you very much.
The Chair
And could you set out for the record who you are and your locus in today’s discussion?
General Sir Nick Parker: I left the Army in 2013 as the commander land forces. My perspective on this is that of an operational level commander, and it has been informed by my experience in Sierra Leone in 2001 and Iraq in 2005. Not directly connected to this, but it informs it, I was the last general officer commanding in Northern Ireland in 2006-07, and then I was the deputy commander of the International Security Assistance Force from 2009 until 2010. I view this from the perspective of the senior levels of the chain of command, not from that of the MOD.
The Chair
And to confirm for the record, you are General Sir Nick Parker.
General Sir Nick Parker: Yes. Not to be muddled with Carter.
Liz Twist
Q
General Sir Nick Parker: I start by echoing the previous witnesses. Malicious claims have to be taken very seriously, and I welcome everything that does that, but to answer your question, my concern is that the process risks the legitimacy of the armed forces, and I am not convinced that what is being done is the most effective way to deal with the challenge. It feels to me as if we are treating a symptom through this Bill, not going to the cause at the heart of the problem. I will elaborate very quickly on that, if you are happy.
As far as legitimacy is concerned, we deploy on operations, quite rightly answering to the highest possible standards. While I am not a legal expert—again, I am applying my operational experience to this—during the passage of the Bill, particularly part 1, there has been a weight of eminent legal opinion that I trust, including from people who were involved in the service legal issues before, who are concerned that one of the effects of the Bill will be to demonstrate in some way that the British are not operating under international legal norms. If that were the case, it would be extremely challenging both externally, if we are working in a coalition with other countries where our behaviours need to be consistent, and with the enemy. Most of the enemies I have faced do not follow international law, but it may well be that that is the case, and if we are seen to be prepared to operate outside the international norms, that risks calling us into question and adding another complex element to the decision making that the chain of command needs to take.
That is the legitimacy side. On the effectiveness side, it appears as if part 1 of the Bill focuses entirely on the process of prosecution, whereas for me the big issue here is the process of investigation and, critically in that process, ensuring that the chain of command is deeply connected with what goes on from the very outset. I do not think there is any serviceman or woman who would not accept that bad behaviour on the frontline must be treated quickly and efficiently. Nobody would want anything in the process that somehow allows people who have behaved badly on the frontline to get away with it. But all of us would believe that the process has to be quick, efficient and effective to remove the suspicion of a malicious allegation as quickly as possible. I cannot see how this Bill does that.
Liz Twist
Q
General Sir Nick Parker: In the complexity of the frontline, there is an enormous amount going on and it is very difficult to produce accurate, timely records of what is occurring. It may be that someone will stand up and contradict me, but when I served we had a thing called a battalion war diary, which was very nearly a mandraulic, hand-written process. We need to change our culture of record keeping on the frontline so that there are sophisticated ways of recording exactly what is going on, so that when somebody comes to look at an allegation of bad behaviour, they have good, accurate records that are endorsed by the people who gave the orders to those who have undertaken the act and they are also held accountable for what happened. That needs to be investigated not, in my view, by an RMP lance corporal who has been trained to do a whole load of important but relatively menial things, nor by an independent constable from Northumbria who has no idea of the activity on the frontline, but by a properly found investigative organisation that is a genuine independent part of the organisation and respected by both those on the frontline and those outside the armed forces as an effective body. That certainly did not exist when I was serving, and I think it would require resources to create it.
Liz Twist
Q
General Sir Nick Parker: The chain of command is responsible for giving its orders to our people both before, during and after a battle. In all three circumstances there are levels of complexity. Clearly, in the heat of battle the complexity increases in some ways, but the pressures on individuals often increase quite significantly afterwards. The chain of command is the organisation that gives the orders and should be accountable for the collective action of those it is in charge of. When something occurs that is challenged by people, in the terms of a malicious claim, the chain of command should be the first port of call to present why what happened is or is not acceptable, because the chain of command has to own the responsibility of the actions of its people. The thing that I have found quite difficult—I have done a little bit of work with some people in Northern Ireland, which I know is not this case—is that it appears in law that the chain of command is not really considered a factor in all this, yet it is right at the heart of it.
Liz Twist
Q
General Sir Nick Parker: I am not suggesting that the chain of command frustrates investigations. I think that the lack of accurate, timely, well maintained information, recording what is occurring, means that there may be confusion. I think there are also probably instances where levels of the chain of command do not take sufficient responsibility for what their subordinates should do. A very brief example: in Afghanistan, the lack of force density in certain parts of the theatre may have meant that a significant level of force was used in order to protect our own people, because there were so few of them. The reality may be that there should have been more people allocated to the ground, in order to achieve the objectives that were being set. I think the responsibility for that sits quite high up in the chain of command, and there people need to understand their responsibility for the decisions they are making. I am not convinced that at each level of the chain of command we have yet created the right culture to support the effective dealing with things like malicious claims.
I would add that I think one of the key things that we have to do is to produce mechanisms that establish a really effective duty of care for those who are placed under the spotlight by malicious claims. Of course, if you deal with these things quickly, that will help, but anything that drags out, even for two or three years, puts individuals under massive pressure. If the chain of command does not have the ability to look after them, because it somehow distances itself from them, then we have got to address that as well.
Liz Twist
Q
General Sir Nick Parker: No, I think it focuses too much on prosecution and putting checks in place to ensure that prosecutions are absolutely as fair as they need be, when the reality is that you need to go back down the pipe and deal with what is happening on the coalface.
Liz Twist
Q
General Sir Nick Parker: Only that you must understand the challenge that exists in a complex operational environment. I am not suggesting some sort of panacea that will provide a perfect level of information, but we have to do much better at providing accurate, timely information, and having an independent, properly found investigating system, respected by all, that can then take that information, investigate it and come to as quick a conclusion as possible about the actions of the people who are being investigated.
Liz Twist
Q
General Sir Nick Parker: We operate in grey zone warfare anyway, so I imagine that the Bill and everything being discussed has been generated in that environment. My point is not whether the Bill addresses that, but that it does not address the core, which is the investigation, in black, white, grey—wherever it is. The emphasis appears to be on prosecution. In reality, it should be on what is happening in the investigative process, whether it is grey zone or not.
Sarah Atherton
Q
General Sir Nick Parker: I do not understand why sexual acts have been excluded, but not murder and torture. I do not understand why that distinction has been made and whether it undermines the fundamental credibility of the Bill. As I said at the beginning, I am not a legal expert, but I have been told by people whose views I respect that even putting in conditions for prosecution that separate your military from the normal process will be viewed with some suspicion by those who uphold international law more generally.
I have heard enough people whose views I respect telling me that they are concerned about the five-year time limit or time point; they are concerned about the exclusion of sexual offences; they are concerned about the triple lock and why it needs to be applied when our systems for prosecution are perfectly effective if the investigation is effectively carried out and properly presented. If that is the case, we will potentially be viewed by other countries as operating in a way that contravenes international norms.
Sarah Atherton
Q
General Sir Nick Parker: Yes.
Sarah Atherton
Q
General Sir Nick Parker: Because, surely, for those serious things, we should all be treated the same. There is no need to introduce an additional check. If all of us believe that on the frontline we all do our best in very difficult circumstances, that those who commit illegal acts must be dealt with, and that everybody else should be protected by an effective record-keeping and investigative service, why does anything need to be different?
Sarah Atherton
Q
General Sir Nick Parker: I think it less likely that you would commit murder at the Tesco counter. My view is that we train for those really difficult circumstances. You are talking here about acts that take place under the very watchful eye of an extremely rich chain of command. I believe that we therefore operate in an environment where we can uphold the rule of law in the way that it is presented to everybody else. Do not forget that we are operating under international law, the Geneva convention and the terms of the Armed Forces Act, which allows us the opportunity to operate in those very challenging circumstances.
Sarah Atherton
Under the International Criminal Court’s article 53, there is a similar provision where you can exclude from prosecution, as there is here with the presumption against prosecution. It is not exactly the same, but very similar, so I do not think we are deviating from international legal norms. I will have to disagree with you, but I thank you for your comments.
Carol Monaghan
Q
General Parker, we heard on Tuesday some witnesses saying that they did not feel the Bill would stop the number of investigations and re-investigations that people such as Major Campbell were subjected to. What are your thoughts on that?
General Sir Nick Parker: If it is being used as a tool to undermine our military capability by an enemy, if I was the enemy, I would start thinking about introducing lots of claims against acts of rape and sexual behaviour, because I could use it as a tool to somehow fix the willingness of my enemy to fight. I do not think it will solve the problem. I think we need to address the way we hold the chain of command accountable and conduct our investigations. Those are the two key things. With a chain of command, effective information and an effective investigating system, you will stamp out the malicious claim because you will see it very quickly for what it is.
Carol Monaghan
Q
General Sir Nick Parker: I do not think you need to have a time limit. I just think you need a system that can investigate effectively. If you can produce the facts, because you have the right level of capability to investigate, you will do it as quickly as you can. I do not think you need to put a time limit on it.
Carol Monaghan
I ask because Major Campbell talked about the 17 years of investigation and re-investigation, so some sort of time limit might reduce the chances of that re-occurring.
General Sir Nick Parker: Without going into specifics, there are cases where people have actually been found to be innocent, and then the issue has been returned to because the chain of command has failed to show the levels of integrity and accountability that they should have. An investigation takes place, it is sanctioned by the chain of command as being effective, it is investigated independently, and that is the end of it. It is disgraceful that somebody can be investigated for 17 years and can go and see almost every senior officer—I have to be careful—but it is sort of pushed off because the system has to be allowed to churn on, and yet at the beginning it is already being investigated. That will not happen if you have a credible system that investigates and you address some of the cultural issues in the chain of command by making it genuinely accountable for what is happening.
Carol Monaghan
Q
General Sir Nick Parker: I am concerned. If you look at things like the report on the Baha Mousa investigation, you see the potential for some sort of cultural resistance to the fact that an investigation is taking place. We need to address how the chain of command approach the issue, because they are fundamentally responsible for what their subordinates do. As an aside, I am slightly nervous that the focus on the prosecution of individuals almost feels as if one is focusing on the people on the frontline as if they are the guilty parties, and we the system are failing to address the issues that we should address because it is our responsibility in the first place. Somebody might accuse me of trying to stand up to the Bill and not looking after our boys and girls. That is fundamentally not what I am saying. I am saying that we are failing to address the responsibility of the chain of command—its cultural approach to these sorts of issues, and its ability to maintain records and then allow people independently to investigate what is happening, so that we can deal with things quickly. I would suggest that if that were in place, what happened to Bob Campbell would never have happened. For a start, they would not have lost the records of the communications. Why did they lose the communication records in the week of his incident? That will not happen if you have an effective system.
Carol Monaghan
Q
General Sir Nick Parker: I honestly do not know, and that should worry us. If one is in a coalition with a Danish contingent, and if the Danes consider that the way we are approaching dealing with our people is different from their way and they feel that it is culturally incompatible for some reason, that would create difficulties. It might seem slightly pathetic, but I would defer to the eminent legal opinion, which I would not profess to have. All I would say is that when there is a considerable amount of noise about something, I would hope that it is taken seriously. My feeling is that the Bill is moving at such a pace that there are certain key people who should be able to present their evidence—people such as the Judge Advocate General. These are people who have really important views. If there is some doubt about this and we are viewed in the international community as being prepared to operate outside norms, there is an implication for the people who will have to command in the international community.
The Chair
I am going to call Joy Morrissey, who is going to address us from the standing microphone.
Joy Morrissey (Beaconsfield) (Con)
Q
General Sir Nick Parker: I cannot answer for the Americans and the French, but I would revert to my original point: we might not be keeping effective records and investigating them as rapidly as some of those other countries are. I know that the American situational understanding, because of their investment in information technology—certainly when I was serving—meant that they got a very quick and clear picture of events in these conflict situations. I can only assume that they have a more effective investigative system.
Joy Morrissey
Q
General Sir Nick Parker: It comes back to the point that we need to conform to international norms so that we are seen to be legitimate, but the way we protect our people is by ensuring that they are properly commanded, that we keep accurate records and that we investigate any claim very quickly, so that we can ensure that our people are properly looked after. I do not think the comparison is relevant from the perspective of what we do about this particular issue, which badly needs to be dealt with.
Joy Morrissey
Q
General Sir Nick Parker: As I said, I believe that we need to be consistent with our coalition partners. All I would add is that you cannot predict who your coalition partner will be, because we do not know whom we will be fighting with in the future. Therefore, there has to be a certain consistency that is probably provided by international norms.
Stuart Anderson
Q
A lot of what you discussed there is the chain of command. You talked about implementing different procedures within the chain of command. I would argue that that is an internal military adjustment, not for a Bill or other legislation, but I would then say, looking back, with your experience and what you know with hindsight—we always want to learn from the past to move forward—what would you have done differently, and what could be done differently by the chain of command, outside legislation, to protect our troops?
General Sir Nick Parker: The irony, then, is that I am now subordinate to you, an elected representative in the House, so congratulations, and—
The Chair
I am not sure that is how it works.
General Sir Nick Parker: I am now decaying in my shed at home.
I feel very conscious of the responsibility that I had at every level, and I am also acutely aware of the nature of the responsibility that you have as a platoon or section commander, which is different from the responsibilities you have as a company commanding officer and so on, but there is a critical connection between every level of the hierarchy that requires us to enact things like mission command effectively. So, if you are going to tell somebody what to do, you need either to resource them properly or, at least, to have a conversation with them about why are you not giving them sufficient resources, so you both understand and manage the risk. That is something that should be inherent in our training anyway.
To your point, why this is all nothing to do with the Bill, my answer is, I do not think it is. I think there is a worry that the Bill goes through Parliament and yet does not actually address the real issue. To go back to my experience, what I would have liked is to have had much more effective operational record keeping, a credible and properly resourced investigative organisation that one did not see as the dodgy people who came sweeping in to start testing you, but people who would be able to look at the records that you had been keeping, have a mature conversation with those who had given the orders, come to their conclusions and have the ability not to penalise those who are focused on the operation.
I acutely remember somebody being placed almost on the naughty step, because they were being investigated, and I think that was because of the culture that we were promoting. It might well not be the case today, but while I was always part of a transforming organisation, I am not sure that the chain of command was as good as it should be at balancing this duty of care with the need to ensure that you deal with those who behave badly quickly and efficiently.
You need resource to do it. What I can be accused of is worrying too much about wanting to spend money on tanks, when I should have been spending money on a really effective operational record-keeping system.
Stuart Anderson
Q
General Sir Nick Parker: That is a political question.
Stuart Anderson
That is why I am in this role.
General Sir Nick Parker: I am very prepared to give a view, but treat it with the contempt it deserves. As I said right at the beginning, I welcome the willingness of the Government to deal with this issue, and I welcome the fact that it was an election pledge and we are going to deal with it really quickly, but I am really concerned that that good intent could end up creating more challenges than we need and indeed not address the issue, which, as you said, may not need to be brought to Parliament at all.
Now, you have to decide how the Bill proceeds, and I am sure the Minister would expect it to proceed. What I would like is to try to mitigate against the risks of legitimacy that I perceive—you may not agree—and concurrently for much more energy and effort to be put into the business of how we investigate these things effectively so that the people who are guilty are dealt with quickly and the people who are not are properly protected.
I will just go back to Dover. I know you would believe that if somebody had done something that was genuinely illegal and outside the orders they were given, you would pray that they would be dealt with quickly and effectively.
Stuart Anderson
One hundred per cent.
General Sir Nick Parker: And I am not sure that we are able to do that if we are so vulnerable to malicious claims, because that is clogging the system up. We need to address that.
Stuart Anderson
Thank you. It is a pleasure to talk to you again, General.
General Sir Nick Parker: I am wearing a rifles tie, rather than—
The Chair
If there are no further questions from Members, I thank you very much, General Parker, for your evidence and for joining the Committee online. That brings us to the end of our morning session. The Committee will meet again in this room at 2.30 pm under the chairmanship of Graham Stringer to take further evidence.
Ordered, That further consideration be now adjourned. —(Leo Docherty.)
Overseas Operations (Service Personnel and Veterans) Bill (Fourth sitting)
Thursday 8th October 2020
(3 years, 6 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 8 October 2020 - (8 Oct 2020)
The Chair
Q
Lieutenant Colonel Parker: My name is Lieutenant Colonel (Retired) Chris Parker. I am the chairman of the Princess of Wales’s Royal Regiment Association and I am an infantry veteran of nine combat and operational tours.
The Minister for Defence People and Veterans (Johnny Mercer)
Q
Lieutenant Colonel Parker: The effect of the legislation on people would be to remove quite a large amount of pain and misery, which I have experienced not only with individuals but with their families. We must remember that when people’s lives go on hold for several years due to investigations, whether they are right or wrong, that can have a very damaging effect on families and individuals. This legislation certainly will remove most of that pain and misery, which I have witnessed, as many have.
From our regiment’s point of view, few things have been harder for our men—our infantry are primarily male—who are often from the most vulnerable places in our society and often very tough backgrounds, who do their bit and then find that they are exposed. This legislation is broadly going to remove that risk and pain—in broad terms. I know you might want to talk about the smaller aspects.
In terms of the effects on operations, I can only speak from a subjective point of view about the impact on me, but also on all the people I speak to. There is an increasing concern among very young junior commanders—I have been one of them on operations, where you have to make decisions. Going forwards, without this sort of legislation, there is the increased risk to life of people not being able to take decisions, as I had to, such as: do you bring in a precision airstrike or not and take 10 lives with some risk of collateral damage on the spot, to save lives, without some form of legal concern, because you are doing the right thing and you are following drills?
I think your Bill’s effect on operations will be to remove a large amount of that concern. I think that is probably the bigger professional concern—that it would cost more British lives because people would be hesitant.
Johnny Mercer
Q
Lieutenant Colonel Parker: That is a difficult question, because of the stretch of my understanding of what is and is not legally possible. If I may add value in this way, I think there is a concern about the six-year time limit. There is a perception—maybe it is my misunderstanding —that the six-year time limit would apply to service personnel themselves bringing claims against the armed forces, or against people. Is that correct?
Johnny Mercer
Q
Lieutenant Colonel Parker: I think there has to be some form of recognition and qualification that the major concern—I see it as a volunteer—is that we are getting close to 100 cases, in a body of about 5,000 people, of severe mental distress, and those are rising by the week, primarily out of Afghanistan. On the timeline of those cases appearing—we are in the category of post-traumatic stress disorder in about 90% of cases—we are talking about 10 years.
Bear in mind that there are proven facts that the bell curve of PTSD cases is 28 years. My own personal experiences was 24 years after the event, out of the blue, and then being treated for it. If cases were to be brought—and I think it is quite reasonable to allow soldiers, sailors and airmen to bring cases for mental duress that could have been caused by a mistake, an error or incorrect equipment, or some form of claim—to put a six-year time limit does not help. It may help legal reasons for other purposes, but it certainly does not help the mental duress, because the facts and evidence point to a 28-year bell curve, with 14 years therefore being the mean.
Johnny Mercer
Q
Lieutenant Colonel Parker: Understood. It is great to hear that clarification.
Johnny Mercer
Yes, it would. You have no idea what you are talking about.
Lieutenant Colonel Parker: You can understand the problem that the military community have. It is hard enough for someone like me, as a master’s graduate, to understand it, but also trying to get this understood by a large body of quite unqualified people who fought bravely is difficult enough.
The only other qualification that I would add is to do not with the question that you have directly asked but with a broader question, which you may want to touch on later. It is very difficult to separate, in the view of the veteran, operations from one theatre and operations from another theatre. Obviously, you probably know straight away that I am referring to Northern Ireland. I understand, and we understand, that it is not part of this Bill, but I think there has to be a measure by the Government to say—and I think they have—that other measures will be taken ahead to deal with that. That is something that I know is a concern, and it is something that is of prime concern.
Broadly—I have to say this broadly because, again, we have to remember that we do not get people scrutinising the Bill itself; they hear the broad terms of it—it is welcomed by the community and there is no major feedback of negativity other than the points we have registered about claims, which you have clarified very helpfully.
Mrs Emma Lewell-Buck (South Shields) (Lab)
Q
Lieutenant Colonel Parker: The problem came, in a lot of our cases—certainly with some of the earlier ones with the Iraq Historic Allegations Team and others—that, because it was done in a very legal and correct fashion, sometimes we can forget that the care is needed, because they still are people. It was often very difficult for people to get facts and information about what was likely happening. I would say that we have come quite a long way with that. We have an independent ombudsman and others. Personally I think that has been a huge step forward, and I met Nicola the other day. We must remember that we have to think about whether there is a resource capability gap or not, to allow some form of funded or additional care for the families, and also potentially for people’s loss of earnings and loss of promotion.
One of the biggest fears and concerns that people had is that their career was on hold and their career was affected. Like it or not, that comes down to the financial burden that people feel they have suffered unduly. I can think of several cases where it is pretty hard to explain why certain people were not promoted for a few years when these investigations were going on. Obviously, it was a difficult position for everyone.
There are two things there: a broad duty of care with some resourcing for the impact on families and the individuals themselves, whether that is more information or some sort of independent helpline. Perhaps it could be done through a body such as the ombudsman or something in addition to that. Secondly, it is the ability to explain and understand those pieces.
Mrs Lewell-Buck
Q
Lieutenant Colonel Parker: I have not found it because I think it is a softer thing—it is beyond the Bill. It is something that the MOD would have to bring in. It is a chain of command issue. It is very difficult for people. The chain of command is uniquely allied to the same thing as the duty of care chain, because it is the officers, and therefore there has to be perhaps support outside of the chain of command: somebody to care, outside the direct chain of command, for those individuals. People have made the best effort to get by, but we have a unique problem where the officer chain of command, the line between [Inaudible] and courts martial, cannot be compromised, and therefore other people have to be involved.
Stuart Anderson (Wolverhampton South West) (Con)
Q
Lieutenant Colonel Parker: Thank you very much. The 5,000 I referred to are our Iraq and Afghanistan veterans. They were a large regiment. You can see the numbers because the throughput is quite large and significant, and that is just in one regiment. We have about 20,000 in total, including right down to the oldest. Some of them are second world war veterans.
In terms of when we first heard, I have to be honest that I cannot recall a date or time, but we are informed through our regimental headquarters, which is a very small Ministry of Defence-funded element. It is very small. It has been cut right down to the bare basics now. They inform us of those things, but you must remember that the association people like me are volunteers, and for us to spend time trawling through things and looking at emails to with things can be difficult, so we get prompts and help, and then they provide, effectively, a staff capability. When we heard through them, which was very helpful, the initial reaction—we serve using social media platforms, with groups of several thousand of our veterans, and those are quite active, to care for people—and the mood was very positive. It was seen as a weeping sore in the minds of many that they had done their service and they would not be looked after. We know that the Government put this in the manifesto late last year, and it came into being very soon after the general election in late 2019. It was welcomed, but it was not a political point for the veterans; it was more about the Government doing something to address what they had seen as an injustice. Their feelings were certainly very positive.
Stuart Anderson
Q
Lieutenant Colonel Parker: I do not think they would understand why. We must remember that among the base we address, look after and care for, the understanding of things like how the machinery of government works is quite low. They just see a very clear sense of right and wrong, partly because we instilled it in them. They have that very simple view of life, so I think there would be acute distress. There would certainly be an increase in mental duress, and I think that for those people who hover around the distressed level, rather than getting into specific, incident-related PTSD—we deal with a lot of those—there would be a lot of hands being thrown up in the air. Allied with the current conditions, which obviously include the environmental factors of covid, separation and people being isolated, I would see that as a very big risk. However, the country seems to be behind this, and certainly the veteran body is. It seems to be something that is apolitical at the moment, notwithstanding the need for good scrutiny.
Stuart Anderson
That is brilliant. Those are all my questions. Thank you very much.
Mr Jones
Q
Lieutenant Colonel Parker: That is a very fair point, and it is an excellent question, because the time has been a big factor. I am not aware of any way in which military law should be seen to be rushed along or pushed along. However, I think this comes back to the duty of care. I know there is provision in the Bill for certain time restrictions, so if there were a time restriction on an investigation, unless there was a good reason to extend it, that might be something that would allow a positive factor of, “Yes, there is some definite evidence brewing here.” That could be positive.
We are talking about several years in which people are on hold. That was certainly the case for people involved in the Danny Boy incident in al-Amarah, with the public inquiry and the many cases to do with that particular incident, which was a real travesty. That affected some people for eight or nine years, so that was quite a long wait, and of course some of those people were already in distress because of the very tough fighting in that incident.
Mr Jones
Q
Lieutenant Colonel Parker: That is a good question, because it is something I have heard from chats on veteran social media and other discussions. You must remember that our face-to-face contact with our people has been limited from the summer onwards, but in a lot of the discussions that happen on this, sometimes weekly, there is without a doubt greater fear of a non-British legal action coming against people than of anything British. Even though soldiers, sailors and airmen might grumble about the prosecutions, I think they would all, to a man and woman, admit that British justice would be the preferable place to go to every time. There have been many times when people have been investigated but then there has been no case to answer and justice has been seen to be done—there has been no prosecution, and certainly no conviction, in the majority of cases—so I would agree with you.
Again, we must remember that I, let alone the body of the kirk, if you like—the association members—would not understand the nuances of what might cause an International Criminal Court action. If there seemed to be a risk of that, it would need to be closed on behalf of the veterans, who would see that as a far greater risk to themselves than facing British justice. I think that is a fair question to ask.
Mr Jones
Q
Lieutenant Colonel Parker: When I was involved in a public inquiry—it was the Baha Mousa public inquiry—there were five separate teams of lawyers and barristers, of which two were consulting me as a person giving evidence, not in any accusatory sense, but for contextual evidence. I was amazed by how much effort and money was going into that. The accepted norm is that a lot of people are left to their own devices and are not able to access the same level or scale of funded assistance when they are accused by military investigations such as IHAT and others.
Mr Jones
Q
Lieutenant Colonel Parker: It is, and I understand that. As an association, we have our own private funds and we raise funds. We have had need to use them, and we have a regimental advocate or lawyer who helps us, often on a gratis arrangement. But that is a poor reflection on the way it should be.
I agree with you. If this can add any context, after my 17 years of service and a lot of frontline tours, often the biggest point of failure that caused the most damage was when there was a point of failure in the chain of command. If a commanding officer or a senior officer—a major or a brigadier perhaps—was the person causing the problem, they are also in the discipline chain, so the whole thing grinds to a halt and becomes an impasse. That is a very difficult situation.
The second-order question is: why do we not have a Police Federation equivalent or a trade union? I have seen a number of failures—not a large number, but it has happened—in the chain of command by officers behaving improperly, and that says to me that the only way you can stop that sort of thing affecting the people beneath them is by having, if not a trade union or federation, then an independent place to go. Personally, I think we have that with the independent Service Complaints Ombudsman, which is available as a pressure release valve. The good work that has been done to bring that in, although that small body is not widely known at the moment, has removed some of the risk.
Mr Jones
Q
I am trying to think whether there is a mechanism we could get for those accused. I accept the point that you make about the chain of command, but I am trying to understand whether there is anything we can do to even up the playing field, in terms of ensuring that people are not left on their own? Most people do not have access to independent funds, and most people have perhaps never been involved with the law before, so when they are it is obviously quite a daunting experience. If we could come up with some system that actually allowed recourse to legal support, would that be something that you would support?
Lieutenant Colonel Parker: Yes, I would, but I would qualify that support. As a veteran leader, I constantly tell our people that they must not consider themselves to be a special case when there are also blue light services and other people who are equally well deserving and who also sometimes face legal complaints.
Mr Jones
Q
Lieutenant Colonel Parker: Correct. I understand why you ask that question. It is something, certainly for the veteran part of it, that I have proposed. I am in discussion with our excellent friend the Minister about innovative ideas such as having an inspector for veterans, like the inspector for prisons. Beyond that, there could possibly be someone who would be an independent body. Wherever that independent body sits, it cannot sit in the MOD. That is the problem—it must not sit there; it should sit outside.
The Chair
Okay. Just one. There might be time for further questions, because only Sarah is indicating that she would like to ask one at the moment.
Mr Jones
Q
Lieutenant Colonel Parker: I would say a strong yes, because in all the incidents I have seen where it has gone wrong, if the individual concerned knew that there was some way that an independent person would be able to investigate them, they may have been less likely to think that they could get away with it; it is often individuals acting fully in the knowledge of what they are doing because they can get away with it. Personally, based on my experience, I would say yes to that.
Sarah Atherton
Q
Lieutenant Colonel Parker: I will, and if it helps you, I would prefer to answer that in the broadest terms, rather than focusing on individual cases, to avoid causing them any further distress. Obviously, a lot of the things we talk about are very confidential, and a lot of them are very tearful.
With that incident and the aftermath, once it started to break out that there was going to be some sort of investigations, and the manner of those investigations, there was certainly a feeling of horror and almost terror that swept through people, because they realised, “When will this stop?” It was a particularly brutal engagement, and it was cited, as the Committee probably knows, as being along the lines of second world war bayonet fighting-type engagement—incredible bravery but also incredible stress. One of the individuals I know—a large, strong, tough individual—was in tears in my arms, explaining that he had enough to deal with coping with having had to kill several people, and now he would have to deal with the fact that he might be court martialled for it. He just could not understand it.
We have to remember, again, that the individuals concerned are not people who are able to sit and pick through legal documents, nor understand them. Whether we ask the most vulnerable or tough people in our society to go forward and do these extremely tough and brave point-of-the-spear jobs, such as combat roles, we must remember that we have a duty of care to protect them from anything—intellectual or otherwise—that might affect them later in their distress.
In answer to your question about the families, that whole inquiry, and certainly that incident, were the largest single point of family distress that I have witnessed in my entire military service or veteran chairmanship of five years. That amount of distress was not only for those who were being prosecuted, but for their spouses, partners, mothers, fathers, others, and children in some cases—those who knew that the veteran had been involved not only in that incident but in others—because there was immediate presumption that there would soon be a knock on the door or a letter popping through the door for some sort of summons, so the stress levels, the distress and the impact snowballed to quite a large level. It was very hard to put a lid on that stress because that is what happened: letters did start to arrive and people did get knocks on the door, so it became a very distressing time.
Sarah Atherton
Q
Lieutenant Colonel Parker: There are two parts to that. First, we would have at least had something to be able to say back, “No, no. There is protection here.” Whether it was a six-year limit or inside that is, of course, a different point. At least there would have been something there to say that.
We must remember that in parliamentary terms, it can be easy to understand it as a Bill about legal process. In the veterans sense, it is much more simple than that. It is simply understood as: the people, the public, the nation, does not want to do this to people who have stood on the wall and had to fight for freedom. They do feel that a Bill like this would allow those of us who are able to soothe and reassure to say as a result, “It’s okay. The country does care; Parliament does care.” Therefore, every effort is being made, which is why we admire what you are trying to do to close the gaps that have allowed those things to happen.
Mr Jones
Q
Lieutenant Colonel Parker: I agree with you, but I propose that in the whole of defence—let alone the MOD, lawyers, investigators, military police investigators —everyone went through a learning process. That was an unprecedented time. Now, everything—the procedures, the understanding, the channels of complaint, the channels of the chain of command acting to look after people, the care for families—has improved, so we must be careful not to look at those past incidents when we were going through extreme learning pains with the existing legislation, but think about how we might cope not only with new legislation, but with the great leaps forward and lessons that have been learned about investigative timescale and accuracy, and the ability and the need for statements to be taken after patrols and suchlike.
Those things sound very easy. Sometimes they are difficult out in the dust and the heat, with the extreme exhaustion that goes on out there. We are in a much better place; I genuinely offer that from a very lucky perspective, because I can speak without any official man here, but I get the chance to speak to everyone who is in officialdom, as well as the soldiers from my regiment and their families.
Mr Jones
Q
Lieutenant Colonel Parker: No, but it would not be the first time. We are in a gradual process as a country, and we must not be too hard on ourselves. We are closing gaps and are doing the best we can, but nothing will be done in a week or two. Everyone is pretty realistic—you will not get a bunch of people who are more realistic than military veterans about how long things take. There might be some concerns about the six-year rule, but I am sure people would welcome being part of that discussion. I can certainly help that process by getting my people to be part of that discussion, survey or whatever it might be, to get the feeling about whether this would be something that could sit happily with them. This process alone—my being here—is part of that. The six-year part, and the potential that other parts of society could be better off, is still countered by the fact that I have never met a military person who feels that we should be outside the law and that we should not obey the agreed principles.
Mr Jones
Q
Lieutenant Colonel Parker: Understood, and I partially agree with you. Again, I would say that most people would be surprised, as would I, that no mechanism could be thought of to allow someone after the six years, if they felt that there was a strong enough case and it was sound in British justice, to bring a claim via appeal, the High Court or whatever it might be, to a judge, and that would be allowed to be waived. I am not a legal expert, but I would have thought that would be the situation if there was a particularly compelling case. I cannot think of any.
The Chair
If there are no more questions, may I thank you, Colonel Parker, for your valuable evidence this afternoon? I am sure the Committee will find it useful and informative when we come to discuss the Bill on a line-by-line basis.
Examination of Witness
Judge Jeff Blackett gave evidence.
The Chair
Q
Judge Blackett: I am His Honour Judge Jeff Blackett. I was the Judge Advocate General for 16 years. I had 31 years’ service in the Royal Navy before that. I retired as Advocate General last week, on 30 September, so that I could go and become president of the Rugby Football Union.
Johnny Mercer
Q
Judge Blackett: That has gone to the end of where I was going to speak, because I was going to start off by saying that I think the Bill does not do what it is trying to do. My concern relates to investigations, not prosecutions; but there are a number of issues, and I think you and I have discussed some of them.
The first thing I would do is apply section 127 of the Magistrates’ Courts Act 1980 to the military. That puts a six-month time limit on summary matters, and I would extend that to be matters that were de minimis—there would have to be a test of de minimis. Interestingly enough, halfway through my time as the Judge Advocate General, I issued a practice memorandum, which effectively incorporated that into the court martial. Following Danny Boy, the only offences that could be brought to trial were common assaults, and they were not, because the Army Prosecuting Authority followed my practice memorandum. The Ministry of Defence at the time were not in favour of that, and they challenged. Unfortunately I had to withdraw that practice memorandum.
That would deal with minor cases, and there are lots of minor cases. The sorts of things that IHAT was dealing with were that there would be a complaint that appeared to fall at the upper end of the spectrum. There would be an investigation. It would find that the allegations had been wildly exaggerated and end up finding that the most serious offence might have been an attempted actual bodily harm. In cases like that there should be a limitation period. So that is my first thing.
The second thing is that I would have judicial oversight of investigations. I introduced something called “Better Case Management in the Court Martial”, towards the end of my time as the Judge Advocate General. That puts time limits on investigations. The most important thing about it is that a case, early on, goes before a judge, and a judge then sets out a timetable of what various things should do. If section 127 of the MCA was brought into force, and the case dealt with de minimis, he could then say, “This is de minimis; stop the investigation.” So you need some mechanism, and judicial oversight. In my opinion, you could do that.
Thirdly, I would look at legal aid and funding. We have to remember that Northmoor and IHAT were set up by the British Government, and were funded by the British Government. The ambulance-chasing solicitors—people like Phil Shiner—used public money to pursue the means. I think you need to look at how legal aid is approved in those matters, and whether complainants should be funded, and the bar for funding them and their solicitors should be set higher.
So those are three areas. Finally, I would raise the bar for reinvestigation, or investigation. Having said that, there were only two courts martial where people were acquitted where there was a reinvestigation, but I would raise the bar for reinvestigation as well. So those are four practical matters that I think the Bill should concentrate on, rather than prosecution.
Johnny Mercer
Q
Judge Blackett: You would have to ask them. I am an independent judge, who was the judicial head of the service justice system.
Johnny Mercer
Q
Judge Blackett: I think in terms of the six-month time limit, there were lawyers in the MOD who said that we did not put that in the Armed Forces Act 2006. There are commanding officers who do not want to be limited, because sometimes they need more time. In terms of better case management, I think that the MOD thinks that is a good idea, but I did not come to it until quite late in my time.
I will say one thing, though. In terms of IHAT and Northmoor, as the Judge Advocate General I wanted to be more involved, but I was kept out—properly, I suppose, because I might have to try the cases in the end. We expected a lot of cases to come out of those two matters, and as you know, not a single case came out of them, which tells its own story.
Stephen Morgan (Portsmouth South) (Lab)
Q
Judge Blackett: Yes. Perhaps I can say this. I wondered why, in the face of all the opposition—there is huge opposition, from various bodies—the Government seemed intent to pursue this particular issue. I have three concerns about the Bill. One is the presumption against prosecution, one is the wording in clause 3(2)(a), and the other is the requirement for Attorney General consent.
I listened very carefully to what Johnny Mercer said to the Joint Committee on Human Rights a couple of days ago. He described a pathway that goes from civil claims for compensation. That becomes allegations of criminal behaviour. That leads to investigation. That leads to re-investigation. I think that is the pathway you described, Mr Mercer. He said the lock was a presumption against prosecution, and Attorney General consent. I can understand, looking back, how you might get to that, but I think that logic is flawed, because actually he agreed that the issue of concern is investigations, which is my concern as well, and the length of time they take. He accepted, as he would, that all allegations must be investigated. That acceptance and a presumption against prosecution just do not equate, in my terms.
Let us look at some statistics. In my time as JAG, we have had eight trials involving overseas operations, with 27 defendants, of whom 10 were convicted. There were obviously trials. I did the two murder trials. The first murder trial was about the murder of a chap called Nadhem Abdullah by 3 Para. That was a case called Evans. The events took place in 2003; the trial was in 2005. In the case of Blackman, Marine A, the unlawful killing took place in 2011; he and two others were tried in 2013. So the system worked and due process went along. There were eight trials.
At the same time, there were 3,400 allegations in IHAT and 675 allegations in Northmoor. We all know how long they took, and nothing came out of them. So I agree wholeheartedly with what the Minister is trying to do. I am absolutely behind protecting service personnel. I simply do not believe this Bill does it, because I cannot see that a bar on prosecution or—sorry—a presumption against prosecution is going to stop the ambulance chasing that the Government are so worried about.
My second concern, of course, was the International Criminal Court. Take a case like Blackman, for instance, where there was a video of him shooting somebody. Had that come to light over five years later and there was a presumption against prosecution, first of all, the investigation would have taken place. The prosecutor could have said, “The presumption exists. Therefore I am not going to prosecute.” That would lead to a victim right of review, perhaps. More importantly, it would lead the International Criminal Court to say, “You are unable or unwilling—article 17 of the Rome statute—to prosecute. Therefore we’ll take this and we’ll put him to The Hague.” That is a real concern of mine.
The prosecutor could decide there is a case to answer, but he would send it to the Attorney General, and the Attorney General says either, “Prosecute”—in which case, so what?—or no, and you have exactly the same thing: judicial review of his decision by all sorts of people, and the International Criminal Court saying, again, “You are unable or unwilling.”
In my view, what this Bill does is exactly the opposite of what it is trying to do. What it is trying to do is to stop ambulance-chasing solicitors and vexatious and unmeritorious claims. The Minister quite rightly said we want rigour and integrity. What it actually does is increase the risk of service personnel appearing before the International Criminal Court. That is why I said it was ill conceived.
Stephen Morgan
Q
Judge Blackett: No. My office is nearly always consulted on legislation, particularly when I went through the 2006 Act. I was heavily involved in that and, subsequently, with the other quinquennial reviews. I do not understand why my office was not consulted. There have been occasions in the past where paperwork has got lost when we have been consulted. I personally was not, but my office dealt with it. That was not the case here—we simply were not consulted.
Stephen Morgan
Q
Judge Blackett: It was unusual. Whether it was pressure of time or whether officials wondered what I was going to say and did not want to hear it, I do not know.
Stephen Morgan
Q
Judge Blackett: I would have hoped that we could have influenced the Bill, because I think a Bill is a good idea, but it has to have the right contents. Had I been able to have an input, perhaps on the format as I have just described, I do not know whether it would all have made it into the Bill, but at least it could have been discussed.
Stuart Anderson
Q
Judge Blackett: That is a different matter. That is apples and pears. I am consulted on policy development, even though I am an independent judge. In terms of individual cases then clearly—and properly, at the time—I was not consulted. I was going to have to deal with the serious matters that came out of it, so I was not consulted. I was told that there might be a case—“There is possibly a case. Can you clear seven weeks in the diary to sit in a case, sometime in the future?”—but I was not consulted about how the investigations were going on.
Stuart Anderson
Q
Judge Blackett: Section 127 of the Magistrates’ Courts Act would require legislation to apply to the armed forces. As I told you, I issued a practice memorandum many years ago to try to do that, which the MOD objected to and it had to be withdrawn. Legal aid funding for victims and ambulance-chasing lawyers, to use the expression that has been used, would need some legislation. On raising the bar for the investigation, the wording in the Bill might do that, but perhaps it would require legislation. Judicial oversight of investigations, particularly overseas operations, would require legislation.
Stuart Anderson
Q
Judge Blackett: The process that you describe goes on all the time, but not in particular for overseas operations. There is a quinquennial review of the Armed Forces Act. I am consulted and have the ability to input issues. For example, I have been concerned for a long time about service personnel who are convicted in the court martial of causing death by dangerous driving. We had a number of those with servicemen overseas. The court martial had no power to disqualify them from driving, and I had a real concern that they would come back, serve their time, go straight on the road and kill somebody else. I have been trying to get something like that into the Armed Forces Act.
The process takes ages. I would start off 15 years ago saying, “I don’t think this should be in the Act.” It is not agreed by the policy people within the MOD, for all sorts of reasons. We go round and round in circles, miss one Act and then another Act. Hopefully, it is going to be in the 2021 Act. That goes on all the time. I am proactive in dealing with matters around trial process.
Stuart Anderson
Q
Judge Blackett: No, because I was not consulted.
Stuart Anderson
Q
Judge Blackett: No. I am sure other people have similar ideas—I have not got all the good ideas—but I was not asked, so I did not put anything in. That was until I became aware of the Bill—too late, but probably my fault—and at that stage I wrote to the Secretary of State and raised my concerns.
Stuart Anderson
Q
Judge Blackett: Sixteen years.
Stuart Anderson
Q
Judge Blackett: No. I have had exchanges and we have had meetings with Ministers, but for this particular Bill nobody came to me and said, “We are going to put this through Parliament. What do you think?”.
Stuart Anderson
Q
Judge Blackett: Not to my knowledge. It needs political will, of course, and if you go back to IHAT and Northmoor, you start with the Baha Mousa concerns where we had a court martial where seven people were tried, one pleaded guilty to an ICC Act offence and all the rest were acquitted when clearly the British Army had been responsible for killing an individual over a three-day period. The court martial did not resolve in a conviction.
Following that, we had all the cases from a solicitor who in those days was well respected, so nobody questioned his motivation on the allegations he was raising. That subsequently turned out to be wrong. I think the issue then was the British Government thinking, “If we have got systemic abuse by the British forces overseas, we have got to do something about it.” Hence they set up Northmoor. That was really the focus.
Stuart Anderson
Q
Judge Blackett: Not in its present form, no. The court martial system demonstrates that we have, to use the Minister’s words, “rigour and integrity”. We have got to move faster and we have got to investigate quicker. The issue is not the court martial system; the issue is IHAT and Northmoor, and that is nothing to do with the court martial system.
The Bill is effectively looking at the wrong end of the telescope. It is looking at the prosecution end, and you have got to remember that you do not prosecute until you investigate—and you have got to investigate. This will not stop people being investigated and it will not stop people being re-investigated and investigated again. Lots of investigations do not go anywhere, but the people who are investigated do not see that.
The fact is that, as you know, of the 3,400 cases, or whatever it was, at IHAT, not a single one has been prosecuted—not one. But the issue for those being investigated is dreadful. That is their complaint. Now, I understand that with high-profile cases like Blackman—Marine A—there are a lot of veterans who think we should not even prosecute that because they say he was doing his job and it is wrong to prosecute him. That is clearly wrong. When you have an offence as blatant as that, it must be prosecuted; otherwise we are undermining the rule of law and what we stand for in Britain.
Stuart Anderson
Q
Finally—I am not sure whether you heard the last witness—
Judge Blackett: I heard some, yes.
Stuart Anderson
I asked him how the 5,000 Iraq and Afghanistan veterans and the 20,000 overall veterans he has contact with would feel if the Bill were stopped. I do not know whether you heard his answer.
Judge Blackett: Yes, I did.
Stuart Anderson
What would you say to that, then, with your recommendation that the Bill be stopped?
Judge Blackett: I have not recommended that it be stopped.
Stuart Anderson
Sorry, I do not want to put words into your mouth. First, do you think that this Bill should be stopped?
Judge Blackett: Yes, but—
Stuart Anderson
Okay. So now you have said that, what would your words to him be?
Judge Blackett: I believe in a Bill with some of the items that I have suggested. What I would say is that the Bill should be stopped, rewritten and, when it addresses the problem, brought back. What would I say to those 5,000 veterans? I would explain that the Bill as it stands will make life worse, not better, and therefore we will look at it again, trying to bring something back that would satisfy your concerns.
Carol Monaghan (Glasgow North West) (SNP)
Q
Judge Blackett: No. I cannot see the differentiation between any offences but, since I do not think that there should be a presumption against prosecution anyway, that is just an academic question.
Carol Monaghan
Q
Judge Blackett: It is the same answer—this is an academic discussion that you and I are having, because I do not believe that there should be a presumption against prosecution at all. If there is an offence, whether sexual, torture or anything else, it should be prosecuted.
Carol Monaghan
Q
Judge Blackett: You are asking me what is probably a loaded political question. I would hope so, and when I met the Minister, Johnny Mercer—not in this forum, but in a more discursive one—he was very interested in some of my options, and I think he asked staff to look at them. I do not know how far that has gone, and I do not know whether any will be brought back, but I hope that, given my experience—
Carol Monaghan
Q
Judge Blackett: About a month ago—something like that.
Carol Monaghan
Q
Judge Blackett: To be fair to the Minister, he said to everybody, “I want to fix this problem, and I am open to any suggestion”—
Carol Monaghan
We have heard that many times, but we are slightly concerned.
Judge Blackett: I take the Minister at his word—if he says that he is open to any suggestion, he or his staff must look at it on its merits and, if they see any merits, they will take it forward.
Carol Monaghan
Q
Judge Blackett: The six-year time limit on civil claims.
Carol Monaghan
Yes.
Judge Blackett: The previous witness talked about the inability of service personnel to sue, because of the six years. It is rather like going back to section 10 of the Crown Proceedings Act 1947. That is not really my area of law, so perhaps I am not the right witness to deal with it. I said to the Secretary of State that I thought it was injudicious, but there are better minds than mine who can apply that.
One bizarre thing is that, if this Bill becomes law, there is a six-year time limit but the Attorney General may give consent to a prosecution. Then, clearly, one of the things that the criminal court would be doing is awarding compensation, if there was a conviction. There would still be issues in relation to personal injury claims, which would come through the criminal court rather than the civil court, if it got to prosecution. However, I do not think I am the right person to answer those questions.
Mr Jones
Q
“The bill as drafted is not the answer.”
You have been very clear on that today. You have made four suggestions there. I can see a problem with the legal aid one, but the other three relate to procedure for criminal trials in the service justice system. Could they be incorporated into the Bill?
Judge Blackett: Yes. If you need legislation, you can use any legislative vehicle, can you not? Certainly, I would have thought that applying the Magistrates’ Court Act 1980 one, which is applying a six-month time limit to summary-only matters, would be extended. It would need more wording because I believe that should be extended to what should be called de minimis. De minimis claims probably need to be taken before the judge who is overseeing it so he can say, “This is de minimis.” Then, a great raft of those allegations in IHAT and Northmoor would have gone with that.
Mr Jones
Q
Judge Blackett: Yes.
Mr Jones
Q
Judge Blackett: The way I described it when we had our meeting with the Minister was relating to the Criminal Cases Review Commission. They can look at what is a miscarriage of justice and put it back to the Court of Appeal, but they have a very high bar. It was extracting that sort of test and applying it on the other side in relation to investigations. Having said that, there have been only two reinvestigations following acquittals in my time, and both of those determined that there was no further evidence and therefore it did not come back to court. However, the individual accused, who had been acquitted, had to go through all the problems that we heard the last witness talk about.
Mr Jones
Q
Judge Blackett: In my view, you have an allocated judge—probably a judge advocate—who the investigators can come to and say, “This is what we have. We have one person saying ‘He raped me 10 years ago.’ We have no other evidence. We have interviewed her and we think”—she is lying, she is telling the truth, or whatever. The judge can then take a view, rather than the current system at IHAT. It became rather like a fishing expedition, where an allegation came in and they spent ages fishing for more evidence around the allegation. It needs, I think, judicial oversight to say, “Stop fishing, you have had enough time. This clearly will not get anywhere near a conviction and therefore stop the investigation now.”
Mr Jones
Q
Judge Blackett: No, no. It is basically judicial supervision. It comes back to what I was saying about better case management in the court martial, which is the system we introduced not that long ago, where early on in the investigation, before the investigation is complete, the case is put before a judge. It may be that at that stage the defendant says, “I plead guilty and therefore let’s stop the investigation.” That is one way of dealing with these matters. It stops the time taken on an investigation.
Mr Jones
Q
Judge Blackett: Clause 3 is engaged after five years. It seems bizarre to me that in deciding whether to prosecute, you have a post-five-year test, but not a pre-five-year test. All these matters are taken into account anyway when the service prosecutor decides whether it is in the service and public interest to prosecute. As you know, there has to be evidential sufficiency and public interest. This is effectively designing or describing what the service interest test or public interest test should be. Now, prosecutions may take place, even though a serviceman were suffering from battle fatigue, diminished responsibility—all of those things. There is still a proper prosecution and the offence or the sentence will reflect all those matters, but not the actual prosecution. This therefore seems to me unnecessary, because the service prosecuting authority exists separate from the Crown Prosecution Service because it applies the service interest test. That was my concern.
Mr Jones
Q
Judge Blackett: Interestingly, a number of the issues here were raised by Marine A subsequently through the Criminal Cases Review Commission and back to the Court of Appeal, and they were never raised at first instance. Had he raised them at first instance—had all the psychiatric evidence that came out eventually appeared at the start—he probably would have been charged with manslaughter rather than murder, for example. So that can assist the prosecutor in the way he moves forward.
Mr Jones
Q
Judge Blackett: I think if the Bill becomes law as it stands, then clearly there is a concern. We have seen it from all the responses to you, from Liberty and others such as Liberty, who are very concerned. Their perception is that you are protecting people from wrongdoing. I am sure their view will be that if you are protecting people from wrongdoing, you are not capable of being independent and therefore we should take all this away from you.
Mr Jones
Q
Judge Blackett: Sorry, I am not quite sure what the question is.
Mr Jones
Q
Judge Blackett: I do not read the Bill as you have suggested—that you do not investigate because there is a presumption against prosecution.
Mr Jones
Q
Judge Blackett: You investigate on the basis that if there is sufficient evidence, it will go to the prosecuting authority and he will say either yes or no, or it will go to the Attorney General. As I said earlier, if the Director Service Prosecutions decides not to prosecute, there is a victim right of review, so there is a further process—that is, if it does not go to the International Criminal Court—and if it gets to the Attorney General, there is the option of judicial review of his decision. Yes, there is a lot of potential litigation around the Bill.
The Chair
I call Liz Twist.
Judge Blackett: Can I add a rider to what I have just said? The Attorney General has to consent in a number of offences. As far as the court martial is concerned, the Attorney General has to consent to prosecuting any International Criminal Court Act 2001 offence—that is, genocide, crimes against humanity or war crimes. Under section 1A(3) of the Geneva Conventions Act 1957, he has to consent to prosecuting any grave breaches of that Act, and under section 61 of the Armed Forces Act 2006, he has to consent if a prosecution is to be brought outside of time limits. That is in relation to service personnel who have left and are no longer subject to that jurisdiction. A consent function is there in any event, and funnily enough, given that ICC Act offences and Geneva Conventions Act offences are covered by the Attorney General, a lot of this will have to go to the Attorney General anyway, without the Overseas Operations Bill.
My concern about the Attorney General’s consent is that it undermines the Director Service Prosecutions. If I were he, I would be most upset that I could not make a decision in these circumstances.
Liz Twist (Blaydon) (Lab)
Q
Judge Blackett: I think all Governments would want torture and other war crimes to be prosecuted, and if they give that indication, it is not for me to say anything else. I am satisfied by that assurance, but on the face of the Bill, there is a chance that it would not be prosecuted. That is the point.
Liz Twist
Q
Judge Blackett: I would have to read the Bill again. It says in clause 1 what “overseas operations” means, doesn’t it? I cannot put my hand straight on it, but I am sure there is a section that describes what overseas operations are. Sorry, this is not really answering your question, but the eight cases that have come to court martial include ones that were not necessarily on the battlefield. The Breadbasket case, for instance, where soldiers were alleged—they were found guilty—to have abused civilians by stripping them naked, making them simulate sex, urinating on them, et cetera, was not on the battlefield, but it was in operations shortly after the war fighting. That does not answer the question, does it?
Liz Twist
Q
Judge Blackett: Yes. The way I read the Bill is that anybody on an operational tour in an operational area is covered, so the case I just described would be captured by this. That would be my interpretation.
Liz Twist
Q
Judge Blackett: It does not talk about the battlefield; it talks about overseas operations. I went on a number of overseas operations in the Royal Navy, which were not a battlefield. It was never in the face of the enemy; I cannot say more than that. I would have considered myself on an operational tour when we were sailing round the West Indies, for instance, but I do not think that would be covered by the Bill. Any activity where there is effectively war fighting is what this Bill is about. That is my interpretation. It is not just about what is happening when you are firing bullets at each other; it is what is happening around it.
Stuart Anderson
Q
Judge Blackett: Yes, because they are being investigated.
Stuart Anderson
Q
Judge Blackett: What I am saying is that the fact that there is a presumption against prosecution would not stop the knock on the door and the investigation. That is the whole point. The presumption against prosecution does not stop the investigation; the investigation happens. The 80-year-old who is alleged to have done whatever he has done would still get the knock on the door. He would still be investigated. Once there was sufficient evidence against him, it goes to the prosecutor. If there is not sufficient evidence, the investigation stops. If there is sufficient evidence, it goes to the prosecutor, who then has the five-year presumption against prosecution. The 80-year-old is still going through all the trauma, and it may be that the police say, “This is such a serious case that it is exceptional, and therefore we should waive the presumption against prosecution.” This Bill will not address that question. That is the whole point.
Sarah Atherton
Q
Judge Blackett: No, because that was very much an investigation function. It has changed a bit because of what I have done with the system, but at that time I was effectively waiting for the investigation to happen and the prosecution to come to us. The judge becomes involved when the case first steps into the courtroom. That may take another two years, even after it has stepped into the courtroom, because of whatever has to happen. I was not consulted, no, and nor should I have been at that stage.
Sarah Atherton
Q
Judge Blackett: I constantly raised concerns with the DSP that this was all taking too long and that they ought either to get rid of it or get to court. I did that.
Sarah Atherton
Q
Judge Blackett: I was reassured that the investigations were taking time, more evidence was needed, some cases were coming, and I needed to keep out of it so that when the cases came I could deal with them.
There was one other point that I wanted to make, which is about complementarity—not with the ICC. I would pose some questions, particularly to the Minister. You will remember that six Royal Military Police were killed at Majar al-Kabir in 2003. If those responsible were identified today, would we accept that there would be a presumption against their prosecution? Would we expect the factors in clause 3(2)(a) to be taken into account? Would we be content that a member of the Iraqi Government’s consent would be needed to prosecute? Would we accept a decision by that person not to prosecute? In my view, there would be outrage in this country if that occurred. In all areas of law, you have to be even-handed. If, in that same battle, it turned out that one of our soldiers killed one of the Iraqis unlawfully and we said, “Well, he should be protected, because it was a long time ago, but we not protecting these Iraqis,” that is just not right. I fundamentally think the Bill is wrong, and I really believe it needs to be revised before it passes into law.
The Chair
Thank you, Judge. That neatly turned around the normal procedure—instead of the Committee asking you questions, you are asking the Committee questions. The Committee has come to the end of its questions. May I thank you on behalf of the Committee for the very interesting and valuable evidence that you have given to us? That brings us to the complete end of our oral evidence sessions with different witnesses. We will meet again on Wednesday next week to commence line-by-line consideration of the Bill. We will be meeting at 9.25 am in Committee Room 10.
Ordered, That further consideration be now adjourned. —(Leo Docherty.)
Overseas Operations (Service Personnel and Veterans) Bill (Fifth sitting)
Wednesday 14th October 2020
(3 years, 6 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 October 2020 - (14 Oct 2020)
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Chair
Before we begin consideration, I have to make a few preliminary points. Members will understand the need to respect social distancing guidance, and I shall intervene if necessary to remind everyone. I remind Members to switch electronic devices to silent. Tea and coffee are not allowed during sittings.
Many Members will speak spontaneously in the debate but, if they have speaking notes, it would be helpful to our colleagues in Hansard if those can be sent to hansardnotes@parliament.uk.
For a number of Members, this is the first time that they have been in a Bill Committee. If any hon. Member is unsure of the procedure or wants advice, the Clerk and I are here to help, and not in any sense to hinder.
We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room, on the desk. It shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or a similar issue.
Please note that decisions on amendments do not take place in the order that they are debated, but in the order that they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause to which the amendment relates.
Clause 1
Prosecutorial decision regarding alleged conduct during overseas operations
Chris Evans (Islwyn) (Lab/Co-op)
I beg to move amendment 23, in clause 1, page 2, line 1, at end insert—
“(ba) operating weapon-bearing UAVs (Unmanned Aerial Vehicles) or RPAS (Remotely Piloted Aerial Systems) from the British Islands in support of overseas operations.”
It is a pleasure to serve under your chairmanship, Mr Stringer.
The Bill is important to our service personnel, and it is crucial that we get it right. Last week, one of our witnesses, Mr Sutcliff, said to us:
“please scrutinise the Bill as carefully as you can…and…look after your service and ex-service personnel in the best way you can.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 10, Q9.]
It is important to keep those things in mind as we proceed. I hope that the Government will consider our amendments even-handedly. They have been tabled in good faith, in the hope that we can make the Bill the best it can be for the brave men and women who serve in our armed forces.
Amendment 23 calls for unmanned aerial vehicles or remotely piloted aerial systems operated from the British isles in support of overseas operations to be included in the Bill. The Minister has said that he is happy to look again at all aspects of the Bill and that he wants to build a collegiate approach in the House to get the Bill through. I would argue that this clause is a good place to start. The amendment would a simple and effective way to help the Bill to achieve its stated aims. If the Government are serious about making this Bill comprehensive, I see no reason for UAVs not to be included. As drafted, the Bill is not clear enough about its scope or what it includes.
In recent times, we have seen a dramatic rise in the use of UAVs. The failure to include them in the Bill gives me concern that it is not looking enough to the future of warfare. The Government have made their plans clear, saying that they will rely increasingly on unmanned aerial vehicles, meaning that those will account for an important part of the integrated review. Across the world, armed forces have invested millions in the development of UAVs for military operations. The United States has increasingly relied on drones to carry out its military operations overseas, and the rest of the world is quickly following.
In 2016, at the cost of £816 million, the drone acquisition programme was approved by the Ministry of Defence. Earlier this year, the permanent secretary at the Ministry of Defence said that the estimated cost had risen by an additional £325 million. The UK Government are funnelling ever-increasing sums into the funding of UAVs for military purposes. Since 2007, about 3,700 Royal Air Force drone missions have killed 1,000 terrorists in Iraq, Afghanistan and Syria.
Mr Kevan Jones (North Durham) (Lab)
Does my hon. Friend agree that UAVs are an integral part of the new battlespace and that, while some people argue that they are outside any rules of engagement, they are in fact governed by the same rules as govern conventional weapons and that the people using them are aware of the legal restraints?
Chris Evans
I thank my right hon. Friend for his intervention. A long-standing member of the Defence Committee, he has developed a reputation as an expert in the field of defence. He is right that the impact of technology will only increase in changing our world beyond all recognition. It is important to realise that, in future, whether drones are operated from the British islands or America, they will be as much a part of warfare as boots on the ground. Unmanned combat is likely to become an increasingly common form of warfare. The Ministry of Defence has said it aims for a third of the Royal Air Force to be remotely piloted by 2030, and funding for unmanned aerial vehicles for military purposes continues to grow. Given their rising use, the exclusion from the Bill of UAVs and remotely piloted aircraft systems is a glaring oversight if the legislation is to serve its purpose in the future.
The Ministry of Defence is also considering the most appropriate systems for air combat, especially when Typhoon leaves service in 2030. Options for air combat forces include unmanned combat aerial vehicles with both offensive and defensive capabilities. That would see a mix of manned and unmanned craft in the air force, working alongside each other. Surely those piloting UAVs from the UK should be given the same consideration under the Bill as those they work alongside.
Chris Evans
My right hon. Friend is absolutely right. People will still have to operate those vehicles in future, and they will also be open to the horrors of war and what happens on the battlefield. We should keep that in mind as we develop this argument.
Until recently, the drones used by the UK armed forces were remotely piloted aerial systems. The proposed unmanned combat aerial vehicles differ from the previous drones as they are designed to fight for air supremacy. That widens the scope of drone and other unmanned warfare, as my right hon. Friend just said, increasing the number of service personnel working on an overseas mission but not physically based overseas. General Sir Mark Carleton-Smith recently said that he foresees the Army of the future as an integration of “boots and bots” and that in future combat those on the ground will be supported by “swarms of drones”. We look forward to hearing more about those plans when the integrated review is finally published.
The Ministry of Defence also continues to fund research into the future of drones. The Government are funding jointly with the French a study into the feasibility of an unmanned combat aircraft as a possible replacement for Typhoon from 2030. The Government have said they have no plans to develop fully autonomous weapons; that means that service personnel will continue to operate UAVs for the foreseeable future. What is clear from all that is that drones are here to stay. Therefore, those who operate those missions should be included in the Bill. It is important to note that drone operators face a worryingly high chance of developing post-traumatic stress disorder. In fact, in 2015, Reaper squadron boss Wing Commander Damian Killeen told the BBC that staff operating drone aircraft in Iraq and Syria may be at greater risk of mental trauma.
While drone operators may be based in the UK, they are completing overseas missions. There is a popular image that operating a drone is like playing a video game, but those who serve say that that is simply not the case. One US drone operator is quoted as saying:
“You are 18 inches away from 32-inch, high-definition combat, where you are in contact [by headset with] the guys on the ground... You are there. You are there. You fly with them, you support them and a person you are tasked with supporting gets engaged, hurt, possibly killed, it’s a deeply, deeply emotional event. It’s not detached. It’s not a video game. And it’s certainly not 8,000 miles away.”
For some, drone operation can be more traumatising than flying a conventional aircraft. As Commander Killeen says:
“You’ve got that resolution where you know exactly what it is that’s on the other end of your crosshairs.”
Research by the US air force also suggests that those in the kill chain see more graphic violence than their special forces counterpart on the ground. On surveillance missions, they are more likely to see destroyed homes and villages, as well as witnessing dead bodies and human remains. One UAV pilot told the Daily Mirror:
“The days are long and hard and can be mentally exhausting. And although UAV pilots are detached from the real battle, it can still be traumatic, especially if you are conducting after-action surveillance.
When you are piloting a UAV for hours, you feel part of the battle, even though you are thousands of miles away.”
The risk of post-traumatic stress disorder is also increased by the fact that, unlike personnel on the ground, who perhaps do a four-month tour, UAV operators often work year round, meaning less chance for a break and time to recover. Justin Bronk, a research fellow for airpower at the London-based Royal United Services Institute, said that fast jet crews were used to deploy on short tours abroad, but that drone operators switched daily between potentially lethal operations and family life, which could be
“extremely draining and psychologically taxing”.
The psychological stress of drone warfare is visible in difficulties that the UK faces in recruitment and retention of those qualified to fly armed drones. During an appearance before the Public Accounts Committee in January, the Ministry of Defence permanent secretary said that for the Royal Air Force, the training and retraining of drone crews has “historically proven challenging”.
The effect that taking part in such machines has on UAV pilots mentally, despite their being physically further away from the action, merits their inclusion in the Bill. Only last week, in our evidence session, Clive Baldwin of Human Rights Watch said:
“The idea of having one rule for overseas operations and one for domestic operations will be increasingly artificial”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 67, Q135.]
Drone operators may not be physically overseas, but they are very much taking part in overseas operations. With unmanned warfare looking like it will be more common in future conflicts, I would argue that failing to include those operations in the Bill may cause the Ministry of Defence service personnel issues down the line. The Government have said that they want the Bill to protect service personnel from repeated investigations and vexatious claims. Do those service personnel who operate UAVs not also deserve to be protected?
Given the increasing use of UAVs and RPAS, I would be deeply concerned were they not included in the Bill. If the Bill is to do as the Minister purports, surely, if we are to protect our service personnel, we want to include and protect those personnel who operate our drones.
Mr Jones
I thank my hon. Friend for introducing this amendment, which I assume is a probing one in order to have the debate. But, Mr Stringer, it was remiss of me not to say what a pleasure it is serve under your chairmanship, especially now we are both serial rebels on our Benches, after votes that took place this week on covid.
I do not like the word “drone”. It gives the sinister idea that somehow these things are indiscriminate weapons and there is no human in the chain. Unmanned aerial vehicle is a more appropriate term. I accept that, in the future, we may get to a system where unmanned aerial vehicles or subsea systems are completely autonomous, but at the moment, we are talking about the human in the chain.
It is a common myth, mainly argued by those who are against the use of UAVs, that somehow there are no rules that govern how they are used. Nothing could be further from the truth. When I was a Minister in the Ministry of Defence, I met the individuals who pilot—that is the word we use—these unmanned systems in both Iraq and Afghanistan. They are in the same decision-making process and legal framework as if someone was dropping a ordnance from a Typhoon or any type of manned aircraft.
There is a chain of command, including a legal framework around their decisions. Before each individual airstrike takes place, there is a legal justification. That might come as a surprise to some people who want to portray the view that people are sat in Nevada or Waddington or Florida pressing buttons, attacking targets. Nothing could be further from the truth. There is a legal framework for each operation and that is supported by the legal service. It surprises some people that each strike has a legal sign-off, with lawyers who agree what can and cannot be done, including, as I know from my time in office, a chain that sometimes includes Ministers who have to agree to those sign-offs. There are many examples where Ministers have had sign-off.
Is what we are talking about pretty? No, it is not—but anyone who knows the battle space or any type of combat knows that it is not a pretty thing. Killing people is not something that anyone wants to do, but unmanned aerial vehicles have given a capability to us and our allies which has been of tremendous help, not only in saving UK and allies’ servicemen and women’s lives, but in saving civilian lives.
The chain of command is a legal framework. Do things go wrong? Yes, clearly they do, and not just in this theatre. Sometimes in a very complex battle scenario, no matter how well you plan for it, you cannot foresee every eventuality. What irritates me is that people sometimes look back at those situations with some sort of crystal ball and say, “Well, if I was there, I would have done X, Y and Z.”
Jack Lopresti (Filton and Bradley Stoke) (Con)
On a point of information, and paying tribute to the right hon. Gentleman’s experience in the field, if a Minister signs off an operation and it goes wrong, does that mean that the Minister is legally culpable for the decision, or is it the operator operating the UAV or is it the people on the ground calling in the mission?
Mr Jones
I will come to that in a minute; it is an important point on the legal protection that is there for the people involved.
Things do go wrong. It is fine for people to look back and say, “Look, if that happened, I would have done this differently,” but that is just not how warfare takes place. Sometimes, there are critical decisions that have to be taken at short notice to protect civilians or protect our armed forces’ lives. At the end of the day, they are down to individual judgments, not only by the commanders who authorise things, but by the people we are asking to protect us as members of our armed forces.
Martin Docherty-Hughes (West Dunbartonshire) (SNP)
When the hon. Member for Islwyn was introducing the amendment, he noted that it was not meant to take on board issues in relation to fully autonomous systems. Nevertheless, it should be recognised that fully autonomous systems will be with us sooner rather than later and that, in those systems, there is a human decision-making process that must be safeguarded. Artificial intelligence is artificial, requiring human instigation to create the algorithm to make the decision-making process, and we must keep that in mind as we recognise the need for and validity of securing protections.
Mr Jones
I agree. Again, some people writing or talking about this area are saying that somehow the human being has nothing to do with it. The hon. Gentleman is correct in that even if we get to having a futuristic system with fully autonomous vehicles and in-flight combat between various systems, swarms of drones and things like that, a decision will still need to be taken on how that system is used. That is an area where not just in the UK but internationally we will need to look at rules of engagement and the definition of an autonomous vehicle. There is increasingly a move towards autonomous vehicles. Look at the Team Tempest programme from BAE Systems and its partners and how that is going: there can be a pilot, but the design will not need a pilot, and that ain’t that far away—it is coming up fast.
It comes back to the decision-making process. The hon. Member for Filton and Bradley Stoke mentioned the chain of command issue. That goes to the heart of the Bill because of the importance of having the audit trail for who took which decisions. It is difficult for anyone in the chain of command to take a decision, from the person executing the mission on the ground right up to a Minister signing something off. That is not an easy process. Can things go wrong all the way through? Yes. However, I would argue that as long as a decision is underpinned by our legal processes right the way through to authorisation by a Minister to ensure that it is legally watertight, we should be okay. Mistakes will happen. What a lot of the public find strange is that in cells that deal with targeting, there are MOD or RAF lawyers sat there, saying, “I am sorry, you cannot do that.” It shocks people.
Unmanned aerial vehicles have got to the point where there is a bit of folklore when people make a decision. It is therefore important to ensure there is that legal framework. However, as I said, things will go wrong, and my hon. Friend the Member for Islwyn is trying in the amendment to consider what happens when things do go wrong. Is somebody sat in RAF Waddington classed as being on overseas operations? That is a grey area that perhaps has not appeared yet in all these claims, but I think it will.
The evidence we have taken in the last few weeks has highlighted how, in many ways, this is an easier area to look at in terms of investigations because there is—there should be—that chain of decision making. However, it does get complicated when we are working with allies. I am confident that we have some of the most robust rules in terms of targeting and rules of engagement, but—how can I put this diplomatically?—I do not think it is the same for some of our allies, especially one of our closest allies. Could we argue that some of the examples I have seen in Afghanistan and Iraq were proportionate in the way they were conducted? I do not think they were. That has led to the idea that somehow we are the same.
Let us suppose we get to the situation where we have a legal challenge to somebody who has been sat in Waddington, has legitimately followed the legal advice and something goes wrong. What happens? Are they classed as being on overseas operations? We should give them protection because they are not just following orders, but following the legal guidance that has been supplied to them as to why they are carrying out the mission. That is an area we need to look at.
It links to a broader point about what we deem to be overseas operations. Eminent lawyers will want to argue around the head of a pin about this, if we do not look at it. The other side is other operations. Increasingly we, as a nation, are not going into conflicts on our own, but with other nations. That leads to a situation where, on occasion, UK forces are not under the command of UK personnel, but those of other nations. I do not think people realise that.
Some nations have different interpretations of what is proportionate. How are they included, especially within—that misnomer—peacekeeping? Peacekeeping can be dangerous. I have visited parts of the world where peacekeeping is taking place that were far from peaceful, and were stressful for the individuals involved. Is that classed as an overseas operation?
When I was walking in this morning—I often think when I am walking—I was thinking that this gets to the definition of what an overseas operation is. If somebody were based at NATO headquarters in Brussels, would that be classed as an overseas operation? I am not suggesting they would be involved in a mission such as an airstrike or combat in Brussels, although perhaps they might be on a rowdy Friday or Saturday night in the Grand Place. Is that classed as an overseas operation for that individual? Those individuals are lone officers, but members of our armed forces are serving in ones and twos around the world, mentoring forces, doing a great job in defence diplomacy and ensuring that the high standards we have in this country are passed on to other nations.
My hon. Friend the Member for Islwyn talked about the UAV operators themselves. I have read a few studies about their mental health and the jury is out on evidence of increased PTSD and other things. It is a strange environment for individuals, as my hon. Friend said, because they are separated from the battle space, but they see and do some graphic and dangerous things. Having seen some of those videos, what happens is not pretty. The jury is still out on the issue of mental health effects and that is an area where we need more research, not just in this country but internationally. That links to part 2. If those individuals developed mental illness later, given the time limits set out in the Bill, would they be excluded or not? That is another area that we need to look at when we come to part 2.
Can we ever future-proof legislation? No. Politicians all think that we can see into the future as if with hindsight, but unfortunately we all know that most of our legislation is reactive to events. We can try to make it as future-proof as possible, however, and amendment 23, which I presume is a probing amendment, is really a way of asking whether the MOD and the people who have drawn up the Bill have thought about the area. Whether we like it or not, it will increasingly become a challenge not just for how we train people, but for how individuals are legally protected. Even if it cannot be incorporated into the Bill, I would certainly like the Ministry of Defence to look not only at the training, but at what the legal status of those individuals will be. The amendment is welcome in allowing us to explore some of those areas; I hope that it will give MOD policy makers some food for thought on where we take this in the future.
The Minister for Defence People and Veterans (Johnny Mercer)
It is a pleasure to serve under your chairmanship, Mr Stringer.
The principle is that part 1 should cover personnel in circumstances in which they may
“come under attack or face the threat of attack or violent resistance”
in the course of an overseas operation, as detailed in clause 1(6). When developing our policy, we considered whether we should extend the coverage of part 1 to include UK-based drone operators when the systems that they are operating are involved in operations outside the British islands. However, we determined that although the UK-based drone pilots would be considered part of an overseas operation, they could not be said to be at risk of personal attack or violence, or face the threat of attack or violence, as would be the case for an individual deployed in the theatre of operations. We therefore determined that as the personal threat circumstances would not arise in a UK-based role, the personnel in those roles would not warrant the additional protection provided by the measures in part 1. I therefore ask that the amendment be withdrawn.
Mr Jones
I see the logic of how the Bill is structured, and I accept that somebody sitting in Waddington is not going to be attacked by an enemy, but if the purpose of the Bill is to give them legal protection for their actions, they are not immune from being attacked in a legal process for something that they do on overseas operations.
Johnny Mercer
Some really important points have been made, particularly about mental health provision and the protection of those who operate these systems, but the Bill is clearly there to provide the additional protections that particularly apply to those who face the threat of violence and attack at the time, so I disagree on this point. I therefore ask that the amendment be withdrawn.
Martin Docherty-Hughes
I take on board what the Minister says, but we may disagree on an overall element of the Bill. It is the Overseas Operations Bill, and the persons we are speaking of are involved in an overseas operation. Surely the security given to those in the physicality of the arena of military activity should not be just about geography or about those who are physically participating in the overall operations.
Johnny Mercer
The clauses that deal with special consideration for the circumstances of what is going on at the time are there precisely to take account of the unique physical and mental demands of being in close combat; that is what they are designed for. To suggest that drone operators operating from UK shores would face the same pressures is not the same thing. I therefore ask that the amendment be withdrawn.
Chris Evans
This was a probing amendment. I am happy to withdraw it, but I hope that the Minister will revisit the matter as soon as we know more from research about the effects of post-traumatic stress disorder on drone operators and—as we move towards the integrated review—technology starts to dominate the battlefield. I hope that he will give a commitment that the MOD will revisit that in the near future. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stephen Morgan (Portsmouth South) (Lab)
I beg to move amendment 25, in clause 1, page 2, line 2, leave out “5” and insert “10”
The Chair
With this it will be convenient to discuss the following:
Amendment 26, in clause 1, page 2, line 4, leave out “5” and insert “10”
Amendment 27, in clause 5, page 3, line 19, leave out “5” and insert “10”
Amendment 28, in clause 5, page 3, line 36, leave out “5” and insert “10”
New clause 8—Limitation of time for minor offences—
“(none) No proceedings shall be brought against any person in relation to a relevant offence, where—
(a) the condition set out in subsection 3 of section 1 is satisfied,
(b) the offence is subject to summary conviction only, or is one in the commission of which no serious, permanent or lasting psychological or physical injury has been caused, and
(c) a period of six months has passed from the time the offence was committed or discovered.”
This amendment would dispose of minor allegations of misconduct by imposing a time limit similar to that which exists in relation to summary only matters in Magistrates’ Courts.
Stephen Morgan
It is a pleasure to serve under your chairmanship, Mr Stringer. I start by thanking you for the way you have skilfully conducted proceedings through this Committee stage so far. Your skill and guidance have allowed the Committee to provide the proper scrutiny that we all agree that all legislation passing through this House is due, and allowed proceedings to be conducted in an orderly and timely manner. I also thank the Clerks and wider support teams for their support in allowing proceedings to run as smoothly as possible. This period presents particular challenges, including allowing witnesses to provide evidence by video link. The entire Committee will join me in thanking them for their important work.
This is the first time I have led a Bill through Committee, and also, as I understand it, the Minister’s. However, this is by no means the first time that you have been Chair of a Bill Committee, Mr Stringer. As I understand it, it was the Digital Economy Bill back in 2016 that was first chaired by your good self in Committee, four years ago, almost to the day. It would be fair to say that a lot has changed in those four years and I am sure that I speak for the entire membership of the Committee when I say that we are in safe hands with your experience and guidance. I also thank my right hon. Friend the Member for North Durham for his contributions, as well as my hon. Friends the Members for Islwyn, for South Shields and for Blaydon.
Before we progress, I want to take the opportunity to outline our concerns about the Bill once again. The Government still have an opportunity to fix the Bill and get it right. Unfortunately, the Bill does not focus on the root causes of the terrible stresses experienced by our armed forces personnel and their families. The Government should focus on what can be done to reduce the length and regular occurrence of investigations for vexatious claims faced by our armed forces personnel, not prosecutions. In addition, as we heard from a wide variety of witnesses last week, the Bill does not protect our armed forces personnel; it protects the MOD. As we heard last week, the introduction of a six-year time limit against armed forces personnel making civil claims puts them at a distinct disadvantage to civilians.
Crucially, the Bill also risks breaching the armed forces covenant. I repeat: there is still time for the Government to fix this and get the Bill right. As we have said at every stage, we will work constructively with the Government to improve the Bill. That is why the Opposition have also tabled vital amendments, including the requirement for the Government to commission and publish an independent evaluation of service personnel access to both legal advice and legal aid in relation to legal, civil and criminal proceedings covered by the Bill’s provisions. I hope the Government will listen to the points raised in Committee and work with us to protect our troops and get the Bill right.
The Chair
Order. I have allowed the hon. Gentleman to continue, not because he started with those kind words about me, but because it is the start of the Bill and the hon. Gentleman is new to the position. The amendment is tightly drawn around five and 10 years, so I will from now on be quite strict about focusing on what the actual amendment is, and not moving out of scope.
Stephen Morgan
Thank you, Mr Stringer, I was about to get to the point around our amendment.
Part 1 sets a five-year limit on the prosecution of current or former armed forces personnel for alleged offences committed in the course of duty while overseas, save for exceptional circumstances. That would mean that the Bill would halve the timeframe initially envisaged for the prosecution of offences.
The Government’s consultation originally proposed a 10-year deadline, which would have meant that operations in Afghanistan, which ended in 2014, fell outside the time limit unless the circumstances for prosecuting any new alleged offences were deemed exceptional. That raises questions about the Government’s reasons, and about the evidence or advice that they received, for changing the deadline to five years. Why not six or seven years? Five years seems to be an arbitrary figure, with no clear evidence for why that timeframe has been selected. Will the Minister provide the evidence behind the selection of that specific timeframe?
According to written evidence shared by the charity Reprieve, even countries such as France and the US, which operate statutes of limitation for criminal offences, have never introduced provisions that give military personnel special status in criminal law. Why are we deviating from the international standards that we share with our security partners, which risks undermining our international reputation? That is not the global Britain that the country was promised by the Government during the last election.
In 2020, the Judge Advocate General for the armed forces—the most senior ranking military judge—said that creating a five-year limit on prosecutions would be a damaging signal for Britain to send to the world, and would be a stain on the country’s reputation if Britain were perceived as reluctant to act in accordance with long-standing international law. What was the Government’s reasoning for ignoring such an important figure who was raising serious concerns about the Bill’s five-year limit on prosecutions?
The Government also seem determined to ignore those very same concerns when they are raised by the Defence Committee. In July 2020, the Chair of that Committee sent a letter to the Secretary of State to reiterate concerns that to protect
“serving personnel and veterans against vexatious claims or unnecessary investigations and prosecutions”,
the Bill
“may not be an effective way of achieving those aims.”
In that letter, the Chair also posed a further set of questions about the decision to reduce to five years the initial prosecution cut-off of 10 years.
The Labour party is determined to stop vexatious claims made against armed forces personnel, which cause them and their families truly heartbreaking stress, but as last week’s evidence sessions made clear, the parts of the Bill that intend to remedy that contain logical flaws. Furthermore, the Minister himself has said that one of the biggest problems was the Ministry’s inability to investigate itself properly, as well as the standard of those investigations. If those investigations were done properly with self-regulation, we would probably not be in Committee today. I ask the Minister: why does the Bill not deal with those investigatory issues that he has identified?
Clive Baldwin, the senior legal adviser at Human Rights Watch, has suggested that the Bill would
“greatly increase the risk that British soldiers who commit serious crimes will avoid justice”;
that
“the presumptive time-limit of five years…will encourage a culture of delay and cover-up of criminal investigations”;
and that, in turn, it would increase the risk of the International Criminal Court considering bringing its own prosecutions.
As I have said, there is still time to change the Bill, to focus on the issues that need addressing, and to get it right. That means focusing on legislation that will stop the sad cases that we have heard time and again about our troops undergoing drawn-out investigations, only for the decision to be made against prosecution. That is what needs fixing and it is where the Government’s focus should be.
In last week’s evidence sessions, we repeatedly heard the same concerns from a wide range of witnesses. Hilary Meredith, of Hilary Meredith Solicitors, said that she was against any cut-off. She went on:
“I think the reason why the cases became historic is not the date of the accusation—any of the criminal accusations under human rights law, for example, came within 12 months of the incident taking place. It was the prolonged procedure that was bungled afterwards that made those cases historic. It is the procedure and investigation in the UK that need to be reviewed and overhauled, and not necessarily a time limit placed on criminal or civil prosecutions.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 06 October 2020; c. 16, Q24.]
That lays clear the problem with the Bill. It became increasingly clear from the evidence that not only is the five-year time limit arbitrary, but it does not even fix the issues that the Minister cites to justify the Bill. The investigations are what cause the mental stresses that we know put our troops and their families under incredible pressure. Dr Jonathan Morgan, fellow and reader in law at Corpus Christi College, Cambridge, also said in evidence last week:
“Ten years was originally proposed; that has been reduced to five. There seems to be no logical answer, certainly, as to that particular time period”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 34.]
To add to that, the former Attorney General of Northern Ireland from 2010 to 2020, John Larkin QC, went on to say:
“There is no magic in the number five; that is a matter of policy choice”.—[Official Report, Overseas Operations (Military Personnel and Veterans) Bill, 6 October 2020; c. 31, Q60.]
Yet again, we hear that there is seemingly no logic in the choice of five years as the limit for prosecutions. However, that also suggests something new: that the decision to select five years as the limit was a political choice, not one borne out of consultation or analysis.
Stuart Anderson (Wolverhampton South West) (Con)
I note that every example the hon. Gentleman uses is a legal representative or firm, or legal mind. We heard some great evidence last week from the soldiers. As you said, this is a point of policy. We wanted to make sure we represent our armed forces and make them the best in the world to serve in, and five years was well received among the junior ranks we spoke to the armed forces. You say that Labour is the party to support the armed forces, but arguing for 10 years shows that is not the case.
The Chair
Order. I remind hon. Members that if they use “you”, they are referring to me, not the Front-Bench spokesperson. I also remind members of the Committee that interventions should be short and to the point. If hon. Members try to catch my eye, there will be time to make speeches on each amendment, if they wish to.
Stephen Morgan
I thank the hon. Gentleman for that remark. We also learned last week from the witnesses that, while veterans may welcome the intent of the Government to take forward action, when they looked at the detail of the Bill, they were not so satisfied with its contents.
Stephen Morgan
I thank my right hon. Friend for that remark. It is very clear that the Bill in its current form will not help that case if that is repeated ever again.
The Government have let us down on the Bill. It is becoming ever clearer in Committee not only that it fails to fix the problems that it intends to fix, but that the Government have failed in the due diligence for our armed forces personnel and their families that they deserve. The Government should be developing legislation by properly conducting consultation, analysis and identifying the best way to deal with the issues at hand.
Sadly, it seems that the Government are inclined to make policy on the hoof. It is exactly this failure to identify the root causes of the issues that our armed forces personnel face that has been continually highlighted in Committee. As Professor Richard Ekins, head of the judicial power project at the Policy Exchange, highlighted in evidence last week:
“It certainly does not stop investigations. In fact, if one were to make a criticism of the Bill, one might say that it places no obstacle on continuing investigations, which might be thought to be one of the main mischiefs motivating of the Bill”.—[Official Report, Overseas Operations (Military Personnel and Veterans) Bill, 6 October 2020; c. 35, Q60.]
We also heard from Major Bob Campbell about the unimaginable stresses he faced in a 17-year investigation that eventually did not lead to prosecution. I know the entire Committee will join me in thanking him for his service and offering our condolences for the terrible process he has been put through. Once again, we heard that the Bill does not deal with the key problem of addressing investigations. The specific case of Major Bob Campbell would not be covered by the Bill.
Last week, Dr Jonathan Morgan also stated that Major Bob Campbell’s case would not have been addressed by these proposals. He was prosecuted in 2006 in connection with an alleged offence in 2003, which would have been within the five-year period for bringing a prosecution. It is only in 2020, after 17 years, that he has finally been cleared. Several hon. Members made the point on Second Reading that perhaps the real vice is not so much late prosecutions but the continued investigations by the Ministry of Defence, without necessarily leading to a criminal prosecution at all.
If I have understood the facts of Major Campbell’s case, it rather shows that a five-year soft cut-off for prosecutions will not solve that kind of problem at all. Are the Government really prepared to abandon decorated armed services personnel like Major Bob Campbell? Is that really what the Government have set out to achieve?
In summary, I hope that the Government will listen to the points raised here—including the extensive evidence that we have heard that the five-year limit is at best arbitrary—refocus the Bill on dealing with investigations, not just prosecutions, and work with us to protect our troops and get this Bill right.
I ask the Minister, what evidence or advice have the Government received to change the deadline to five years? Why not six or seven? I ask the Minister to provide evidence on why that specific timeframe was selected. Are the Government really prepared to abandon decorated armed services personnel like Major Bob Campbell? Is that really what the Government have set out to achieve? Why does the Bill not deal with the issues in investigations that the Minister has identified? What is the Government’s reasoning for ignoring the Judge Advocate General in this Bill, raising serious concerns about the problems he raised about the five-year limit on prosecutions?
Mr Jones
Thank you for that clarification, Mr Stringer.
With new clauses 8, 6 and 7 we come to the issue of investigation. We will discuss new clauses 6 and 7 later. The new clauses put forward by my hon. Friend the Member for Portsmouth South get to the heart of the issue, which has come out in the evidence we have taken over the past few weeks. This Bill puts the cart before the horse. It deals with prosecutions rather than the real issue, which is investigations.
I find that odd. Who was consulted on drafting this Bill? We heard evidence last week that Judge Blackett was not consulted on this Bill, so who drafted it? Anyone looking at the Iraq Historic Allegations Team or the testimony given last week by Major Bob Campbell can see that the issue is investigation. It would interesting to hear the reasons why the limit has gone from 10 years, as recommended in the consultation, down to five.
Personally, I do not agree with the time limit, for the reasons that my hon. Friend has just outlined. It will give no protection to those veterans of the most recent conflicts in Afghanistan and Iraq, whom this Bill seems to be focused on, nor will it give protection to veterans in the future, because investigation will still take place from that five-year period. Are they traumatic? I think they must be.
I agree with my hon. Friend, and I pay huge tribute to Major Bob Campbell for his evidence last week, because it must have been very difficult for him. Consider the idea that any of us would have something hanging over us for 17 years. If it was a minor offence, it would be bad enough, but he was accused of horrendous crimes for 17 years, and investigated time and again for the same thing. I cannot imagine how that felt for him as an individual.
What is proposed will not stop investigations. It is clear to me that if we have limitations as outlined in the Bill, we will get cases that go to the International Criminal Court. Its investigations will take into account the lack of action, because there is a five-year limit. We will come later to the presumption of prosecution, which is another huge problem. Do I actually want our servicemen and women to end up in the International Criminal Court? No, I do not. I think it is proud testimony not only to the professionals in our armed forces, but to our legal system and what we have had so far, that we have avoided that because of our robust legal system and the oversight of our military justice system.
The problem with the Bill—the Minister gave this away in his ill-advised winding up on Second Reading—is that it implies that people are either in favour of our brave armed forces or in favour of ambulance-chasing lawyers. As I said on Second Reading, my record of supporting defence and the armed forces speaks for itself. My attacks on ambulance-chasing solicitors, through my work on the miners’ compensation scheme and the formation of the sister regulation body—taking it away from the law side—also speak for themselves. What we need over the Bill is a legal framework that is there not just because it is nice to have, but because society needs a framework that protects individuals—not just individual civilians, but members of our armed forces. As one witness said last week about the unique situation for members of the armed forces, they have few enough rights, and recourse to the law is important. In terms of our standing in the world, we are rightly proud that we have been a beacon of being able to portray good practice both in law and in other areas.
New clause 8 is about how we try to stop the cycle of investigation. As I say, I am just surprised that when the Bill was being drafted, no one thought, “Let’s look at what the problem is.” It is around investigation and the time it takes. Various arguments have been about why investigations have taken so long. Is it a lack of resources? It possibly is in some cases. Has it been the issue around Iraq and Afghanistan? Are we now in a different political climate? Yes, we are. When I was a Minister in the Ministry of Defence, when we were in Iraq and Afghanistan, the will to ensure that accusations were investigated came from all sides. It was not just from the liberal wing of Liberty and others; it was from Conservative Members as well. Mistakes were made.
Not having the issue of investigation in the Bill—
The Chair
Order. I have been listening carefully to the right hon. Member. The amendments are very tightly drawn. New clause 8 is about the limitation on time for minor offences. I do not want to restrict the debate, but I do want to focus on what the amendments are, rather than wandering all the way through the Bill. If the right hon. Member focused on the new clause and the three amendments that were are debating, that would be helpful.
Mr Jones
Yes. I will come back to the new clauses later.
Some serious accusations were made in the IHAT and Northmoor investigations. They took so long because some were very complicated, but some were very minor. The more we can speed up the system for the accused and the quicker it is dealt with, the better. It will be better for armed service personnel, and better for confidence in our system. New clause 8 tries to get a system that deals with minor cases and does not lead to endless investigations into things that really should be dealt with in the first instance.
New clause 8 argues that minor offences should be dealt with through a summary process, which Judge Blackett referred to last week and through which the magistrates court system already deals with cases. One thing that is missing in the entire Bill, which would give us confidence in it, is judicial oversight of the reasons why things are done. That is important. New clause 8 would empower prosecutors to place a six-month time limit on summary matters.
Martin Docherty-Hughes
In reality, the right hon. Gentleman wants to remove bureaucracy because justice delayed is justice denied, whether someone is the accuser or the accused. His new clause seeks clarity for minor offences.
Mr Jones
It is clarity for the individuals, so that they can be dealt with swiftly. If Judge Blackett had been consulted on this Bill, that might have been included.
I will not try your patience, Mr Stringer, because I might need it when I come to new clauses 6 and 7 on the broader issues around investigation, which I notice the MOD is now moving on and possibly recognising that it has missed a trick in the Bill. The new clause would give the court powers. We are not talking about serious offences or common assault. We did a similar thing in the Armed Forces Act 2006. We gave commanding officers the powers to deal with minor offences, because the old system was taking an inordinate amount of time to deal with them. We are basically setting up a de minimis case. As the hon. Gentleman just said, it would deal with the bureaucracy and make sure that we concentrate on the most serious offences.
People might say, “How does this get into ambulance-chasing solicitors?” With IHAT and Northmoor, some of the cases put forward were to do with such things as slaps and assaults, which would actually meet this criteria. Why did it take years to investigate whether somebody was slapped if it was on a Saturday night in a pub and classed as a common assault? Why did it take years to investigate or in some cases re-investigate? We could argue that it happened in Iraq or Afghanistan or somewhere else and it might be more difficult to gather evidence and witnesses, but it should not be beyond the wit of the legal system to look at the evidence initially and say, “To be honest, the threshold for this would not be very high.” Why were they brought? We know: in some cases, clearly, Phil Shiner was trying to get some compensation out of an alleged fault, but the pressure was put on those individuals who were accused of things that were minor and would have been dealt with normally. The new clause frees up the criminal justice system and the investigators to concentrate on the things that we want to concentrate on, which are the more serious cases.
Would that protect our armed forces? Yes, I think it would, because we would have a sense of fairness for them—they would be getting speedy justice, they would not go through reinvestigation and they would not have to wait an inordinate length of time for things dealt with as a matter of course in a magistrates court. It is a way to give protection to servicemen and women, while also—as the hon. Member for West Dunbartonshire said—making the system more effective.
The important thing, however, is the judicial oversight—this is not just deciding to stop prosecution; the evidence is looked at, the de minimis test is applied and only then would that be ended. That would be a huge improvement. The Minister said he was looking for improvement of the Bill and, to me, this is an obvious way to do it.
Johnny Mercer
Amendments 25 to 28 seek to change the time at which the presumption comes into effect from five to 10 years. The proposal in the public consultation that we ran last year was for a 10-year timeframe for the statutory presumption. It was not fixed policy, because we were seeking the public’s views.
In the consultation, we asked the following questions: whether 10 years was appropriate as a qualifying time, and whether the measure should apply regardless of how long ago the relevant events occurred. As we set out in our published response to the consultation, there was support for a 10-year timeframe, but equally there was support for presumption to apply without a timeframe at all. We also considered the written responses, which clearly indicated the concerns that a 10-year timeframe was too long—memories can fade, evidence tends to deteriorate and the context of events changes. There were also concerns that 10 years was too long to have the threat of prosecution hanging over a serviceperson’s head.
Respondents suggested time periods of less than 10 years, with the most popular timeframe being five years. As the issue that we seek to address relates to historical alleged offences, we did not feel able to apply the presumption without a timeframe. However, 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.
Johnny Mercer
I am more than happy to write to the right hon. Gentleman with the exact responses. They are in the House of Commons Library, in the impact assessment. The numbers were clear, and I have just outlined the general findings—[Interruption.] I will not give way again. Some people want 10 years and some five years—
Johnny Mercer
Thank you, Mr Stringer.
New clause 8 seeks to limit to six months the period between an offence being committed or discovered and any proceedings being brought, where a number of conditions can be satisfied. First, the offence must be a relevant offence, committed on overseas operations by a serviceperson. Importantly, the bar to proceedings only applies if the offence being prosecuted is subject to summary conviction only, or is one where no serious, permanent or lasting psychological or physical injury has been caused.
During an investigation, it is not always clear what the charge will be, but this is made harder for investigations on overseas operations where the injured person is a local national. It will not always be possible to get information regarding the incident, or on the permanence or lasting nature of an injury, in the timeframe demanded by the amendment.
Investigations on overseas operations inevitably rely to some degree on actions by others in theatre. Delays in such investigations are a fact of the operational environment and placing a time limit on investigations runs the risk that others may be able to affect the outcome of a service police investigation. The service police cannot have any barriers placed in the way that fetter their investigative decision making. A time limit in these circumstances would do just that.
Even the most minor offences take on a greater significance in an operational environment. A minor offence is not necessarily a simple matter that could be dealt with quickly by a commanding officer. Placing a barrier in the way of investigations for minor offences does not take account of the disproportionate effect of poor discipline directed towards local nationals in an operational setting.
The amendment is modelled on the provisions that exist in relation to summary-only matters in the Magistrates’ Courts Act 1980. That is where the problem lies. That Act codifies the procedures applicable in the magistrates courts of England and Wales. It is not legislation written to accommodate the extraordinary demands made of a system operating in an operational context.
Johnny Mercer
I will not give way.
Delays are inevitable and applying civilian standards to an operational context is inappropriate. If this is something that might be considered for the service justice system, it would seem more appropriate for an armed forces Bill, but with an exemption to account—
Mr Jones
On a point of order, Mr Stringer. This is a very strange Committee. Basically, the Minister is reading his civil service brief into the record, rather than actually answering the points. It is going to be very difficult to scrutinise the Bill properly if he will not take interventions, even though I accept he might be at a disadvantage if it is not in his briefing notes.
The Chair
The right hon. Gentleman knows that is not a point of order. The Minister is entitled to give way as he chooses.
Johnny Mercer
If this measure is something that might be considered for the service justice system, it would be more appropriate for an armed forces Bill, but with an exemption to account for the complexity of overseas operations. This Bill is not the correct legislative vehicle for the measure. I therefore ask that the amendment be withdrawn.
Mr Jones
I just find this remarkable, Mr Stringer. We have a Minister who has come in here to read his civil service brief into the record. He is not taking account of anything that is being said, by myself or by other hon. Members. When he wants to be questioned on it, he will not take interventions. It is a strange way of doing this. He possibly thinks that doing a Committee is just about reading the civil service brief the night before and then reading it into the record. I am sorry, but that is not how we do scrutiny in this House.
With regard to the Minister’s comment that this measure would be more appropriate in an armed forces Bill, that may well be the case, but he has an opportunity to put it in here. He can sit there and smile but, frankly, he is doing himself no favours. He has said that he wants co-operation on the Bill, but he is doing nothing. He is going to try to plough through with what he has got, irrespective of whether it damages our armed forces personnel. That makes me very angry.
The Minister said that the Magistrates’ Court Act provisions would not cross over to this Bill. We could draw up a protocol around that, which would fit in the Bill. If the Bill is supposed to be the all-singing, all-dancing, huge protection that we are going to give to our servicemen and servicewomen, then that should have been in the Bill.
Martin Docherty-Hughes
Does the right hon. Gentleman recognise that the ranks, as opposed to the chain of command, would be best served by an acceptance of the new clause, because it gives clarity and allows them to move forward on those cases, within the elements that he has discussed?
Mr Jones
It does. There is an argument, which some members of the Committee are trying to make, that it is the ranks versus the seniors, but this is designed to protect the ranks.
The Minister says that it would be more appropriate to have this in an armed forces Bill. If that is the case, why was this Bill not held over until next year, when we could incorporate all of this into an armed forces Bill? Having sat on nearly every single armed forces Bill over the past 20 years, I know that there are things in this Bill that would be able to fit into an armed forces Bill. We know that the reason it is in this Bill is because it was a political stunt—it is more about politics than about what it is supposed to do.
New clause 8 should be incorporated in this Bill, because it would get to the root cause, which we discussed last week and which people have continually commented on: namely, that the Bill does not look at investigations. If the Minister got off his phone and listened, he might be able to get to a situation where, after reflecting on this, the Government may well look at how they can codify this and put it into the Bill, because it would then be stronger. As has been said, we want to protect, and that is what we are supposed to be doing with the Bill.
Martin Docherty-Hughes
I beg to move amendment 14, in clause 1, page 2, line 2, leave out “the day on which the alleged conduct took place” and insert “the day on which the first investigation relevant to the alleged conduct concluded”.
The Chair
With this it will be convenient to discuss the following:
Amendment 2, in clause 3, page 2, line 33, at end insert—
“(ba) the thoroughness, promptness and efficacy of any ongoing investigation into the alleged conduct or any relevant previous investigation, and the reasons for any delays in such investigations;”
This amendment would ensure that the adequacy of any investigative process to date is given particular weight by a relevant prosecutor.
Amendment 56, in clause 3, page 2, line 33, at end insert—
“(ba) the quality and duration of relevant investigations.”
This amendment would require prosecutors to give weight to the quality and duration of relevant investigations when deciding whether to bring or continue proceedings against a person relating to alleged conduct during overseas operations.
New clause 6—Judicial oversight of investigations—
“(1) This section applies to any investigation by a police force into alleged conduct as described in subsection 3 of section 1.
(2) The police force investigating the conduct must place their preliminary findings before an allocated judge advocate as soon as possible, but no later than 6 months after the alleged offence was brought to their attention.
(3) The judge advocate shall have the power to determine—
(a) that no serious, permanent or lasting psychological or physical injury has been caused; and order that the investigation should cease;
(b) that the evidence is of a tenuous character because of weakness or vagueness or because of inconsistencies with other evidence, and that it is not in the interests of justice to continue an investigation; and order that the investigation should cease; or
(c) that there is merit in the complaint; and make directions as to the timetable and extent of further investigation.”
This amendment would set a timetable for police investigations into alleged conduct during overseas operations, to ensure they are as short as possible and provide an opportunity for a judge to stop an unmeritorious or vexatious investigation early.
New clause 7—Limitation on reinvestigation—
“(1) This section applies where—
(a) a person has been acquitted of an offence relating to conduct on overseas operations, or
(b) a determination has been made that an investigation into an offence relating to such conduct should cease under section (Judicial oversight of investigations).
(2) No further investigation into the alleged conduct shall be commenced unless—
(a) compelling new evidence has become available, and
(b) an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong that there is a real possibility that it would support a conviction.”
Martin Docherty-Hughes
I rise to speak to the amendment for a very specific reason. It concerns the word “alleged” in the Bill. The Government, in bringing forward the Bill, have sought to provide clarity to members of the armed forces and veterans against some elements of the legal profession, which is the constant narrative during our debates—although, I have to say that there are many members of the legal profession who are not only members of the armed forces, but veterans too. We need to be very much aware of the rule of law.
The clarity that I and my party require, which is why we have tabled this amendment, is to remove that word “alleged”, because it causes ambiguity, whereas I think the Government’s intention in introducing the Bill is to give clarity. Whether or not I disagree with various parts of it, if not the vast majority, we are seeking to work here in a coherent and collegiate fashion, because I think that, not only for the accused but for the accuser, we need to be clear about the point at which we start, which is the day on which the first investigation takes place.
The word “alleged” creates ambiguity in the law and ambiguity for members of the armed forces and veterans, which is why we have brought forward this specific amendment.
The Chair
I want to give you the opportunity to comment on amendment 14 and the associated amendments and new clauses.
The Chair
What is being debated is amendment 14 to clause 1. We are also debating amendments 2 and 56, and new clauses 6 and 7. If hon. Members wish to vote at the end, we will vote on amendment 14. However, it is in order to discuss the other amendments and new clauses.
Johnny Mercer
One of the main purposes of introducing the presumption against prosecution is to provide greater certainty for veterans in relation to the threat of repeat investigations and the possible prosecution for events that happened many years ago. Amendment 14 would undermine that objective by extending the starting point for the presumption and, in some cases, creating even more uncertainty. However, I want to reassure Members that the presumption measure is not an attempt to cover up past events as it does not prevent an investigation to credible allegations of wrongdoing in the past, and neither does it prevent the independent prosecutor from determining that a case should go forward to prosecution.
Martin Docherty-Hughes
Does the Minister not accept that the very word “alleged” creates ambiguity within the law and, if anything, creates a barrier? Our amendment would give the clarity that he and his Government are seeking.
Johnny Mercer
I do not accept that. The wording about the “alleged conduct” is clear. We have dealt with a number of allegations: 3,500 from the Iraq Historical Allegations Team alone, and another 1,000 from Afghanistan. They are alleged offences and it is right to leave those in there. I request that the amendment be withdrawn.
Martin Docherty-Hughes
I will not be withdrawing the amendment.
Question put, That the amendment be made.
Liz Twist (Blaydon) (Lab)
On a point of order, Mr Stringer. I would be grateful for your clarification on the next steps. I understood that that was taken as a group, but will we be moving now to the other amendments in the group and asking for them to be moved?
The Chair
The opportunity to debate the other amendments in this group has gone; that went when that debate finished. We can now, if hon. Members wish, vote on amendment 26, and then we will come to clause stand part. If I can help the hon. Lady, if I think—as I almost certainly will think—that the debate on clause 1 has not been exhausted, we can have a general debate on clause 1. However, the opportunity to debate amendment 26 went when we moved to the vote on the previous amendment. I will now ask whether you want to vote on amendment 26.
The Chair
I read out at the beginning that they were being debated together. I made that clear.
The Chair
I will think about that while we are debating. I know that the right hon. Gentleman is not new to the House, but many members of this Committee are. If they listened carefully, I did read through all the areas we were debating at the start of this. I read out the amendments we were debating and what was before the Committee.
The Chair
It was clarified at the beginning. I cannot go back to that. That has been debated, although Members did not speak to it. If hon. Members wish to have a clause stand part debate, we can have that. You are absolutely right that we will vote later on new clauses, but the opportunity to debate them was then, when I read out the list.
Liz Twist
Further to that point of order, Mr Stringer. I do not wish to be difficult in any way, and of course I respect your ruling, but I think there was some misunderstanding at the start about exactly what we were doing. You certainly did say that we were taking these amendments, but I think we were expecting the sequence of people to be able to move them. I wonder whether there is any way that we can resolve that issue so that these amendments can be moved.
The Chair
I accept that there is a misunderstanding, but the statements were read out clearly from the Chair about what we were debating at the start. The opportunity to debate them was not taken. I cannot think of any way to debate them now. However, I will take the Clerk’s advice later and see whether there is a way.
The Chair
I will take no further points of order on the matter at this time. Clearly, people have not taken the opportunity to debate the matter. That is unfortunate. I will take the Clerk’s advice to see whether there is any way of doing that, but I cannot think of any way at the present time, because we have passed it. We have now moved on to amendment 26. Does Stephen Morgan wish to move amendment 26 formally?
Mrs Emma Lewell-Buck (South Shields) (Lab)
On a point of order, Mr Stringer. I was under the impression that we voted on amendment 26 as part of the first grouping.
The Chair
We did not. We debated it. There is a difference between debates on amendments grouped together because they are related and the order in which decisions are taken.
Leo Docherty (Aldershot) (Con)
May I ask a question, Mr Stringer? Is it therefore the case that we move now to clause 2?
The Chair
No. We have to get through the amendments, and then there will be a clause stand part debate on clause 1. We have to agree to clause 1, as amended or not, before moving on to the amendments to clause 2. By the start of this afternoon’s session, which I will chair, I will have clarified with the Clerk whether it is possible to come back to this, because the hon. Member for Blaydon says that there has been a genuine misunderstanding.
If hon. Members will take their place, the Clerk tells me that the issues raised in the amendments and the new clause can be raised in the clause stand part debate on clause 1. If that is not clear to hon. Members, now is the time to ask a question.
Mr Jones
It is clear, but I asked the Chair, when he was taking that group of amendments, whether I could move my new clause. I will not go over that. It was strange to me, because I have been here long enough to know that when amendments and new clauses are grouped, they can actually be moved. I did ask the Chair, but I was not allowed to do that.
The Chair
If the right hon. Member will take his seat, I had already told the Committee what was being debated. There was clearly a misunderstanding. We are going to resolve that issue, and then we can have the clause stand part debate. For clarity, amendment 26 has been moved formally. Does the Front-Bench spokesperson wish to put it to a vote.
Stephen Morgan
Yes, I wish to put that to a vote.
Amendment proposed: 26, in clause 1, page 2, line 4, leave out “5” and insert “10”.—(Stephen Morgan.)
Question put, That the amendment be made.
The Chair
Does the Minister wish to say something generally about clause 1? If not, I will open it up to the floor so that the amendments in the previous group, or any other issue relating to the clause, can be debated.
Mr Jones
I say again what a pleasure it is to serve under your chairmanship, Mr Stringer.
On clause 1, we heard last week that one problem the Bill does not address relates to investigations. If that had been included, the Bill would be more effective in stopping the unfair distress of individuals. We heard from Major Campbell, who was quite graphic about his 17 years of investigations. The clause is clear about trying to clear up the system and we have heard about the system being made more efficient, which would not only ensure that armed forces personnel get a fair hearing but speed up the processes where they face distress.
It is not surprising that investigations are not being considered. Let us look at General Nick Parker’s evidence last week. I know him well—he has had a distinguished career—and I certainly know his son, who was injured in Afghanistan. Those of us on the Opposition Benches might say, “It’s yet another general rather than a squaddie,” but I have a huge amount of respect for him. He not only has the Army running through his veins but stands up for the armed forces and the men and women who served under him, having their best interests at heart. He would be supportive of any legislation or anything done to try to improve their lot. Having had a few heated arguments with him over the years—he is no shrinking violet—I know that if he thought the Bill was perfect or would improve things, he would say that. What he says about investigations is therefore important. He said:
“On the effectiveness side, it appears as if part 1 of the Bill focuses entirely on the process of prosecution, whereas for me the big issue here is the process of investigation and, critically in that process, ensuring that the chain of command is deeply connected with what goes on from the very outset. I do not think there is any serviceman or woman who would not accept that bad behaviour on the frontline must be treated quickly and efficiently. Nobody would want anything in the process that somehow allows people who have behaved badly on the frontline to get away with it. But all of us would believe that the process has to be quick, efficient and effective to remove the suspicion of a malicious allegation as quickly as possible. I cannot see how this Bill does that.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 94, Q188.]
The Minister referred to next year’s armed forces Bill as being appropriate for that, but I am aghast. If this Bill is supposed to be the Rolls-Royce legislation to protect our servicemen and women, why on earth does it not include investigation?
I note that, ironically, since we took evidence, a written ministerial statement was made yesterday in which the Defence Secretary announced that investigations will be looked at. He said:
“The Overseas Operations (Service Personnel and Veterans) Bill currently before this House will provide reassurance to service personnel that we have taken steps to help protect them from the threat of repeated investigations and potential prosecution in connection with historical operations…However, we are also clear that there should be timely consideration of serious and credible allegations and, where appropriate, a swift and effective investigation followed by prosecution, if warranted. In the rare cases of real wrongdoing, the culprits should be swiftly and appropriately dealt with. In doing so, this will provide greater certainty to all parties that the justice system processes will deliver an appropriate outcome without undue delay.”—[Official Report, 13 October 2020; Vol. 682, c. 9WS.]
Even the Defence Secretary recognises that one of the issues is the length of investigations. Could I disagree with any of what he said? No. As I said in speaking to new clause 8, the issue is effectiveness in making sure not only that the service is protected from malicious allegations, but that individuals are. We must always think about that, because at the end of the day the individual is important.
The Defence Secretary’s statement goes on to say:
“I am therefore commissioning a review so that we can be sure that, for those complex and serious allegations of wrongdoing against UK forces which occur overseas on operations, we have the most up to date and future-proof framework, skills and processes in place and can make improvements where necessary. The review will be judge-led and forward looking and, whilst drawing on insights from the handling of allegations from recent operations, will not seek to reconsider past investigative or prosecutorial decisions or reopen historical cases. It will consider processes in the service police and Service Prosecuting Authority as well as considering the extent to which such investigations are hampered by potential barriers in the armed forces, for example, cultural issues or operational processes.”—[Official Report, 13 October 2020; Vol. 682, c. 9WS.]
Mrs Lewell-Buck
Is my right hon. Friend a little concerned about the Secretary of State’s comments, as I am? If indeed those comments are true and that is the intention, why has the Minister not tabled amendments today to address that issue?
Mr Jones
My hon. Friend makes a very good point. We were told, although I do not believe it, that the Government wanted to improve the Bill and would consider amendments. I accept that Opposition amendments are not always properly drafted to fit into a Bill, but it is quite common for the Government to say that they will look at an amendment and change it, but put the spirit of it into a Bill. There is an opportunity to do that now, but unfortunately we have a Minister who clearly just wants to say, “No, we will get the Bill through as drafted, and that’s it,” which is contrary to his statements about trying to work together with people. There is an opportunity to do that now and I do not understand why we cannot do it, as my hon. Friend says.
The Defence Secretary’s statement goes on to say:
“A key part of the review will be its recommendations for any necessary improvements. It will seek to build upon and not reopen the recommendations of the service justice system review”.—[Official Report, 13 October 2020; Vol. 682, c. 9WS.]
Martin Docherty-Hughes
On the justice system review and its relationship to the Bill, in answer to a question from my hon. Friend the Member for Glasgow North West last week about Major Campbell’s 17 years of dreadful investigation, General Sir Nick Parker said:
“That will not happen if you have a credible system that investigates and you address some of the cultural issues in the chain of command by making it genuinely accountable for what is happening.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Bill Public Bill Committee, 8 October 2020; c. 98, Q201.]
Does the right hon. Gentleman agree that the Bill does absolutely none of that?
Mr Jones
It does not. If somebody like Nick Parker is saying that, we need to take it seriously. As for how the Bill has been born, I would love to know who is claiming paternity for it, because a lot of people seem to have been excluded—certainly the Judge Advocate General has. I would have thought he was the obvious person, as a senior military person in the justice system, to be brought in at an early stage to look at some of the things we shall talk about later—not only the issues of international law, but how the system could be improved.
Miss Sarah Dines (Derbyshire Dales) (Con)
It is a pleasure to serve under your chairmanship, Mr Stringer. The scope of the Bill clearly does not encompass a wide-scale investigation of the present investigation process. Will the right hon. Gentleman explore a little more and explain what he did in his tenure as a Defence Minister to look into the matter?
Mr Jones
It is related, because it is related to people who were serving on operations. For the first time ever it brought forward a modern system of lump sum payments, which were never there before, for Falkland veterans or anything else. I actually extended that in 2007 to cover issues to do with mental health provision. Our record was that each year but one of that Labour Government we accepted the finding of the Armed Forces Pay Review Body, as opposed to the Conservative Government’s cutting pay. We maintained our armed forces spending at a level above inflation. The 2010 Conservative Government cut the defence budget by 16%.
We also had the armed forces welfare pathway, which I started in—
The Chair
Order. I am sure that the right hon. Gentleman knows that he is moving way outside the scope of clause 1 and the amendments and new clauses. I ask him to come back to the clause stand part debate.
Mr Jones
I am sorry, Mr Stringer. I was going down memory lane to happier times. Just to finish that point, the welfare pathway, which the Government who came to power in 2010 rightly changed and renamed the covenant, was something that I introduced in 2010.
The hon. Member for Derbyshire Dales raised the issue of investigations and what we did. She is the new Member for that beautiful part of the world, and I have huge respect for her predecessor. I spent many a time at Kinder Scout and Hope as a boy walking round that area, so I know her area very well. But I think that she has to recognise the issue in terms of Iraq and Afghanistan. Yes, huge and terrible accusations were made about what was going on. There was pressure not only from what could be called the outriders on the left but from her own party to the effect that some of these accusations should have been investigated. If there was a failure, it was around investigation.
I do not want to try your patience, Mr Stringer, but we also did the Armed Forces Act 2006, which meshed the three service disciplinary systems into one. That was a huge issue, but it actually improved service discipline and investigations. This is an opportunity to get this Bill right. Let me say to the hon. Lady that I just want to get the Bill right. I think that if we had an approach from the Minister whereby he would take on board some of this, we could do these things, both here and in the other place, but there is a tendency, which I do not like, to think that somehow we in this place scrutinise legislation, and the Government know that they are going to change things but they change things in the House of Lords, giving the public the impression that somehow the House of Lords is this all-singing, all-seeing, body when actually those things should be done here. I am already talking, as I am sure others are, to Members of the House of Lords, including, I have to say to the Minister, some of his noble Friends who I think also have concerns about the Bill.
There is an opportunity here to do that with investigations. The issue with the amendments that we were talking about is really this. We had the debate about investigation of de minimis things, but what I think everyone wants is that investigations can be done quickly—not be done quickly and dismissed, because we have to get the balance right in terms of people making serious allegations that are investigated properly. Let us remember that we are talking here about allegations from civilians against members of the armed forces, but remember also that there are often cases between servicemen and women, who are making accusations against themselves—against individuals. There has to be a sense of fairness, and it cannot be right that it goes on for a very long time, so it does need judicial oversight. If someone is accused of something, that should be investigated properly and quickly, but that should also be done in a legal process that cannot be challenged—well, I am sure that everything can be challenged if someone pays a lawyer enough, but we must ensure that we have a situation whereby it is as judicially robust as possible.
Martin Docherty-Hughes
In response to a question asked by the hon. Member for Blaydon last week, General Sir Nick Parker stated:
“Nobody would want anything in the process that somehow allows people who have behaved badly on the frontline to get away with it. But all of us would believe that the process has to be quick, efficient and effective to remove the suspicion of a malicious allegation as quickly as possible. I cannot see how this Bill does that.”–[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 94, Q188.]
Does the right hon. Gentleman agree that legitimacy and effectiveness are not an element of this Bill and that we need to see structural change before we can go forward?
Overseas Operations (Service Personnel and Veterans) Bill (Sixth sitting)
Wednesday 14th October 2020
(3 years, 6 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 October 2020 - (14 Oct 2020)
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
Mr Kevan Jones (North Durham) (Lab)
I hope everyone had an enjoyable lunch. When we left off, I was still talking about investigations and what came through in the evidence we took. Mr Stringer, you and I are old enough to remember when Public Bill Committees did not hold evidence sessions. The process is far better now, because it informs the debate and our progress. Certainly, our witnesses gave valuable evidence, and from a variety of different positions. The one thing that did come through, however, was the lack of any reference in the Bill to investigation.
This morning I referred to Nick Parker’s comment that
“part 1 of the Bill focuses entirely on the process of prosecution, whereas for me the big issue here is the process of investigation”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 94, Q188.]—
and of reinvestigation. Major Campbell gave some very good evidence—I think everyone had sympathy—about how he had spent 17 years under investigation and reinvestigation.
Last Thursday we had the Judge Advocate General before us. I was amazed that he had not even been consulted on the Bill before it was introduced. I would have thought that he, as the leading judge in the service justice system, would be a good starting point to run things by. He said in evidence:
“My concern relates to investigations, not prosecutions; but there are a number of issues”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 115, Q231.]—
that need addressing. He also accused the Government of
“looking at the wrong end of the telescope”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 116, Q246.],
which is a good analogy for how they have approached the subject. We have been blindsided by the disgraceful case of Phil Shiner, which concentrated on the number of vexatious claims. I will put on the record again that I thoroughly condemn that individual, but I think that the process that we had did deal with him, in terms of regulation.
I will now turn to the two amendments that stand in my name, amendment 2 and new clause 6. We did not get a chance to talk about amendment 2, which is also about investigations. It seeks to insert into clause 3:
“the thoroughness, promptness and efficacy of any ongoing investigation into the alleged conduct or any relevant previous investigation, and the reasons for any delays in such investigations”.
The purpose of that is to ensure that we get timely investigation. I will move on shortly to new clause 6, which talks about judicial oversight, because that is important, but we do not want to get into a situation in which the service military police or other people simply say, “Well, we’re not going to investigate because it’s too difficult.” We need oversight, but amendment 2 puts the focus on looking at the investigation, not only to ensure an adequate investigational process, but to give particular weight to the prosecution. In considering a case, therefore, a prosecutor should be able to consider the efficiency of the process and previous investigations that have taken place.
As a statement of principle, I would like the Bill to consider more effectively the way in which the investigation function in the military justice system can be amended. I am sorry that the Government do not seem to accept that that should be part of the Bill. I think I referred to it this morning. At least I know why the civil servants are not accepting that. The obvious thing to have done with the Bill would have been to have put it with the armed forces Bill that will be coming through next year. If there is one thing that I know from my experience of civil servants, it is that they like tidiness, and this process is not tidy. That would have been a better way of doing it.
Liz Twist (Blaydon) (Lab)
Does my right hon. Friend agree that witness after witness in the evidence sessions pointed to the centrality of good-quality investigation in removing the problem of vexatious and pluralistic claims?
Mr Jones
Yes, and in a moment or two I will cover the important point that my hon. Friend raises. It is about efficiency in dealing with claims through an early process, so that when the evidence is not going to go anywhere, a claim can be dropped. As the hon. Member for West Dunbartonshire said this morning, that is good for the efficiency of the system as well as for the individual. As Lieutenant Colonel Parker said, it is not just the prosecution case, but the mental torture that people go through when waiting for that. It would help servicemen and women going through that process to have an early resolution.
We did not get to discuss new clauses 6 and 7, so I will speak to them now. I understand, Mr Stringer, that they will be voted on at the end of this process. Is that correct?
The Chair
We are debating clause 1 stand part and we will vote on clause 1 stand part at the end of the debate.
Mr Kevan Jones
One of the important things about the process is that we have judicial oversight of whatever happens. That is important for making the system robust and fair, both for those complaining and for those accused, as well as in relation to our international obligations. We have been a beacon of light in ensuring that we have an independent judiciary in this country, and it is important that we have oversight of that. Judge Blackett suggested things that could do that, and that could also make the system more efficient.
New clause 6 proposes to bring in judicial oversight of investigations. It would allow the judge advocate, once an investigation has come to its preliminary conclusions, to look at the evidence in the allegation as soon as possible, but no later than 6 months, and the judge, not the Ministry of Defence or the chain of command, would then make an assessment. It is important that the assessment is made by the judge advocate, who is part of the judiciary. The judge advocate would have
“the power to determine—
(a) that no serious, permanent or lasting psychological or physical injury has been caused; and order that the investigation should cease”.
If, at that stage, an indication was taken that the case was going nowhere, that would knock out all the vexatious cases, which is what we are trying to get at here. It would allow the individual who has been accused to move on. It would have the strength of having a judge make that decision. The clause moved this morning takes away more minor offences, allowing us to get down to the serious cases that need to be investigated and prosecuted.
Chris Evans (Islwyn) (Lab/Co-op)
My right hon. Friend is rightly seen as an expert on defence matters, having been in this House for a number of years. I wonder whether we could have the benefit of his experience. In his experience, both as a Minister and as a member of the Bill Committee, is he open to the suggestion that a number of these investigations are taking so long because of failures within the Ministry of Defence, and that that is why we have arrived where we are?
Mr Jones
Yes. That is the problem. How do we get at it? Is it about a lack of resource? I think it is. Going back to Iraq and Afghanistan, as I said this morning, there was huge pressure from all sides, including the Conservative Opposition at the time, that these things had to be seen to be investigated to the nth degree. There was a culture, which led to a resistance to say in some cases, “There is no evidence to stand those.” If that was done politically, I understand why people have issues with that.
However, if there were a judicial process, which new clause 6 provides for, overseen by a judge, that would give confidence to the public and the international community, in relation to our obligations, that this was being done not for political reasons but because a judge had determined independently what the facts are. It would certainly help.
Martin Docherty-Hughes (West Dunbartonshire) (SNP)
In response to a question the right hon. Gentleman raised last week, Judge Blackett said, in relation to the Magistrates’ Court Act 1980, that
“a great raft of those allegations in IHAT and Northmoor would have gone with that.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 122, Q254.]
Is that not the right hon. Gentleman’s point? Much of what the Bill seeks to do could easily have been dealt with through existing legislation.
Mr Jones
Well it could, but I am a defender of the service justice system, because I think it is unique. There are those who want to abolish the service justice system, who ask, “Why aren’t these tried in the civil courts?” I am against that, and I always have been, because of the unique nature of the circumstances and the way the system works. It is an independent judiciary, not part of the MOD, so it has respect. Courts martial understand not only the special nature of service, but the circumstances that people are in.
My fear is that this Bill will strengthen those who want to sweep away what they see as giving special privilege to the armed forces. I do not see it that way at all. It gives those men and women who go before it the chance to be judged by an informed judiciary, which deals with certain cases. That is the important point. Again, it comes back to judicial oversight.
New clause 6 states, in subsection (3)(b), that a judge can determine
“that the evidence is of a tenuous character because of weakness or vagueness or because of inconsistencies with other evidence, and that it is not in the interests of justice to continue an investigation”.
The judge would look at the evidence and make a judgment about the validity of the original claim, as well as what the investigation has thrown up. If the judge were subsequently to decide that the case should go no further, that is defendable, because it would be the judge’s decision.
Subsection (3)(c) presents the other side, where the judge may decide
“that there is merit in the complaint; and make directions as to the timetable and extent of further investigation.”
Clearly, if the judge looks at the evidence after six months and says, “Actually, there is a case here, and further leads from the investigation need to be taken forward,” it is important that that is allowed to happen. That is not stopping prosecutions or interfering in any way with the investigative process; it is reviewing the evidence and whether it will go forward. It would also give directions to set a timescale for that investigation to be completed.
Martin Docherty-Hughes
Again, the hon. Member asked Judge Blackett question last week in relation to Marine A. Judge Blackett responded that
“a number of the issues here were raised by Marine A subsequently through the Criminal Cases Review Commission and back to the Court of Appeal, and they were never raised at first instance. Had he”—
Marine A—
“raised them at first instance—had all the psychiatric evidence that came out eventually appeared at the start—he probably would have been charged with manslaughter rather than murder”, ––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 124, Q262.]
which is what he was charged with. It was actually on the second appeal that it was overturned and the prosecution was for manslaughter. Does the right hon. Member agree that the process is at fault and that, to improve that, the Government need to make substantial changes and investments in the process, rather than with the Bill?
Mr Jones
It is the process. I am glad that the hon. Member has mentioned the case of Marine A, because the way it was dealt with worries me. People might not be familiar with it. It was an individual who was on operations in Afghanistan and shot, on camera, a wounded Taliban fighter. That case did not come about through an ambulance-chasing lawyer; it came about because somebody filmed the shooting and was so horrified by it that they handed in the video. That was not an ambulance-chasing lawyer saying, “This man’s killed somebody in cold blood.” That case is important.
The process being adopted concerns me for two reasons. My first concern, on the point we raised last week, is about the support that servicemen and women are getting while they are going through the process. Clearly, in that case, the individual did something that goes against everything that members of the armed forces are trained to do. But when we look at the overall envelope of what he had been up to—the psychological trauma and the other things he had been through—we could explain it not as murder, but as manslaughter. Again, if that case had gone through this type of system, it would have led to those issues around the individual’s mental health, which do not excuse his actions but obviously had an impact on what happened, and to the first issue being seen as manslaughter, which would have been a fairer way of dealing with it.
My second concern about the Bill is that if that happened more than five years after that case, the presumption would have been not to prosecute. There would then have been a political decision, because the Attorney General would be deciding on prosecution. That individual could then end up before the International Criminal Court, because we would deem that we had not prosecuted.
There was a media maelstrom around the case. As with many such cases that we have all dealt with, it got a nice headline in the Daily Mail or The Sun, but there were obviously more details to it. If we have a similar case in future on which there is to be a political decision, it will be a strong politician or Attorney General who will turn around and say, “Yes, I want to prosecute this person.” There would then be the danger of the International Criminal Court picking up the case. Whereas in the process that I am proposing in new clause 6, the judge would review all the evidence, including, in that case, whether he should have been charged with murder in the first place when it went to court or to appeal—and no, he should not have been.
As many Committee members have said, and certainly, having spoken to members of the armed forces and veterans, they do not want to be above the law; they want to be treated fairly. That is what we are here to ensure. I have spoken to the individuals involved in the Marine A case, who explained the reasons why it happened, which I understand. It did not fulfil the high standards that are expected of the armed forces. In that case, it is about being fair to members of our armed forces, and ensuring that we are doing the right thing. Again, the combination of new clause 8, which we debated this morning, and new clause 6 would start to reduce that pile of potential litigants, even if they came from vexatious lawyers or elsewhere.
The other issue, which I can never get my head around, is the idea that the same case can be reinvestigated, as in the Campbell case. That is just ridiculous. There must come a time when we have to say, “Well, it has been looked at in detail. There has been evidence.” There might be a delay to trawl for witnesses and other evidence, but in effect what that says is, “Basically, we will do a fishing exercise until we get the answers that we want.” That cannot be right.
My new clause 7 addresses some of the limitations around investigations. I think we on this Committee all want thorough investigations, and so do members of the armed forces; what they do not want is endless reinvestigations that go on for, in the Campbell case, 17 years. New clause 7 would put limitations on reinvestigation. The section applies where
“(a) a person has been acquitted of an offence relating to conduct on overseas operations,”
so it would apply to those individuals.
I know this is not within the scope of this Bill, and I am sure you would pull me up, Mr Stringer, if I mentioned other areas, but that is the problem with the title of the Bill: some of the things in here should apply to members of the armed forces if the offence was committed on the UK mainland, but they do not. That is why I come back to the point that it would be better to do these things in the Armed Forces Bill next year and to take a holistic approach. Obviously, there are political reasons why this Bill is being rushed forward, to meet a manifesto 100-day commitment. However, I think some of these things should apply in the UK, but they will not with this Bill, and no doubt they will have to be picked up in the Armed Forces Bill.
The section also applies where
“(b) a determination has been made that an investigation into an offence relating to such conduct should cease under section (Judicial oversight of investigations).
(2) No further investigation into the alleged conduct shall be commenced unless—
(a) compelling new evidence has become available”.
Again, this is about trying to stop that reinvestigation, but having judicial oversight. The judge advocate determines
“the totality of the evidence against the accused”,
and sees whether it is strong enough such that
“there is a real possibility that it would support a conviction.”
Let us go to the Campbell case: if that case came forward again, the judge would have to look at the evidence and see whether the material circumstances had changed since the last time the offence was looked at. The strength of doing it this way, rather than as proposed in this Bill, is that it is not about limitations of time and the presumption against prosecution; a judge will look at the evidence and there will be a process. That would avoid the reinvestigation of such complaints.
If there is compelling new evidence, I think we would all agree—not just in the military justice system, but in a civil case—that we would want it to be looked at again. That links to the time limits on investigations, which for the individual concerned would not then stretch out for an indeterminate length of time.
Martin Docherty-Hughes
Regarding proposed new subsection (a) on new evidence, in evidence to the Committee last Thursday, in response to the hon. Member for Wrexham, the judge advocate gave as an example the six Royal Military Police who were sadly killed at Majar al-Kabir in 2003. Would this not allow us parity of esteem in the international judicial system? If new evidence came out in Iraq, we would demand that the Iraqi Government prosecute the individuals responsible for the murder of those six Royal Military Police.
Mr Jones
Yes, I remember that case—it was awful, if you read the background to it. The Bill is basically saying, “We are going to do something different from what we expect of other people.” I am sorry, but that is just not acceptable. We have a high standard in this country of judicial law and the rule of law and, as I said earlier, we should be a beacon. We should say, “This is something we are proud of.” Anything that changes that would be detrimental, and not only to the armed forces, for the reasons that have been raised. It is just logic that, if new evidence comes forward in a case, it must be looked at; just to say that the reason it cannot be looked at is that it has gone past a certain time period is wrong. If we dismiss new evidence without looking at it and having any judicial oversight of it, that would be a mistake.
The Minister for Defence People and Veterans (Johnny Mercer)
Let’s not be personal, Kevan.
Mr Jones
I am not being personal, but a Minister usually does more than read what is in front of him; he takes notes and engages. My proposals should be looked at seriously, because they would improve the Bill. The Minister says he wants to work with everybody, but he seems to have deaf ears when people make suggestions that would not harm but improve the Bill. It is not just me saying that, as someone who is passionate about protecting the armed forces; that is the evidence we have taken through this process. As I said earlier, that is the good thing about the process.
What would be the argument against accepting the new clauses? The only one I can see is that the Government want to deal with this next year in the Armed Forces Bill. Fair enough, but put them in now. They can be done now. We will not end up with any additional costs of process—in fact, that will save money. I know we do not have a money resolution with this Bill, so we cannot propose things that cost money, but I doubt whether those proposals will. As the hon. Member for West Dunbartonshire said this morning, it is about making things efficient, and there are two wins here: one win with the process being slicker and quicker; and another win with the accused individual being dealt with fairly and robustly.
Turning to other parts of the clause, this morning we asked why five years, rather than 10, 15, 20 or whatever. I asked the Minister to justify that and I also asked about the numbers for who said what. He said they were in the impact assessment, but I could not find them when I looked at it at lunchtime in the Library, or where they are referred to. I would like the Minister to do what I thought he would do when he responded to my hon. Friend the Member for Portsmouth South, which is to say, “Well, five years has been put forward for X reasons and 10 years was seen as too long”—or something like that—“and these were the people who argued for each.”
On balance, I agree, that some such things are at the end of the day political decisions, but we did not get that sort of response. I would still like an explanation for the decision of five years. I do not think that is in the impact assessment, on which, likewise—I have raised this with the Minister on the Floor of the House—there is confusion on the number of claims and the potential of those claims. The figures vary from 900 to 1,000, but there is no breakdown at all of whether those claims are from civilians or from members of the armed forces making claims against the MOD.
The other thing that concerns me is the presumption not to prosecute. I know of no other system where the presumption is written into a Bill to state, before anything is done, that someone will not be prosecuted. Again, my fear about that is that it will be seen as interfering with process. I am sure some people in Committee are old enough to remember the time before the Crown Prosecution Service, many years ago—this is the reason why we had that in this country—when police investigated and did the prosecution as well. Anyone who wants to know the reasons why that system failed—for example, in the Horizon case to which I referred earlier—should read last week’s excellent report of the Justice Committee, which criticised the arrangement whereby someone was both investigator and prosecutor.
The presumption in this Bill is worse than that, because we are saying, “We will presume that we are not going to prosecute.” I know that Ministers have said, “This does not mean that cases will not be prosecuted”, and I accept that, but the decision on whether a case should be prosecuted should be down to an independent judicial process; it should not be in the hands of the Attorney General, a Minister or anyone else to decide whether a case goes forward.
Chris Evans
My right hon. Friend has touched on this before. The issue is not prosecutions but the actual investigations. The question to ask is, how do we square proper and prompt investigations, where there is justice at the end, with this limitation on prosecution? Do the Government have this the wrong way around?
Mr Jones
I agree with Judge Blackett and General Nick Parker. What the Government have done is looked at the prosecution end of it, rather than at the investigation end of it. As I have said, Blackett referred to it as looking through the wrong end of a telescope. We all know what happened when we were kids—we looked through telescopes, which were quite good for seeing things that were far away. It is as though somehow we would not pick up on the detail of what can be seen. With the Bill, however, we can see the detail.
As I have just outlined, what is needed is proper investigation. No one is suggesting shortcuts in investigations. We need a proper system that has judicial oversight, which will ensure that it is fair on all sides, and that it is efficient. The next bit of it is prosecution, which has to be independent of Government. I have never seen it written into a Bill that, before there is an investigation, there is a presumption in law that there will be no prosecution. How would we do that? What is the purpose of investigating a case and going through details if, from the outset, there is a presumption that it will not be prosecuted? That is very difficult. It would be like you, Mr Stringer, burgling somebody’s house—I am not suggesting for one minute that you would do that. The authorities would then say, “We are going to investigate you, but the presumption”—not the decision, because I accept that you could still get prosecuted—“is that you are innocent and that you haven’t done it.” That is just nonsense and will not stand up. It will end up with judicial reviews, so we will not be free from the ambulance-chasing lawyers or the legal aid system, because if they can see that there is a buck to be made in that way, they will do it.
Likewise, on international comparisons, it comes down to the point that the Judge Advocate General made in his excellent letter to the Defence Secretary, to which I referred last week in evidence: he was not consulted on the Bill. When these cases go to the International Criminal Court for investigation, it will say, “Wait a minute. At the outset you had a presumption that you were not going to prosecute in these cases.” If we had a situation in which a case went forward, there would be a presumption against prosecution and there would be an investigation. If the Attorney General were to decide that the case did not go to prosecution, the International Criminal Court would have a field day. It would say, “Well, wait a minute. You’ve had a presumption against prosecution. You’ve had political interference, with the Attorney General making the final decision about whether a prosecution should take place.” I do not think that is compatible with our treaty obligations to the ICC.
I know that reference is often made to the Human Rights Act 1998 and that there is a tendency—not with you, Mr Stringer, because I know you are an expert on European matters—to think that somehow it is something to do with the European Union. It has nothing at all to do with the EU. It has a proud history, and we should be proud to have helped develop the idea of human rights after the second world war in order to ensure that we have the highest standards. My fear is that we will end up with servicemen and women before the International Criminal Court. I am sorry, but I do not want to see that. What I want to see is their being dealt with in our judicial legal system, which will end up with their getting better justice. It will be very difficult to explain to the public why servicemen and women end up in the International Criminal Court. If that happens, the next step is that we withdraw from the International Criminal Court and everything else. If we do that, it will affect our reputation in the world as a country that wants to uphold the rule of law and to tell China and other nations, “Look, these are the basic standards that you should adhere to.” It will be a godsend to them.
There are serious issues to do with clause 1, which I do not think the Minister has addressed. If we end up with fairness and justice for our servicemen and women but we do not have an efficient system, that needs to be changed. I repeat to the Minister that the Bill can be changed on Report in this place, and I am happy to work on the investigation issues with him. If new clauses to that effect were not perfectly written according to the Ministry of Defence, I would be quite happy to work on getting a form of words that we could all accept. I am a mild-mannered individual, as many people know, and I would quite happily let the Government table them and claim the credit. I am not looking for plaudits. What I want above everything is a good Bill, and the Bill as it stands is not a good one.
Chris Evans
I thank my right hon. Friend for a rather long, in-depth speech. I am sure that I will repeat some of the points that he raised, but I want to focus particularly on the measures that apply to events that occurred more than five years ago. The starting point for covering that time period is the date that the alleged conduct occurred. When an alleged offence continued over more than one day, the starting point for the five-year time period would be the last day on which the alleged conduct occurred. I believe that that needs a bit more probing and explanation.
As we know, the Defence Committee report “Protecting veterans by a Statute of Limitations” was supported on the presumption against prosecution for allegations that were more than 10 years old. I was extremely concerned that the proposals would not cover soldiers who had served in Northern Ireland through the troubles. It is said that the Ministry of Defence should ensure that sufficient resources are made available for educating the armed forces more regularly about their legal obligations.
Far be it from me to be personal, but when the Minister replies, I would like him to give further explanation of why he moved from the 10-year period agreed by the Defence Committee to the five-year period. The real issue here, as my hon. Friend said—sorry, my right hon. Friend; he is a member of the Privy Council and I should acknowledge that—is not so much the prosecution but the investigation. All soldiers who make the great commitment to serve our country in the armed forces need a prompt, fair, efficient and effective investigation before we reach prosecution.
I would like to cite the example of how alleged crimes in Iraq were investigated and how we have arrived at the current position. As many of us know, UK military operations in Iraq lasted from the start of the invasion on 20 March 2003 to the withdrawal of the last remaining British forces on 22 May 2011—an eight-year period. Alleged crimes by UK forces in Iraq have formed the subject of two public inquiries initiated by the Ministry of Defence between 2008 and 2009 to examine the death in custody of an Iraqi civilian, Baha Mousa, in September 2003, and allegations of unlawful killings in a street arising from the so-called battle of Danny Boy in May 2004.
In March 2010, the MOD established the Iraq Historic Allegations Team, to ensure that credible claims were properly investigated. The IHAT received a total of around 3,400 allegations of unlawful killings and ill treatment between 2010 and 2017—a period of seven years. However, in February 2017, the Defence Committee published its IHAT inquiry report, which notably criticised the team for alleged inefficiency and lack of professionalism. It called on the MOD to close it down and to provide financial and other support to UK servicemen under investigation. On the same day as the release of the inquiry’s report, the Defence Secretary announced the closure of the IHAT, ahead of the original schedule, citing IHAT’s own forecasts that the team’s caseload was expected to reduce to about 20 investigations by the summer of 2017. The IHAT was permanently shut down on 30 June.
The MOD said that military operations in Iraq have resulted in nearly 1,000 compensation claims for unlawful detention, personal injury and death, and about 1,400 judicial review claims, seeking investigations and compensation for alleged human rights violations. An investigation by the BBC “Panorama” programme and The Sunday Times found that the UK Government and the armed forces might have covered up the killing of civilians by British troops in Afghanistan and Iraq. The MOD has strongly rejected the allegations of cover-ups. I bring that up because it was a MOD investigation into a conflict that lasted eight years, and then seven years into that investigation it was shut down because of what it was doing.
The real problem we have is that the Bill does not stop the cycle of investigations. Restrictions apply solely to prosecutions. If we were to ask most people who have been investigated time and again, they would say it is the investigation that has caused the problems. Unless we resolve that, the Bill does not ensure that allegations are properly investigated and resolved—this is the point, Mr Stringer—within a reasonable period. As I have said, service personnel would benefit from a focus on prompt and thorough investigations, rather than simply a limitation on prosecutions. That is why the amendments are so important. The investigations have to be judge led.
I agree that we have to resolve concerns about uncertainty and the delay for soldiers and litigants. On the other side, there are the victims. Some claims may have to go over five years for sound reasons. Injury may become problematic only after five years of post-traumatic stress disorder. Luckily, we live in a world where we have a better understanding of mental health and we are far more sympathetic to problems. In another life—14 years ago—I worked for Lord Touhig, who was involved when he was a Defence Minister with the shot-at-dawns. I am very proud that the last Labour Government granted them a pardon. I hope we never see a return to the bad old days when people were shot for alleged cowardice, when really they were suffering from terrible mental health problems.
That is what we have to guide ourselves with in this Bill. We face a mental health crisis. I was encouraged earlier when I moved the motion about UAVs, as the Minister accepted there was an issue of post-traumatic stress disorder and the need for more research. I know he has worked very hard in that area and I look forward to some of the outcomes of the work he is doing. I pay tribute to him for his work on that.
We have to accept that many of these claims will take longer. In some of these cases, it may take a long time for evidence to be gathered and to come to light, especially when we are dealing with complicated areas of law or complicated parts of operations in theatre. The Minister should look again at the five-year rule and make it 10 years, but it is more important that, alongside that, we look at how the investigations are conducted.
We should consider any time limit on prosecutions to be an intolerable barrier to justice. It is notable that the proposed five-year period halves the time period for prosecutions from the proposal of 10 years consulted on by the Ministry of Defence last year. A five-year limit makes it likely that the relevant overseas operation will still be in progress—I used the example of Iraq and Afghanistan at the beginning of my speech. That means investigations may have to be limited to while we are active in hostilities. That, again, is a barrier to justice.
The Judge Advocate General of the armed forces, Jeff Blackett, warned the Defence Secretary that this provision
“would encourage an accused person to frustrate the progress of investigation past the five-year point to engage a high bar for prosecution”.
When the Minister responds, I hope that he can lay out some guidelines on how we can stop anybody frustrating justice in that way.
Chris Evans
I alluded earlier to our good friend Lord Touhig, who advised me to always be careful of taking interventions, because they can ruin the end of your speech. I feel that that has happened here.
It is important to remember that the overwhelming majority of repeat investigations or delayed prosecutions in recent years have, as my right hon. Friend said, been the direct result of failures by the MOD itself. It is an issue within the MOD that needs to be resolved—whether it is a cultural issue or a rules-based issue, it needs to be resolved. I agree with what the Minister is trying to do because there are too many veterans, ex-servicemen and women, who are living in fear of repeat investigations. If they are living in fear of that, we must ask why these investigations are repeated over and over again, causing not only stress to their mental health but putting intolerable strain on their families.
Rather than measures that tackle the real reason behind the investigations that delay prosecutions, the Bill proposes unprecedented legal protections that will create a legal regime that mandates impunity for serious offences and, above all, inequality in law for the victims of abuse in our forces. Severely restricting the application of criminal law for certain categories of people accused of having committed offences including international crimes would violate the principle of equal application of the law, which is what our legal system is based on.
A multitude of sources suggest that crimes were committed on a large scale in Afghanistan and Iraq. That happened at least partly due to systemic issues—for instance, in 2013, in R. v. the Secretary of State for Defence, the UK High Court held that
“there might have been systemic abuses and that such abuses may have been attributable to a lack of appropriate training.”
If the problem is appropriate training, it is not a legislative solution that we need but a systemic solution from within the Ministry of Defence. In its 2018 report, the Ministry of Defence working group on systemic issues said that it considered:
“there was sufficient evidence to conclude that assaults in detention had occurred, and may have been systemic.”
International law imposes certain obligations on the UK, including the obligation not to put in place a legal framework that severely restricts or makes impossible the investigation and prosecution of serious crimes under international law committed in armed conflict, irrespective of where those crimes were committed. The proposed legislation severely limits the possibility of opening a full investigation in respect of Iraq or Afghanistan. Any measure that significantly limits the possibility of prosecuting international crimes, whether referred to as a statute of limitations or a statute of presumption against prosecution, risks undermining the UK’s hard-won role as a champion of the international rule of law and hence its ability to advance its agenda.
Mr Jones
The hon. Member for Wolverhampton South West made the point, in respect of the lack of training, that the real pressure is not on the chain of command but on the men and women in the frontline. Does my hon. Friend agree that, unfortunately, it is they who find themselves in these cases rather than those higher up in the chain of command who have equal responsibility for some of the actions?
Chris Evans
I agree; it is often ordinary squaddies or ratings who find themselves in these circumstances simply because they were following orders. If we are talking about training, we do live in a different world, a modern world. I have already spoken about our shot-at-dawn campaign, which my right hon. Friend is involved in. We have to realise that our modern armed forces are constantly evolving in a changing world, and our training should reflect that, whether it is for an ordinary rating or top brass in the armed forces. It is important that we focus on training. The Government have the numbers and they will pass the Bill, but the way to change the culture of ongoing prosecutions is to start with the training of our troops, whether in command or on the front line.
To return to the point I was making, the code for Crown prosecutors already has ample criteria to provide guidance on whether prosecution should take place. This includes an evidential stage, followed by a public interest stage. The evidential stage concerns an independent prosecutor’s assessment of whether there is a realistic prospect of conviction. The public interest stage guidance involves considerations such as the seriousness of the alleged offence, the level of capability of the offender, the circumstances of and the harm caused to the victim, the suspect’s age and maturity at the time of the offence, the impact of the offending on the community, whether prosecution is a proportionate response and whether sources of information require protecting.
Johnny Mercer
I am delighted to answer some of the questions that have been laid out. I have spoken at length about the “five to 10 years” issue in dealing with previous amendments, but I will look to answer some of the questions raised and then speak to clause 1 in general.
We ask a huge amount of our service police. Investigations on overseas operations are inherently dangerous, and the risk of gathering evidence on operations must always be balanced with the risk to the lives of our investigators. To suggest that the service police pursue unmeritorious or vexatious investigations in those circumstances is to do a huge injustice to those brave men and women who do this dangerous work, and we do not.
To understand new clause 6, it is necessary to go through it line by line. Proposed new subsection (1) seeks to apply the clause to,
“any investigation by a police force into alleged conduct as described in subsection 3 of section 1.”
Clause 1(3) applies—
The Chair
Order. I asked hon. Members at the beginning of the meeting to respect social distancing. I am sorry, Minister; please continue.
Johnny Mercer
Clause 1(3) applies where,
“the alleged conduct took place (outside the British Islands)”,
at a time when the person was “subject to service law” under the Armed Forces Act 2006, and “deployed on overseas operations.” There is no further limit on the remaining provisions of the proposed new clause, which means they must therefore apply to all investigations on overseas operations committed by service personnel. For context, there were in the region of 3,000 service police investigations in Iraq and 1,000 in Afghanistan. The majority of those will have been committed by persons subject to service law. It is not considered feasible for such numbers of investigations to be brought in front of a judge, and to do so would undoubtedly add further delays to the process.
Proposed new subsection (2) states:
“The police force investigating the conduct must place their preliminary findings before an allocated judge advocate as soon as possible, but no later than 6 months after the alleged offence was brought to their attention.”
The service police are independent. That independence is enshrined in law in section 115A of the Armed Forces Act 2006. It is common practice for them to consult prosecutors in the course of an investigation and for that discourse to shape an investigation, but this is discourse, not direction. Any obligation on the service police to police their investigation before a person who has control over the final determination of that matter seriously compromises the independence and is therefore contrary to section 115A.
New clause 6 states that the allocated judge advocate may order an investigation to cease should it be determined,
“that no serious, permanent or lasting psychological or physical injury has been caused”—
presumably by the alleged conduct. Again, it would be hard to determine whether that was the case without investigation, a matter complicated by being on overseas operations. Proposed new subsection (3)(b) gives the judge advocate the power to order that an investigation should cease if it is determined,
“that the evidence is of a tenuous character because of weakness or vagueness or because of inconsistencies with other evidence, and that it is not in the interests of justice to continue an investigation”.
That proposed new paragraph is equally problematic; only in the most clear-cut cases can the police produce evidence entirely without some area of weakness or vagueness. Difficult operational investigations are particularly prone to those problems, but the relationship with the prosecutor will allow them to be explored and the progression of the investigation adapted accordingly. Furthermore, inconsistency with other evidence is a factor in all investigations and is what the trial process is created to explore. For a judge advocate to be placed into such a process, rather than relying on the relationship between police and prosecutor, risks adding delay to the investigation, and for a judge to order the cessation of an investigation risks cutting it short where evidence has not yet been gathered due to the complex nature of operational inquiries.
Finally, proposed new subsection (3)(c) seeks to give the judge advocate the power to direct the timetable and extent of further investigation if it is determined that there is merit in the complaint. However, the clause does not specify whether the judge advocate would have continued oversight, or some ability to enforce the timetable and direction. Again, that would place an additional burden on police who, in an operational theatre, responding to operational events, would now have an added layer of bureaucracy placed on them by someone who is not deployed and cannot possibly understand the unique pressures experienced by the deployed police officer. That would remove the discretion that all police officers must have to carry out prompt, independent and effective investigations, and hamper their decision making. That is not the same as the police relationship with the prosecutor, and here I return to my point about discourse versus direction. Discourse allows the police to retain the discretion so vital to acting in response to events; direction fetters their decision making.
The proposed clause is based on the false premise that police carry out unmeritorious or vexatious investigations. It would undermine the relationship between the police and prosecutors and fetter the police in the conduct of investigations in difficult circumstances. It would place an additional and unnecessary cog in a system that does not need it.
New clause 7 fails to take account of the processes involved in investigations. It fails to make clear the difference between an investigation and a reinvestigation and it fails to understand the processes involved in gathering evidence. The proposed clause applies where a person has been acquitted of an offence relating to conduct on overseas operations. It is assumed that this envisages a situation in which a person is acquitted at court martial, but it should be noted that it could also apply to a matter that is heard at a summary hearing in front of a commanding officer, following on from an investigation that did not involve the police. It also applies where a determination has been made by a judge advocate that an investigation into an offence should cease, which, as I have already stated, risks prematurely cutting short an investigation whose progress is impacted by its being an operational investigation.
The new clause proposes that there be no further investigation into the alleged conduct unless compelling new evidence becomes available and an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong that there is a real possibility that it would support a conviction. I will take this step by step.
An investigation is a hard thing to define in law. It starts when inquiries begin, and its purpose is to determine whether what little information there is to start with is credible, and to gather more evidence in support of that. The process of finding out whether evidence is compelling is called an “investigation”. It is hard to see how, people having been told to cease an investigation, no further investigation—whether new or a continuation of the earlier investigation—can be commenced unless some form of compelling new evidence becomes available. The only way the police can determine whether the new evidence is compelling is by carrying out the investigation that they are not allowed to carry out. This becomes a circular issue.
Additionally, no further investigation into the alleged conduct may be carried out unless the allocated judge advocate determines that the totality of the evidence against an accused, which presumably has had to come from some sort of investigation that the police are not allowed to conduct, is sufficiently strong that there is a real possibility that it would support a conviction.
Johnny Mercer
Not at this stage.
Where a person has been acquitted and new evidence comes to light, it would be necessary for there to be a further investigation before a prosecutor could determine whether a new prosecution could and should be brought. That is not a decision for the police; it is a decision for the prosecutor. To prevent the investigation would prevent a prosecutor from having the information that they need to make that determination.
Unfortunately, new clause 7 is not clear enough to allow a real debate on what it is seeking to achieve. The only way the police can determine whether new information is “compelling” or “sufficiently strong” to “support a conviction” is to carry out an investigation. A thorough investigation is important. As I said earlier, it can serve to exculpate, which is a good thing for the reputation of our armed forces, as well as to incriminate. The Bill should not, and does not, seek to fetter the police from carrying out investigations. It seeks to ensure that prosecutors are in a position to make prosecutorial decisions based on information that can be gleaned only through thorough investigations.
With the discourse between prosecutor and investigator, a balance must be struck between further investigation and the realistic prospect of conviction, and this includes the measures in the Bill that the prosecutor must take account of.
Johnny Mercer
Not at this stage.
However, this does not need further clauses that seek to fetter that discourse. It needs the lightest touch, which is achieved through the balanced and established relationship between police and prosecutor.
Mrs Emma Lewell-Buck (South Shields) (Lab)
Obviously, the Minister is probably more familiar with the Bill than I am. I just getting a little bit lost on his comments here. Is he saying that the only time that new evidence comes to light is through an investigation? That is just not the case. Sometimes evidence appears when there is not an ongoing investigation. Also, is he saying that, in that case, when new evidence comes to light, an investigation should not happen? For my benefit and perhaps that of other members of the Committee who are not as familiar with the Bill as he is, could he please explain where in the Bill there is a limit on reinvestigation at this moment?
Johnny Mercer
I am happy to address the point about reinvestigation, because there are no circumstances in which anybody could arrive at the Ministry of Defence with an allegation of criminality or whatever it might be and we could not investigate it. There is a difference between investigations and where those investigations start impacting the lives of veterans, which is what the Bill seeks to deal with and which is why we have drawn the line where we have. We are not saying that new evidence comes only from investigation, but, as I have outlined, new clause 7 introduces an element of oversight that is simply not practicable to what we are trying to do. I have outlined that the 3,500 cases in Iraq and 1,000 in Afghanistan, and it is not practicable to do that and to ensure there is a speedy resolution, that evidence is preserved, that if people have done wrong we can prosecute them in a timely manner and so on. I am happy to have a further conversation with the hon. Lady about that later.
Chris Evans
I fully appreciate what the Minister says about being bound by criminal law in England and Wales. However, having gone through the process himself, is he confident that when someone is recruited into the armed forces, they are fully aware of their legal obligations and that the training meets those needs?
Johnny Mercer
I thank the hon. Gentleman for that pertinent question. Extensive efforts have gone down over the years to make sure our people understand the rules within which they should operate. There clearly have been challenges in some of the training regarding detentions and so on, as has been found out through various court cases. I have always talked, on Second Reading and even before the legislation came to the House, about how the it is one of a series of measures. One such measure is about investigatory standards, another is about education and how individuals’ lives are affected, because it is not in anybody’s interests for us to do the legislation and for people not to understand. I am more than happy to share with the hon. Gentleman how much work we have done in that space.
Johnny Mercer
I will not. Repeat investigations of alleged historical offences or the emergence of new allegations of criminal offences relating to operations many years ago can make the delivery of timely justice extremely difficult. It can also leave our service personnel with the stress and mental strain of the threat of potential prosecution hanging over them for far too long. The measures in part 1 of the Bill are key to providing reassurance to our service personnel and veterans about the threat of repeated criminal investigations and potential prosecution for alleged offences occurring many years ago on overseas operations. The purpose and effect of clause 1 is to set the conditions for when the measures in clause 2 and 3 must be applied by a prosecutor in deciding whether to prosecute a criminal case or to continue with the proceedings in a case. It should be noted with reference to clause 1(2) that the measures do not affect the prosecutor’s decision as to whether there is sufficient evidence to justify prosecution. The first stage of the prosecutorial test will therefore remain unchanged. Clause 1 therefore details to whom and in what circumstances the measures will apply.
Martin Docherty-Hughes
I am very grateful to the Minister for giving way. When we consider his summing up, critically with reference to new clause 7(2)(a), does he not recognise that some of the evidence given by Judge Becket in response to his hon Friend the Member for Wrexham creates an ambiguity in terms of our partners in military activity? For example, Judge Becket referred to the murder of six Royal Military Police in Iraq and noted that if new evidence was brought forward, and the Government of Iraq had the same legislation, there is every possibility that the people responsible would not be prosecuted.
Johnny Mercer
I assume that the hon. Gentleman is talking about Judge Blackett, who is the Judge Advocate General. He made some keen points. I have met Judge Blackett and we have tried to incorporate his work in the Bill, where appropriate. The idea that new evidence is presented and we do not prosecute is simply not the case. With reference to the six individuals killed at Majar al-Kabir in 2003, if new evidence is presented in that case, we would expect the Iraqis to prosecute. If new evidence emerges in cases against servicemen and women, they can still be prosecuted beyond these timelines. The legislation is simply bringing integrity and rigour to the process.
Johnny Mercer
No, I am going to make some progress.
Under the Bill, the first condition establishes that the measures will only apply to members of the armed forces, both regulars and reserves, and to members of British overseas territory forces operating as part of UK forces when deployed on operations outside the British Islands, as defined in clause 7. Although we do deploy other Crown servants and contractors on overseas operations, those individuals are not deployed on front-line military operations and are not ordinarily exposed to the same risks and dangers as service personnel. It is not therefore appropriate to extend the protection provided by the measures in part 1 for our service personnel and veterans to other Crown servants or contractors.
The first condition in the legislation also requires that the alleged conduct occurred while the person was deployed on an overseas operation during which personnel came under attack or faced the threat of attack or violent resistance. Operations conducted outside the UK are vastly different from those conducted inside the UK. Within the UK, the military only ever operate in support of the civil authorities. With the exception of Operation Banner, which was an absolutely unique circumstance, UK operations rarely, if ever, require our personnel to operate in the same sort of hostile, high-threat environments they face on overseas operations. Excluding Northern Ireland, there are no outstanding historical allegations relating to operations in the UK.
Be assured 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 a manner that focuses on reconciliation, delivers for victims and ends the cycle of re-investigations into the troubles in Northern Ireland, which has failed victims and veterans alike. That will deliver on our commitment to Northern Ireland veterans.
The second condition for the measures to apply is that the alleged offence must have occurred over five years ago, with the start date being the date of the offence. Where an alleged offence occurred over a period of days, the start date will be the last day of that period. It is vital that investigations into historical allegations are brought to resolution without undue delay. To provide greater assurance to our brave servicemen and women, we consider five years to be the most appropriate start point for the presumption.
The Chair
Just before I collect the voices of Members as they vote, if the clause is voted for, it means that the first clause is agreed to and then becomes part of the Bill to report to the House. The other new clauses and amendments that were grouped with it will be voted on when they are reached. I hope that is clear.
Question put, That the clause stand part of the Bill.
The Chair
It is not an important point—it is a difference without real meaning—but the normal procedure is not to abstain but to have no vote.
Clause 2
Presumption against prosecution
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 1—Ability to conduct a fair trial—
“The principle referred to in section 1(1) is that a relevant prosecutor making a decision to which that section applies may determine that proceedings should be brought against the person for the offence, or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”
This new clause replaces the presumption against prosecution with a requirement on a prosecutor deciding whether to bring or continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.
Both clause 2 and new clause 1 can be debated. We will not vote on new clause 1 until the end of the Bill when the new clauses are considered. At the end of this debate, I will collect voices for a vote on clause 2. The Minister has moved clause 2 formally. If there is any debate, he can respond. The new clauses will be moved formally when we get to them, but they can be debated now.
Mr Jones
Clause 2 is quite an important part of the Bill. I am sorry that the Minister did not allow me to ask him about his investigation point, because it has an impact on this clause. He said that there is no similar system of judicial oversight for investigations, but I have to say that there is. For example, the police will often refer cases to the Crown Prosecution Service prior to the conclusion of an investigation for advice on whether more information is needed to meet the threshold for a prosecution. That is one of the points that I was going to make if he had allowed me to intervene. Whatever his civil servants have written to him, I suggest that they look at that comparison and what that would have done.
It is interesting that the Minister said that he met the Judge Advocate General and tried to incorporate things. I would like to know what in the Bill was changed after his meeting with Judge Blackett. I cannot see anything, but if the Minister wants to give us that, either now or later, that would be fine.
The presumption in clause 2 is for it to be exceptional for a prosecutor to determine that proceedings should be brought in relation to an offence committed by members of the armed forces when deployed on operations abroad. On that presumption against prosecution, I think we will have real problems, as we have referred to already, with regard to our international standing. I ask for your guidance, Mr Stringer: am I allowed to speak to new clause 1, even though it is not being moved?
The Chair
New clause 1 is before us for debate. The Shadow Minister may or may not wish to press it when we get to the new clauses, but it is before us for debate now.
Mr Jones
New clause 1 states:
“The principle referred to in section 1(1) is that a relevant prosecutor makes a decision to which that section applies may determine that proceedings should be brought against the person for the offence or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”
We have already discussed this, but if a material time difference were to prevent someone from getting a fair trial, I do not think that anyone would deem it fair to prosecute them for a crime. That has been an issue in civil law. For instance, certain historical sexual abuse cases have been very difficult to determine. There is a balance between the case for the prosecution to, quite rightly, get justice for the victim, and for the accused to receive a fair trial given the lapse in time. The new clause makes a fair suggestion.
In the case of Major Campbell, the circumstances were very difficult. The differences between service justice and civilian life include the unique circumstances in which individuals operate and, as I have said, the fact that they serve overseas, where evidence and witnesses must be gathered. We must ensure that the accused gets a fair trial. I want this Bill to make the process fairer and more just for accused individuals in those unique circumstances. I keep coming back to that point: the circumstances are unique and very different.
I support new clause 1. I accept that it might not be expertly drafted, but if the Minister is sympathetic towards it, I urge him to at least ask a civil servant to redraft it so that it can be brought back as a Government amendment, or to suggest another way in which the proposal can be brought into effect. Judging by his attitude, I doubt he will do that for any of the proposed amendments.
Mr Jones
I am not bad, actually. I am just trying to be helpful and to improve the Bill, but the Minister seems determined to push it through unamended. He might not like it, but this is the purpose of Parliament: it is about scrutinising legislation. I have tabled amendments that I do not necessarily agree with, but I have done so because we need to demonstrate to the public that all opinions have been aired in Committee. That is an important part of our democracy. Even with a Government majority of 80, a Minister cannot simply determine that their proposals go through on the nod. Likewise, just because something comes out of his lips, that does not necessarily make it right. Perhaps I can give the Minister some advice: he might be in a stronger position if he was prepared to stand up and argue, in a friendly way, some of the points made in the Bill. All he seems to be doing, however, is reading out a pre-prepared civil service brief. This is the first time I have seen that done in a Bill Committee.
On the presumption against prosecution, we have got things the wrong way around. As Judge Blackett said, by looking at prosecutions we are looking through the wrong end of the telescope. I think there are ways in which we can ensure that people do not have to face lengthy reinvestigations or an inordinately long wait before being taken trial, and, if they meet the threshold for prosecution, that they are not disadvantaged by the passage of time. It is worth exploring those issues. My hon. Friend the Member for Portsmouth South asks, through the new clause, a reasonable question about time limits. If this is not the way to do it, what is?
Stephen Morgan (Portsmouth South) (Lab)
I rise to support new clause 1. I have said many times throughout this process that the Opposition will work constructively with the Government to get the Bill right, to protect armed forces personnel and their families. We believe that the intent of the Bill is well placed, but it has been poorly executed to achieve what Members on both sides of the House want—an end to vexatious claims that are misplaced, that are drawn out for years longer than they should be, and that place our troops and their families under incredible amounts of stress and pressure that they simply should not have to expect.
Our world-class personnel and their families deserve so much better. That is why it is so important that we get the Bill right. However, the presumption against prosecution does not resolve the issue that we all recognise. It does not afford our armed forces personnel the protection that they deserve. That is why, where the Opposition see an opportunity to improve the Bill, we will seek to highlight it. It is why we have tabled new clause 1, which we believe is fair. Crucially, it tackles the key issues of bringing to an end many of the vexatious claims against our armed services personnel—we want to make that commonplace—and of ensuring that decisions to prosecute are brought to a swifter conclusion. For that to happen, clause 2 in part 1 of the Bill must be removed and replaced by a new clause that replaces the presumption against prosecution with a requirement for a prosecutor who is deciding whether to bring or to continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.
The principle of a fair trial and consideration of the length of time that has passed during an investigation of our armed forces personnel is important for two reasons. First, it focuses on fairness. It ensures that our world-renowned legal system’s reputation remains intact. It does not undermine our international reputation and avoids the potential repercussions of our armed forces personnel being dragged to The Hague for violating international law. Secondly, it tackles the issue of lengthy investigations, which, sadly, some of our armed forces personnel have experienced and still are experiencing. More specifically, it requires the prosecutor to consider whether the passage of time in such investigations has materially prejudiced the chance of a fair trial for our armed forces service personnel and veterans.
It is not just the Opposition who have identified the flaws in clause 2 and where it could be improved. The International Committee of the Red Cross has raised these concerns, submitting them in written evidence. For context, and for those who are not aware, the ICRC is an impartial, neutral and independent organisation whose mission is to protect the lives and dignity of victims of armed conflict and others in situations of violence and to provide them with assistance. The ICRC is also the origin of the Geneva conventions, an international agreement of which our country is a proud original signatory.
In its evidence, the ICRC acknowledges that there are occasions on which discretion has developed to address cases in which prosecutions are not taken forward. At international level, article 53 of the International Criminal Court statute sets out a procedure to follow if,
“upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because…A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime”.
The written evidence goes on to say, however, that the ICC Office of the Prosecutor said that
“only in exceptional circumstances will the Prosecutor of the ICC conclude that an investigation or a prosecution may not serve the interests of justice”.
Finally, under the heading, “The presumption in favour of investigation or prosecution”, the OTP notes:
“Many developments in the last ten or fifteen years point to a consistent trend imposing a duty on States to prosecute crimes of international concern committed within their jurisdiction”.
The written evidence gives rise to a number of considerations. Clause 2 states that there should be exceptional circumstances for a prosecutor to determine whether proceedings should be taken against armed forces personnel. However, as outlined in the ICRC submission, does the prosecution in the interests of justice, including the gravity of the crime, the interests of victims and the age and infirmity of the alleged perpetrator, sound like an exception to the rule of when proceedings should be brought forward? Indeed, it seems more likely to be exceptional for such a case to not be progressed and brought forward. The OTP compounds that point by stating that
“only in exceptional circumstances will the Prosecutor of the ICC conclude that an investigation or a prosecution may not serve the interests of justice.”
Under the Bill as drafted, it will not be exceptional to not prosecute such cases. Indeed, it risks undermining our international reputation and legal obligations, and, as a consequence, risks our armed forces personnel being tried at the International Criminal Court instead of in British courts. That gives rise to the question: why are the Government so intent on taking this risk, undermining our reputation and legal obligations, and leaving our armed forces personnel exposed? Why have the Government included a clause that risks undermining a historic, momentous international convention in which our country played a key role and of which it is an original signatory? That is something that our country and armed forces are proud of, and it is a reason for the high regard in which we are held across the world. Why risk breaching it, particularly when this clause could put our armed forces personnel at greater risk of vexatious claims? The Bill would not protect them, as it intends to do.
Furthermore, according to the evidence submitted by ICRC, the OTP also notes that many developments
“in the last ten or fifteen years point to a consistent trend imposing a duty on States to prosecute crimes of international concern committed within their jurisdiction”.
Why would we wish to deviate from our colleagues and international security partners on such an important issue? What is the Government’s reasoning for this?
That is not the only evidence received by the Committee that underlines the issue of clause 2. During last week’s evidence sessions, we heard from Judge Blackett, the former Judge Advocate General, the most senior military judge in the country, who said:
“I have three concerns about the Bill. One is the presumption against prosecution”.—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 116-17, Q234.]
He went on to say:
“I do not think that there should be a presumption against prosecution”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 121, Q248.]
Quite simply, if the most senior military judge in the country has clearly outlined that there should not be a presumption against prosecution in the Bill, what more do the Government need to understand that clause 2 should be removed? What advice and evidence have the Government taken to support their approach? Was the Judge Advocate General consulted? If not, why not? In summary, I hope the Government will listen to the points raised, remove clause 2, uphold our international reputation and obligations, and work with us to protect our troops and get this Bill right.
Finally, I ask the Minister to clarify what advice and evidence have the Government taken to support clause 2? Why do the Government wish to deviate from our colleagues and international security partners on such an important issue? What is the Government’s reasoning for this? Why have they included a clause that risks undermining a historic and momentous international convention in which our country played a key role and of which it is a key signatory? Why are the Government so intent on risking undermining our reputation and legal obligations and leaving our armed forces personnel exposed? I hope the Committee will get some answers from the Minister.
Miss Sarah Dines (Derbyshire Dales) (Con)
I rise to speak briefly to new clause 1. As a new Member, I find the quality of the new clause disappointing. It does a disservice to the intentions of those who tabled it, so I invite them to withdraw it. The wording is far too vague and subjective. It is without guidelines and substance. Its incredible vagueness would make for a very unworkable piece of legislation. I believe in proper scrutiny in Committee, and the quality of the new clause is not good. It is a lawyer’s gift and would be subject to countless legal challenges and much litigation, which is exactly what the Bill is meant to stop.
Miss Dines
I am just finishing. I respectfully ask for the new clause to be withdrawn.
Johnny Mercer
I will answer the point about the Judge Advocate General first. He is able to comment on all areas of policy that have a direct impact on his role within the service justice system and the management of the military court system, but the measures in part 1 of the Bill impact on the prosecutorial process. As such, we felt it was more important to focus on engagement with the independent prosecutors, the Crown Prosecution Service and the Service Prosecuting Authority, which were all engaged in the process.
As I have said already, I have met the JAG and have looked at his recommendations, and we continue to look at how we can take forward his suggestions in order to improve the process of service justice. More will come on that in due course.
Johnny Mercer
We have already published a response to our consultation, which was widely available for everybody to see. We have also published a response that contains a lot of the conversations around this. As I have indicated, we have engaged with a number of different parties and have arrived at the decision that this was a fair and proportionate line to tread in order to achieve the effects that we are trying to achieve.
Johnny Mercer
I am going to speak to new clause 1, and then I will happily give way.
Our intention with the measures that we have introduced in part 1 of the Bill was to ensure that we could provide the utmost reassurance to our service personnel and veterans in relation to the threat of repeated scrutiny and potential prosecution for alleged offences occurring many years ago on overseas operations. This has meant seeking to have a balance in introducing protective measures that would set a high threshold for a prosecutor to determine that a case should be prosecuted, as well as ensuring that the adverse impact of overseas operations would be given particular weight in favour of the service person or veteran, but which would not act as an amnesty or statute of limitations, would not fetter the prosecutor’s discretion in making a decision to prosecute, and would be compliant with international law. We have achieved that balance in the combination of clauses 2 and 3. We are providing the additional protection that our service personnel and veterans so greatly deserve, while ensuring that, in exceptional circumstances, individuals can still be prosecuted for alleged offences.
New clause 1 would effectively replace the presumption against prosecution with a requirement in clause 1 that the prosecutor should consider only whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial when coming to a decision on whether to prosecute. This not only removes the high threshold of the presumption, but seeks to replace it with a consideration—whether the passage of time would prejudice the chance of a fair trial—which is likely to already be considered by the prosecutor when applying the existing public interest test. We have never suggested that service personnel or veterans have been subject to unfair trials. We have sought instead to highlight not only the difficulties, but the adverse impacts on our personnel, of pursuing allegations of historical criminal offences. Justice delayed is often justice denied, for defendants and for victims. I believe that clauses 2 and 3 provide the appropriate balance between victims’ rights and access to justice, and the requirement to provide a fair and deserved level of protection for our service personnel and veterans. Removing the presumption in the way the new clause proposes would simply remove that balance.
Liz Twist
I am sorry to interrupt the Minister’s flow, but clearly, ensuring that justice and fairness are done is crucial. We heard a number of comments from Judge Blackett on the process. I know the Minister has met Judge Blackett, but was that before or after the legislation was prepared?
Johnny Mercer
I did not meet Judge Blackett before the legislation was prepared, for the reasons I have outlined. We thought it far more important to focus on engagement with the independent prosecutors, the Service Prosecuting Authority and the Crown Prosecution Service. Like I said, I have met him and heard what he has to say, and we heard his evidence last week.
Johnny Mercer
No, because that would be to pre-empt the judge-led review of how we protect the Department, configure ourselves and develop the capability to deal with lawfare. Judge Blackett gave his view, but in our judgment it was better to engage the independent prosecutors, the Crown Prosecution Service and the Service Prosecuting Authority. That is what we have done—we engaged in a wide public consultation—and I believe that where we have arrived is fair and proportionate.
Martin Docherty-Hughes
If the Bill were not legislation relating to the armed forces, it would have been given prior oversight by either the Attorney General for England and Wales, the Attorney General for Northern Ireland or, for Scotland, the Lord Advocate or the Advocate General. Will the Minister tell the Committee why the Judge Advocate General was excluded from that process for this legislation?
Johnny Mercer
The Secretary of State wrote to the Judge Advocate General on 14 May 2020 acknowledging that, because of the 100-day election commitment to introduce the Bill, it was not possible for the legal protections team to complete the usual level of stakeholder engagement that we would usually seek to undertake post-public consultation.
Johnny Mercer
I am answering the hon. Gentleman’s question. However, we welcomed the Judge Advocate General’s interest in the Bill: an offer was made for the project team to engage with him at a convenient time, and I subsequently met him. I respect the hon. Gentleman’s views on who would be consulted if the Bill were drafted in a civilian context, but I am entirely comfortable that the Department spoke to the right people to gauge their views on how we should deal with the current system, which is difficult and ultimately unfair to veterans.
I respect all the views that we heard last week—of course I do—but I am allowed to disagree with them. Having worked on this for seven years, it is possible to hear other people’s views on the matter and disagree with them. The Department has taken a balanced and proportionate view, and indeed, it has incorporated a lot of views from other stakeholders throughout the process.
Johnny Mercer
I will not give way at the moment, because I have addressed that point a number of times.
Clause 2, which the new clause would replace, sets out the principle of the presumption against prosecution, but it is to be exceptional for a prosecutor to determine that proceedings should be brought for an alleged offence that occurred in operations more than five years ago, as set out in clause 1. We have not sought to define “exceptional”, as we do not think it necessary or possible to provide an exhaustive definition. We intend, however, that 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 that the threshold for rebutting that presumption will be high.
We also expect that the concept of “exceptional” will develop over time as cases are considered by prosecutors. I reinforce the point in clause 1(2): the presumption against prosecution does not impact on the prosecutor’s assessment as to whether there is sufficient evidence to justify a prosecution. It focuses instead on setting a high threshold for a prosecutor to determine that it is in the public interest to bring or to continue criminal proceedings in respect of offences committed by service personnel on operations more than five years ago.
Although the presumption will not directly impact on investigations, allegations of wrongdoing must, and will, continue to be investigated. We accept that, over time, this is likely to have an indirect impact. As prosecutors become familiar with the presumption, they should be able to advise investigators earlier in the process on whether the higher threshold of the new statutory requirement would be met in a particular case.
Johnny Mercer
Not at the moment. Although that should therefore help to reduce the likelihood of investigations being reopened without new and compelling evidence, it does not create an absolute bar to investigations or prosecutions, as a statute of limitations or an amnesty would. Rather, the presumption is rebuttal, with the prosecutor retaining the discretion to prosecute where they determine that it would be appropriate to do so. That may include cases in which there is evidence that a serious offence has been committed.
In contrast, an amnesty or a statute of limitations for service personnel would be a breach of our international legal obligations and would pose significant challenges and risks. That includes the risk that, in the absence of a domestic system for the prosecution of international criminal offences, the International Criminal Court would assert its jurisdiction and bring prosecutions against members of the UK armed forces. The presumption against prosecution, however, is consistent with our international legal obligations, as it would not affect the UK’s willingness or ability to investigate or prosecute alleged offences committed by our service personnel.
Finally, the statutory presumption and the measures in clauses 3 and 5 will apply only to proceedings that start after the Bill has become law. Although alleged criminal offences relating to operations in Iraq and Afghanistan occurred more than five years ago, meaning that the presumption could be applied in any relevant prosecutorial decisions, it is likely that any remaining investigations of those allegations will be complete before the Bill becomes law. If any new credible allegations relating to Iraq and Afghanistan should arise, however, they will obviously be subject to investigation and, where appropriate, consideration by a prosecutor. Any decision to prosecute such a case after the Bill has become law must, in accordance with the presumption, be exceptional.
Mrs Lewell-Buck
It was remiss of me not to mention what a pleasure it is to serve under your chairmanship, Mr Stringer. It has been a pleasure all day, and hopefully all week.
Has clause 2 been given approval by the CPS? The Minister mentioned that it does not breach international humanitarian law. Can he explain which organisations and professionals have said that? I give him some gentle advice, which I hope he will take in the way that it is intended: legislation made purely on one’s own views, against the advice of experts and others who know exactly what they are talking about, is not the right way to go. It is playing fast and loose with our armed forces and is going to have serious, unintended consequences.
Johnny Mercer
On the idea that the Department does anything other than seek the views of experts to bring through this difficult legislation, in evidence the hon. Lady has seen a set of views given by campaign groups, but those are not the only views available. This is difficult legislation that, of course, will be contested, but the idea that we have just come up with some idea after a public consultation lasting many months—[Interruption.]
The Chair
Order.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Matters to be given particular weight
Mr Jones
I beg to move amendment 1, in clause 3, page 2, line 20, leave out
“(so far as they tend to reduce the person’s culpability or otherwise tend against prosecution)”.
This amendment would ensure that, in giving particular weight to the matters in subsection (2), a prosecutor may consider whether any matter tends to reduce or increase culpability, tending against or in favour of prosecution respectively.
The Chair
With this it will be convenient to discuss the following:
Amendment 3, in clause 3, page 2, line 33, at end insert—
“(bb) the public interest in maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces;”
This amendment would ensure that a relevant prosecutor gives particular weight to maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces.
Amendment 4, in clause 3, page 2, line 33, at end insert—
“(bc) the nature of the alleged conduct, in particular whether it engaged the obligations of the United Kingdom under Articles 2, 3, 4 or 5 of the European Convention on Human Rights;”
This amendment would ensure that particular weight is given by a prosecutor where the alleged conduct engages the UK’s obligations under Article 2 (right to life), Article 3 (prohibition on torture and inhuman or degrading treatment, Article 4 (prohibition of slavery and forced labour) or Article 5 (prohibition of arbitrary detention) ECHR.
Amendment 5, in clause 3, page 2, line 33, at end insert—
“(bd) whether the person had command responsibility for the alleged conduct, and to what extent;”
This amendment would ensure that particular weight is given by a relevant prosecutor where the person had command responsibility for the alleged conduct.
Amendment 13, in clause 6, page 4, line 13, at end insert—
“(3A) A service offence is not a ‘relevant offence’ if it is an offence whose prosecution is required under the United Kingdom’s international treaty obligations.”
This amendment would exclude the prosecution of serious international crimes (such as torture, genocide, crimes against humanity, and certain war crimes) from the limitations otherwise imposed by the Bill.
Amendment 58, in schedule 1, page 12, line 6, at end insert—
“13A An offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Geneva Conventions).
13B An offence under section 134 of the Criminal Justice Act 1988 (torture).”
This amendment adds to Schedule 1 specific reference to existing domestic offences in relation to torture, genocide, crimes against humanity, and grave breaches of the Geneva Conventions, in a similar way to the treatment of sexual offences.
Amendment 6, in schedule 1, page 12, line 38, leave out paragraph 17 and insert—
“17 An offence under Part 5 (Offences under domestic law) of the International Criminal Court Act 2001 as it relates to the law of England and Wales.”
This amendment would mean that all offences listed in Part 1 of the International Criminal Courts Act 2001 as they related to the law of England and Wales would be excluded offences, without restriction.
Amendment 59, in schedule 1, page 12, line 39, at end insert—
“(za) an act of genocide under article 6, or”
This amendment would ensure that acts of genocide are also excluded from the Bill, alongside sexual offences.
Amendment 60, in schedule 1, page 12, line 40, leave out
“a crime against humanity within article 7.1(g)”
and insert
“a crime against humanity within article 7.1(a)-(k)”.
This amendment would ensure that crimes against humanity are also excluded from the Bill, alongside sexual offences.
Amendment 61, in schedule 1, page 12, line 41, leave out from beginning to end of line 2 on page 13 and insert—
“(b) a war crime within article 8.2(a) (which relates to grave breaches of the Geneva Conventions).”
This amendment would ensure that grave breaches of the Geneva Conventions are also excluded from the Bill, alongside sexual offences.
Amendment 7, in schedule 1, page 13, line 12, leave out paragraph 20 and insert—
“20 An offence under Part 5 (Offences under domestic law) of the International Criminal Court Act 2001 as it relates to the law of Northern Ireland.”
This amendment would mean that all offences listed in Part 1 of the International Criminal Courts Act 2001 as they related to the law of Northern Ireland would be excluded offences, without restriction.
Amendment 62, in schedule 1, page 13, line 13, at end insert—
“(za) an act of genocide under article 6, or”
This amendment would ensure that acts of genocide are also excluded from the Bill, alongside sexual offences.
Amendment 63, in schedule 1, page 13, line 14, leave out
“a crime against humanity within article 7.1(g)”
and insert
“a crime against humanity within article 7.1(a)-(k)”.
This amendment would ensure that crimes against humanity are also excluded from the Bill, alongside sexual offences.
Amendment 64, in schedule 1, page 13, leave out lines 15 to 18 and insert—
“(b) a war crime within article 8.2(a) (which relates to grave breaches of the Geneva Conventions).”
This amendment would ensure that grave breaches of the Geneva Conventions are also excluded from the Bill, alongside sexual offences.
Amendment 8, in schedule 1, page 13, line 28, leave out paragraph 23.
This amendment is consequential on amendments 6 and 7.
Amendment 9, in schedule 1, page 14, line 5, leave out paragraphs 27 to 30 and insert—
“27 An offence under Part 1 (Offences) of the International Criminal Court (Scotland) Act 2001.”
This amendment would mean that all offences listed in Part 1 of the International Criminal Courts Act (Scotland) 2001 would be excluded offences, without restriction.
Amendment 65, in schedule 1, page 14, line 7, at end insert—
“(za) an act of genocide under article 6, or”
This amendment would ensure that acts of genocide are also excluded from the Bill, alongside sexual offences.
Amendment 66, in schedule 1, page 14, line 8, leave out
“a crime against humanity within article 7.1(g)”
and insert
“a crime against humanity within article 7.1(a)-(k)”.
This amendment would ensure that crimes against humanity are also excluded from the Bill, alongside sexual offences.
Amendment 67, in schedule 1, page 14, leave out lines 9 to 12 and insert—
“(b) a war crime within article 8.2(a) (which relates to grave breaches of the Geneva Conventions).”
This amendment would ensure that grave breaches of the Geneva Conventions are also excluded from the Bill, alongside sexual offences.
Amendment 12, in schedule 1, clause 15, page 9, line 21, at end insert
“subject to subsection (2A).
(2A) Before making regulations under subsection (2), the Secretary of State or Lord Chancellor must lay before Parliament the report of an independent review confirming that the Act is in full compliance with the United Kingdom’s international treaty obligations with respect to the prosecution of war crimes and other crimes committed during overseas operations.
(2B) This Act shall cease to have effect at the end of the period of five years beginning with the day on which it is brought into force, unless the Secretary of State or Lord Chancellor has, not fewer than four years after this Act has come into force, laid before Parliament the report of a further independent review confirming that the Act remains in full compliance with the United Kingdom’s international treaty obligations with respect to the prosecution of war crimes and other crimes committed during overseas operations.”
Mr Jones
The amendments we are debating relate to clause 3. I will first refer to amendment 3, which stands in my name. At the outset, I make clear that these are probing amendments; I am not going to push them to a vote, but they mean that the issues are at least going to get some scrutiny by the Committee, although based on the answers we have had so far, I am not sure we are going to get much response.
Particularly during the last bit on prosecutions, it would have been interesting to know whether, for example, the Crown Prosecution Service had agreed to clause 2 and what its thoughts on it were, because even though the Minister said it was consulted, I very much doubt it would agree with clause 2.
There is a difference between being consulted and agreeing with what comes out of the sausage machine at the end of the consultation. We want the public to have confidence not only in the Bill, but in the process. The Minister is right: the Government can consult who they like, but at the end of the day, they have to make decisions. What if those decisions fly in the face of what the Minister referred to as “campaign groups”? I do not consider the International Criminal Court and others “campaign groups”. These are obligations under international treaty, and, like my hon. Friend the Member for Portsmouth South, I am concerned about our international reputation.
Amendment 3, which would amend page 2, line 33 of the Bill, relates to the public interest test in maintaining trust in the criminal justice system and upholding the principle of accountability of the armed forces. I have no problem with the accountability of the armed forces, because as I say, I am a supporter of the service justice system. I have no problem with the oversight we have in Parliament and the way that system operates. However, there was a time when many families had direct connections to the armed forces: going back to the second world war or national service, people knew people in the armed forces, so they understood the culture. That is becoming increasingly distant. We no longer have national service, so we do not have a culture where most citizens go through that system. It is therefore important that we work extra hard to maintain public confidence in the principle of accountability of the armed forces.
Again, I am a supporter of our armed forces, and have been for the 19 years I have been in this House. I am not uncritical if they get things wrong, and I am pleased that I played my part, for example, in the activities of the Select Committee on Defence back in 2005, which led to the creation of the office of the Service Complaints Commissioner for the Armed Forces, now the Service Complaints Ombudsman. We are asking people to do unique things, and we do need to protect them, but this probing amendment is to see whether we can get the weight of public trust when it comes to prosecutions—in other words, if we are going to take forward a prosecution, that is taken into account.
I know for certain that our service prosecution system is fair, and it is one that I support. It is also one that includes the test of whether a prosecution is in the public interest, which is in civil law as well. That is controversial in civil law because there are cases in which you and I, Mr Stringer, and the average person on the famous Clapham omnibus, might think someone should be prosecuted. There is the evidential test and then there is the question of whether prosecution would be in the public interest, and sometimes it is difficult to explain that to the public.
I see no purpose whatsoever in prosecuting an 80-year-old veteran in Northern Ireland. I accept that the legislation does not cover Northern Ireland, but the Government have made huge promises about what they are going to do to replicate the Bill to cover Northern Ireland—having dealt with Northern Ireland as a Minister, I would say, “Best of luck with that, mate.” There are ways of translating the Bill to do that, but this goes to the heart of it, because the issue in Northern Ireland is public trust on both sides of the community divide.
This probing amendment is trying to see whether the prosecution can take some account of the perception of our armed forces in the public eye. As I said earlier, many people do not understand the service justice system. Indeed, some people campaign against it, saying that members of the armed forces should not have a separate judicial system. I am sorry, but I disagree, because we ask unique things of them. I think that what we have at the moment strikes the right balance, having judicial oversight while also ensuring that the unique circumstances in which they serve are considered.
The public interest test—whether it is in the public interest to sue somebody—is already there. The question is whether we can have a system in which some weight is given to how it will look and how the armed forces would be perceived. I am not quite sure how that would be done in practice. The prosecutors and members of the armed forces who I have met have this in their DNA, because they are all conscious of the importance of maintaining public trust. We are a democracy and it is important that public trust is maintained in all aspects of Government and the armed forces. I think that the current Government are trying the public’s patience in relation to that trust element, but I will not go down that route now.
Am I proud of our armed forces? Yes, I am. It is important to say that. My constituency is a recruiting ground for many young servicemen and women, and the armed forces give them opportunities that they would never get in civilian life. We often concentrate on the negative aspects of service life, but I have always advocated that service life is not only positive for those young people but good for the nation, because those life experiences and skills are transferable once those individuals return to civilian life. We should be proud of that and celebrate it more than we do.
I am not sure how amendment 3 would reflect that, but it is worth putting it to the Committee, so that Members understand that public trust in our armed forces is going to be important. My fear is that the Bill will do a lot to undermine that trust. As I told the Committee last week, I am also concerned that the Bill will give weight to those people who want to do away with the service justice system, which I certainly do not want to see.
Amendment 4, which stands in my name, is about the alleged conduct, with particular reference to our obligations under articles 2, 3, 4 and 5 of the European convention on human rights. I know that, for some Conservative Members, any mention of Europe has a Pavlov’s dog effect—it sets them off. However, it is important to remember that the European convention on human rights is nothing to do with the EU or those nasty foreigners who, in the eyes of certain people, have been persecuting us from Brussels. It was set up after the second world war so that there would be a basic, decent standard.
I am proud that this country was part of that convention. I am also proud that we have been seen as a force for good around the world, because we have argued for basic human rights—rights that we take for granted in this country, but that many people do not. We have seen recently in Ukraine and Belarus what happens when those rights are not maintained. Under amendment 4, the prosecution would give weight to whether the alleged conduct would engage the UK’s obligations under article 2, on the right to life, or under the articles prohibiting torture and inhuman or degrading treatment, slavery and forced labour, and arbitrary detention.
There is something that I find strange about the Bill. The Government specified certain categories of crimes that will not be covered by it—murder and sexual offences—and I totally agree about that. What I have difficulty with, however, despite the assertion of compliance with the Human Rights Act, is the issue of torture. I do not think that anyone in the Committee Room would condone torture. It was a given after the second world war that torture was something that we would not engage in, that was not acceptable, and that would lead to the condemnation of any nation that participated in it. Credit is due to the Foreign Office, under all Governments, including the present one, because it does a lot to raise the issue when torture is instigated against countries’ citizens, and to push back and argue against it. I do not know why the issue is not specified in the Bill. It might help to reassure people who do not understand the justice system. People ask why it is needed, so I shall explain.
I did not think that we would get to a point where nations from which we would expect better would engage in torture. As a member of the Intelligence and Security Committee, I saw a lot of intelligence during the investigation of rendition. It is a fact that the United States, under the Bush Administration, engaged in state torture, which is not acceptable. Did that put members of our security services and some of our armed forces personnel in a difficult position? Yes, I think it did.
As to being open to prosecution, although I have seen no evidence that members of the British armed forces or security services took part in any type of torture, there is credible evidence to show that they were present when it was taking place. That is not acceptable, either. It would be helpful if the Bill took into account and gave the weight in prosecutions to the European convention on human rights, and explicitly included reference to torture and inhumane treatment, to ensure that people can take comfort in the Bill. Let me dispel the myth that members of our armed forces or our Government would want to be involved in torture—they would not. To ensure we can have that protection, it should be in the Bill.
Martin Docherty-Hughes
The right hon. Gentleman gets to a point that many of us find disconcerting, especially when reflecting on the second part of the Bill. The chain of command needs to take responsibility for its decision making. I know this is only a probing amendment, but the Government need to consider the fact that the chain of command has responsibility within the decision-making process.
Mr Jones
That is important. It is about taking responsibility of the chain of command. I remember when we first introduced the Service Complaints Commissioner for the Armed Forces, there was a huge fear, as there was when we introduced the armed forces ombudsman, that they would interfere with the chain of command. I do not want for one minute to do that, and neither should a prosecutor, but the actions and freedoms that someone has is a relevant factor that needs to be taken into consideration. As we discussed this morning, these people are in very difficult situations—I am sure that neither you, Mr Stringer, nor I could imagine what it would be like, although I am sure that the Minister can—and that needs to be taken into account.
Having made those comments, I shall leave it there.
Martin Docherty-Hughes
I want to speak to amendment 3, the probing amendment tabled by the right hon. Member for North Durham, and to reflect on several issues that he has raised about trust and accountability. That is because there is a sense, at least among Scottish National party Members, that if this type of amendment were to be considered at a future time by the Government, it would allow the criminal justice system, and specifically the military judicial system, to retain some element of trust within civilian oversight.
I recognise that the Minister and the Government have a passion for this issue, and that there is a commitment to do this within 100 days. I hear that, but I have some concerns that need to be answered. First, to enable accountability and trust, can the Minister tell us whether the Crown Prosecution Service for England and Wales gave a positive response to the Bill? Secondly, in relation to the 100 days, there is also a commitment to have a similar Bill for Northern Ireland, so would he consider it appropriate for the Public Prosecution Service for Northern Ireland to be engaged in any future Bill-building on that Bill, given the fact that he excluded from this process the Judge Advocate General, who is a coherent part of the military judicial system, and engagement with whom enables trust to be built across the House?
I wonder whether the Minister can answer those questions: did the Crown Prosecution Service for England and Wales say that the Bill was a good piece of legislation; and will he instigate discussions with the Public Prosecution Service for Northern Ireland if he is going to introduce another piece of legislation for Northern Ireland, and again exclude the Judge Advocate General?
Stephen Morgan
I rise to speak in support of the amendments to clause 3. When I became a Member of Parliament, in the nation regarded as the birthplace of modern parliamentary democracy, I never once thought that I would have to argue the case for retaining Great Britain’s commitments against war crimes. This country was built upon principles of fairness, equality and justice. We have stood against torture and other war crimes, with a proud tradition of taking direct action when we see violations against human rights being committed. From world war two and the Nuremberg trials to Bosnia and The Hague, this country has a reputation for standing against torture and crimes against humanity. It is part of our identity and is part of what makes us British, which is why it is so concerning that this Bill in its current form, as my right hon. Friend the Member for North Durham said earlier, puts all of that at risk.
Schedule 1 to the Bill sets out what constitutes excluded offences for the purposes of presumption against prosecution. Torture is not included and neither are other war crimes listed in article 7 of the Rome statute, apart from sexual crimes. That is morally wrong. It breaks our commitments to international law, it risks dragging our troops in front of the International Criminal Court, and it is entirely avoidable with some common-sense amendments to the Bill.
Let us consider that first point. I know that everyone in this room would agree that it is morally wrong in any situation to commit an act of torture—it is the most serious of crimes and has no moral justification in any circumstances. When we look at schedule 1, we see that the offences excluded from legal protection are sexual offences. Labour agrees that these offences should be utterly condemned and are inexcusable, and that they should be excluded from any presumption against prosecution. However, schedule 1 fails to exclude terrible crimes such as torture and genocide. The Government have provided no good explanation or justification whatever for excluding only sexual offences from the scope of protection under the Bill, particularly as no service personnel in Iraq or Afghanistan have been accused of genocide, yet it is not excluded as an offence in the Bill. As a former Attorney General, Dominic Grieve, put it:
“This could create the bizarre outcome that an allegation of torture or murder would not be prosecuted when a sexual offence arising out of the same incident could be.”
As the Minister wrote the Bill, can he take us through sub-paragraphs (a) to (k) of article 7(1) of the Rome statute and explain why each provision is legally needed? What is the legal necessity of including each of those provisions?
That brings me to Labour’s second ground for objection to the Bill’s exclusion of torture and other war crimes. Britain has always had an unwavering commitment to the law of armed conflict. The Geneva conventions are known in most households in Britain, and the Bill tramples on our commitments to them. We have heard from judges and generals, witnesses who have trained our armed forces and provided them with independent legal advice, and ex-service personnel. We have received written evidence from the International Committee of the Red Cross. All those individuals and organisations have said two things in common. First, they are clear in their duty to uphold the law of armed conflict and instruct others to do so. Secondly, they are clear that the Bill risks eroding our commitment to those laws and have expressed grave warnings on the consequences. First, it would irreparably damage the moral credibility and authority of the UK to call out human rights abuses worldwide. Secondly, it would undermine the hard-won reputation of UK forces as responsible and reliable actors. Thirdly, it risks reprisals against British troops, particularly service personnel who may be captured and detained on operations.
I am reminded of the evidence last week of the Judge Advocate General, who said:
“You will remember that six Royal Military Police were killed…in 2003. If those responsible were identified today, would we accept that there would be a presumption against their prosecution? Would we expect the factors in clause 3(2)(a) to be taken into account? Would we be content that a member of the Iraqi Government’s consent would be needed to prosecute? Would we accept a decision by that person not to prosecute? In my view, there would be outrage in this country if that occurred. In all areas of law, you have to be even-handed.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 128, Q278.]
It is hard to disagree with those words. To demand justice from others when our men and women on the frontline need it, Britain must be at the forefront of defending that system, underpinned by international laws and the principle of equality under the law.
Labour is deeply concerned that the Bill sets the UK on a collision course with the International Criminal Court and that the Bill risks our troops being dragged to The Hague. Last week, we heard from a witness who represents and is the voice for thousands of veterans, who said that
“there is without a doubt greater fear of a non-British legal action coming against people than of anything British.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 110, Q219.]
Going back on our commitments to the Geneva conventions risks our forces personnel being dragged in front of the International Criminal Court, only confirming the worst fears among veterans discussed by Lieutenant Colonel Parker. Why would the Minister not prefer to have trials for British troops in British courts rather than The Hague?
The Bill as it stands is flawed. It is fundamentally at odds with British values by failing to offer an absolute rejection of torture. It tramples on our commitments to international doctrines that we helped to write, and it fails our troops by risking action by the international courts.
There is a way out. Protecting troops from vexatious claims does not need to be at odds with our commitments to international humanitarian law. There does not need to be a trade-off between safeguarding our armed forces and standing against torture. That is why we have tabled these amendments, which will address those imbalances.
First, the amendments would ensure that, under schedule 1, the forms of crime listed in the Rome statute, such as torture, genocide and crimes against humanity, were—alongside sexual offences—excluded from the presumption against prosecution. Further amendments would ensure that any breach of the Geneva conventions and other international laws also fell outside the scope of that. Labour’s amendments, by bringing the Bill in line with international law and doubling down on our commitments against torture, would protect our troops from international courts and protect our nation’s reputation.
The Minister said at the witness stage, “Don’t let the perfect be the enemy of the good.”
Stephen Morgan
My right hon. Friend is absolutely right. I hope that the Minister has heard our commitment to get the Bill right. It can be better for our armed forces, if he is willing to engage in the arguments being made.
I put it to the Minister, do not let party politics get in the way of making this Bill worthy of the troops it is set to serve. There is still time for him to work with the Opposition to get this right. He has made half of the argument for me. By already excluding sexual crimes, he recognises that some crimes are so serious they should be excluded from the Bill. He should now go the full way and exclude war crimes.
Labour stand four-square behind our troops, and we want to work with the Government to build the broadest consensus possible on the Bill, tailored to supporting our forces and safeguarding human rights. I urge the Minister to work with us and vote in favour of amendments that would strengthen the Bill for our troops and for our commitments to human rights.
Finally, I ask the Minister to clarify, on the case of those responsible for the six Royal Military Police who were killed in 2003—raised by the former Judge Advocate General last week—would he accept presumption against prosecution? Would we expect the factors in clause 3(2)(a) to be taken into account? Would we be content for a member of the Iraqi Government’s consent to be needed to prosecute, and would he accept a decision not to prosecute? Why would the Minister not prefer to have trials for British troops in British courts, rather than in The Hague? Finally, will he take us through paragraph 1(a) to (k) of article 7 the Rome statute and explain the legal need of those sub-paragraphs within the Bill? What is the legal necessity of including each of those sub-paragraphs?
Liz Twist
I want to speak briefly on torture, which is one of the issues that my constituents have brought to me. That is relevant, because it is about public perception of the legislation proposed.
Britain has a fine history with our armed forces of acting legally, morally and in the best interests and traditions of the armed forces. I believe that the Minister should consider the amendment that ensures that torture, war crimes and crimes against humanity are excluded from the Bill. Last Thursday, a number of witnesses said to us that they could see no reason why torture and war crimes should not be excluded too, as sexual offences rightly are. I urge the Government to consider the good name of our country and put those elements outside the scope of the Bill.
Johnny Mercer
We ask a huge amount of our service personnel. We send them to undertake high-threat and high-risk operations in defence of our country and its people. They do their duty in the clear knowledge that they may be injured, maimed or even killed.
This Government believe, therefore, that it is absolutely right and reasonable to require that in return we ensure that, in addition to the existing public interest test, a prosecutor has to give particular weight to the unique circumstances of overseas operations and the adverse impacts that those may have on a serviceperson’s capacity to make sound judgments and on their mental health at the time of an alleged offence when coming to a decision on whether to prosecute. That is not intended to excuse bad behaviour by service personnel, but to ensure that prosecutors give full recognition to the significant difference in the circumstances surrounding an alleged offence committed on operations overseas as compared, for example, to situations where the alleged criminal conduct occurs in a domestic civilian setting.
The prosecutor must consider the presumption against prosecution under clause 2 to determine whether a case meets the exceptional threshold. The prosecutor, as required by clause 3, must also give particular weight to matters that may, in effect, tip the balance in favour of not prosecuting. Clause 3 is therefore integral to supporting the high threshold set in clause 2 for a prosecutor to make a decision to prosecute.
There was a lot of discussion last week about the concerns over the impact on our personnel of repeated scrutiny and the mental burden placed on them by the threat of criminal prosecution occurring long after the events in question, particularly where there is no compelling new evidence to be considered. Clause 3 requires that prosecutors must also consider where there has been a previous investigation in relation to the alleged criminal conduct and no compelling new evidence has arisen. The public interest is in cases coming to a timely and final resolution.
In the responses to our public consultation, many service personnel expressed a lack of trust in prosecutors and others in the justice system. They were particularly concerned about whether prosecutors are able to understand the operational context in which the offence occurred and to adequately reflect this in determining the public interest. We fully accept that prosecutors may already take such matters into account. However, making that a statutory requirement provides greater certainty for service personnel that the unique context of overseas operations will be given particular and appropriate weight in the prosecutor’s deliberation.
By seeking to remove the benefit of the matters in clause 3 that tend towards reducing the culpability of a serviceperson and tend against prosecution, the amendments are designed to ensure that the prosecutor can also consider whether such matters increase the culpability of an individual and support a prosecution. The amendments undermine our reassurance to our service personnel that the operational context of an alleged offence will be taken into account, and in their favour, by the prosecutor. It would be a slap in the face for our armed forces personnel to suggest that the context of an overseas operation will be considered as a factor in support of their prosecution.
Mr Jones
At present, the service justice system understands the context and the public interest test is already there—whether it is in the public interest to prosecute. The service justice system is designed to take into account special circumstances, so what is the need for clause 3?
Johnny Mercer
The need is very clear. The fact is that the service justice system as it stands has facilitated an industrial level of claims against our people that has absolutely destroyed their lives.
Johnny Mercer
The right hon. Gentleman can sit there and say no, this did not happen and that did not happen. The rest of us live in the factual world, where these things actually did happen. They destroyed some of our finest people, which is why we are introducing this legislation. I have heard a lot from the right hon. Gentleman, and the vast majority is not correct. I respect him immensely, but it is not correct. I will therefore push on at this stage.
Amendments 3 to 5 seek to add additional factors to clause 3. In the light of amendment 1, I can assume only that the intention is somehow to bring in factors that would be seen by the prosecutor to increase a serviceperson’s culpability and make a prosecution more likely. I have already set out my arguments as to why amendment 1 should be withdrawn. Furthermore, I do not believe that amendments 3 to 5 are appropriate or needed.
Amendment 3 is designed to
“ensure that a relevant prosecutor gives particular weight to maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces.”
The independent prosecutor’s responsibility is to follow the principle set out in the code for crown prosecutors. That includes the principle that they will work
“to maintain public trust and to provide an efficient criminal justice system.”
The Bill does not place service personnel above the law or make them somehow less accountable. Allegations of offences must and will continue to be investigated. Where appropriate, a prosecutor can still make a decision to prosecute. On that basis, I do not believe that amendment 3 is warranted.
Amendment 4 is designed to
“ensure that particular weight is given by a prosecutor where the alleged conduct engages the UK’s obligations”
under articles 2, 3, 4 and 5 of the European convention on human rights. The prosecutor already has to apply the principles of the ECHR, in accordance with the Human Rights Act 1998, at each stage of the case, so amendment 4’s additional requirement would be totally unnecessary.
Amendment 5 is designed to
“ensure that particular weight is given by a relevant prosecutor where the person had command responsibility for the alleged conduct.”
I can assume only that the amendment is meant to address the concerns raised last week about the chain of command being held accountable as well as individuals, but it misses the point. A decision taken by a serviceperson to use force during an overseas operation is an individual decision for which they, and not their commanding officer, may then be held personally accountable if their decision is deemed to have been in breach of criminal law. The circumstances of an incident would determine whether the involvement of a commander in the activities of their subordinates also merited a criminal prosecution. Separately, it should be noted that under the Armed Forces Act 2006, commanding officers may be investigated and prosecuted, including at court martial, for non-criminal conduct offences in relation to serious allegations of wrongdoing by personnel under their command. Non-criminal conduct offences are not covered by the Overseas Operations Bill.
On the proposed amendments to schedule 1, the Government are committed to providing reassurance to service personnel and veterans in relation to the threat of prosecution for alleged offences on overseas operations more than five years ago. The measures in part 1 of the Bill are key to delivering that reassurance. The fact that we have only excluded sexual offences in schedule 1 does not mean that we will not continue to take other offences, such as war crimes and torture, extremely seriously.
The presumption against prosecution will allow the prosecutor to continue to take decisions to prosecute these offences, and the severity of the crime and the circumstances in which it was allegedly committed will always be factors in their considerations. On a case-by-case basis, a prosecutor can determine that a case against an individual in relation to war crimes, torture or genocide is “exceptional”, and that a prosecution is therefore appropriate, subject to the approval of the Attorney General or the Advocate General in Northern Ireland. The decision to exclude only sexual offences reflects the Government’s strong stated belief that the use of sexual violence or sexual exploitation during overseas operations is never acceptable in any 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 that are intrinsically violent in nature. These activities can expose service personnel to the possibility that their actions may result in allegations of torture war crimes. By contrast, although allegations of sexual offences can still arise, the activities that we expect our service personnel to undertake on operations cannot possibly include those of a sexual nature.
We do not therefore believe it is appropriate to afford personnel the additional protection of the presumption in relation to allegations of sexual offences after five years. I am aware that many people have misinterpreted this decision, and have suggested that it somehow undermines the UK’s continuing commitment to upholding international humanitarian and human rights law, including the UN convention against torture. That is completely untrue. The UK does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law.
Johnny Mercer
I will not, as I do not have time.
These amendments seek to ensure that all offences contained within the International Criminal Court Act 2001, as it applies in England, Wales, Northern Ireland and Scotland, should be excluded offences in schedule 1. Amendment 8 is consequential on amendments 6 and 7. These amendments would amount to such a comprehensive list of offences that they would considerably undermine the effectiveness and value of the measures in part 1 of the Bill. In doing so, they would prevent the Government from delivering on their commitment to provide reassurance to our service personnel and veterans in relation to the threat of prosecution for alleged historical offences, something that they so greatly deserve.
Johnny Mercer
I will not. Amendment 12 seeks to introduce a sunset clause where the Act will cease to have effect after five years unless the Secretary of State or Lord Chancellor lays before Parliament a report of an independent review confirming that the Act complies with the UK’s international obligations. I can assure the Committee that such a review is not required, as the measures in this Bill are consistent with our international legal obligations and do not undermine international humanitarian law as set out in the Geneva conventions.
Johnny Mercer
I will not give way.
I therefore ask that these amendments be withdrawn.
Ordered, That the debate be now adjourned.—(Leo Docherty.)
Overseas Operations (Service Personnel and Veterans) Bill (Seventh sitting)
Tuesday 20th October 2020
(3 years, 6 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 20 October 2020 - (20 Oct 2020)
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Chair
Before we begin, I remind members of the Committee that I expect social distancing to be respected; I will stop proceedings if I see people breaking the social distancing rules. Members must remember to switch electronic devices off or to silent. If colleagues have prepared speaking notes, it would be helpful to our colleagues at Hansard if you emailed them to hansardnotes@parliament.uk.
We will continue our line-by-line consideration of the Bill. The selection list for today’s sitting is available on the table.
Clause 3
Matters to be given particular weight
Amendment proposed (14 October): 1, in clause 3, page 2, line 20, leave out
‘(so far as they tend to reduce the person’s culpability or otherwise tend against prosecution)’.—(Mr Kevan Jones.)
This amendment would ensure that, in giving particular weight to the matters in subsection (2), a prosecutor may consider whether any matter tends to reduce or increase culpability, tending against or in favour of prosecution respectively.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 3, in clause 3, page 2, line 33, at end insert—
‘(bb) the public interest in maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces;’.
This amendment would ensure that a relevant prosecutor gives particular weight to maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces.
Amendment 4, in clause 3, page 2, line 33, at end insert—
‘(bc) the nature of the alleged conduct, in particular whether it engaged the obligations of the United Kingdom under Articles 2, 3, 4 or 5 of the European Convention on Human Rights;’.
This amendment would ensure that particular weight is given by a prosecutor where the alleged conduct engages the UK’s obligations under Article 2 (right to life), Article 3 (prohibition on torture and inhuman or degrading treatment, Article 4 (prohibition of slavery and forced labour) or Article 5 (prohibition of arbitrary detention) ECHR.
Amendment 5, in clause 3, page 2, line 33, at end insert—
‘(bd) whether the person had command responsibility for the alleged conduct, and to what extent;’.
This amendment would ensure that particular weight is given by a relevant prosecutor where the person had command responsibility for the alleged conduct.
Amendment 13, in clause 6, page 4, line 13, at end insert—
‘(3A) A service offence is not a “relevant offence” if it is an offence whose prosecution is required under the United Kingdom’s international treaty obligations.’.
This amendment would exclude the prosecution of serious international crimes (such as torture, genocide, crimes against humanity, and certain war crimes) from the limitations otherwise imposed by the Bill.
Amendment 58, in schedule 1, page 12, line 6, at end insert—
‘13A An offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Geneva Conventions).
13B An offence under section 134 of the Criminal Justice Act 1988 (torture).’.
This amendment adds to Schedule 1 specific reference to existing domestic offences in relation to torture, genocide, crimes against humanity, and grave breaches of the Geneva Conventions, in a similar way to the treatment of sexual offences.
Amendment 6, in schedule 1, page 12, line 38, leave out paragraph 17 and insert—
‘17 An offence under Part 5 (Offences under domestic law) of the International Criminal Court Act 2001 as it relates to the law of England and Wales.’.
This amendment would mean that all offences listed in Part 1 of the International Criminal Courts Act 2001 as they related to the law of England and Wales would be excluded offences, without restriction.
Amendment 59, in schedule 1, page 12, line 39, at end insert—
‘(za) an act of genocide under article 6, or’.
This amendment would ensure that acts of genocide are also excluded from the Bill, alongside sexual offences.
Amendment 60, in schedule 1, page 12, line 40, leave out
‘a crime against humanity within article 7.1(g)’
and insert
‘a crime against humanity within article 7.1(a)-(k)’.
This amendment would ensure that crimes against humanity are also excluded from the Bill, alongside sexual offences.
Amendment 61, in schedule 1,page 12, line 41, leave out from beginning to end of line 2 on page 13 and insert—
‘(b) a war crime within article 8.2(a) (which relates to grave breaches of the Geneva Conventions).’.
This amendment would ensure that grave breaches of the Geneva Conventions are also excluded from the Bill, alongside sexual offences.
Amendment 7, in schedule 1, page 13, line 12, leave out paragraph 20 and insert–
‘20 An offence under Part 5 (Offences under domestic law) of the International Criminal Court Act 2001 as it relates to the law of Northern Ireland.’.
This amendment would mean that all offences listed in Part 1 of the International Criminal Courts Act 2001 as they related to the law of Northern Ireland would be excluded offences, without restriction.
Amendment 62, in schedule 1, page 13, line 13, at end insert—
‘(za) an act of genocide under article 6, or’.
This amendment would ensure that acts of genocide are also excluded from the Bill, alongside sexual offences.
Amendment 63, in schedule 1, page 13, line 14, leave out
‘a crime against humanity within article 7.1(g)’
and insert
‘a crime against humanity within article 7.1(a)-(k)’.
This amendment would ensure that crimes against humanity are also excluded from the Bill, alongside sexual offences.
Amendment 64, page 13 [Schedule 1], leave out lines 15 to 18 and insert—
‘(b) a war crime within article 8.2(a) (which relates to grave breaches of the Geneva Conventions).’.
This amendment would ensure that grave breaches of the Geneva Conventions are also excluded from the Bill, alongside sexual offences.
Amendment 8, in schedule 1, page 13, line 28, leave out paragraph 23.
This amendment is consequential on amendments 6 and 7.
Amendment 9, in schedule 1, page 14, line 5, leave out paragraphs 27 to 30 and insert—
‘27 An offence under Part 1 (Offences) of the International Criminal Court (Scotland) Act 2001.’.
This amendment would mean that all offences listed in Part 1 of the International Criminal Courts Act (Scotland) 2001 would be excluded offences, without restriction.
Amendment 65, in schedule 1, page 14, line 7, at end insert—
‘(za) an act of genocide under article 6, or’.
This amendment would ensure that acts of genocide are also excluded from the Bill, alongside sexual offences.
Amendment 66, in schedule 1, page 14, line 8, leave out
‘a crime against humanity within article 7.1(g)’
and insert
‘a crime against humanity within article 7.1(a)-(k)’.
This amendment would ensure that crimes against humanity are also excluded from the Bill, alongside sexual offences.
Amendment 67, in schedule 1, page 14, leave out lines 9 to 12 and insert—
‘(b) a war crime within article 8.2(a) (which relates to grave breaches of the Geneva Conventions).’.
This amendment would ensure that grave breaches of the Geneva Conventions are also excluded from the Bill, alongside sexual offences.
Amendment 12, in clause 15, page 9, line 21, at end insert—
‘subject to subsection (2A).
(2A) Before making regulations under subsection (2), the Secretary of State or Lord Chancellor must lay before Parliament the report of an independent review confirming that the Act is in full compliance with the United Kingdom’s international treaty obligations with respect to the prosecution of war crimes and other crimes committed during overseas operations.
(2B) This Act shall cease to have effect at the end of the period of five years beginning with the day on which it is brought into force, unless the Secretary of State or Lord Chancellor has, not fewer than four years after this Act has come into force, laid before Parliament the report of a further independent review confirming that the Act remains in full compliance with the United Kingdom’s international treaty obligations with respect to the prosecution of war crimes and other crimes committed during overseas operations.’.
Mr Kevan Jones (North Durham) (Lab)
I have nothing further to add, Mr Stringer, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 ordered to stand part of the Bill.
Clause 4
Section 3: supplementary
Question proposed, That the clause stand part of the Bill.
Mr Jones
This clause goes to what we heard in the evidence session is the missing part of the Bill: investigation and what warrants particular types of investigation. We heard from numerous witnesses, including Judge Blackett and General Nick Parker, that what is missing from the Bill is any scope of investigation. I have tabled new clauses to limit and have control over investigations, because, as Judge Blackett said, the problem with the Bill is that it looks at the process from
“the wrong end of the telescope.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 120, Q246.]
It looks at the prosecution end, rather than the investigation end.
Chris Evans (Islwyn) (Lab/Co-op)
As my right hon. Friend was speaking, I thought of an anomaly. The Bill now strikes out claims on the Ministry of Defence after six years. However, if new evidence comes to light and there is a criminal conviction for the same offence, there could be a situation in which a criminal court imposes compensation when the MOD has already struck the claims out. How does my right hon. Friend see clause 4 squaring that circle?
Mr Jones
It does not, and that comes to one of the other problems with the Bill: it combines both criminal and civil. As I think Ms Meredith said, that is the problem, in terms of what we are trying to achieve. If we keep the longstop for six years on civil claims, a situation would arise whereby they would not go forward, although potentially they could even after six years under clause 4.
The other thing put forward by the Bill’s supporters is that it will somehow stop investigation of our servicemen and women for cases that they do not think have substance. However, it does nothing of the sort. I learned a long time ago in politics that the worst thing we can do is promise things and then not deliver after raising people’s hopes. The problem with the entire Bill, especially on investigations, is that people will think that we could never get another case like Major Campbell’s. I am sorry, but we can. A lot of the veterans believe what is being said—that the Bill will stop investigations—but it will not. It will not stop investigations within the six-year period. It will not even do so afterwards, because, as we have already heard, cases will go to the International Criminal Court and others.
Clause 4(1) states:
“For the purposes of section 3(2)(b), where there has been at least one relevant previous investigation in relation to the alleged conduct, evidence—
(a) is not “new” if it has been taken into account in the relevant previous investigation (or in any of them);
(b) otherwise, is “new”.”
Again, we get to dancing on the head of a pin about what is new evidence. There have been some complex cases, certainly from Iraq. If a witness comes forward many years later with a piece of evidence saying that they were there, who makes the determination on what is new evidence? That will make the investigation more difficult, because what will be deemed as new evidence? Who makes that judgment call?
We are not dealing with house burglars, are we? We are dealing with very complex cases in other countries, where there are cultural and language difficulties. Sometimes, six years might have passed. The passage of time can not only affect the securing of evidence; it would also affect judgments about people’s memory, which has always been the case with civil cases in this country, let alone in a war zone.
I understand what clause 4 is trying to do, but, like a lot of things in the Bill, it leaves a lot of loose ends. As I said, it will lead to a lot of disappointment on the part of veterans who think that somehow reinvestigation will not happen. Likewise, victims will perhaps feel that new evidence or evidence that they have put forward is not being taken seriously.
The Minister for Defence People and Veterans (Johnny Mercer)
Thank you, Mr Stringer, for chairing the Committee so well.
Again, there were a lot of inaccuracies in what the right hon. Member for North Durham said. The Department can never be in a position whereby, if allegations were made, it could not investigate them. That is not a lawful position, so the idea that we can legislate to stop investigations is entirely false. We have heard Bob Campbell give evidence in this Committee: his case, in the worst-case scenario, would have ended in 2009.
Johnny Mercer
I will in a minute, because both I and Bob Campbell have really got into the weeds of this legislation. I am interested in how the right hon. Gentleman has a different view and thinks that it would not have helped Bob Campbell in any way. I would love him to explain how he arrives at that position.
Mr Jones
Major Campbell is in a very different situation. He has lost all faith in the system and actually wants cases to go direct to the International Criminal Court, which I do not agree with. But I did suggest, if the Minister was listening on the new clauses that I tabled for the last sitting—new clauses 6 and 7—that we need a system of both case management and judicial oversight. That would actually speed up the process and ensure that justice was being done. This is not about stopping investigation; it is about timely investigation.
The Chair
Order. Before I call the Minister, it now seems timely to remind people that interventions should be short and to the point.
Johnny Mercer
Again, it is not true to say that Major Bob Campbell wants all cases to go to the International Criminal Court; that is simply not true. He tried that to demonstrate a point, but it is not his view that everyone should just go to the ICC.
I saw in the newspapers over the weekend, again, a lot of absolute garbage about this Bill. I have made my position clear from the beginning. I have come in for a lot of criticism from the right hon. Gentleman about not working together on the Bill. I have been very clear that where there are places where we can improve the Bill—within the art of the possible, working within what is factually true—I will do that, but that is yet to happen.
Mrs Emma Lewell-Buck (South Shields) (Lab)
The Minister states that he wants to improve the Bill and work with others. Why is it, then, that we have yet to see any amendments at all come forward from the Minister to the Bill?
Johnny Mercer
That is very simply because there is no way, at the moment, that I have been presented with anything that is legal, within the art of the possible or within the strategic aims of the Bill that would actually improve it. It is as simple as that.
Mr Jones
But that is not the case, is it? One issue that has come out, both in evidence and in amendments that I have tabled, is about investigations, and that is not covered in the Bill. I accept that the amendments that I tabled may not have been perfect, but if the Minister had at least given an indication that the issue would be looked at, that would have been a movement forward. But he has completely deaf ears on this.
Johnny Mercer
Again, that is completely untrue, because I have repeatedly spoken, years before anybody else in this House, about the standard of investigations—investigations that were going on under the right hon. Gentleman’s watch when he was an Armed Forces Minister. Those investigations, I said—this has been quoted to me time and again—had not been up to standard, but that is not part of this legislation; it is part of an armed forces Bill that is coming forward next year. I have been absolutely ruthless in terms of dealing with the Department on its standard of investigations, which I reiterate were under the right hon. Gentleman’s watch.
Johnny Mercer
I will not give way again. I cannot take in people saying, “We would like to see these pieces in the legislation,” when the whole point of this legislation is dealing with the abuses that we have seen over the years; it is not about investigations. People saw an announcement last week that we are having a judge-led review of how the Department does that. We will get the investigations right, but this Bill is very clearly about overseas operations and the situations in which we found ourselves, which actually resulted from when the right hon. Gentleman was a Minister in the Department.
Johnny Mercer
That is nonsense. Ours really started in 2009. [Interruption.] We can keep this going all day, Mr Stringer. There is so much fake news coming out, I can just bat it back at every opportunity. We will move on to clause 4 before we get out of hand.
Clause 4 provides the meaning of “relevant previous investigation” and “new” evidence as used in clause 3(2)(b). This is to ensure that when considering the matters to be given particular weight, the prosecutor understands the circumstances in which they must give particular weight to the public interest in a case coming to a timely and final resolution: in other words, finality. Subsection (1) provides the definition for “relevant previous investigation”. A relevant previous investigation is one that was carried out by an investigating authority—that term is defined in clause 7—or is no longer an active investigation. It has ended, and is an investigation at the end of which the individual was not charged. That is all set out in subsection (1)(a) to (c).
Subsection (2) defines “new” evidence as that which has not been taken into account in a relevant previous investigation. This definition is intended to provide for situations such as when new witnesses or new information emerges after an investigation has been completed, and where evidence becomes available that could not have been available at the time of a previous investigation, where subsequent developments in forensic techniques bring to light evidence that is genuinely new.
Mrs Lewell-Buck
The Minister is being very generous in giving way. I want to revisit a previous point. He stated that it is not possible to address investigations in the Bill. I am at a loss as to why not. It is in our gift in Committee to change the Bill and improve it. Why won’t he?
Johnny Mercer
Of course, anyone can add an amendment to any piece of legislation, but this Bill clearly deals with lawfare and the vexatious claims that came out of Iraq and Afghanistan. We will see more stuff on investigations in the Armed Forces Bill. People can add anything to any legislation. We all know that, but the place for that particular measure is in the Armed Forces Bill, which will be forthcoming next year.
Liz Twist
Time after time we heard from witnesses, and we had further pieces of evidence submitted yesterday, which the Clerk has circulated. Witnesses have pointed to the centrality of the investigation process. Having a robust and timely investigation is absolutely central to the efficacy of what the Minister is trying to achieve in the Bill. Will he reconsider looking at the investigation? It is good that we have the inquiry, which was announced in the written ministerial statement last week, but will he commit to looking at investigations?
Johnny Mercer
I have already said in Committee that I will not do it this way round, and I said that before I came to the Department. The reality of politics is that we have this time allocated to get through the Bill. It is my job to make sure that the investigatory processes are watertight and that the end state results in good investigations, but a non-abuse of the system.
Johnny Mercer
That inquiry started in 2010, but the al-Sweady inquiry and others started before then. I am not blaming any Government. I am just pointing out the hypocrisy of the right hon. Gentleman’s intervention. Anyway, I beg to move that clause 4 stand part of the Bill.
The Chair
I was just coming to that. Minister, will you withdraw the accusation of hypocrisy?
The Chair
I am grateful. Thank you.
Clause 4 ordered to stand part of the Bill.
Clause 5
Requirement of consent to prosecute
Carol Monaghan (Glasgow North West) (SNP)
I beg to move amendment 10, in clause 5, page 3, line 23, leave out “Attorney General” and insert “Director of Public Prosecutions”.
The Chair
With this it will be convenient to discuss the following:
Amendment 11, in clause 5, page 3, line 26, leave out “Attorney General” and insert “Director of Public Prosecutions”.
Amendment 22, in clause 5, page 3, line 29, at end insert—
“(c) where the offence is punishable with a criminal penalty by the law of Scotland, except with the consent of the Lord Advocate.”
Amendment 24, in clause 5, page 3, line 29, at end insert—
“(3A) Where the consent of the Attorney General is sought under subsection (2) or (3) above, the Attorney General must prepare a report containing his reasons for granting or withholding consent, as the case may be, with reference to sections 1 to 3 of this Act, and must lay a copy of this report before Parliament.”
Carol Monaghan
I will speak to all three of the amendments in my name and that of my hon. Friend the Member for West Dunbartonshire. Amendments 10, 11 and 22 address the issue of the independence of the decision to grant or withhold consent to prosecution. The Attorney General is, by the nature of the position, a political appointment. Therefore, tying in the prosecution of potentially serious incidents to a politically motivated individual is at least unethical and at worst dangerous.
If we are the healthy democracy that we boast of being, there has to be independent oversight of these investigations. To maintain justice and continue to uphold the rule of law, those decisions cannot be made by the Attorney General. That role should be carried out in England by the Director of Public Prosecutions and in Scotland by the Lord Advocate.
In effect, with these amendments, we are asking the Minister to decide whether the actions of the MOD itself require further investigation. To give an example, that would be like asking the Health Secretary to decide whether a patient had grounds to seek redress for cases of medical negligence. Are the Government really in the business of marking their own homework?
Of course, we all understand why the Government have chosen to press ahead with this Bill. I think we all, regardless of the robust debate that has taken place, have sympathy with the purpose of this Bill, but the manner in which it is progressing is concerning a lot of us. Many parts of this Bill would not address the issues faced by our service personnel. However, having the Attorney General preside over decisions to prosecute will potentially leave a shadow of doubt hanging over some service personnel. Is that really what we want?
I watched the previous exchange; for anybody watching Parliament just now, it was rather unedifying, to say the least. At the start of this process, the Minister said he wanted—[Interruption.] Even as I am saying that, and trying to say it in a generous spirit, the Minister mumbles to himself and makes comments. I was a teacher by profession, and I can tell hon. Members that I would be taking the Minister to task if he behaved like that in my class. He could at least have the decency to listen while a point is being made.
At the start of this process, the Minister said he wanted to listen and that he was happy to take on good ideas. I have yet to see any evidence of that. I am at a loss as to how we actually improve this Bill. Is the Minister so confident in the absolute perfection of this Bill that not only will he not accept any amendments from the Opposition, but he has not tabled any amendments from his own colleagues? I have never seen this in a Bill before. It is unheard of.
Going back to my amendments, there must be independence in the decision-making process. That would give clarity and increase public confidence in the process that is undertaken. Surely, if this Bill is so good, the Minister has nothing to fear from a politically unbiased head considering the evidence and making decisions on whether to prosecute.
Mr Jones
I thank the hon. Member for Glasgow North West for the amendment. I am not sure that I totally agree with it, although I agree with the spirt of it. The hon. Lady is trying to ensure judicial oversight of these decisions. Her recommended route is the Crown Prosecution Service, and she is right, in that that is at least a judicial process that is separate from the Attorney General, who is a political figure.
Coming back to my remarks about clause 4, the reason the CPS was set up in the first place is because it was the police who investigated and then also took the decision to prosecute, so the CPS was brought in, quite rightly. Has it improved the system? Yes, it has. Do we always agree with what the CPS comes up with? No, we do not, and I doubt whether we always would in every legal case. However, as the hon. Lady said, that does not mean that the process is weak in any way. It means that it is legally robust.
The hon. Lady is suggesting the CPS, but my concern relates to the service justice system. I would rather the Advocate General decided, although I say that in the same spirit as the amendment. The other concern, which a number of witnesses raised, is about the role of the Attorney General as a political appointee. I think Judge Blackett mentioned that in its recent judicial reforms Kenya has made its Attorney General politically independent for that exact reason: so that the position is seen as being above politics.
That is important, because in the case Marine A, which has been raised before, there was a lot of publicity at the time in the newspapers and campaigning about why that person was being prosecuted, often without knowing what had occurred or having seen the video or other evidence that was put forward. If the Attorney General had been the final arbiter of whether to prosecute in that case, they would have come under huge political pressure not to prosecute, and that would not be right.
The other side to this is our standing in the world. If we are to have a system where we properly investigate alleged crimes and have a fair process to decide who to prosecute, then ultimately, although there are other issues in the Bill that raise problems, if it is down to a political appointee whether someone is prosecuted, the International Criminal Court and others would take a dim of that, in the sense that it would be a political decision, not a judicial decision.
It is interesting to look at it from the angle of someone who has been through the process. When Major Campbell gave evidence to the Committee, the hon. Member for Wolverhampton South West asked him:
“Thank you, Major Campbell. It is an absolute disgrace…Will you confirm whether you welcome the Bill or whether you are against it?”
Major Campbell went on to say:
“I fully welcome the Bill, both in its intent and in its content. Again, in my amateur legal opinion, there may be a legitimate argument to be had over whether the Attorney General is the correct address in terms of being the final arbiter of further prosecutions, due to the advice he gives to the armed forces on the legality of a conflict.”
He then went on to be quite disparaging, because of his frustration, which I think we all understand:
“My other slight concern is that previous Attorneys General have done us no favours...Lord Goldsmith had a lot on his shoulders…When I appealed to Jeremy Wright, and when he gave evidence to the Defence Sub-Committee…he took the view that this was an entirely fair process”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 24, Q54.]
He was concerned about the role of the Attorney General.
Chris Evans
It is a pleasure to serve under your chairmanship, Mr Stringer. After the events of your beloved Manchester United’s visit to the north-east, I hope you had a very happy weekend—although I notice that we have a number of Members from the north-east here, so it probably upset them.
I rise to speak in support of amendment 24 in the name of my hon. Friend the Member for Portsmouth South. The amendment asks that any decisions to prosecute or not prosecute service personnel who are under investigation be explained by the Attorney General, by her presenting her reasoning in a report to Parliament. If the Government are unwilling to allow decisions to be made by the director of public prosecutions and insist on adding a political element to decisions, they must be scrutinised.
On several occasions, this Government have been charged with attempting to avoid necessary scrutiny and having a habit of waving things through. Amendment 24 simply asks them to do the right thing and allow Parliament to do its duty. In our constitution, Parliament has to play a full part in any legislative initiatives and any investigations. The former Attorney General for Northern Ireland says that the Attorney General is accountable to Parliament. If the Government agree that that is correct, they have a duty to explain decisions that the Attorney General makes on prosecution in order that Parliament fulfils its constitutional duty to scrutinise. If those decisions are to be politicised, let us do it properly. As the amendment suggests, it would be most appropriate that the decisions be explained by a report presented to Parliament, which should set out the full reasoning and rationale behind the decision that the Attorney General makes. That would ensure transparency of the entire process.
Legal academics and experts in the field, as well as previous Attorneys General, have voiced concerns over the role of the Attorney General in the Bill. They are worried that it is adding a political element to a judicial process in an entirely unnecessary way. The former Member for Beaconsfield, Dominic Grieve—I see his successor over there; I welcome the hon. Member for Beaconsfield to the Committee—who was the coalition’s Attorney General, has raised concerns over the Bill. He criticised the Bill for being
“an exercise in public relations rather than reasoned change”.
He gave a multifaceted critique of the Bill, including the role of the Attorney General. In his opinion, the way in which the role of the Attorney General has been written into the Bill is a politicised safeguard. It is hugely important that the Attorney General always acts independently of any political consideration and has only one thing in mind: the public interest.
I am sure that you, Mr Stringer, would call me to order if I began to debate the role of the Attorney General in the past, but, simply put, the Attorney General provides legal advice to the Government. If, however, the Government are reluctant to publish the advice, that is a huge concern to the public.
Chris Evans
The decision not to present the rationale, what advice was taken and how the Government arrived at their decision have eroded trust in politics and have been a problem for as long as I have been in the House. We have an opportunity with the Bill to start to rebuild trust in the decisions that the Government make. I hope that that Government will take that on board.
The Attorney General should be required to publish a report on the findings to reassure Parliament and the public that a decision has not been a political one. Many of the issues we have had in the past few years—the north-south divide and Brexit and remain—would have been avoided if the advice had been published and made transparent and fair. When we are making decisions, especially about our service personnel—some of the bravest people in this country—we must ensure that the public interest is at the heart of decision making. Dominic Grieve believes that the fact that the courts can review a decision by the Attorney General may create more litigation rather than reduce it and simplify the process. There is already a backlog of court cases, and we do not want to add to it.
Jack Lopresti (Filton and Bradley Stoke) (Con)
Would the hon. Gentleman advocate the next Labour Government making the Attorney General’s position independent? Would he be convinced that any report produced by the Attorney General in Parliament and scrutinised by Parliament would not be looked at in a party political way by the Opposition?
Chris Evans
The hon. Gentleman has a lot of experience in this area. If I was Chair of the Backbench Business Committee, he would just have talked himself into a debate on the Floor of the House. If he will forgive me, I shall stick to the amendment, because as I said earlier, we should have at least a 90-minute debate in Westminster Hall on that point.
The concerns expressed by Dominic Grieve have been echoed by His Honour Judge Jeffrey Blackett, who stated that
“the decision of the Attorney General to prosecute or not prosecute certain cases is likely to lead to judicial reviews and, as Mr Grieve stated, more litigation.”
In the Bill’s evidence sessions we heard from the most recent Advocate General of the Armed Forces. He expressed deep concern that this decision should be taken away from the Director of Public Prosecutions:
“My concern about the Attorney General’s consent is that it undermines the Director Service Prosecutions. If I were he, I would be most upset that I could not make a decision in these circumstances.” ––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 125, Q267.]
It is quite clear that by taking this responsibility away from the Director Service Prosecutions the Government intend to assert a certain level of political control over these decisions. I hope that when the Minister responds he will give us a full explanation.
This is a risky decision from the Government. If they do not comply with the Geneva convention in making such decisions, that could add to the reputation, which they appear to be determined to establish around the world, that the UK no longer respects international law.
Chris Evans
That goes back to my earlier point. As my right hon. Friend says, inserting a politician would mean only more cases where the courts are asked to review the decision of the Attorney General, which would have the knock-on effect of clogging up the courts when we do not need that. It could be nipped in the bud simply by producing a report.
Disregard for international law is not only wrong but sends the wrong message to the British public and the rest of the world. Some have argued that it will even put our service personnel in more danger. Sir Malcolm Rifkind, QC, an ex-Defence Secretary, warned that the Bill will put soldiers at greater risk if Britain is seen to ignore international law. In a letter to Downing Street, he wrote:
“It would increase the danger to British soldiers if Britain is perceived as reluctant to act in accordance with long established international law.”
Similarly, Lieutenant Colonel Nicholas Mercer, who was a senior military adviser, said that the Bill
“undermines international humanitarian law while shielding the government”.
While the Government may be able to shield themselves from blame, soldiers may find themselves in the International Criminal Court, whose jurisdiction will be triggered if the Government chooses to avoid prosecuting. In fact, Judge Blackett raised that concern with the Committee. He said that
“the Attorney General has to consent to prosecuting any International Criminal Court Act 2001 offence—that is, genocide, crimes against humanity or war crimes. Under section 1A(3) of the Geneva Conventions Act 1957, he has to consent to prosecuting any grave breaches of that Act, and under section 61 of the Armed Forces Act 2006, he has to consent if a prosecution is to be brought outside of time limits.”––[Official Report, Overseas Operations (Service Personnel) Public Bill Committee, 8 October 2020; c. 125, Q267.]
If the Attorney General must consent in those circumstances, what is the need for a political appointee to be involved in the decision making? Why not allow the Director of Public Prosecutions or the Advocate General in Scotland to make the decision?
That leads to concerns that the Government intend to break international law and politicise prosecutions. If that is the Government’s plan, it must be scrutinised by the House so that we can understand the reasoning. Ultimately, the public deserve to know why the Government would deem it fit to break international law and damage the reputation of our troops serving abroad.
Another voice we were grateful to hear from in our evidence sessions was that of General Sir Nick Parker. He added a further concern about the damage to Britain’s reputation if we are not seen as a country that respects international law, which will not only damage the reputation of and endanger our troops serving abroad but have more complex results. He said:
“If there is some doubt about this—”
the willingness of the UK to break international law and the Geneva convention—
“and we are viewed in the international community as being prepared to operate outside norms, there is an implication for the people who will have to command in the international community.”— [Official Report, Overseas Operations (Service Personnel) Public Bill Committee, 8 October 2020; c. 99, Q203.]
He expressed concern about not knowing whether that would affect the willingness of other countries to work with the UK armed forces. If other countries are less willing to work with our forces, that creates additional problems for our troops. He later said
“I believe that we need to be consistent with our coalition partners. All I would add is that you cannot predict who your coalition partner will be, because we do not know whom we will be fighting with in the future.” [Official Report, Overseas Operations (Service Personnel) Public Bill Committee, 8 October 2020; c. 100, Q206.]
Today’s friend is quickly tomorrow’s enemy. Therefore, there must be that certain consistency provided by international norms.
The Chair
Order. I did say in the introduction that if Members breached the social distancing rules, I would stop proceedings.
Chris Evans
It is important that we set an example, Mr Stringer.
The title and role of the Attorney General is often entwined with politics, which complicates the matters of transparency. By its very nature, the role of the Attorney General is controversial, and has been in the legal world for a long time. The Attorney General has a role both as a professional lawyer and as a political advisor. Although many Attorneys General have taken the view that political distance gave their legal advice more credibility, others have been involved in party politics. From the scrutiny of Attorneys General in the 1920s to our current Attorney General, the role has always been controversial. Our current Attorney General generated a lot of debate over advice given to the Government on Brexit, as did her predecessor over the proroguing of Parliament. Further back, it is not just a party political issue. I do not have to go into the whys and wherefores of what the Labour Government went through with the legal advice over Iraq and Afghanistan. Again, before anybody wants to intervene, that is a debate for another time.
Chris Evans
I am glad the Minister nods in assent.
The present Attorney General has been accused of advising on legal matters from a political standpoint. The Scottish National party’s Attorney General spokesman, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), has accused our Attorney General of putting her political loyalties ahead of her loyalty to the rule of law when it should be the other way round. If the role of the Attorney General is seen as a political one, involving them in this Bill politicises—
Mr Jones
Does my hon. Friend agree that if we have the Attorney General involved in this, matters will end up in the courts? Again, it raises a false flag to servicemen and women that somehow this will stop prosecutions. If something is overturned by the Supreme Court or whatever, the prosecution will still go ahead, so the longstop is not achieved.
Chris Evans
It is not. I would like the Minister to answer this conundrum that I came up with when I was listening to my right hon. Friend’s very good speech earlier. The trouble that I see with the Attorney General being involved is that if we have a civil case that is ruled out after six years, according to the Bill, and we have new evidence that emerges from the previous case—this is an important point—the Attorney General then decides to prosecute. That person is then found guilty of a crime and damages are given out. We have a situation where we have a criminal court giving compensation for a case that has already been struck out. That is an anomaly in the Bill that I hope the Minister will address because it is a concern. Given the mixed opinions on the role of the Attorney General, and the general cloudiness of what their role and priorities ought to be, the requirement to produce reports on their decisions to prosecute or not seems entirely sensible.
Mr Jones
Would it not also be the case that we would not know how the Attorney General made a decision in terms of legal thresholds and suchlike? There will be a political decision, and there is no guidance in the Bill on what the important factors would be for an Attorney General to make his or her decisions.
Chris Evans
From a legal perspective, it is really important that when an Attorney General gives their advice, they do that through the process of legal precedent, statutory interpretation or whatever we want to call it. It is extremely important that when the Attorney General arrives at Parliament with their advice, they have a very strong legal argument. They have consulted academics or leading lawyers, presumably in the area of human rights, and they have crossed all the t’s and dotted all the i’s, and when they come before Parliament, they are confident in their decision. That is why it is extremely important that a report is presented, because at least they can cross-reference how they arrived at the decision. It also gives confidence in the decision. If the case does end up in court, they are standing in a stronger legal position than they would be if they had not released that advice.
As there is a long-standing worry about the balance between law and politics in the role of the Attorney General, it surely makes sense that the Attorney General, if they are to be involved in this Bill at all, is required to publicise the decision. That would ensure that prosecutions covered by the Bill continued to be legal matters or could be at least scrutinised by other bodies to regulate them. It would ensure that party politics was not placed above the law.
It is a judicial process that the Government are concerned with. It should not be politicised or manipulated by party politics in any way, shape or form. If the Government feel the need to grant the power of decision over prosecution to the Attorney General rather than an independent legal body such as the Director of Public Prosecutions, the process must be entirely transparent, so that all those involved can clearly see the thinking behind the decisions. There is no reason why that information cannot be shared. It should and must be subject to parliamentary scrutiny.
Johnny Mercer
I thank the hon. Member for Islwyn for his very thoughtful contribution. I will address some of those points.
First, let me come to the points raised by the SNP. I will not call it “hypocritical”, because that would be out of order, but the irony of being lectured about behaviour in debates by the hon. Member for Glasgow North West, who has repeatedly screamed at me at the Dispatch Box, is not lost on me in any way. I have no ribs left from laughing at the SNP’s position on defence matters. The idea that it is possible to have a constructive debate from such a false position is ridiculous, but I will address some of those points in my comments.
Dominic Grieve and Nicholas Mercer are people who have contributed. I do not know whether Members expected those who had overseen the disaster of things such as IHAT, who had overseen those processes, to come in and say, “This was a good idea.” I never expected that. Nicholas Mercer was not some senior legal adviser; he was a brigade LEGAD, and there were many brigades in Iraq. His evidence, a number of times, has been called into question. Dominic Grieve was a Member of this House. I have huge respect for him. But he, as Attorney General, oversaw some of these horrendous experiences that some of our people went through. Of course they are not going to be supportive of changing that scenario, because they did not do that when they were in charge. I respect that that was their decision, but we have come in on a very clear promise to end the unfair nature of this process.
I understand that it is combative; I understand that it is contested, but it is about time that someone came here with the voice of those who actually go through the process and was at the head of this debate, rather than those who are managing it and ultimately, in my view, have no real idea what it is like to walk in the shoes of those who serve on operations or who are dragged through these investigations.
When it comes to the Attorney General’s consent—
Mr Jones
I accept what the Minister is saying, but let us be honest: it was not just Dominic Grieve as Attorney General; the Government oversaw the IHAT system. As for the point the Minister makes, I do not for one minute question his intent in trying to do the right thing, and I support him in that. The only problem I have is that, in proposing what he does, he has a deaf ear to things that could actually improve the situation and get the Bill right so that it does what he is trying to achieve.
Johnny Mercer
It is not a deaf ear if I disagree. I am allowed to disagree.
Johnny Mercer
That is a matter for debate, and that is the whole point of why we are here.
Clause 5 requires the consent of the Attorney General for England and Wales or the Attorney General for Northern Ireland before a case of an alleged offence committed by a serviceperson more than five years prior on an overseas operation can proceed to prosecution. We introduced the consent function because we believe it is important for service personnel and veterans to be confident that their case will be considered at the highest levels of our justice system. In relation to amendment 22, the consent function does not need to extend to Scotland, as all prosecution decisions in Scotland are already taken in the public interest by, or on behalf of, the Lord Advocate.
Requiring the consent of the Attorney General for a prosecution is not unusual. The Attorney General already has to give consent to prosecute war crimes, as has been said, and for veterans to be prosecuted more than six months after they left service. Who introduced that legislation? The Labour party, in 2001. The Attorney General already has numerous other consent functions, but that does not mean that the Government have any role to play in decisions on consent; it is simply a safety check on fairness.
On amendments 10 and 11, in deciding whether to grant consent to prosecutions, the Attorney General acts quasi-judicially and independently of Government, applying the well-established prosecution principles of evidential sufficiency and public interest. This means that the Government will play no role in the decision taken by the Attorney General or Attorney General of Northern Ireland on consent—no role. Amendment 24 seeks to require the Attorney General to report to Parliament with the reasons for granting or withholding consent. There is no statutory requirement anywhere else for the AG report on individual casework decisions, and we do not believe that it would be appropriate to introduce such a requirement in the Bill. I therefore ask that the amendments be withdrawn.
Carol Monaghan
First, I will respond to the comments the Minister made at the start. There is a huge difference between debating in the Chamber, with comments being passed to and fro, and making a speech in a room such as this and having somebody mumbling under their breath while doing it. It is disrespectful and it should not happen. The Minister is a military man. I would love to have seen him behave like that when one of his superiors was addressing him in his former career. I have no intention of withdrawing the amendments. Nothing the Minister said assured me that there would be an unbiased situation when considering prosecutions, so I will push them to a vote.
Question put, That the amendment be made.
Mr Jones
Paragraph 46 of the explanatory notes states:
“Schedule 1 details the sexual offences excluded from the scope of the requirements of clauses 2, 3 and 5”.
We have touched already on the fact that sexual offences are not included in the Bill. I have not yet had a good explanation of why that category is the only one identified in the Bill. I think we all agree, and there is no dispute, that sexual offences play no part whatever of the conduct of our armed forces. If they are committed, they should be investigated and prosecuted and the perpetrator taken before court. The problem is how to separate sexual offences from other criminal activity. There are situations in which the sexual offence is committed along with other crimes, such as torture, that are not on the face of this Bill. Why exclude sexual offences?
The argument could be, as has been said, that this should never be part of the conduct of forces personnel—I agree, but that should not mean it is singled out. The problem I have with this is that when cases come forward, if there is a sexual offence as part of the accusations then this will be prosecuted, but something else of equal severity might not be prosecuted despite being part of the same event.
The obvious way around this is to leave it in and add other items as well, but I have yet to understand why sexual offences have been singled out, and I think we need an explanation because it draws attention to the fact that other things are not also mentioned. If there were clear-cut, one-off sexual offences then it is understandable, but I can imagine situations that may include other offences. If you look at some of the accusations, not necessarily against UK service personnel, but others such as those involved in peacekeeping operations, sexual offence was part of other crimes that were committed against individuals. It says in the schedule that we will exclude the sexual offence but the rest, frankly, is not part of it. I do not think it is as simple as to divide the two as clearly as this. I would like an explanation as to why and how sexual offences would be separated from other offences.
Johnny Mercer
It is a fair argument from the right hon. Member for North Durham; there is a difference of opinion on this issue. We are very clear as to why sexual offences are on there—schedule 1lists the offences that are not relevant for the purposes of clause 6. The only offences contained in schedule 1 are sexual offences. This means that in cases involving alleged sexual offences on overseas operations more than five years ago, a prosecutor does not need to apply the statutory presumption and the matter is to be given particular weight when considering whether to prosecute.
Further, the prosecutor does not need the consent of the Attorney General for a case to get a prosecution; they will simply follow the usual procedures for determining whether or not to prosecute. For clarity, it should be noted that conflict-related sexual violence is classified as a war crime and is recognised as torture, a crime against humanity and genocide in international criminal law. These offences are referenced in paragraph 13 of part 1 and are listed in parts 2 and 3 of schedule 1.
Part 1 of schedule 1 lists sexual offences as criminal conduct offences under armed forces legislation, the Armed Forces Act 2006, and the corresponding offences under the law of England and Wales, including repeals provision. Part 2 of schedule 1 lists the sexual offences contained in the International Criminal Court Act 2001, under the law of England and Wales and the law of Northern Ireland. Part 3 of schedule 1 lists the sexual offences contained in the International Criminal Court Act 2001 under the law of Scotland. Part 4 of schedule 1 contains the provisions extending jurisdiction in respect of certain sexual offences. I reiterate to the Committee the reason for the exclusion of sexual offences.
Liz Twist
To reflect on the words of my right hon. Friend the Member for North Durham, this schedule includes, as we know, only the exclusion of sexual offences. Given the concern raised by many people during our evidence sessions and more generally in debate, why are torture and war crimes not included in the section? I would like to see that, because it is an important issue in the debate.
Johnny Mercer
The reality is that the word “torture” and allegations of torture have been used as a vehicle to generate thousands of claims against our service personnel. There have been arguments around why we have not packed investigations and so on into the Bill, but the Bill is trying to deal with very specific problems, which are the ones we have faced over the last 15 or 20 years relating to claims of this nature. In the discharge of your military duties, you can expect to be accused of assault, unlawful killing, murder and torture when using violence. There is no scenario in which our people will be asked to operate in which they can legitimately commit sexual offences. This country has a strong commitment against the use of sexual violence as a weapon of war, and that is why it is in the Bill.
Mr Jones
I agree that it should play no part whatever, and it does not in terms of the ethos of our armed forces. Will the Minister answer the point that there will not, in many cases, be a situation in which sexual violence takes place by itself? What happens if it involves violence and other things? How can the other issues be looked at if it is taken out? He is saying that the only reason for it is because torture is seen as a reason for a lot of the claims coming forward. Is that the only justification?
Johnny Mercer
Putting sexual offences in the Bill in no way denigrates our commitments against torture. We have to deal with the world as we find it, not as we would like it to be. When allegations of torture are mass-generated, as they have been, to produce these claims we have a duty to act to protect our service men and women from that.
Liz Twist
I understand the point the Minister is making about protecting service people and about spurious claims, but there are also genuine claims of torture that really deserve to be properly investigated, looked at, and not excluded. I am not saying they are against our forces in particular. I wonder if not writing that into the schedule is a step too far. It is such an important issue for the good name of the country, and also for that of our troops.
Johnny Mercer
No one disputes the seriousness of torture. I reiterate that our commitments against that are not diluted in any way. All we are seeking to do is to restore the primacy of things like the Geneva convention and the law of armed conflict, and to protect our service men and women from the nature of lawfare that has been so pernicious over the years. I understand people’s views on it, and at first inspection I understand why people have concerns, but the reality is that we have to deal with the situation with which we have been presented. If we are going to protect our people, this is a difficult part of it. As I have outlined, nobody can in any way be legitimately accused of sexual offences in the discharge of their duties, and that is why it is in the Bill.
Question put and agreed to.
Schedule 1 accordingly agreed to.
The Chair
Before we move on to clause 7, I do not like to interrupt the debate, but there have been references to “you” in a number of speeches, and I am sure that on those occasions you do not really mean me.
Could people try to use the normal parliamentary protocol in debate? Members of the Committee will not have any problem catching my eye, but some of the interventions have been more akin to speeches than sharp interventions. I hope we can continue on the basis that interventions should not be speeches.
Clause 7 ordered to stand part of the Bill.
Clause 8
Restrictions on time limits to bring actions: England and Wales
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 9 and 10 stand part.
New clause 2—Restrictions on time limits: actions brought against the Crown by service personnel—
“Nothing in this Part applies to any action brought against the Crown by a person who is a member or former member of the regular or reserve forces, or of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies.”
This new clause amends Part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the Part imposes in respect of actions relating to overseas operations.
For the avoidance of doubt, and so that we do not end up in the previous situation, I should say that if right hon. and hon. Members wish to speak to new clause 2, clauses 9 and 10, or part 2 of the Bill, now is the time to do so, although we will vote on them later.
Stephen Morgan (Portsmouth South) (Lab)
The fact that new clause 2 has to be tabled underlines one of the key problems in the Bill. As my right hon. Friend the Member for North Durham said, this Bill does not do what it says on the tin: it does not help to protect our armed forces personnel, but does the exact opposite. It limits our troops’ right to justice. It does not benefit them—in fact, it actively discriminates against them.
Unfortunately, this has been a long-running theme of the debate as the Bill has passed through the House. The intention of the Bill is one the Opposition are willing to work with, but the Government have got parts of it badly wrong; this part of the Bill, unfortunately, is a prime example of that. The Government cannot claim that the Bill benefits our personnel while legislating to limit the courts’ discretion to disapply time limits for actions in respect of personal injuries or deaths that relate to overseas operations of the armed forces. That is why this part of the Bill must be amended and improved.
New clause 2 would amend part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion imposed by part 2 in respect of actions relating to overseas operations. The question must be asked: why are the Government explicitly trying to mitigate the ability of our service personnel to access a route to justice? Is that really in line with the spirit of the Bill? In the lead-up to Remembrance Sunday, are the Government really comfortable passing a Bill that will clearly limit service personnel’s rights?
In the evidence sessions, we heard a great number of warnings about this part of the Bill. More specifically, points were raised about the Government’s own impact assessment of service personnel privately claiming for their injuries. As the witness from the Association of Personal Injury Lawyers said,
“I think it will definitely have an impact. I do not think that the impact statement that has been released really explores it fully, because it ignores a large proportion of civil claims brought against the Ministry of Defence, which may include elements of overseas operations.
If I can give you just a quick example, the impact study does not take into account noise-induced hearing loss claims. These are complex claims that may involve exposure to harmful noise at any point of the serviceperson’s service, and at different points of overseas operations in different countries. The impact study that has been released ignores all of those claims. In the last year alone, I think the figures released by the Ministry of Defence suggested that 1,810 claims relating to noise-induced hearing loss were brought against the MOD.
My answer to your question is that I think there will be an impact, but we do not know the extent of that impact, and that needs to be explored further.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 54.]
That is a real point of serious concern. If the Government’s own impact assessment is flawed and has not fully taken into account the scope of the legislation’s impact, it is imperative that the Government take another look at this part of the Bill, to ensure that they have been fully and properly informed by their own impact assessments.
I repeat once again that Labour wants to work with the Government to get the Bill right, but at this stage there are enormous concerns that it is far from that. In addition, there are real, specific cases in which the Bill would clearly disadvantage our troops—not simply numbers on a page. Those include types of case such as the noise-induced hearing loss that the witness a fortnight ago referred to. That witness referred to a former marine who received £500,000 for noise-induced hearing loss on the claim that his hearing loss and tinnitus were caused by a negligent exposure to noise. He served in Northern Ireland, the Gulf and Afghanistan and was exposed to noise from thousands of rounds of ammunition, thunderflash stun grenades, helicopters and other aircraft, and explosive devices, and left the Royal Marines in 2012.
The marine was unable to make a claim for compensation until 2014, seven years after he first became aware that he had problems with his hearing. The MOD admitted liability and made no argument about the case’s being brought out of time. The time limit in the Bill, however, would have eliminated all aspects of the claim relating to the marine’s extensive service overseas. It is exactly examples of that nature that raise questions over the depth and quality of the Government’s impact assessment, as well as whether this part of the Bill is really in line with the spirit of the Government’s supposed intent.
The Bill clearly needs fixing, and the Government need to go back and look at whether they really are delivering on what they claim they want to achieve. I ask the Minister: is it the Government’s intention to allow cases such as the said case of noise-induced hearing loss to be ignored by the Bill? What steps were taken both to ensure the Government’s impact assessment was comprehensive and to mitigate any confirmation bias of the Government’s intent on the Bill?
This part of the Bill also has another clear issue: it risks breaching the armed forces covenant. Let us take a look at what part 2 of this Bill really means. The Limitation Act 1980 currently results in the armed forces community and civilians being treated equally when it comes to seeking a claim for personal injury. As it stands, there is a three-year cut-off point in place, but the courts retain the right to grant an extension to forces personnel.
Section 33 of the Limitation Act provides the court discretion to override the current three-year limit, but this Bill deliberately moves away from that and snatches away the ability of courts to show discretion if the case relates to an overseas forces action. It makes a deliberate change to the Limitation Act. That makes no sense. There are already structures in place to ensure that only appropriate claims are brought forward. Courts routinely manage out-of-time proceedings and frequently throw out cases where the delay is unjustified. The detailed criteria set out in the Limitation Act already address cases that do not have reasonable grounds or are unjustified. I put it to the Minister: why is he actively removing the aspect of the Limitation Act that offers courts the right to grant an extension in cases relating to armed forces personnel?
The Bill removes the ability of members of the forces community to bring forward a civil claim at all after six years, even where it would have passed judicial scrutiny. Under the Government’s proposed changes, civilians will retain the right to pursue a civil claim against their employer, but armed forces personnel will not. That clearly risks breaching the armed forces covenant. With that in mind, I am concerned that the Royal British Legion has said that the Bill constitutes a potential breach of the armed forces covenant—a deeply worrying conclusion from the largest armed forces charity in the UK. Are Ministers not concerned that the very Bill that they claim is devised to help our troops is said to be doing the opposite by such a distinguished organisation?
In addition, we heard from the Association of Personal Injury Lawyers that the Bill leaves our veterans with fewer rights than prisoners. That is a damning verdict, delivered by lawyers who devote their lives to representing our armed forces personnel. Our armed forces serve the nation with distinction; they deserve more than to have their rights stripped away. I take this opportunity to say to the Minister, “Do not dismiss the warnings of the Legion and APIL. Work with us to address them.”
I ask the Minister to clarify whether Ministers are concerned that the Bill they claim was devised to help our troops is said to be doing the complete opposite by such distinguished organisations as the Royal British Legion. Why is the Minister actively removing the aspects of the Limitation Act that offers courts the right to grant an extension in cases relating to the armed forces personnel?
Why are the Government willing to introduce a six-year longstop for troops but not civilians? Why are some medical conditions worthy of justice and not others? Are the Government really comfortable with passing a Bill that will clearly limit service personnel’s rights in the lead-up to Remembrance Day? Is the Minister content to allow cases of noise-induced hearing loss to be ignored by the Bill? Finally, what steps were taken to ensure that the Government’s impact assessment was comprehensive and to mitigate any confirmation bias to the Government’s intent with the Bill?
Mr Jones
I want to speak to clause 8 and my new clause 9. Does the Minister want to do the right thing by our armed forces personnel? I think he does. I have never questioned his determination to do that. Again, the problem with the Bill is its unintended consequences.
Part 2 is a key part of the Bill. As my hon. Friend the Member for Portsmouth South said, it cannot be right that we will pass legislation that will mean that our servicemen, women and veterans have fewer rights than prisoners. The Limitation Act 1980 is there for a good reason. In the Minister’s comments in The Sun newspaper on Sunday, he said he will give a guarantee that servicemen and women will not lose out in part 2. I would be interested to know how he will do that, given the six-year longstop.
I do not doubt the Minister’s commitment to what he said in that newspaper article, but—to use the old Robin Day quote from his famous interview with John Nott—the Minister, like us all, is a “here today, gone tomorrow” politician. It is important to ensure this legislation is future-proofed. Irrespective of what the Minister says in his article, which is well intentioned, he cannot give that guarantee. Again, I do not question his motives for saying what he did.
The Minister has a higher trust in the MOD than I do when it comes to protecting servicemen and women. The Limitation Act, section 33, is very clear: it sets out the exceptional circumstances. In our evidence, we heard that although they are exceptional circumstances, they are not uncommon.
The Committee heard evidence of one example; I will give another, which, having spoken to a friend of mine who deals with personal injury, I think falls within the scope of this, too—of the Snatch Land Rovers in Iraq. The families of the individuals killed in the Snatch Land Rovers were not aware of the failings—not failings of the chain of command, but of the procurement—until the Iraq inquiry took place. They then sought legal redress against the MOD, because they thought a decision had been taken that had put their loved-ones in jeopardy. It was many years later, so it was outside of time, but they were able to use section 33 of the Limitation Act to bring a case, which, according to the evidence we heard, they then settled.
My other concern with the MOD—again, referred to in the evidence sessions—is that it employs clever lawyers. It will use the provision as a way of stopping any case that comes forward, as a first hurdle for the claimant to get over. That means that there will be no right of appeal for those individuals. If the Bill had been in force during the case of the Snatch Land Rovers, those families would have had no redress at all. At the end of the day, the measures protect only the MOD; they do not protect our servicemen and women, as the Minister would like. Again, we come back to the Bill’s problem of conflating civil and criminal cases.
Chris Evans
As my right hon. Friend has been speaking, I have been thinking in particular of the people serving in the Royal Navy who were affected by asbestos. In the 1950s and 1960s, asbestos was this magic formula—used everywhere from schools to garden sheds. Then, years later, it was found to cause tumours in the lungs. That caused serious problems to our servicepeople, but the evidence did not emerge for 30 years. People may be using chemicals now that we do not understand. How would the MOD be held responsible, and families be properly compensated?
Mr Jones
I will come back to asbestos. The aircraftman could not walk because the paint had attacked his nervous system, and his case was able to be taken forward only because of scientific evidence about exposure to that paint. However, if the Bill goes through, such an individual would not be able to make a case because it would be way out of the six-year limit. A lawyer friend of mine took that case to court and argued successfully before a judge that the individual was only able to bring the case then because of the scientific evidence, and that allowed them to take the case forward.
Johnny Mercer
A series of examples have been given where the Bill would not prevent action from being taken. On the Snatch Land Rover incident, the inquiry findings is the point of knowledge from which people had six years to make a claim. On the paint issue, when a connection is made with service and evidence can be produced, that is the point of knowledge from which there are six years. I do not know whether the point of knowledge piece is clearly understood, but when evidence comes together that clearly shows what has happened, that is when the six years begin. The Bill would not prevent such cases.
Mr Jones
I have heard the Minister say that before. I accept what he is saying, but he is wrong. I will come to asbestos, because in a previous life I used to press asbestos cases, but I will first address the Minister’s point and why he is wrong. I would agree with him about the date of knowledge if it were he and I dealing with the Bill. However, the dealings will be with MOD lawyers and not with the Minister or with me. If it said in the Bill that the date of knowledge were that date, that would be fine, but it does not. The Minister is putting an awful lot of trust in MOD lawyers. I would not do that, because they will argue straight away in such a case that it is time barred because of the legislation. They use that now, for example in the paint case I just mentioned. I hear what the Minister says and he might be technically right, but we heard in evidence that the MOD lawyers are experienced and will use that in their armoury as a way of stopping claims going forward.
Carol Monaghan
This is exposing an ambiguity right here, right now. Up until this point, the Minister has talked about the point of knowledge of the injury or the disablement. Now, he is talking about the point of knowledge of the issue with the equipment. What are we talking about and where in the Bill is that differentiated? If there is no clarity, we will have a situation with lawyers because of that ambiguity.
Mr Jones
Yes, and the lawyers will use it to protect the MOD. Like I say, if the Minister and I had to judge, we both would say “Yes, give the benefit of the doubt to the veteran.” I certainly would. However, neither he nor I will be there. It will be down to some Minister in the future and some lawyer to do that.
Coming on to asbestos, let me give an example. The issue in the early test cases on asbestos that I dealt with was about the date of knowledge. As my hon. Friend the Member for Islwyn just said, the issue with asbestos and asbestos-related diseases is that they can lie dormant for 20 or 30 years. It is an indiscriminate issue. I have met men who worked with asbestos and have what they call asbestos scars—asbestos in their skin—with no symptoms whatsoever and no health effects at all. I have also dealt with cases where a doctor and a nurse, who were just walking through a tunnel where an asbestos pipe was broken and were being covered in asbestos every day, developed mesothelioma, which we all know is a death sentence within 18 months to two years.
The MOD used to have a get-out because of Crown immunity; it could not be sued. As such, we are bringing back time-barred Crown immunity and saying to people that they cannot take cases against the MOD. Would cases around asbestos be time barred? I do not know. Again, why change it? I accept what the Minister is saying—we do not want frivolous and vexatious cases—but if they are time barred, there is a perfectly legitimate system in place at the moment called the Limitation Act, which allows people to take a case forward, if they wish to or their legal representatives feel there is a case.
Chris Evans
My right hon. Friend has, like me, worked with many constituents on this issue. Plural plaques may or may not develop into full-on asbestosis, but if someone develops the plaques within six years and then goes on to develop—God forbid—the worst kind of asbestosis, how does he see the MOD addressing that anomaly with the Bill?
Mr Jones
That is the point. I do not want to go off piste and explain the issues around pleural plaques, but I am a little bit of a sceptic on this. Although pleural plaques are lung scarring, I have not yet been convinced of any evidence that every case turns into something asbestos-related. It can be an indicator but it does not always go on to that.
Again, the MOD used to have Crown immunity, which used to mean that a case could not be brought against the MOD; that is what we are doing. Certainly in cases involving submariners who worked in submarines—as my hon. Friend the Member for Islwyn said, they threw asbestos around like confetti, as it was the great wonder material at the time—they would be time barred under the Bill. Again, coming back to what the Minister said, were it he and I then yes, I would agree, but lawyers will use that.
I do not understand why part 2 is there. Why would the Government want to put veterans and servicemen and women at a disadvantage? The Limitation Act is there for a perfectly good reason; it acts as a sieve because the person involved has to go before a judge and argue an exceptional reason as to why that case has not been brought within that period of time. From my experience in dealing with limitation cases for industrial diseases, for example, they are hard to prove, so it does act as a sieve.
If the Government are wanting to ensure that we are not getting huge amounts of unwarranted claims, the Limitation Act, as it stands at the moment, acts as that protection because the bar is high. In the cases where it does apply—with Snatch Land Rovers for example, the paint case I mentioned, or other cases, including those on hearing loss—it is very important, and I cannot support anything which means that our servicemen and women will be at a disadvantage.
In the evidence we took, Hilary Meredith said:
“I think that part 2, on the time limit, should be taken out and scrapped completely. It is the time limit for the procedure. It went on too long”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 19.]
She then referred back to investigations, which we come back to all the time. The other issue that she and a few other witnesses raised was the Human Rights Act 1998. I know that a lot of people start frothing at the mouth and gnashing their teeth whenever we mention the Human Rights Act, because it always applies to those that do not deserve justice—the ne’er do wells, asylum seekers and everyone else—but it is actually there to protect us all.
There are cases where servicemen and women will bring cases against the MOD under the Human Rights Act. One of the arguments—and I think the reason why, in this Bill, the Human Rights Act is a bit of a bogeyman—is that somehow the Act will impinge on the ability of servicemen and women to do their work. I do not accept that because, looking at the Smith case, the Human Rights Act was not an impediment; it clearly separated out combat immunity—that is, that lethal force must be used on occasions. Putting a time limit on the ability for servicemen and women to bring a case under the Human Rights Act would be a disadvantage to them.
Hilary Meredith says in her evidence that:
“There is a difficulty putting a time limit on the Human Rights Act…For civil claims against the Ministry when people are injured or killed in service overseas, I do not think a longstop should be applied. There are tremendous difficulties in placing people in a worse position than civilians. In latent disease cases—diseases that do not come to light until much further down the line, such as asbestosis, PTSD, hearing loss—it is not just about the diagnosis. Many people are diagnosed at death.”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 06 October 2020; c. 18, Q30.]
Again, that is something that I dealt with when I dealt with asbestos cases. The only time that a lot of people knew about them was when there was a death certificate. On more than one occasion, I stopped funerals to ensure that we had done the proper post-mortems.
Overseas Operations (Service Personnel and Veterans) Bill (Eighth sitting)
Tuesday 20th October 2020
(3 years, 6 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 20 October 2020 - (20 Oct 2020)
The Chair
Members will be aware of the need to respect social distancing guidance. I will intervene if necessary to remind everyone. We will now continue line-by-line consideration of the Bill.
Clause 8
Restrictions on time limits to bring actions: England and Wales
Question (this day) again proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 9 and 10 stand part
New clause 2—Restrictions on time limits: actions brought against the Crown by service personnel—
“Nothing in this Part applies to any action brought against the Crown by a person who is a member or former member of the regular or reserve forces, or of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies.”
This new clause amends Part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the Part imposes in respect of actions relating to overseas operations.
Mr Kevan Jones (North Durham) (Lab)
It is a pleasure to have you in the Chair, Mr Mundell. I trust that everyone has had a nice lunch. I hope the Minister has not had too much raw red meat and that he has been able to have a lie-down after his exertions this morning. He will certainly not be eating haggis for his dinner or lunch, or at any time soon, after his comments about Scotland this morning. I shall let him enlighten you later on those points, Mr Mundell.
We were talking about the rights of veterans. My hon. Friend the Member for Islwyn raised the issue of asbestos and how asbestosis is one of a number of diseases that limits the serviceman or woman from bringing claims within the six-year period. As I said this morning, the Minister and I agree on one thing: we understand the limitation and the date of knowledge. The bit where we have a problem is where the Bill takes out veterans, apart from anyone else, from section 33 of the Limitation Act 1980. We heard evidence last week from the Association of Personal Injury Lawyers. I accept that there are certain people in the room who perhaps do not like lawyers—criminal, civil or whatever. The association told us that the Bill strips service personnel and veterans of certain rights in relation to civil claims. I will come back to this later, but we were told that if the Bill is enacted, prisoners will have more rights than veterans or servicemen and women.
On the claims brought before the Ministry of Defence, clearly this Bill has its origins in what its promotors argue is a tsunami of unfounded civil claims that then led to criminal investigations, which then took many years. We have demonstrated in Committee that the actual number of prosecutions have been very small, but in terms of civilian claims there is also a very important set of claims that we should protect: the claims that allow servicemen and women and veterans to bring claims against the Ministry of Defence. That is done in two ways: via a civil claim or under the Human Rights Act. As I said this morning, some people in this place suddenly start frothing at the mouth as soon as the Human Rights Act is mentioned, but as I have said, it protects us all by giving us basic human rights.
The problem with part 2 of the Bill is that it will not only stop the straightforward civil claims, where people ask for compensation for injuries and other things; it would limit claims under the Human Rights Act. Such claims are important. I referred this morning to the Smith case involving Snatch Land Rovers, which was around the right to life and human rights. Hilary Meredith, who I thought had very good, detailed knowledge in the claims area, said in her evidence:
“There is a difficulty putting a time limit on the Human Rights Act—I do not even know whether we can do that constitutionally, because it is a European convention.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 18, Q30.]
I said that I would not question the Minister’s motives for what he is trying to achieve, but again, we are the seeing the huge implications that this Bill could have. We have already discussed criminal cases and possible trials before the International Criminal Court, but it would be interesting to know how the longstop—which is stopping the rights we all have under the Human Rights Act for veterans and armed force personnel—will be put into practice legally if, as Hilary Meredith said in her evidence, the UK has certain rights that are not just governed by what we agree as a country, but are part of an international convention on human rights. How does that square with part 2 of the Bill? That needs some explanation, because I do not want veterans and armed services personnel not to be covered by the Limitation Act 1980 or the rights that we all get from the Human Rights Act.
Chris Evans (Islwyn) (Lab/Co-op)
Does my right hon. Friend agree that the nub of the problem that he is driving at is that clause 8 and schedule 2 take away the court’s discretion under section 33 of the Limitation Act 1980 to disapply the time limit if
“it would be equitable to allow an action to proceed”?
That is being taken away from our service personnel, and it is the same under the Human Rights Act. Is not the nub of the problem with clause 8 that it is removing the court’s discretion to allow these actions to go ahead?
Mr Jones
It is. Again, this is about the rights of veterans and armed services personnel, which I thought this Bill was trying to protect. If we are taking away rights that everyone else has access to, that is a retrograde step. We need an explanation of why that is being done and why it is necessary, because I certainly do not think it is proportional. Again, that is one of the things this debate has thrown up, in that the Bill is about protecting the MOD from litigation, whether by armed forces personnel or veterans, and that cannot be right.
Coming back to investigations, Hilary Meredith raised another important thing that does not apply:
“That is a really interesting point, actually. I had not thought of a time limit on investigations. Certainly under the Human Rights Act, there is a right to have a speedy trial, and that did not happen in these cases.”—[Official Report, Overseas Operations Public Bill Committee, 6 October 2020; c.19, Q31.]
This issue therefore cuts into investigations, another central point that we have been considering in this Bill.
When the Minister replies, I would be interested to know whether that has been cleared. I am not sure whether things still work this way, but when I was a Minister, the usual process for bringing forward a Bill involved sending a write-round to all Departments to get their agreement before it was sanctioned to come before the House. I do not know whether that still applies, because I know that, for a lot of things that this Government do now, they do not accept the usual common-sense conventions, which are there for very good reasons—to stop this type of thing—but how will the MOD be separate from the Human Rights Act?
Chris Evans
My right hon. Friend was a member of the Defence Committee, which wrote to the Secretary of State in July 2020 saying that
“the Bill may not be an effective way of achieving”
the aim of protecting personnel and veterans against
“vexatious and unnecessary investigations and prosecutions”.
My right hon. Friend was a member of that Committee. Does he agree with its finding that the Bill would have been better served by scrutiny from an ad hoc Select Committee before it came before Parliament?
Mr Jones
I am a big defender of pre-legislative scrutiny. I think I said a couple of sittings ago that our current system of pre-legislative scrutiny as part of the Bill Committee process is important. However, an important Bill such as this should have been road-tested a little more than just what we are able to do here, in terms of not only scrutiny, but the process that we are going through today.
I come back to the point that I do not understand why the Bill is now before us—well, I do understand, because the Minister gave it away the other day; it is an election commitment to bring it within 100 days of taking office—rather than what would have been a better place for it, the armed forces quadrennial review next year, which could have covered those issues. Now we are going to have a strange process: we will have this Bill and then the Armed Forces Bill next year, which we are now told will cover investigations, because the Secretary of State has now set up a commission to look at that. The best thing would have been to do those two things together, but that would not have met the political commitment that was put forward.
I do not think it is too late to make some changes to the Bill to improve it on investigations. Deleting part 2 would certainly be an important part of that, because part 2 changes the status of veterans and armed forces personnel. I genuinely believe what the Minister said in a Sunday newspaper over the weekend: that he does not want this in any way to affect our armed forces personnel. As I said, if it were left to both of us, we would guarantee that this type of limitation would not apply to individuals, but eventually none of us will be here and it will be the law that takes it forward. That is the weakness.
I do not understand why the Government want to reduce the role of veterans, and certainly not this Minister, who has prided himself on trying to be a champion for veterans. It is not just me saying this, or some lawyers or anyone else; we only have to look at the transcripts of the evidence put before us by the Royal British Legion. On 8 October, we took evidence from Charles Byrne from the Royal British Legion and General Sir John McColl from Cobseo. My hon. Friend the Member for Portsmouth South asked whether this was a breach of the covenant. The covenant should be about not only protecting the rights of veterans and armed forces personnel, but, where it can, enhancing them. Charles Byrne from the RBL spoke in response to the Minister, when the Minister said:
“No, because what we are looking to do is to protect, and to ensure that our servicemen are not disadvantaged.”
Mr Byrne replied:
“I think it is protecting the MOD, rather than the service personnel—that is the debate that we have had.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q163.]
I think it is clear, as we have heard from other witnesses as well, that this goes against the armed forces covenant. I fully support the covenant, and not just in ensuring that the armed forces have no disadvantage and are treated the same. I take a very clear view on this. If people have served their country, they should be given certainly the same rights as everyone else, and in some cases better ones to recognise that service. That is important.
Mrs Emma Lewell-Buck (South Shields) (Lab)
On that point about the exchange between the Minister and the Committee, and the evidence sessions, is my right hon. Friend aware that the figure of 94% was based on an extrapolation of a sample of cases, and not on all post-six-year cases?
Mr Jones
It was, and that is where the disagreement about the figures comes from, and not for the first time in this Bill. Early on, we asked for the number of litigation cases, which was the reason why the Bill was introduced. We got various arguments, and one figure was 900 and another 1,000. If we want to act in the best interests of veterans, we need to know the extent of the problem, so my hon. Friend makes a good point. Again, even if we accept the figure of 94%, then 6% of people will not be able to take claims against the Ministry of Defence—including, as was argued by the personal injury lawyers, in those like the Snatch Land Rover cases and the ones that I outlined this morning. That cannot be right. I do not understand what the Government think is to be gained from taking away the rights of veterans and service personnel.
We are dealing with small numbers here, but this is important. If I was in prison—perhaps some on the Committee wish I was—and I made a claim against the Ministry of Justice, there would be certain time limits. But there are always cases under the Limitation Act that fall outside those limits. Prisoners have the right to take those cases out of time and stand before a judge, or have legal representation, to argue that they need their case considered out of time. They can do that because of section 33.
Asylum seekers can do the same. A claimant against the Ministry of Justice, whether on housing or anything else, can argue successfully to a judge that they had not brought the claim because of various circumstances, such as a refugee’s trauma from being in a war zone, and that they need a chance to bring their case, although there is no guarantee that their case will be accepted. That is the case with veterans, too. The representative from the personal injury lawyers said that the numbers of such cases are small, but when the application does work and a judge says that the time limit does not apply, it is very important. Snatch Land Rover is a great example of a case against the MOD.
Would that be a case against the armed forces? No, it would be against the MOD. No disrespect to the MOD lawyers—they are just doing their job—but if this provision is introduced, they will use that six-year backstop as a way of arguing that a case cannot go forward. The individual will have no rights whatever to go before a judge and argue that their case, for certain reasons, should be made an exception. The MOD is protected, rather than the veteran or serviceman or woman. That cannot be right.
We are brought back to the point of what is missing throughout the Bill. I accept what the Minister says: that he is passionate about these issues, and if it were down to him—if it were down to me and some others in this room, too, to be honest—veterans and servicemen and women would get first dibs every time, and quite rightly. But it will not be down to us; it will be down to officials in the Ministry of Defence.
Having worked with them, I have huge respect for officials in the Ministry of Defence, but they are in civil service mode. If they can protect the organisation, they will. That is not to be discredited. I remember dealing with lawyers in the MOD when I was there over the nuclear tests veterans cases, where, frankly, we were going to spend millions of pounds on a case that should have been settled. I successfully argued for a settlement proposal to be put forward; unfortunately, it was rejected by the other side. Again, the natural reaction was to defend the indefensible. I said, “Wait a minute—how much do you want to spend in lawyers’ fees to do this?” That is what will happen here. It will be an easy get-out for the MOD, because it will have the protection of a backstop of six years in law. The individual will no longer have the right.
Judicial oversight is a problem throughout the entire Bill. Having employed lawyers in a previous life and dealt with them over many years, am I a great fan? I am a fan of some of them, because some are very good. Some are also very bad, as the hon. Member for Darlington will attest. The point is that they do their best on behalf of their client. They are not making things up; they are using the laws that we pass in this place to advance the case that someone has presented before them. We should not be putting obstacles in their way, in terms of servicemen and women and veterans.
This is really a probing amendment. Someone asked, “Is it a bit of fun?” No, it is actually a serious point. When the average person on the famous Clapham omnibus realises that we are taking rights away from veterans and that prisoners and asylum seekers will have more rights than veterans, they will rightly be appalled.
Even if the Minister cannot accept the amendments today, I urge him to reflect on part 2 to see whether we can remove it from the Bill. We should at least ensure that the disadvantage to servicemen and women and veterans is not enshrined in law. If that happens, it will be a travesty. It would actually be a disappointment to the Minister, because he is trying to protect victims—instead, he will have done something that makes their lot in life worse. As a number of people said in the evidence sessions, servicemen and women and veterans have too few rights as it is. Taking away more of them cannot be right.
Carol Monaghan (Glasgow North West) (SNP)
First, I thank the right hon. Member for North Durham. I agree with everything he has said. Of course, I raised part 2 of the Bill on Second Reading—I have major issues with it. One of the SNP’s amendments, which unfortunately was not selected, was about removing time limits completely. Perhaps a better idea would be to remove part 2 of the Bill.
Having sat through Second Reading, four sessions of oral evidence and this morning’s session, I still cannot see how a six-year limit on claims benefits veterans. I know the Minister has tried to explain the measure by saying it will allow them to make claims more easily, but the reasons why veterans are not claiming are very complex. Frankly, I have serious doubts about the time limit, as does the organisation that has arguably done more for veterans than any other: the Royal British Legion, which stated its concerns about part 2 of the Bill. It has said that, as currently drafted, part 2 introduces a time limit for civil claims from veterans, serving personnel and their families where one does not currently exist, and it risks a breach of the armed forces covenant, as there will continue to be no limit for civilians in relation to their employer.
During the evidence sessions, the Minister said it is a disadvantage to have to go and serve and put one’s life at risk. We understand that—none of us is disputing that—but we are talking about whenever we are comparing like for like, claim for claim. Does the Bill put veterans at a disadvantage? It absolutely does. The Royal British Legion has said that part 2 of the Bill should be improved to ensure that no member of the armed forces community is left subject to a time limit when pursuing a civil claim against the Ministry of Defence as an employer, and to avoid a breach of the armed forces covenant.
Personal injury awards can be substantial, so we understand why the MOD wants to minimise the opportunity for such claims, but if harm has been done to individuals that is due to negligence, why are we making it more difficult for them to seek recompense?
Carol Monaghan
We have also heard examples of veterans who have served in multiple conflicts or operations where they have been exposed to loud noises, explosions and all sorts—which one caused the hearing loss? Could it otherwise have been caused at a firing range in the UK? That is a real difficulty, and it causes problems.
Mr Jones
If overseas operations will be excluded after six years while for cases in this country a case could be made under the Limitation Act 1980, does the hon. Member not think that will also complicate hearing loss cases, if it must be determined where the hearing loss took place? It will be difficult to disaggregate these points.
Carol Monaghan
In such situations, we know that the person who will benefit is not the veteran. That is the problem with part 2 of the Bill and the six-year limit. There must be protections in place to ensure that veterans who have served and suffered personal injury can seek justice for those injuries.
There are other examples, such as the nuclear test veterans. It was good to hear about the work done by the right hon. Member for North Durham on that. I have had interactions with those veterans, including a constituent of my own who, sadly, died. Many have waited decades and decades for compensation and have had nothing—not even any medals to recognise the service they undertook. There are still ongoing issues, and again the MOD has denied that the cancers that those veterans have suffered are related to their service, despite a number of them having similar cancers and there being no links other than the Christmas Island testing.
I could also mention Lariam, an anti-malarial drug that can cause real issues for individuals’ mental health, but not always instantly—it can happen on a much later date. My own husband was given Lariam and suffered as a result. Thankfully, he has not had any long-term issues, but many individuals’ mental health is affected many, many years beyond that.
Jack Lopresti (Filton and Bradley Stoke) (Con)
I really enjoyed the hon. Member’s speech this morning— I did not agree with most of it, but it was well presented, with a good argument made. Is she saying that there should be no time limit at all for actions being brought?
Carol Monaghan
I thank the hon. Member for his kind comments. There is already a limit, but that limit can be looked at and overridden in certain circumstances. That should remain in place; there is no reason to take that away. We are not saying, “We encourage all veterans to wait 30 or 40 years”, but there must be some protections. There cannot be a hard stop that prevents them from taking any action.
We all understand the Bill’s purpose and why it has been brought forward, even though we might not agree with all of it and we might have issues with some of it, but part 2 of the Bill makes no sense whatever. The Bill has been sold to veterans as protecting them and looking after them, with the Government having their back. Actually, part 2 does the opposite. Why do the Government want to prevent between 19 and 50 veterans from seeking justice? I would like to know that from the Minister, because we have not yet had a decent answer on that point.
Mrs Lewell-Buck
It is always a pleasure to serve under your chairmanship, Mr Mundell. I rise to speak briefly about part 2 of the Bill. I will try not to detain the Committee by repeating the comments of other hon. Members.
Time and again, concerns have been expressed in written and oral submissions to this Committee—they were mentioned again today by my right hon. Friend the Member for North Durham—about the civil litigation longstop. If this part of the Bill is unamended, there is a high risk that the Ministry of Defence will not be held accountable for violations of soldiers’ and civilians’ rights—the largest proportion of claims made against the MOD are claims of negligence and of breaches of the MOD’s duty of care towards its soldiers. Between 2014 and 2019, the available data shows that such claims amounted to more than 75% of all claims.
Part 2 of the Bill will benefit only the Ministry of Defence, and yet the Ministry of Defence is the defendant in all those claims. That is a clear conflict. The Minister and the Department have created a policy that protects them from legitimate legal claims. I am unaware of any other instance of our legislation being drafted in such a way as to protect the defendant over the claimant. I find it astonishing that the Minister wants to treat our forces and veterans in that way, placing them as such gross disadvantage.
As my right hon. Friend the Member for North Durham said, there remains a lack of clarity about the number of people who would be disadvantaged by the longstop. It would be helpful if, in summing up, the Minister provided some transparent and accurate figures to clear the issue up, once and for all. We are making legislation without proper knowledge and without a proper basis.
In oral evidence, we heard over and over again that the Bill protects the MOD, but not our forces. It breaches the armed forces covenant. It gives our forces less protection than civilians and, in some cases, even prisoners. We heard that from not one or two witnesses, but a broad and wide-ranging group of organisations, some of which, traditionally, would not necessarily agree with each other: the Royal British Legion, the Centre for Military Justice, the Association of Personal Injury Lawyers, Liberty and Human Rights Watch. Written evidence struck the same chords. When the Minister gave evidence, he appeared unable to find literally anyone at all who supports the longstop. If someone does, I hope that the Minister will share that fact with us.
The whole point of Bill Committees, as I have said repeatedly, is to improve and amend legislation, so that it emerges better than it was when it arrived with us. Indeed, the Minister has stated many times on the record that he wants to work with people in and outside this place to make the Bill the very best it can be, so that it meets its intended aims. I sincerely hope that that commitment was not an empty gesture. A good way to prove that it was not is to consider our amendments, listen to our comments and take them on board, and ensure that so many people are not disadvantaged when making claims against the MOD.
Liz Twist (Blaydon) (Lab)
I, too, will not occupy too much of the Committee’s time, but I want to raise the issue of the impact on the ability of veterans and serving personnel to bring claims.
Yesterday, additional written evidence was circulated to us from a number of people, including Dr Jonathan Morgan of the University of Cambridge, in document OOB09, which refers to the impact of part 2 of the Bill on the ability of people to bring a claim; their rights will be restricted.
We also had evidence yesterday from Professor James Sweeney; I am afraid I do not have the reference number. He clearly points out deficiencies, and tackles head on, in paragraph 11 of his evidence, the Minister’s assertions that we are reading the provisions incorrectly. I ask the Minister and his advisers to look at that closely. We had evidence from the Association of Personal Injury Lawyers, too. We have heard comments about people’s views on personal injury lawyers and in whose interests thing are, but to me that evidence is clear and well set out.
Mr Jones
The hon. Member for Glasgow North West, who speaks on behalf of the SNP, raised the issue of nuclear test veterans. In 2009, when they brought their case against the MOD, it was a limitations case, because the injuries happened in the 1950s. They won it because new evidence came forward and Mr Justice Foskett argued that the limitation case could go forward. Is it not clear that if that happened now, that case would not even have been heard?
Liz Twist
My right hon. Friend is absolutely correct. That is why it is important that this part of the Bill be either substantially amended to protect the rights of veterans, or perhaps taken away altogether.
The Royal British Legion, talking about disadvantage under the Covenant, says:
“The Armed Forces Covenant states: ‘those who serve in the armed forces, whether regular or reserve, those who have served in the past, and their families should face no disadvantage compared to other citizens in the provision of public and commercial services…in accessing services, former members of the Armed Forces should expect the same level of support as any other citizen in society’”.
We all need to take very seriously the concerns raised by the Royal British Legion about claims and the breach of the armed forces covenant. I have no doubt that it is not the Minister’s intention to disadvantage people, but the Bill as drafted will do so. I ask him to look at this very seriously, and to consider amendments to the Bill.
The Minister for Defence People and Veterans (Johnny Mercer)
It is good to see you back in the Chair, Mr Mundell.
I appreciate the opportunity to address some of the points raised. My intention is not to disparage Members’ intentions, because I get it: people want to support our armed forces and do not want to disadvantage them. I do not want to disadvantage them. However, some things—the data is a good example—are being totally misused to promote these points. For example, on the statement that from 2014 to 2019 there were however many thousand claims, that number includes claims in the UK that people would bring under tort or civilian law against an employer. This Bill does not apply to that; it is called the Overseas Operations (Service Personnel and Veterans) Bill. In no way are those comparisons being made in a fair manner. This Bill applies only to those allegations and claims that affect our service personnel overseas.
Johnny Mercer
I will get to my point. There were 552 employer liability claims from what happened in Iraq and Afghanistan. Today’s Daily Mirror had sounded familiar to a couple of the speeches: it mentioned “21,000 claims”. It is total nonsense. That is the total number of claims that people have made against the MOD in the period from 2004 to 2017. They are claims in a civilian workplace environment, where there are civil liabilities claims, claims regarding exercises and so on in the UK, and breach of contract claims. In the Bill, we are talking specifically about overseas operations. Whoever is providing these figures is demonstrating a pretty basic misunderstanding of what is going on—or it is a deliberate attempt to mislead, but I am sure it is not. The two things are not comparable in any way.
Mr Jones
To me, that does not matter. Why should armed forces personnel be treated differently when something happens in this country, as opposed to overseas? It might not be in combat; it might be on a training mission, or something like that. As I said, if one veteran is disadvantaged, that is one veteran too many.
Johnny Mercer
It does matter. Facts do matter in this debate; figures do, too.
Mrs Lewell-Buck
Where can we find the figures that the Minister is quoting to us?
Johnny Mercer
The figures have been published in the impact assessment a number of times. The hon. Lady can shake her head, but again, we are in a space of alternative facts. The figures are in the impact assessment, which is before the House.
Carol Monaghan
The Minister is talking about overseas operations. We all understand that, and that the Bill applies to those serving overseas. However, if my employer sends me overseas, and I suffer an injury there due to the negligence of my employer here in the UK, I can sue the employer for the injury. The same should be the case for veterans. It is not about whether it is overseas or here; it is about having the same rights as civilian employees.
Johnny Mercer
I disagree, and this is why. Operational service overseas is fundamentally different from life in the UK, and from what we ask our people to do. The hon. Lady is absolutely right: we have a duty in this country to protect those overseas, whether it is against improvised explosive devices, bombs, electronic warfare, or indeed legal systems used to bring warfare by another means. That is what this Bill is trying to do.
I understand the assertion that if someone from the Royal British Legion was deployed on an operation, the six-year limit comes down. Viewed on its own, that is something that will happen to serviceperson, but not a civilian. Disadvantage is a comparable term. Disadvantage to who? The Government argue—this I am clear on—that these people are seriously disadvantaged by having no legal protection against these thousands of claims that we have seen come in over the last 15 or 20 years. What the Royal British Legion would like us to do is to put that to one side—[Interruption.] No, it is, because I have engaged with it extensively. It would like us to apply that to one side of the argument, which, again, is not legal. Under European human rights law, people are being disadvantaged and discriminated against based on the claimant, which is not legal. This cannot be brought in on one side.
Mr Jones
The Minister is taking rights away from servicemen and women. He talked about overseas operations, but let us say, for example, someone is in British Army Training Unit Suffield in northern Canada on a training exercise. If that is classed as an overseas operation, or a peacekeeping operation—
Johnny Mercer
Because what the right hon. Gentleman says—I have a lot of respect for him—is simply not true. BATUS is not an operational environment. It is not a peacekeeping mission. It is a training unit mission. As I said this morning, and speaking from a point of knowledge, when it came out in the inquiry about the Snatch Land Rover cases, that is when the six-year thing started. That would not have been affected by this legislation.
We could keep raising these points, but I am not going to change my view, because it is based on the truth. I cannot suddenly say, “Yes, BATUS is a war-fighting operation, so this stuff applies.” I cannot say, “These people would be affected in the Snatch Land Rover case,” because that is simply not the case.
Johnny Mercer
I will come back to the right hon. Gentleman in a minute. He talks about taking rights away from our service personnel. They have a right to be protected on the battlefield in all these areas. One area where they have a right to be protected is the use of lawfare to progress, and change the outcome of, a conflict through other means.
There were lots of wild sentiments thrown around—“lawyers don’t make things up,” and all the rest of it. Again, that does not collide with reality. Phil Shiner has been struck off. The reality—the world as we find it—is what this Bill is designed to deal with.
Jack Lopresti
On a point of clarification, would a deployment in Cyprus or Estonia be covered by the Bill?
Johnny Mercer
We are talking about overseas operations, wherever they take place outside the UK. UK operations and operations outside the UK are defined in the Bill.
Mrs Lewell-Buck
I think the Minister is falling foul of something that a lot of witnesses in the oral session said he would: he is confusing the criminal law with the civil law. Largely, our concerns around part 2 are about the civil aspect.
Johnny Mercer
What is being confused here is the difference between tort and human rights claims; that was being confused a lot in the comments made just now. Regarding the evidence sessions, I accept that there are aspects of this legislation that some of the people who came in—public interest lawyers, the Association of Personal Injury Lawyers, Hilary Meredith and others—do not like. I do not dispute that for a minute, but my job is to protect those who serve on operations from all those different threats, including lawfare, which has not been done before. Other nations do it, and we have a duty to protect these people as well.
Liz Twist
I can understand the Minister’s concerns about some of the comments, but the Royal British Legion exists to protect people who have served in the forces. That is one of their key aims. If they are saying to us that the provisions present an issue, is it not right that we take note of that, address it, and deal with it clearly?
Johnny Mercer
Absolutely; it is right to take note of it, and I have engaged with it extensively on this issue, but the legion does not own the covenant—nobody does. It belongs to the nation. The covenant was designed to ensure that when a service person and a civilian are in a comparable situation, the service person is at no disadvantage. It was never designed to ensure no disadvantage whatsoever. We send our people away from their families for six or seven months of a year—that is a disadvantage. We send them away to undertake dangerous work—that is a disadvantage.
The covenant was meant to mean that when two people are in the same situation, the service person is not disadvantaged, and that is why the Bill says that it applies to a civilian in these environments in exactly the same way. I heard the right hon. Member for North Durham say again this morning that civilians were not covered by this Bill. Well, they are. It is in the Bill.
Mr Jones
The Minister said these rights protect people, but the covenant is not about taking rights away from people. I know we fixate on the date of knowledge, but when he is no longer a Minister and none of us are here anymore, the Ministry of Defence lawyers will not use this provision to say that a case is time-barred. There is nothing in this Bill that says that. That is the problem he has. I do not for one minute think that he is suggesting otherwise, and he is perhaps well intentioned, but he is just wrong on this, and is trusting the MOD too much.
Johnny Mercer
I accept the right hon. Gentleman’s point. He will not find many Ministers who will say that half is the Department’s problem in terms of how it has investigated and so on. I have a healthy interrogation of any advice I am given. I accept his point that there is a danger of abuse, but we have written into the Bill that point of knowledge. I am not fixated on it; it is just there in black and white.
Johnny Mercer
I will come back to the right hon. Gentleman. I want to finish what I am saying—I do not want to repeat myself and bore everybody—and then I will take more interventions.
Clause 8, in conjunction with schedule 2, introduces new factors that the courts must consider when deciding whether to allow certain claims relating to overseas military operations to be brought after the normal time limit, and sets the maximum time limit for such claims at six years. The Government intend to ensure that claims for compensation for personal injuries or deaths arising from overseas military operations are assessed fairly and achieve a fair outcome for victims, for the service personnel and veterans called upon to give evidence, and for the taxpayer.
Section 2 of the Limitation Act 1980 sets an absolute time limit of six years for compensation in claims relating to most types of tort. Although sections 11 and 12 set a three-year limit for claims for personal injury or death, the three-year limit is not absolute. Section 33 of the Act gives the court discretion to allow claims to be brought beyond the time limit if it considers it fair to do so. Section 33 identifies six factors to which the court must have a particular regard when assessing fairness. In broad terms, those relate to the steps taken by the claimant to bring the claim, the reasons for delay and the effect of delay on the quality of the evidence. Those factors do not adequately recognise or reflect the uniquely challenging context of overseas military operations. The Government are concerned that unless the court is directed to consider relevant factors, it might wrongly conclude that it is fair to allow older claims to proceed. The clause, in conjunction with schedule 2, introduces three new factors that the Government consider properly reflect the operational context to which the court must have particular regard.
Mr Jones
Is it not for a lawyer, when they are arguing a limitations case, to make the case for special circumstances? They can do that now in law. If the measure goes through unamended—I accept that this is not the Minister’s intention—the MOD will use it as a way of blocking cases. We only have to look at the nuclear test veterans case of 2009 and Judge Foskett’s summing up. The MOD’s argument in the limitations hearing was that the case was out of time, but it was successfully argued that new evidence had come forward. That was possible because it was before a court of law. This measure stops that.
Johnny Mercer
I will address that point in my final remarks on the clause. The factors that have to be considered are the extent to which assessment of the claim will depend on the memories of service personnel and veterans, the impact of the operational context on their ability to recall the specific incident, and the impact of doing so on their mental health. The new factors reflect the reality of overseas military operations—the fact that opportunities to make detailed records at the time might be limited; that increased reliance might have to be placed on the memories of the personnel involved; and that as some of them might be suffering from mental health illnesses owing to their service, there is a human cost in doing so. The human cost obviously goes beyond that of the service person and will be felt just as much by their families and friends. Families of the military community are a core aspect of the armed forces covenant and must not be overlooked when we consider the measures in the Bill.
Clause 8, in conjunction with schedule 2, also introduces an absolute limit of six years for claims for personal injury or death arising from overseas military operations. This change brings the absolute time limit for personal injury or death claims in line with other claims for other torts that might occur on operations, such as false imprisonment. It also gives service personnel and veterans certainty that they will not be called upon indefinitely to recall often traumatic incidents that they have understandably sought to put behind them.
Finally, this clause, in conjunction with schedule 2, amends the Foreign Limitation Periods Act 1984, so that claimants cannot benefit from more generous time limits under foreign law. This change is needed for consistency and will ensure that no claim is brought after six years. I must emphasise that the Government are not seeking to stop meritorious claims or to avoid judicial scrutiny, nor are we seeking to put the armed forces or the Government generally in a more favourable position compared with their position as regards other defendants.
The changes that this clause and schedule 2 introduce go only as far as is necessary to ensure a fair outcome. They do not affect the way in which the time period is calculated or those provisions that suspend time in appropriate circumstances. They are also consistent with court rulings that claimants do not need to be provided with an indefinite opportunity to obtain a remedy. The courts have recognised that limitation periods have an important role to play in ensuring legal certainty and finality and in preventing injustice. The changes that this clause, in conjunction with schedule 2, introduces are a reasonable and proportionate solution to the problem of historical claims.
I will not repeat the same arguments for clauses 9 and 10, which amend the legislation in Scotland and Northern Ireland, but I will just add that the Limitation Act 1980 only covers claims brought in England and Wales. It is therefore necessary to extend similar provisions across the whole of the UK to prevent forum shopping. It would be deeply unsatisfactory if changes that the Government are introducing to achieve a fairer outcome in relation to claims brought in England and Wales could be circumvented by a claimant’s bringing their claim in Scotland or Northern Ireland instead.
Turning our attention to new clause 2, none of the measures in part 2 of the Bill will prevent service personnel, veterans or their families from bringing claims against the MOD in connection with overseas operations within a reasonable timeframe, as historically most have done anyway. The purpose of the limitation longstops is to stop historical and often vexatious claims being brought against the military on overseas operations, which put our service personnel at the mercy of being called to provide evidence long after the alleged events in question, with all the harm and anxiety that might cause them.
To ensure fairness between claimants, we have not excluded service personnel from those provisions. They will apply equally to service personnel and veterans as they will to any other person bringing a claim against the MOD in connection with overseas operations. I am confident that these measures do not break the armed forces covenant. The new factors and limitation longstops only apply to claims in connection with overseas operations and will apply to all claimants in the same way. The court’s discretion to extend the three-year time limit for death or personal injury claims and the one-year time limit for human rights claims remains unchanged in respect of any other claims, that is, those not connected to overseas operations brought against the MOD.
Additionally, our evidence suggests that 94% of those claims from service personnel are already brought within six years. We would expect that figure to rise in future, as we ensure that the armed forces community is made aware of the new measures and the relevant dates for bringing claims, including what is meant by the date of knowledge. That should encourage personnel to bring claims within six years, or earlier if possible, as after the primary time limit of three years for personal injury and death and one year for human rights claims expires, claimants must rely on persuading the courts to exercise their discretion to extend the time limit.
In summary, clauses 8 to 10, as they stand, do not breach the armed forces covenant and do not disadvantage service personnel or veterans. Let me make this clear point: on operations and in the area of modern warfare, we cannot lift human rights legislation and apply it to the battlefield. I accept that some people want to do that and think that is the right thing to do, but I respectfully disagree. The idea that people can go to court and argue for an extension produces exactly the position we find ourselves in now, where individuals such as Phil Shiner, who the right hon. Member for North Durham mentioned, have sought extensions under those situations, in order to bring thousands and thousands of claims against the MOD.
We are stuck in a position where we have to do something. In that scenario, I cannot apply something to one side, as I have indicated already, although the Legion would like me to. Similarly, we cannot take away all time limits, because that would defeat the entire purpose of the Bill, which is to provide some certainty for veterans. I accept what some hon. Members have said about people’s ability to sue within that timeframe if they are serving overseas. If they were in the UK on exercise or in Canada, it would be different, but that is because the unique nature of operations is different.
We have a duty to protect those people, as I said, both physically, from what is on the battlefield, and in the court of law. We have seen some horrendous experiences over the years. We can say, “It’s all too difficult”, and that we need to walk away—the reason why, for 40 years, no Government have done this is that it is really difficult—but we are in a position where we have to make choices: either we choose to leave the situation as it is now, letting it continue with no time limit, or we bring forward legislation to give certainty to our veterans.
Mr Jones
I am sorry—I do not agree with that. There is a way to improve the Bill, as with the issue of investigations raised earlier. We have talked about the Human Rights Act 1998, but if the Minister reads the judgment in the Smith case, he will see that the Supreme Court was clear about the Act’s limitations. Will the Minister explain the proposal to have a one-year time limit on human rights cases? Will he explain how he will limit appeal if section 33 does not apply to human rights cases, which it will not if the Bill goes through? How does that fit with our obligations under the convention?
Johnny Mercer
Our obligations under the European convention on human rights are not changed in any way. We have to design an investigative framework that is resilient and robust in the face of challenge under the convention. I have to disagree with the right hon. Gentleman—clearly, there is a difference of opinion here. That is allowed, that is what this place is all about, but the reality is that those on the Government Benches have a different view, which is that we cannot let the situation that has persisted for the past 40 years continue ad infinitum. We have to bring in fair and proportionate legislation to go beyond saying nice things about our people, or, “Isn’t it terrible that these people get dragged through the courts?”, while being prepared to do absolutely nothing about it. I am afraid that those days have come to an end. We have to legislate to protect our people. I will give way once more, and then I will finish.
Mr Jones
There is nothing fair about taking rights away from veterans. On the Human Rights Act, the one-year limit to bring a claim is clearly still there, but at present someone could bring a late claim under section 33 if at the time they thought it was not there. The Minister said that we would be abiding by the convention. Will he point to where in the convention—on our side, in the Human Rights Act—it says that time limits and out-of-time claims are applicable? I cannot see that.
Johnny Mercer
As the right hon. Gentleman will remember from his time in government, all legislation has to be signed off as ECHR compliant. The Department has done that, recognising our responsibilities under the legislation and meeting its requirements. He talks about rights, but people such as Bob Campbell have a right to be protected from experiences such as his over the past 17 years, and the soldiers who went through al-Sweady have a right to be protected as well. This is not all in one direction—it is not a one-way street—and we are clear that those people have a right to be protected in the jobs that we asked them to do. That is what the clause is all about, so I ask that it stand part of the Bill.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Schedule 2
International Criminal Court Act 2001
Stephen Morgan (Portsmouth South) (Lab)
I beg to move amendment 29, in schedule 2, page 16, line 4, leave out “six” and insert “ten”.
The Chair
With this it will be convenient to discuss the following:
Amendment 30, in schedule 2, page 16, line 35, leave out “six” and insert “ten”.
Amendment 31, in schedule 2, page 17, line 16, leave out “six” and insert “ten”.
Amendment 32, in schedule 2, page 18, line 34, leave out “six” and insert “ten”.
Amendment 33, in schedule 2, page 19, line 18, leave out “six” and insert “ten”.
Amendment 34, in schedule 2, page 19, line 26, leave out “six” and insert “ten”.
Amendment 35, in schedule 3, page 20, line 40, leave out “6” and insert “10”.
Amendment 36, in schedule 3, page 21, line 3, leave out “6” and insert “10”.
Amendment 37, in schedule 3, page 21, line 8, leave out “6” and insert “10”.
Amendment 38, in schedule 3, page 21, line 14, leave out “6” and insert “10”.
Amendment 39, in schedule 3, page 21, line 15, leave out “6” and insert “10”.
Amendment 40, in schedule 3, page 21, line 19, leave out “6” and insert “10”.
Amendment 41, in schedule 3, page 21, line 20, leave out “6” and insert “10”.
Amendment 42, in schedule 3, page 21, line 26, leave out “6” and insert “10”.
Amendment 43, in schedule 3, page 21, line 27, leave out “6” and insert “10”.
Amendment 44, in schedule 3, page 23, line 6, leave out “6” and insert “10”.
Amendment 45, in schedule 3, page 23, line 35, leave out “6” and insert “10”.
Amendment 46, in schedule 3, page 23, line 36, leave out “6” and insert “10”.
Amendment 47, in schedule 4, page 24, line 4, leave out “six” and insert “ten”.
Amendment 48, in schedule 4, page 24, line 28, leave out “six” and insert “ten”.
Amendment 49, in schedule 4, page 24, line 34, leave out “six” and insert “ten”.
Amendment 50, in schedule 4, page 25, leave out line 16 and insert—
“ten years is to be treated as a reference to the period of ten years”.
Amendment 51, in schedule 4, page 26, line 36, leave out “6” and insert “10”.
Amendment 52, in schedule 4, page 27, line 20, leave out “6” and insert “10”.
Amendment 53, in schedule 4, page 27, line 21, leave out “6” and insert “10”.
Amendment 54, in schedule 4, page 27, leave out line 27 and insert—
“10 years is to be treated as a reference to the period of 10 years plus –”.
Stephen Morgan
Ministers have said that the purpose of the Bill is to protect service personnel, but part 2 as drafted does the exact opposite. We are not here to score points or to play politics; we are here to work constructively with the Government and to highlight the areas of the Bill that must be improved. That does not need to be a binary choice. By moving the amendment, our objectives could not be simpler—to protect our personnel’s access to justice and to redress the Bill’s negative implications for our forces’ welfare. Are those concepts that Ministers cannot get behind?
In the Committee’s witness sessions, there was consensus among the specialists from whom we heard. From decorated soldiers to human rights groups and from lawyers to armed forces charities, there was agreement. Consensus on the Bill in its current form may erode rather than enhance the rights of personnel. Most notably, we heard comments from the Royal British Legion, and I am sure that no one would question its age-old, unwavering commitment to the welfare of our troops.
With that in mind, I am concerned about what the Royal British Legion has said, which is that the Bill constitutes a potential breach of the armed forces covenant—a deeply worrying conclusion from the UK’s largest armed forces charity.
Mark Eastwood (Dewsbury) (Con)
The hon. Gentleman mentions the Royal British Legion. When my hon. Friend the Member for Wrexham asked Charles Byrne whether the Royal British Legion opposes the Bill, did he not say that it does not?
Stephen Morgan
It was clear that the Royal British Legion is in favour of the intent of the Bill but has concerns about part 2, which it believes breaches the armed forces covenant. Charles Byrne was very clear on that point.
Johnny Mercer
I make this point again. I have heard it said a number of times, “We support the intent of the Bill.” Over 40 years Members have spoken of supporting the intent of looking after our veterans and protecting them from vexatious claims. No one has done anything about it. Lots of people gave evidence and said they supported the intent of the Bill. It does not mean anything unless we get into the detail of the Bill. The Royal British Legion did not oppose the Bill; it said it had concerns about the armed forces covenant, which we addressed, but it did not oppose the Bill.
Mrs Lewell-Buck
I am looking at the transcript of the evidence given by the Royal British Legion, in which it said:
“‘Can we achieve those aims without disadvantaging service personnel?’ If we can do both, both should be done.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 89, Q168.]
It welcomed the intent behind the Bill and believed that it could “be improved.” No Labour Member is against the Bill per se; we are against part 2. We are trying to improve the Bill as the Royal British Legion suggested. I do not understand why the Minister does not grasp that.
Stephen Morgan
I thank my hon. Friend for the intervention. She hits the nail on the head: we want to work constructively with the Government to get the Bill right. Sadly, we are not seeing that engagement, and that concerns us. Are Ministers not concerned that the very Bill they claim is devised to help our armed forces is said to be doing the very opposite by an organisation as distinguished as the Royal British Legion?
We heard from other important witnesses. The Association of Personal Injury Lawyers, a not-for-profit organisation representing injured serving and ex-service personnel, said:
“This Bill leaves our veterans with less rights than prisoners.”
I will repeat that because it is so important:
“This Bill leaves our veterans with less rights than prisoners.”
That is a damning verdict delivered by lawyers who devote their lives to representing our troops. Our armed forces serve the nation with distinction. They deserve more than to have their rights stripped away.
I say to the Minister: do not dismiss the warnings of the legion and APIL; work with us to address them.
Let us take a closer look at what part 2 means. The Limitation Act 1980 results in the armed forces community and civilians being treated equally in seeking a claim for personal injury. A three-year cut-off point is in place. The courts retain the right to grant an extension to forces personnel. Section 33 provides the court with discretion to override the current three-year limit, but this Bill deliberately snatches courts’ ability to show discretion if the case relates to an overseas armed forces action. It makes a deliberate change to the Limitation Act. That makes no sense. There are already structures in place to ensure that only appropriate claims are brought. Courts routinely manage out-of-time proceedings and frequently throw out cases where delay is unjustified. The detailed criteria set out in the Limitation Act 1980 already address cases that do not have reasonable grounds or are unjustified. Why is the Minister actively removing an aspect of the Limitation Act that offers courts the right to grant an extension in cases relating to armed forces personnel?
Mr Jones
As I said earlier in an intervention on my hon. Friend the Member for Blaydon, the nuclear test veterans case is a good example. There was a limitations hearing in which the MOD argued that the case was out of time because the incident took place so long ago. In that case, Judge Foskett argued that new evidence meant the date of knowledge was current and he allowed it to be admitted. I accept that the numbers are not huge, but it is the exceptional cases that are important.
Stephen Morgan
I thank my right hon. Friend for his remarks. I hope the Minister addresses the points that he makes so eloquently later on, in his summing up.
The Bill removes the ability of our armed forces personnel to bring forward a civil claim at all after six years, even where it would have passed judicial scrutiny. Under the Government’s proposed changes, civilians will retain the right to pursue a civil claim against their employer. Armed forces personnel will not, which clearly breaches the armed forces covenant. Non-discretionary time limits undermine justice and arbitrarily prevent legitimate claims from proceeding. We must hear the Minister’s business case for setting that time limit.
We have established that part 2 of the Bill is flawed. It introduces a six-year time limit for any claimant or bereaved family in bringing civil claims against the Ministry of Defence. That means that if someone suffers personal injury or even death owing to employer negligence and in connection with overseas operations, they can take no action after a six-year time limit. That is deeply concerning because a great many conditions might not come to light until after the time limit: for example, post-traumatic stress disorder.
Last year, The Times reported the case of Mark Bradshaw, aged 44, who had suffered from PTSD since being involved in a friendly-fire attack in 2010 while serving in the Royal Artillery. Despite the immediate onset of the condition, the veteran, who lives in Newcastle, was not given a diagnosis until 2016. By then he was drinking heavily and had suicidal thoughts. He had left the service and become alienated from his family. He was awarded £230,000 in a settlement, but feared that the proposed legislation could discriminate against those who do not develop PTSD or receive a diagnosis until many years later. He called the plan to impose a time limit on claims “horrendous”.
I have another example.
Mr Jones
Another issue concerns human rights cases. The impression being given is that they are always brought by people against the MOD and include litigants and people in foreign countries and so on, but Human Rights Act cases are also brought against the MOD by armed forces personnel. When Hilary Meredith gave evidence, she said:
“There is a difficulty putting a time limit on the Human Rights Act—I do not even know whether we can do that constitutionally”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 18, Q30.]
The Minister seemed to brush aside the fact that section 33 will be ignored in terms of time limits. Does he also think that that constrains the rights of veterans and service personnel from bringing cases against the MOD, which they can, under the Human Rights Act?
Stephen Morgan
We could spend all afternoon on different cases. That is why the amendment is so important. I have another example. It is about how legislation would have denied justice to a former royal marine with noise-induced hearing loss, according to the Association of Personal Injury Lawyers. The former marine received nearly half a million pounds for a noise-induced hearing claim on the grounds that his hearing loss and tinnitus was caused by a negligent exposure to noise. During his career the marine served in Northern Ireland, the Gulf and Afghanistan, and he was exposed to noise from thousands of rounds of ammunition, thunderflash stun grenades, helicopters and other aircraft and explosive devices. His claim related to his entire service.
When he left the Royal Marines in 2012 because of problems with his hearing, he was unaware that he was able to make a claim for compensation. He eventually spoke to a solicitor in late 2014, seven years after he was first aware that he had problems with his hearing. The MOD admitted liability and made no argument about his case being brought out of time. The time limit in this Bill, however, would have eliminated all aspects of the claim relating to the Marine’s extensive service overseas.
Johnny Mercer
I totally respect the manner and intent of the hon. Member’s remarks, but, again, the Mark Bradshaw case and the case of the royal marine, which we have looked at, would not be affected by this legislation. When Bradshaw became aware of his PTSD being service-related, it would have been dealt with within six years. The same detail applies to the royal marine.
I do not know what else to say, but the stuff that is coming forward—I have to be honest and say that I have heard it before, because I know it comes from a campaign group—is just simply not true. I do not know what to do with the cases being presented to me, which are simply incorrect.
Stephen Morgan
The claim could have been made only in relation to negligent exposure in the UK. It might not have been possible to isolate the extent and the effect of negligent exposure in the UK, making it very difficult to claim any redress at all. Why are some medical conditions worthy of justice, and not others? Many other medical conditions are likely to fall outside the cut-off point, and there are conditions such as long-term deterioration of joints resulting from carrying heavy equipment.
Mr Jones
Does my hon. Friend agree that what the Minister is saying cannot be the case? He cannot give any guarantee that such cases will not be resisted by the MOD. He cannot direct the MOD, because he will not be there when he leaves the MOD, and no one else can do it either. It is about protecting future cases. In the two cases referred to, the Bill would allow the MOD to legitimately turn those cases down because they were out of time. Those two individuals would have no recourse to law in order to enforce their rights.
Stephen Morgan
My right hon. Friend is absolutely correct. We are saying it time and again, but the Bill protects the MOD; it does not protect our troops. I hope the Minister will take that point on board.
Carol Monaghan
Does the hon. Gentleman share my concern that the Minister is suggesting that we are raising concerns because of a campaign group? Personally, I am not raising concerns because of a campaign group; I am raising concerns because of the protections being taken away from armed forces personnel and veterans. When an individual gets a diagnosis of PTSD, I cannot imagine anybody thinking, “The first thing I am going to do is lodge a claim against the MOD.” When a condition gets progressively worse, they might think about doing so over time, but not necessarily within six years.
Stephen Morgan
I thank the hon. Member for that intervention. We are not here just to speak up for campaign groups and emails; we are here to speak up for our armed forces. That is why we are absolutely keen to see the Bill improved. I really hope the Minister engages with these points in his summing up.
Is the Minister satisfied that the Bill in its current form will prevent troops who are suffering from these conditions from receiving justice? As we heard from APIL in evidence sessions last week, many troops are not aware that they can bring a claim against the MOD. They are directed to the armed forces compensation scheme, which pays out much lower sums. Why is it that the MOD has scrapped the proposed better compensation scheme, which would have seen payments that are closer to those offered in court settlements? Why is it that the Government are willing to introduce a six-year longstop for troops, but not for civilians? It puts troops at a patently clear disadvantage by comparison with civilians. As we heard last week from the director general of the largest armed forces charity in the UK—the Royal British Legion—it risks breaching our armed forces covenant.
Part 2 of the Bill in its current form protects the MOD; it does not protect our troops. Despite all this, it is not too late. The Opposition have proposed solutions today, and we can work together to address this issue. Protecting service personnel’s access to justice acts on the concerns voiced by friends such as the Royal British Legion.
Mr Jones
They do not—I am reading it wrongly as one big group, but they are two separate groups.
My hon. Friend the Member for Portsmouth South made a point about the backstop. I am sorry, I just cannot accept that backstop. The Minister seems to be misunderstanding the issue to do with the date of knowledge. The date of knowledge is clearly not only as laid out in the law of cases against the MOD, but as in civil law as well. As I said this morning, I used to deal all the time with the date of knowledge in asbestos cases. Some of those test cases were to do with ensuring that individuals—sometimes many years after they had left the industry in which they had contracted their disease—were able to take action. They were able to do so because of the Limitation Act.
The other thing that we need to knock on the head is the idea that bringing a section 33 case is easy. It is not easy; it is very difficult, and the threshold to meet is very high—rightly. As the Minister said, time limits rightly have to be fair in two ways: first, to give individuals enough time to ensure that they can bring a case; and, secondly, because evidence gets lost, whether in a civilian case or, more so, in such a case as we are addressing now. There is therefore a good reason for time limits, but there is also a good reason to have circumstances and exceptions in which those time limits should not apply.
My hon. Friend mentioned two cases, which the Minister said would be covered—but I am sorry, they would not. If they fell outside the six years, under the Bill as drafted those individuals would not be able to argue before a judge why limitations should not apply in their cases, and their case would just be dismissed. The Minister seems to have a lot of faith that the MOD’s lawyers of the future—and now—would not use that measure to reduce and stop such claims. They would not be doing their job if they did not use it to stop those claims.
The important thing is that such an individual would then have no rights whatever—unlike you, me or anyone else: even a prisoner—to bring a case under section 33 of the Limitation Act. I understand what the Minister says about his trust and belief in the MOD now and in the future. I do not disparage what the MOD is doing. There was a reference in the evidence session that the Department employs good lawyers and that will be their job, and they will use this provision. As such, what the Minister said will not be the case.
My hon. Friend the Member for Portsmouth South raises the issue around the 94%, or whatever the figure is. I do not care, to be honest, because as I said earlier one case is a case too many. Like my hon. Friend, I want to ensure that armed forces personnel and veterans are treated on the same basis as everyone else in this country. If that does not happen, the armed forces covenant will protect their rights but the Bill will take their rights away. That cannot be right.
There is also the point, which I had hoped the Minister would answer, about the Human Rights Act. He said the one-year time period is still in there, which is fine, but as Hilary Meredith said, how do you then disapply the Limitation Act to the Human Rights Act? As she said, it is very difficult to see how you would do that in practice because we are part of an international convention.
The only response the Minister gave—he might want to write to me if he does not have it with him; I accept that on occasions he does not have all the facts to hand—is that it has been cleared as being Human Rights Act-compliant. Are we suggesting that for this group of veterans there will be a new thing—a time limit for out-of-time human rights cases? If that is so, it is very interesting. How has that been squared in terms of the convention we have signed? Again—and likewise—everybody else will be able to use the Limitation Act to take a case forward outside that time.
The Minister said he is listening, but he is not. He has a fixated view of what goes forward in the Bill and that is what he is going to put forward. We have made attempts. I have said that I accept that amendments written by mere amateurs such as myself and others are not necessarily legally correct. However, what often happens on these occasions is that a Minister will say, “Yes, we agree. There is a point there. We will take it away, look at it and try to frame it in terms of how it fits into the Bill and the legal parameters.” That way, when we get to Report and Third Reading, they can be introduced, usually as Government amendments. However, that has not happened. We have had, “This is how it is going to be and that’s it.”
The situation is rather sad because there are things that can be done even at this stage—I am discussing one of them—that could improve the Bill. I accept that the Minister has already committed to look at investigations in the Armed Forces Bill next year, but he should stick the provisions in the damn Bill now. He could do it. The fact that the civil service might not want to do it—well, tough. He should just say, “You are going to do it” and put it in. Putting those investigation measures into the Bill will improve it immensely and do more than where the Minister has come from so far in the Bill. As Judge Blackett said, he has been
“looking at the wrong end of the telescope”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 120, Q246.]
The Minister is concentrating on prosecutions, but that ain’t the problem: the problem is investigations and how the MOD operates. I will not support a Bill that is going to take away rights from our servicemen and women. That would be an absolute tragedy. I know that is not the Minister’s intention, but unfortunately the Bill, as it is written, is going to do exactly that.
The Chair
To confirm, we are debating amendments 30 to 54, with amendment 29. If no other Members wish to speak to any of those amendments, I call the Minister.
Johnny Mercer
I wanted to address a couple of points about the limitation period. In the Stubbings ruling that we looked at, limitation periods are okay under ECHR regulation as long as there is compatibility with article 6, the right to a fair trial. That is the test that has been undertaken in this exercise and that is the advice that the Government have received. The right hon. Member for North Durham may well disagree with that, and is well entitled to.
Johnny Mercer
Not at the moment. I have literally just stood up. I will get through a couple of points, if I may.
As to the idea that I have not engaged in the process, and that it is just “head down, drive on”, I should like to know whether there has been a Bill that has gone through this place in the past five years when the Minister has been more ready to say a number of times that he was willing to work cross-party to improve the Bill; but I have to deal—[Interruption.]
Johnny Mercer
Thank you, Mr Mundell. I have to deal in the real world. I have to deal with real facts and figures—not made-up stuff—and how they apply to the battlefield. There is clearly a difference of opinion between the Government and the Opposition about whether the ECHR should be applied on the battlefield. I accept that. That is the point—that ability to continue these extensions is part of ECHR compliance. The Government do not agree that the battlefield is the right place, or that retrospective application of the ECHR to the battlefield is appropriate.
I have seen comparisons with convicted criminals a number of times in a lot of campaign items. Hon. Members are comparing convicted criminals to armed forces veterans. That comparison—prisoners to veterans—has been made a number of times. I can tell Members that that goes down like a cup of cold sick in the veterans community. It is not comparing the same things.
Johnny Mercer
I will give way in a moment.
The Bill has clearly been introduced to protect our servicemen and women when they conduct overseas operations. The purpose of the limitations is to stop large-scale out-of-time and often vexatious claims being brought against the military on overseas operations. I urge Members to think a bit more about comparing veterans with convicted criminals.
Mrs Lewell-Buck
On a point of order, Mr Mundell. The Minister keeps repeating something that is blatantly incorrect. No one at all on the Opposition Benches has compared prisoners to veterans or our armed forces. We have said that in the Bill the rights of veterans and members of our forces are less than those of prisoners. That is an important distinction and I ask the Minister to be correct when he makes accusations.
The Chair
I do not think that that is a point of order, but at least you have got your point on the record.
Johnny Mercer
As for the idea that we must withdraw part 2, the whole point of the Bill is to bring in time limits to provide certainty for veterans, so if colleagues take it away, what is the point of the Bill? Why are we here in the first place, if we will just continue as we currently are?
Johnny Mercer
Not at the moment.
The six-year longstop for personal injury and death claims is an important part of the Bill. The measure will help to provide greater certainty for service personnel and veterans by requiring civil claims arising from overseas operations to be brought promptly. Effectively, service personnel will not have to worry about having to give evidence on what would have been very distressing events many years in the future.
The public consultation launched in 2019 sought views on the length of time for such a longstop, and asked whether 10 years was appropriate. Many respondents supported a period of less than 10 years, so we decided to reduce the time limit for the longstop. Six years was chosen because it aligns with the limitation period for some other tort claims. That decision was further informed by the case of Stubbings v. the UK, in a judgment that has been repeatedly confirmed. The European Court of Human Rights upheld an absolute six-year limitation period. The Court noted the need in civil litigation for limitation periods because they ensure legal certainty and finality and the avoidance of stale claims, and prevent injustice where adjudication upon the events in the distant past involves unreliable and incomplete evidence due to the passage of time.
Johnny Mercer
Is there going to be a new point? I have given way a lot and we seem to be repeating the same points.
Mr Jones
The Minister is going backwards and forwards just reading out what he has in front of him—[Interruption.] I am sorry, but he is. He is not answering any questions at all. Can I ask the Minister this? He says the reason for the longstop, which disadvantages veterans, is to stop all these vexatious claims. In terms of the Shiner case, for example, how many of those cases were actually time-limited cases and argued in terms of this limitation? If that is the case and there were thousands of them—I would be very surprised if there were—I would imagine in most cases the Limitation Act would weed out most of those that were vexatious. To actually introduce this to solve that part of the problem is going to have a massive impact on servicemen and women who wish to bring claims against the MOD.
Johnny Mercer
Of Phil Shiner’s claims through Public Interest Lawyers, 62% were brought more than six years after the date of the incident. The Bill imposes a six-year limit, meaning that 62% of those claims would have been out of time. This legislation is designed to redress the balance. We are operating in a very difficult area, I accept that. Doing nothing has been the easy option that this House has pursued for 40 years and it is an approach I disagree with.
Johnny Mercer
I am not going to give way again, there will be plenty of opportunity for the right hon. Gentleman to speak further. I recommend that the amendment be withdrawn.
Stephen Morgan
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Chris Evans
I beg to move amendment 76, in schedule 2, page 16, line 5, leave out
“the section 11 relevant date”
and insert “the date of knowledge”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.
The Chair
With this it will be convenient to discuss the following:
Amendment 77, in schedule 2, page 16, line 30, leave out
“the section 11 relevant date (ignoring, for this purpose, the reference to section 11 (5) in paragraph (a) of the definition of that term)”
and insert “the date of knowledge”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.
Amendment 78, in schedule 2, page 16, line 35, leave out
“the section 12 relevant date”
and insert “the date of knowledge”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.
Amendment 79, in schedule 2, page 17, leave out from the beginning of line 35 to end of line 5 on page 18, and insert—
““the date of knowledge” means the date on which the person bringing the proceedings first knew, or first ought to have known—
(a) of the act complained of;
(b) that it was an act of the Ministry of Defence or the Secretary of State for Defence;
(c) of the manifestation of the injury resulting from that act which is the subject of the claim, and
(d) that they were eligible to bring a claim against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury and wrongful death arising out of overseas operations.
Amendment 80, in schedule 3, page 20, line 41, leave out
“the section 17 relevant date”
and insert
“the date of knowledge (see subsection (13))”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.
Amendment 81, in schedule 3, page 21, line 4, leave out
“the section 18 relevant date”
and insert
“the date of knowledge (see subsection (13))”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.
Amendment 82, in schedule 3, page 21, line 9, leave out
“the section 17 relevant date”
and insert
“the date of knowledge (see subsection (13))”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.
Amendment 83, in schedule 3, page 22, leave out lines 12 to 17 and insert—
““the date of knowledge” means the date on which the person bringing the proceedings first knew, or first ought to have known—
(a) of the act complained of;
(b) that it was an act of the Ministry of Defence or the Secretary of State for Defence;
(c) of the manifestation of the injury resulting from that act which is the subject of the claim, and
(d) that they were eligible to bring a claim against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury and wrongful death arising out of overseas operations.
Amendment 84, in schedule 4, page 24, line 5, leave out
“the Article 7 relevant date”
and insert “the date of knowledge”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.
Amendment 85, in schedule 4, page 24, line 29, leave out
“the Article 7 relevant date (ignoring, for this purpose, the reference to Article 7(5) in paragraph (a) of the definition of that term)”
and insert “the date of knowledge”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury out of overseas operations.
Amendment 86, in schedule 4, page 24, line 34, leave out
“the Article 9 relevant date”
and insert “the date of knowledge”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.
Amendment 87, in schedule 4, page 25, leave out lines 25 to 43 and insert—
““the date of knowledge” means the date on which the person bringing the proceedings first knew, or first ought to have known—
(a) of the act complained of;
(b) that it was an act of the Ministry of Defence or the Secretary of State for Defence;
(c) of the manifestation of the injury resulting from that act which is the subject of the claim, and
(d) that they were eligible to bring a claim against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury and wrongful death arising out of overseas operations.
Amendment 73, in clause 11, page 7, line 30, leave out from “before” to the end of line 34, and insert
“the end of the period of 6 years beginning with the date of knowledge.”
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run so as to account for legitimate and explicable delays commonly experienced by persons bringing claims under the HRA arising out of overseas operations.
Amendment 92, in clause 11, page 7, line 36, leave out
“or first ought to have known”.
Amendment 74, in clause 11, page 7, line 37, leave out “both”.
Amendment 75, in clause 11, page 7, line 40, at end insert—
“(c) of the manifestation of the harm resulting from that act which is the subject of the claim; and
(d) that they were eligible to bring a claim under the Human Rights Act 1998 against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run so as to account for legitimate and explicable delays commonly experienced by persons bringing claims under the HRA arising out of overseas operations.
Chris Evans
The amendments allow the Bill to account for all legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations. The Minister recently said in The Daily Telegraph:
“Our analysis suggests 94 per cent of claims from service personnel and veterans are already brought within six years.”
He has repeated that today. He goes on:
“Critically, for conditions like PTSD, this limit will start from the date of knowledge or diagnosis.”
If that provision can be applied for certain conditions, which of course I agree with, let us take this opportunity to apply it fairly to all service personnel. That would allow those 6% who do not make claims within six years, according to the Minister’s own figures, to be given a chance to explain why. If the court’s criteria were met, they could then claim any compensation they are entitled to. On Sunday, I happened to chance upon the article that the Minister wrote for The Sun on Sunday, where he said that he would make it his personal mission to carry the can for those who fall outside the six-year rule. It would be helpful, given those comments, if he expanded on what he meant by that.
The court will still take the passage of time into account, just as it would normally, but to block claims being brought after six years does not take into account the true complexities of civil claims linked to overseas operations. Courts should retain their discretion and should consider the large periods of time that can pass before knowledge comes to light of the true extent of an injury, acts of negligence, or the right to other civil claims. The point of knowledge of a claim may be many years after the event or series of events. This may be because claimants did not know that they had a right to claim, or because they did not link their circumstances to overseas operations for some years.
The Bill is meant to protect our armed service personnel, but leaving this part unamended only protects the Ministry of Defence. I want to bring to the Committee’s attention a particular case, or group of cases I should say, that causes me great concern in the event of the amendment not being made. It is the case of the nuclear test veterans.
This case is particularly close to my heart, and I raised it with the right hon. Member for Maidenhead (Mrs May) when she was the Prime Minister. When I first became the Member of Parliament for Islwyn, we used to hold a parade through Risca to honour those veterans. In my second year as an MP, because of the number who had passed away, it was decided that their standard would stay in the local church in Risca until it turned to dust.
What was so sad about this case was that those veterans were fighting for justice for so long. Many of them endured horrific medical conditions, and the families left behind only had their memories of those who were incapacitated by their nuclear service during those times in Easter Island. What was really hard to bear was, first, that they did not have compensation; secondly, though—if I step out of the Bill and say this to the Minister, who is the Minister for Veterans—these people have suffered enough. As he will know, I have made appeals to other Ministers to ensure that these veterans have a medal and some recognition. I want to use this opportunity to ask the Minister to take that up with the Honours and Decorations Committee, and to ensure that they do get some recognition, especially as we approach a very different Remembrance Sunday this year. I have digressed. Thank you, Mr Mundell, for allowing me to indulge in that.
For the vast majority of nuclear test veterans, their injuries did not manifest for decades. The nature of radiation injury means that it invisibly alters cellular DNA.
Mr Jones
Had the Bill been in place in 2009, that would have been it for those veterans—there would have been no case at all. The 2009 case, which I know well, was a limitation case, and they brought it before Justice Foskett because they argued that new evidence—medical evidence from New Zealand—had emerged about what my hon. Friend is referring to. If this Bill had been in place then, they would not have even been able to go to court to argue why their case should have had consideration, because of the time that had elapsed since the 1950s, when the exposure took place.
Chris Evans
I pay tribute to my right hon. Friend for his service during that time. I know that as a Minister he dealt with the case with sympathy and respect. My direct predecessor, Lord Touhig, also dealt with the case when he was a Minister. I know that everybody who served during that period was wrestling with it, but my right hon. Friend is absolutely right to say that it would not have been possible to bring the case.
If radioactive particles are ingested, the harm might occur at a slow but steady rate for many years, with minor ailments leading to a dramatic diagnosis, and eventually to death. There was no way for the veterans to know that their minor ailments were linked to the nuclear tests that they were involved in. As the Minister knows, however, it often prevented them from gaining the compensation they deserved.
How can we ask young men and women to serve and not guarantee their rights in the same way as civilians are guaranteed theirs? Should the Bill progress, I worry for the next generation of service personnel who are affected by the equivalent of nuclear tests. We do not yet know what might happen in the future that could cause problems further down the line. That is just one example of why someone might need to extend the six-year limitation as currently set out.
I must raise concerns from specialist members of the Association of Personal Injury Lawyers, a not-for-profit firm that specialises in military claims. It has voiced concerns that injured personnel can be misinformed of their right to make a legal claim. They might not even know that they have a right to a claim. According to a report by the Association of Personal Injury Lawyers, it is unfortunately not unusual for service personnel to be misinformed about their right to bring a civil claim.
Mr Jones
Does my hon. Friend agree that it would also limit families? In some cases—especially those involving asbestos, but also some involving cancers—the claim is generated only after the person passes away. Even though somebody might have known earlier that they had cancer, it is only once they pass away that the family might think that it was related to service. I know of some cases that were the result of submarine service. The Bill would actually stop families getting any redress in such cases.
Chris Evans
I agree. I will come to an example that my right hon. Friend probably knows as well, but I first will say something about service families. When servicepeople are away, their families are left with the worry, the childcare and other needs. When a serviceman suffers from cancer, it is the family who have to watch their loved one wither away. It is vital that they have a chance to make a claim.
It is interesting that my right hon. Friend the Member for North Durham intervened in my speech. When we talk about personal injury, those of us who come from mining communities will remember the example of the miners’ compensation scheme and how miners were left behind. I am not comparing miners to veterans, but it is a similar principle.
Johnny Mercer
The hon. Gentleman, for whom I have a lot of respect, has now spoken for about 10 minutes on nuclear test veterans. I trust that he is aware that nuclear test veterans are not covered by the Bill. It was not an overseas operation, and they are not covered by the Bill. The legislation that we are debating does not affect them in any way.
Carol Monaghan
I am looking for clarity. Why would the overseas nuclear test veterans not be considered to have been on an overseas operation?
Chris Evans
I should ask the Minister to reply to that—I am just the post box here.
Johnny Mercer
Nuclear tests were not classified as operations. There is a lot of conversation about what Operation Banner was in Northern Ireland, but nuclear test veterans are not classified as having been on an operation. They are not subject to the Bill.
Chris Evans
Service personnel might have knowledge of the event or series of events that the claim relates to, but many are under the impression that they cannot bring a claim while they are serving, or that their only route to redress is through the armed forces compensation scheme. This means that the date of knowledge should encompass not only the date of knowledge of the injury or the subject of the claim but the date of the knowledge that they had a right to claim—the date when they knew they had a case. That can be many years later and must therefore be taken into account if the Government insist on introducing a time limit.
The 2009 High Court case of 1,000 veterans of nuclear testing was fought and eventually lost on precisely this issue. The MOD argued that some veterans knew they were ill when they joined the British Nuclear Test Veterans Association in the 1980s, when it began campaigning. That was not the case. They knew they were ill at the time, but they wondered only if there was a link. The true point of knowledge can only come when a doctor confirms a possible link, which for many does not happen until years later. To me, that is the point of understanding.
Carol Monaghan
The problem with the nuclear test veterans—it could apply to other examples—is that there is actually a clear date of incident, many decades before. Although their point of knowledge of harm might have been much later, there was a clear date of incident, which the MOD could use to its advantage.
Chris Evans
That raises the actual point. When someone is ill, they know something is wrong, but they do not know what caused it; a doctor or medical researcher has not confirmed a link.
Johnny Mercer
I think it will be helpful if I make it clear that service personnel cannot bring claims for service pre 1987. Nuclear test veterans have access to the war pension instead, which has no time limit, so issues around nuclear test veterans and the Bill are not comparable.
Stuart Anderson (Wolverhampton South West) (Con)
Every training exercise in the UK or overseas is given an operational name, even though it is not an operation overseas, as per the Bill.
Chris Evans
I was about to say—as we spoke about earlier when I moved the amendment about the Attorney General—that we could have a huge debate about this. I have made a plea to the Minister about the nuclear test veterans. I know he is a good man and that his heart is in the right place when it comes to veterans, and I hope he will recommend to the HD committee that they receive some recognition for their service.
I will move on to the meat of the Bill and the amendment, otherwise we could be here all day. Simon Ellis, a senior partner at the law firm Hugh James, argues from experience that the point of knowledge of the injury, especially in cases of post-traumatic stress disorder or deafness, as the hon. Member for Glasgow North West said, is difficult to define. For illnesses such as PTSD, the sufferer may take a long time to understand what they are suffering from—similar to what the hon. Lady mentioned about her father—long after healthcare professionals or friends or family have this knowledge. Therefore, although there is knowledge of the injury, the victims themselves do not fully know or are not willing to admit that they are suffering. It can then take even longer for them to accept that they have post-traumatic stress disorder, to link that to an overseas operation or a series of operations and to realise that they therefore have a right to a civil claim. The point of knowledge, therefore, can be marked only as the point at which the serviceperson has a full understanding of their condition and their right to a civil claim.
I listened with interest to the hon. Member for Glasgow North West when she talked about what her father was going through. As I understand it, he knew he was deaf and those around him knew he was deaf, but it took him a long time to admit to it. Where is the point of knowledge in that? I do not know. I would be interested to learn, maybe afterwards, when he did finally admit that he had a problem.
Even in simpler cases, when the service person is aware of an injury at the point of the event, it would be grossly unfair for the longstop to start on the date of that event, if they had no knowledge that they could even bring a claim if they wished. Will the Minister therefore concede that clause 11 is not comprehensive enough to deal with the intricacies of a process that includes an event occurring, the sufferer fully understanding and accepting the injury, and their knowing that it is something that fulfils the criteria for a civil claim––that the option of a claim is open to them? If the Government insist on placing a time limit on service personnel or their families for bringing a civil claim, surely the clock must start from the point at which the claimant was both fully aware of the content of the claim––be that negligence, injury or death––and aware that they had the right to file a claim.
If that is not taken into account, it becomes even more clear that the Bill is intended to protect not service personnel but the Ministry of Defence. If these clauses relating to the rights of civil claims become law, those injured through negligence during overseas operations will no longer have the benefit of the full discretion of the court to allow a claim to proceed after the limitation period has expired. They will have fewer rights than other employees while the Ministry of Defence will be sheltered behind the longstop.
An employee who frequently works on military claims for Simpson Millar Solicitors said that, from her experience, she expects that Ministry of Defence lawyers
“could use this new Bill to support arguments that personal injury claims are out of time.”
Therefore, it is a bare minimum that the time limit starts ticking only once the claimant has full knowledge of their right to file a civil claim. This strikes back hard in respect of what my right hon. Friend the Member for North Durham said. Once the Bill is passed, it will be handed over to MOD lawyers. Now, none of us will be here for ever and we will have our successors. It will be the lawyers who interpret the Bill. It is therefore vital that we get this right. There is no justification for the MOD having special protection in terms of limitations on civil claims. It is vital that service personnel can bring claims to court in accordance with civil law, without fear or favour. It is vital that they are entitled to the same rights and civil considerations as the rest of the population when it comes to employment disputes.
There is a concern that the Bill could put troops at a disadvantage compared with their civilian counterparts. In our first sitting, Mr Young said:
“Imposing an absolute time limit places armed forces personnel claimants themselves at a disadvantage compared with civil claimants in ordinary life, where the court has discretion. Of course, the Minister has made it perfectly clear, absolutely correctly, that the time limit for this particular part of the Bill only starts to run at the point of knowledge. That is completely understood. That point of knowledge, diagnosis or whatever, could be many years later. Nevertheless, I would have a worry about an absolute longstop as proposed.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 9, Q6.]
If as Mr Young says, it is the case that the Minister considers the time limit as beginning from the point of knowledge, let us say so in the Bill. This is too important a matter to be imprecise in our words. We need clarity and we need definition. Let us be clear what the amendment means for our armed forces. Let us be clear that service personnel will not be disadvantaged if a link between actions and events overseas and a particular injury or negligent action comes to light only years later. We have seen time and time again, from asbestos to our test veterans, that these things unfortunately do happen. People get injured and hurt. Let us not use this Bill to protect the Ministry of Defence and disadvantage our service personnel. They deserve our support and, more than anything, our protection.
Mr Jones
I thank my hon. Friend for moving amendment 76. He makes a good point: whatever legislation we put in must be future-proofed. There are claims that it will do x, y and z, but we have all seen legislation that goes through Parliament with the best of intentions, but, as things change, still sits on the statute book and disadvantages individuals. Is it ever possible to future-proof legislation completely? No, it is not, but it is certainly possible to ensure that we do not put things in a Bill at the start that discriminate against veterans and armed forces personnel. That should be the starting point for this.
In this group of amendments, I will speak to my amendment 92, which relates to clause 11, page 7, line 36, leave out,
“or first ought to have known”.
It gets to the point that my hon. Friend has just referred to about date of knowledge and the issues surrounding it. Is it straightforward to know when a condition happens? No, it is not, as he eloquently explained, and I will explain some examples in a minute.
Many conditions that arise from service are complex; they first require diagnosis, and that sometimes takes time. If someone has a condition and knows they are suffering from something, that is their date of knowledge, but it might take several years to diagnose exactly what it is. Also, as we heard in the evidence session and has come out again today, it may take time for members of the armed forces to recognise that they might have a claim against the Ministry of Defence anyway. I hear what the Minister said about how we should publicise that, and I welcome the idea that we should make it known to people that they can make claims for injuries or conditions, whether through publicity or just ensuring that people know it, both when they are in service and when they leave. That must be recognised.
The conditions fall into two areas. If we look at industry—I know the Minister will say that is different from the military, and it is in many ways, but in other ways, on key issues such as hearing loss, there are some clear links—over many years litigation has led to improvements in standards and training, and I would argue that that should also be a lever in terms of the MOD.
I remember, when I was in the Ministry of Defence, dealing with the question of hearing loss. To be honest, I accept that in combat operations people are going to be exposed to loud noise. They are, and I do not think we can get away from that fact. But when I think back to the MOD in those days, we were paying out huge claims—quite rightly—for people’s hearing loss caused by training and other things, and it struck me that we were not getting to the root cause. As I said this morning, litigation can be seen, not as ambulance-chasing from the claimant’s point of view, but as a way of informing the MOD that it should change things, and can change things.
Carol Monaghan
Another example, of course, is the Snatch Land Rovers, which we have heard talk of many times. It was only because a claim was brought against the MOD that safer alternatives were put in place.
Mr Jones
Yes, it concentrated the minds of people. I will refer to that case in a minute. The important thing is that the Bill shifts the burden of knowledge to the combatant in terms of self-diagnosis. That is completely unfair. A lot of these cases are complex, and it is unclear whether a service man or woman in a war zone could remain resilient with their fellows if they had to keep sight of a self-diagnosis, saying exactly when something actually happened, certainly for mental health cases. I am not one to want to encourage people to sue the MOD or any public body for the sake of it, but if they have been done wrong then they should have the right to do that. I am uncomfortable about the six-year rule protecting the MOD.
I accept what the Minister said. He has introduced the rule because he is looking through the wrong end of the telescope; he is looking at ways of stopping cases like Phil Shiners’. There are other ways of doing that which would not mean introducing a six-year longstop to prevent veterans and service personnel taking cases. It concerns me that the attitude is there. MOD lawyers will use the longstop. They will definitely use it. They are not going to be thinking, “This is a tool in the armoury that we are not going to use to stop claims.” They will use it. Can you blame them? No you cannot, to be honest, but it disadvantages veterans and leads to a grievance.
Issues have already been raised about mental health and PTSD, but other conditions are, again, quite unique in terms of how they are dealt with. Non-freeze injuries are soft tissue injuries that involve nerve damage, and they result from an individual being exposed to long periods of wet and cold weather. That has been a particular issue for Commonwealth service personnel. The MOD have tried to do certain things to mitigate it, but it was only because claims were starting to be initiated that the issue was highlighted. Has that knowledge been around for a long time? Yes it has. If you go back to the first world war, trench foot was that type of injury. It has affected many Commonwealth members who loyally joined our services to serve the UK. Even after an injury is diagnosed, it might not be realised during a career. In terms of delaying a claim, the effects of the cold injury might be there and the initial advice is to keep things warm, which might alleviate the issue. If two or three years down the line the service man or woman is discharged from service because of that—I understand it is a debilitating condition—that individual might not know they had a claim.
Mr Jones
Yes it would. That, and doing away with the six-year backstop. My hon. Friend the Member for Blaydon makes a good point. The individual might not know that they were suffering from the condition, in terms that a judge would be able to look at to say they should have known about it and they should have brought a claim. I think the evidence outlined by my hon. Friend the Member for Blaydon is right: there was a reluctance to bring claims, which meant they ended up out of time. Major injury sufferers should know the date of diagnosis, but not necessarily the full impact of the condition on their service—it might not be a showstopper in their career, but in the long term it might affect their career and their ability to find post-career employment.
Another example is non-freezing cold injuries: this is not a surprise to the MOD because it knows about them. There are things that can and should be done, without putting the onus on the individual to self-diagnose the date of knowledge.
The other issue, raised by the hon. Member for Glasgow North West this morning—I mean earlier this afternoon: I am enjoying myself so much I have lost track of time— is hearing loss, the date of which is notoriously difficult to determine. In my previous incarnation, in a case of someone working with loud machinery in a factory all their lives, it is easy to pinpoint what has caused the loss of hearing. The problem for service personnel is that their careers are very varied, and although hopefully the MOD has training in phases 1 and 2 about protecting young ears especially, what is the crucial issue that leads to hearing loss, or hearing impairment? In military life, there will be exposure to loud noises: it nearly as much a fact of life as us having to listen to loud noises every day in the Chamber of the House of Commons.
Carol Monaghan
Just as a point of clarification, not all service personnel are exposed to loud noises: they talk about the silent service.
Mr Jones
Yes, but that can lead to other problems, such mental health issues. I think I referred to the 1902 situation when submarines were first invented, and there were issues with pressure that had an effect on people’s bodies, which led to further issues. I accept that it does not affect everyone.
Under the Bill, how can people disaggregate when their hearing loss took place? If a certain proportion of someone’s life was spent in overseas operations, are we saying that that part of the hearing claim cannot go forward as it is exempt, as it is beyond the six years? That is where it gets very complicated, which is why I think the clear system that we have at the moment, in which if people make a claim after the time limit, they have the possibility of taking the claim under section 33 and are able to argue their case. I reiterate the point that that is not an easy process.
When I asked the Minister how many of Phil Shiner’s cases were time-limited—could have been struck out due to the time limits—and how many he actually argued in court—the Minister did not say. It would be interesting to know—
Mr Jones
Is the Minister saying that that 62.7% were all cases that went before a judge under the Limitation Act 1980 and were deemed to have enough evidence and special circumstance to take them forward? If he is, I find that remarkable, because in my experience of the Limitation Act, trying to get cases under it is very difficult. That is what was said by the Association of Personal Injury Lawyers—they are unique cases and specialists are needed. I would be surprised if the figure was as high as that, so that of the 4,000 cases, more than half were out of time and went before a judge. If so, why did the MOD not just strike the cases out straight away, so that they were out of time? It would be interesting to know if they all went before a judge, because that suggests that the judge clearly thought that there was enough evidence to progress them. Perhaps the Minister will write to me about that—I am happy to accept that he cannot have all such figures to hand.
I am interested to know the number of those so-called vexatious claims because, I tell the Committee now, in my experience, someone who takes a vexatious case to a limitations hearing will not get very far, because of the high bar. People have to argue not only the reasons why a case should be brought out of time, but the case itself and its possibilities of success later in the litigation. For 60-odd per cent., there must have been a very soft judge allowing cases through under the Limitation Act. But I will wait to hear clarification from the Minister.
Something we have not mentioned is sight loss. I accept that in some cases people wake up and have lost their sight overnight, because of blood clots and so on, but more commonly sight is lost incrementally over time. That can sometimes take up to 10 years. If so, the veteran or serviceman or woman might have thought, “Well, I’m losing my sight”, but did not get a diagnosis, or have thought only after 10 years that they might be able to take a case, because the sight loss was related to service. They might not have thought it was but, if it was, 10 years later the Bill would not allow them to take a case. At present, they can get the diagnosis, the medical evidence, the reasons and the arguments for a limitations hearing on why they need to take a case out of time. That will not be the case if the Bill goes through.
Another example is respiratory issues, some of which may lie dormant for a long time and be the result of a whole host of conditions. I remember that in Iraq and, in particular, in Afghanistan, we had a lot of respiratory problems to do with bacteria, because the air was full of pathogens and other things. People might not have had a hacking cough but, a year or so later when they got home, they started to have such symptoms. Again, they might not have related that to their service straightaway, or with certainty, but it was later shown that, because of the use of animal manure, especially in some rural areas of Afghanistan and Iraq, people breathed in pathogens when the dust got into the air. That got into people’s lungs but did not affect their health until many years later—again it was a direct result of service, because they were there to serve their country.
The other issue, which we have touched on a little bit, is how this affects families. I raised the issue earlier of various cancers and other diseases from which people die. People think, “Why has this cancer appeared?” or “Why has this individual suddenly died?” Usually, the causes can only be identified at death. The individual will not have the date of knowledge, but the family will.
Chris Evans
Removing the ability for the courts to extend the six-year period would leave our veterans, ex-service personnel and their families at a disadvantage compared to those who bring normal civil claims against their employers. That is the problem we are facing in the Bill.
Mr Jones
It is a right. Okay—it will not be straightforward, because in my experience of asbestos cases, even with a clear diagnosis and an autopsy report, getting someone to admit liability is very difficult. The first thing that insurance companies used to do, which is exactly what the MOD will do, is require date of knowledge and say that it is time barred. If the claimant gets over that hurdle through a limitations hearing, the company usually settles. In this case, the MOD will reach for this straightaway, to say that it is not covered because it was contracted on an overseas operation and, therefore, it cannot go any further. That would give no rights at all to that family or the servicemen and women to take that case forward.
Chris Evans
I want to give an example and ask my right hon. Friend about his experience. He knows as well as I do that both our constituencies have large numbers of ex-miners who have had compensation for chronic obstructive pulmonary disease and vibration white finger. If these rules were applied to them, would they have got the compensation?
Mr Jones
No, because some of those cases, especially with vibration white finger, were taken on limitation hearings, because those things happened a long time ago. That is the fundamental right. To protect the veterans or servicemen and women, they need the right to go to the law, if they wish to—not everyone does and I respect people who do not.
The best example—it is a tragic example—which came up in the evidence session was the Snatch Land Rovers. The events in which people were killed and injured took place in Iraq. Although it was an issue in the MOD when I was there, in terms of the suitability of the vehicles, the real focus on it never came until July 2016 and the Chilcot report. The case that was mentioned in the evidence session was in 2005. A serviceman was killed in a Snatch Land Rover, but his widow did not really know the significance of the vehicle until the Chilcot report in July 2016. At that time, she thought that there had been a failing on behalf of the MOD in its duty care and in the provision of that equipment, so she brought a claim for the loss of her husband, not under civil law but under the Human Rights Act on the basis that her husband had a right to life.
That case was clearly time-limited, because the event took place in 2005 but the case was not brought until after the Chilcot inquiry in 2016. Obviously, a limitation hearing was held and it was successfully argued that the case should go forward, and it was settled, along with—I understand—other cases.
If the Bill goes through unamended, that case would not have been able to go forward, because—I mean, if it was left to me and the Minister, we would both agree that the date of knowledge should have been 2016, and therefore it could go ahead. However, I am not sure that the MOD lawyers would be as generous to veterans as the Minister and I would be. That is the problem when the Minister argues that the date of knowledge somehow protects veterans: it does not. The date of knowledge should not be used as argument to throw such cases out straightaway.
What will that take? If the Bill goes through as planned—especially on the human rights side, there will be a court case and an argument will be made. Let us say that a case similar to the one that I just mentioned was active today in the courts. What will happen is that someone will challenge that. So we will get litigation as a result of that process on whether the Bill is compatible with the Human Rights Act. I accept that the Minister will write to me on these issues, but we will get more litigation than we would if we instead said, “Let us have a judge look at the limitations on whether a case should be brought”, and if the case is deemed to be special circumstances, it should go to trial.
We must recognise that the MOD acts no differently to the insurance companies that I used to deal with when I took personal injury cases and industrial injury cases against employers, and I am sure that the hon. Member for Darlington knows this as well. It is horse trading. If there is a limitations hearing, what someone will do is to try and get it settled—nine times out of 10, an offer will be made. It is only the ones who really want to be stubborn who take the matter all the way through to trial. Very few of those cases go to trial, because people look at the evidence, to see whether it is worth going further in court, and the case is settled.
However, that process will be closed down for the individual if this tight six-year time stop goes ahead. The cases will not get to the second stage after the limitation hearing, which is about negotiating with the other side to say, “Well, come on. Can we make an offer?” It is a difficult judgment call. It is a bit like a game show—take the prize or play on—and I am sure the hon. Member for Darlington has had many sleepless nights about what is being offered. In most cases, there is an agreement and the individual making the claim is content with what is offered. Some will want their day in court, but that is not always a good idea.
What the Minister said about nuclear test veterans was interesting. I accept the point about operations—the MOD loves to give things “operation” names—but in that case, which is one I know well, and I know the medical evidence, having read it as a Minister, the Government argued in 2009 that it was time-limited. In terms of overseas operations, it was overseas.
Mrs Lewell-Buck
The Minister said that nuclear veterans would not be classed as having been on overseas operations under the Bill, yet as I read clause 1(6), which defines what “overseas operations” are, my understanding is that nuclear veterans would be included.
Mr Jones
The Minister says not. It will be interesting to see whether we can have definite clarification. That case was taken against the MOD in the mid-2000s for events that took place in the 1950s and 1960s, so it was clearly time-expired by anyone’s standards.
I am not arguing that we should not have time limits, which are there for very good reasons, but there need to be exceptions to allow for people who fall outside them. In that case in 2009, the MOD refused the case based on time limits, but it went before Judge Foskett who ruled that it should go forward because of new evidence from a study in New Zealand—I am racking my brains for what the study was, as I read the huge scientific document at the time. Subsequently, it failed, which shows that getting past the Limitation Act does not mean that a case is somehow a dead-cert. The facts of the case must still be argued in court and can be resisted, as they were in this case. However, people were given a right.
If that work had been classed as an overseas operation under the Bill, those people would not have had any right to get their day before a judge to argue the case. That could apply to other similar group litigation—there is such litigation from more than one person or a number of individuals—or to individuals. We have been dancing on the head of a pin about the numbers, with the Minister saying that 94% of cases are brought within time. That is fine, and I have no problem with that, but that leaves 6% that are not. If that affects one person, as I said, that is one person too many. With that brief contribution, I commend the amendment to the Committee.
Johnny Mercer
The amendments propose changing technical parts of the Bill, so I hope hon. Members will bear with me as I try to address them in turn. These amendments are aimed at making changes to the point from which the clock starts running for both personal injury and death claims, as well as Human Rights Act claims relating to overseas operations. The amendments mean that for these types of claims the longstop clock would run from the claimant’s date of knowledge only and will not also run from the date of the relevant incident or act.
Taking amendments 76 to 87 first, in relation to the personal injury longstops contained in schedules 2, 3 and 4, there are several problems with this effect. The longstop is already able to run from the claimant’s date of knowledge under the existing law. This Bill does not change that position. We consider that the definition of the date of knowledge in section 14 of the Limitation Act 1980, and its Scottish and Northern Irish counterparts, is satisfactory and works well in practice. There is no reason why the date of knowledge for overseas operations claims should be defined differently. It is therefore not necessary to replace this definition with a new one.
The Chair
That is not a point of order, but I am sure that the Minister will accommodate it.
Johnny Mercer
I am more than happy to slow down. The date of knowledge provision in this Bill is new for Human Rights Act claims relating to overseas operations, the primary time limit for which currently runs only from the date of the act. We introduced the date of knowledge to mitigate the risk of any unfairness that might be experienced by claimants as a result of the new absolute longstop.
We chose 12 months for the relevant time period because this aligns with the primary limitation period in the Human Rights Act, which requires claimants to bring their claims within one year of the relevant act. We therefore consider 12 months to be a reasonable period for claimants to gather the necessary evidence to bring their claim.
Amendments 74 and 75 aim to change the definition for the new date of knowledge set out in clause 11. We consider that the definition in clause 11 is comprehensive and fair to both claimants and the MOD. It does not replicate section 14 of the Limitation Act 1980, for example, because parts of that definition do not make sense in the context of Human Rights Act claims. Similarly, amendment 75 proposes new parts for the date of knowledge definition that do not work in the context of Human Rights Act claims.
Lastly, amendment 92 removes an important part of the date of knowledge definition, which adds an objective element to the test. This ensures that claims cannot be brought indefinitely if a victim has failed to take reasonable steps to gain the relevant knowledge.
These amendments are simply not necessary. The existing definitions of the date of knowledge are comprehensive and fair, and there is no good reason why the longstops cannot run from both the date of the incident or the act, as well as the date of knowledge. These amendments will unnecessarily complicate the Bill and cause confusion.
I will address two of the points raised by the hon. Member for Islwyn about education for those who are in the armed forces. Running alongside and in tandem with this Bill, if it becomes law, will be a significant education effort through a series of annual tests that we will give to our service personnel. I am more than happy to write to the hon. Gentleman about that.
I understand the points made by the right hon. Member for North Durham, but they are not within the scope of the Bill. The nuclear test veterans and the other pre-1987 cases that he talked about are not covered by the Bill. A lot of today’s debate has been outside the context of the Bill. I do not know what the point is of continuing to bring up cases that are unaffected by the legislation that we are discussing. I have huge sympathy for nuclear test veterans and for others. Indeed, I lobby hard for the recognition that I think we all want to see for those people, but none of that is covered by this legislation. That is worth remembering.
Johnny Mercer
No, not at this stage. I therefore recommend that these amendments are withdrawn.
Chris Evans
I just want to raise a point of clarification with the Minister. The nuclear test veterans were brought up because that was an example of a case that took numbers of years to emerge. I thought it was the best example of how people can be affected by an operation where it takes years for the case to develop.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stephen Morgan
I beg to move amendment 69, in schedule 2, page 16, line 5, at end insert––
“except where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for personal injury arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
The Chair
With this it will be convenient to discuss the following:
Amendment 93, in schedule 2, page 16, line 5, at end insert––
“save for exceptional cases where the overriding interest of justice should be served.”
Amendment 70, in schedule 2, page 16, line 36, at end insert—
“(2C) Subsections (2A) and (2B) shall not apply where it appears to the court this would be equitable having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 71, in schedule 3, page 21, line 9, at end insert—
“(7A) The court may disapply the rules in subsections (5) to (7) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for the courts of Scotland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 72, in schedule 4, page 24, line 5, at end insert––
“except where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for the courts of Northern Ireland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 68, in clause 11, page 7, line 34, at end insert—
“(4A) The court may disapply the rule in subsection (4) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for UK courts to allow a HRA claim arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Stephen Morgan
I rise to speak to amendment 69 in my name. The disapplication of the court’s discretion to bring forward a civil claim in the cases of service personnel raises areas of concern. As I am sure the Minister knows full well from his experience outside Parliament, there are many circumstances in which it would be at very least appropriate for judges to disapply the six-year longstop where either the nature of the injuries meant that service personnel were unable or unaware that they needed to make a claim within six years or the claimant was unable to make a claim for logistical reasons within six years. For example, claimants could have been detained or have been unable to access the UK justice system. It could be any other reason outside their control, such as failures of the state to protect veterans in need that prevent them from making claims in time.
In its current form, the Bill has gaping holes in its ability to give service personnel a fair hearing or offer at least a basic pathway to justice. The gaps in the legislation again raise concerns that it could breach the armed forces covenant if troops cannot afford the same rights as civilians because of the Bill. Labour will work constructively with the Government to ensure that our service personnel are given the legal rights that they deserve, are treated fairly and are given access to a fair trial, not a pathway that offers little hope for justice.
Over the last few weeks, we have heard several people, and had written submissions, outlining the issues around why disapplication of the six-year longstop, particularly with personal injury, is a problem. Take the submission from Reprieve, which seeks to uphold the rule of law and the rights of individuals around the world. Over the past 20 years, Reprieve has provided legal and investigative support to hundreds of prisoners on death row, the families of innocents killed in drone strikes, victims of torture and extraordinary rendition and scores of prisoners in Guantanamo Bay.
In its evidence, Reprieve states that schedules 2, 3 and 4 create an
“absolute bar by removing the discretion of UK courts to extend existing time limits for survivors of abuse or UK soldiers to bring claims relating to personal injury and death…In Reprieve’s experience of investigating the use of torture and other forms of mistreatment, it is clear that no arbitrary time limits can be placed on survivors seeking redress. Even where individuals know of the UK’s involvement in their mistreatment—for instance, where they have been detained by UK forces before being rendered by UK partners to arbitrary detention and torture—they may remain wrongly imprisoned for many years more than the 6-year time limit this bill imposes.
For example, the UK Government has been found to have been involved in the rendition of individuals from Iraq to face mistreatment in secret prisons around the world. These individuals, by the very fact of their detention and mistreatment, could only bring legal claims several years after these actions took place and the UK’s involvement in them came to light…Indeed, the involvement of UK personnel in abuses may not come to light until many years after the time limit has passed. This bill would allow for claims in such cases to be brought within only one year after UK involvement has come to the victims’ knowledge—regardless of the victim’s circumstances or location—following which an absolute bar to legal claims is imposed.
Investigation into the UK’s involvement in torture and rendition, for example, has taken nearly two decades, and it was only in 2018 that the Intelligence and Security Committee published its findings that UK personnel were systematically involved in mistreatment from the first days of the so-called ‘war on terror’.”
Mr Jones
As a member of the Intelligence and Security Committee, I would like to clarify what my hon. Friend just said. The report did not say that UK personnel were involved in the torture of individuals, but it was clear that they were present and that there were cases where rendition was conducted on behalf of the United States. However, I do not think there was any evidence that people were directly involved in torture.
Stephen Morgan
I thank my right hon. Friend for his clarification. I am quoting from the charity, but I thank him for putting that on the record.
Reprieve’s written evidence continues:
“In the period between these acts of mistreatment occurring and their exposure by the ISC, survivors of these abuses would have been barred from redress by this bill.
UK courts already have powers to strike out civil claims that disclose ‘no reasonable grounds’, including those which are vexatious or ‘obviously ill-founded’. The Court’s discretion to extend the limitation period for civil claims under section 33 of the Limitation Act 1980 is already subject to a full and rigorous assessment of all the circumstances of the case, including the reasons tending against extending time such as the impact of delay on the quality of the evidence available. Moreover, claims under the Human Rights Act 1998 must be brought within a year unless good reason can be shown as to why the claim was not brought sooner—a far tighter limitation period than almost all other areas of law.
Far from protecting soldiers’ interests, the bill, designed to benefit the Ministry of Defence, will fundamentally harm UK soldiers…The bill will have a very significant impact on the ability of UK soldiers and former soldiers to bring claims of this kind…As former Attorney General Dominic Grieve has highlighted, this raises the real prospect that the beneficiary of this bill ‘is not so much the personnel of the armed forces but the government, which is thereby protected from facing what may be wholly deserving late claims.’ Reprieve recommends that the Overseas Operations Bill be amended to ensure that survivors of abuses, as well as UK soldiers, do not face absolute time bars to bringing claims for serious human rights abuses, such as torture. ”
The evidence—not just from Reprieve, but from the Government’s former Attorney General— makes it clear that this legislation will not ensure the proper rights that are our service personnel deserve. Indeed, it is true to say that the path to justice would become more difficult and protect the MOD, not our service personnel. Does the Minister really intend to pass a Bill that would actively build barriers to the route to justice for the victims of torture and servicepeople with other injuries? Is that what our armed forces deserve?
Those are not the only examples of where potential injustices of this nature could occur. Take the case of Mark Bradshaw, which was reported in The Times last year and which we heard about earlier today. He was awarded £230,000 as a settlement, but he fears that the proposed legislation could discriminate against people who do not develop PTSD or receive a diagnosis until many years later. He called the plan to impose a time limit on claims “horrendous”.
We also heard earlier about the claim from the marine who left service due to hearing loss. The MOD admitted liability and made no argument about his case being brought out of time. However, the time limit in the Bill would have eliminated all the aspects of the claim relating to the marine’s extensive service overseas. The claim could have been made only in relation to negligent exposure in the UK. It might not have been possible to isolate the extent and effect of negligent exposure in the UK, making it very difficult to claim any redress at all.
Is the Minister willing to turn his back on those troops? Why are some medical conditions worthy of justice, and not others? I urge the Minister to work with us. Put party politics to one side and build a consensus around the Bill that is worthy of our troops, who set out to achieve what they need to achieve. Does the Minister really intend to pass a Bill that would actively build barriers to the route to justice for victims of torture and servicepeople with other injuries? Is that what our armed forces deserve? Finally, is he satisfied that the Bill in its current form will prevent troops who are suffering from conditions such as PTSD, or even torture, from receiving justice?
Ordered, That further consideration be now adjourned. —(Leo Docherty.)
Overseas Operations (Service Personnel and Veterans) Bill (Ninth sitting)
Thursday 22nd October 2020
(3 years, 6 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 October 2020 - (22 Oct 2020)
The Chair
Members will be aware of the need to respect social distancing guidance. I shall intervene if necessary to remind everyone. We now continue line-by-line consideration of the Bill. I have to draw hon. Members’ attention to an error: amendment 69, which is currently under debate, has not been printed on the amendment paper, so copies of the text of the amendment are in the room, printed separately.
Amendment proposed (20 October): 69, in schedule 2, page 16, line 5, at end insert “except where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”.—(Stephen Morgan.)
This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for personal injury arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 93, in schedule 2, page 16, line 5, at end insert
“save for exceptional cases where the overriding interest of justice should be served.”.
Amendment 70, in schedule 2, page 16, line 36, at end insert—
“(2C) Subsections (2A) and (2B) shall not apply where it appears to the court this would be equitable having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”.
This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 71, in schedule 3, page 21, line 9, at end insert—
“(7A) The court may disapply the rules in subsections (5) to (7) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”.
This amendment introduces a discretion for the courts of Scotland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 72, in schedule 4, page 24, line 5, at end insert
“except where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”.
This amendment introduces a discretion for the courts of Northern Ireland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 68, in clause 11, page 7, line 34, at end insert—
“(4A) The court may disapply the rule in subsection (4) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”.
This amendment introduces a discretion for UK courts to allow a HRA claim arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Mr Kevan Jones (North Durham) (Lab)
May I welcome you to the Chair, Mr Mundell? It is a pleasure to serve under your chairmanship again. I will talk about schedule 2 in general, but I will first refer to amendment 93, which stands in my name and which would amend the end of schedule 2 to say
“save for exceptional cases where the overriding interest of justice should be served.”
I will come back to schedule 2 in a minute.
We are again getting to the issue of justice for servicemen and women and veterans, in terms of the conditions they are bound by. I will come on to the Limitation Act 1980 in a minute, of which section 33 disregards the limits on the right of veterans and servicemen and women to make claims. We heard in the evidence sessions and during consideration of the Bill from my hon. Friend the Member for Portsmouth South and others about particular issues affected by this hard stop of six years. We talked about mental health and psychological conditions, but there are also physical conditions. Mental health is a complex area. The Minister tries to hide behind the date of knowledge, and mental illness is difficult to pin down. I would certainly say that the whole gamut of mental illness should be treated as exceptional cases.
Did the Labour party, when we were in Government, get it wrong on the armed forces compensation scheme? Yes, we did, even though it was a landmark scheme, in the sense that it brought in lump sum compensation for the very first time. I remember people at the time complaining about the levels of lump sum payments. We had a big debate about that in around 2008. However, it brought in lump sum payments for the very first time for those injured in service of their country. Going back to the Falklands war, for example, no such thing existed, so it was quite a landmark.
However, we clearly had not seen the challenge around mental illness. When I was a Minister, I asked Lord Boyce to undertake a review into the effects of service on mental health, so that we could potentially bring into the scope of that scheme people suffering from an array of mental illnesses. That was the right thing to do, and it was an attempt to future-proof the legislation.
Chris Evans (Islwyn) (Lab/Co-op)
I draw my right hon. Friend’s attention to the Armed Forces Act 2006, particularly the part where the Labour Government pardoned those who had been shot at dawn during world war one. For shell shock to emerge and be accepted took some 60 to 70 years. The Bill was an example of a Government saying that they had got something wrong and were willing to backdate it to ensure that justice was meted out to the families so that they would not think that their grandparents or ancestors were cowards, as they were deemed at the time. If we can do that in that situation, we can surely do it in this as well, as we learn more about the effects of post-traumatic stress disorder and of alcohol and drug abuse as well.
Mr Jones
I do not disagree with my hon. Friend, but the problem I always have with veterans’ mental health is the fixation on PTSD. I am not for one minute downgrading PTSD and the numbers of people that suffer from it, but it is one of a range of mental illnesses that might arise later in life. My hon. Friend referred to alcohol abuse, which is sometimes a form of self-medication. Is it automatically recognisable that a mental illness that might come in later life is a result of service? No, it is not. I agree with the Minister here. Most people leave service and have a perfectly good career that is life-enhancing for many servicemen and women. They end up in a variety of careers and have a good quality of life. Obviously, the failures end up as Members of Parliament, but that is neither here nor there. I have always said that military service overall is a good and positive thing for people’s life chances because it gives opportunities to people.
However, some individuals can be affected. Is it easy to determine what caused someone’s mental health problem? No, I do not think it is. That was recognised in the armed forces compensation scheme. I want to add exceptional circumstances because, by taking section 33 out, we stop recourse to civil law and the ability to claim against the MOD. As Mr Byrne from the Royal British Legion said, this is not about protecting servicemen and women and veterans; it is about protecting the MOD. I have heard the Minister’s arguments about the date of knowledge and this, that and the other, but, as I have said before, if we leave it to the solicitors or lawyers in the MOD, they will use this to strike out these cases, and that cannot be right.
We then come on to physical conditions. I mentioned the other day the issue of cold weather injuries, which can develop later. There are also musculoskeletal conditions that develop not at the time but as the body gets older. If the body has been through large amounts of stress earlier on, whether it is physical or mental, the condition can start later on. That leads to a situation where a lot of individuals will not necessarily think straight away, “It was due to my service”. That is why I have always strongly argued—we did it in 2010, but the coalition scrapped it—for the importance of having a flag on people’s medical records as they leave the service so that in future doctors can see that people had served and then link the two together. We provided for that in 2010, but an election was called and the coalition seemed to forget about it, but I thought it was important not only in terms of physical injuries but, very importantly, for mental health issues. If a physician, a doctor or a consultant can see that someone has served, that is a red flag and they can ask whether that has had an impact on that individual.
The six-year longstop will stop those individuals taking cases to court. I accept that legally it might be difficult to insert the words “exceptional cases”, because we then get into the issue of what is an exceptional case. To be honest, the easiest way of solving it is to retain section 33 of the Limitation Act 1980, because then at least a judge will be able to determine what an exceptional case is. I accept that there are problems with the amendment as it is written, but it goes to the core of the issue of ensuring that, while as few cases as possible are brought out of time, people have the ability to do that.
I am not sure I would leave it to the MOD to make the decision, because I think the kneejerk reaction would be to use the Limitation Act to strike the cases out. I accept that the amendment is not expertly written, but I am not so proud as to prevent somebody from stealing the idea and drawing it up so that, at least in exceptional circumstances, members of the armed forces would be able to take their cases forward for consideration to determine whether they should go beyond the six-year longstop, which limits them at the moment.
We also heard about issues relating to the Human Rights Act 1998. I asked the Minister to write to me to explain how a time limit or a longstop can be put on human rights cases. I do not know whether he has been able to do that yet—I accept that I only asked the other day—but it would be interesting to know that before Report. There is the one-year time limit, but they are covered by section 33 of the Limitations Act. Hilary Meredith said that she found it difficult to understand how it would be possible to have a limitation on the Human Rights Act because it is part of a convention. The Minister responded the other day that it had been cleared and that it was human rights law-compliant. It would be interesting to know what the legal advice is on that, and whether there are any other cases—although there is already a time limit of one year—in which the Limitation Act is not applied to individuals.
As we heard from the Association of Personal Injury Lawyers in the evidence session, that issue was crucial in the Snatch Land Rover case. A widow took a case against the MOD—it was not a civil case, but a Human Rights Act case, because a decision had been taken in relation to the right to life. Again, that was about not putting the Human Rights Act on the battlefield but trying to ensure that a decision was taken about Snatch Land Rover’s procurement and deployment. It was not about getting the Human Rights Act into the battlespace. I suggest that people read the Smith judgment, because the Supreme Court is very clear about combat immunity and about human rights not applying. People sometimes argue that this Bill is somehow about trying to stop human rights intervening with our right to defend ourselves, but they should read the Supreme Court judgment, because it is very clear that it does not apply there, but it does apply to that important case.
There were two issues in that case. The first was whether it was out of time. Quite clearly it was, because the incident took place in 2006 but the case was not brought until after Chilcot, which was 2015, so it was way out of time. The reason it was taken forward was that, in the first instance, although the MOD argued that it was out of time—I have no complaints that it did that—it was successfully argued that it was not. There were special circumstances that meant that it could not be brought within the time period, and it was allowed to go forward. I understand that the case was settled before it went to court, and the individual widow got a substantial payment. As I said the other day, it also focused, in policy terms, Ministry of Defence thinking about the decisions on the Snatch Land Rover. It gave closure to the widow and some compensation, though no amount of money can ever compensate for somebody’s loss, but it also made MOD policymakers say, “Wait a minute. In future, we’re going to have to actually think about this.”
The Minister for Defence People and Veterans (Johnny Mercer)
We are beginning to cover some pretty familiar ground. I will set out the Government’s position clearly on the six-year limit and speak to all the amendments in the group.
As I have already said, the six-year longstop for both personal injury and death claims, as well as claims under the Human Rights Act, is an important part of the Bill. The longstop will provide the much-needed certainty for service personnel and veterans that we are trying to achieve with part 2 of the Bill. I cannot stress enough our belief that the negative impact on the ability of service personnel and veterans to bring claims will be limited. We have not made that up; it is based on our statistics and our evidence.
We are not trying to catch service personnel out or take away their rights to bring claims against their employer, against the MOD or against the Government. They will still be able to bring claims, and the date of knowledge provisions, which are such an important part of the Bill, mean that even in cases when an illness is diagnosed many years down the line, claims can still be brought within six years of that diagnosis, or 12 months for HRA claims.
I have heard the arguments that there are many current and former service personnel who have suffered injuries as a result of their service but who have not yet brought through their claims and would be timed out once this Bill becomes law. I have seen no evidence of that, but I again encourage those people to bring their claims as soon as possible.
Mr Jones
The Minister says he has seen no evidence, but he quotes the figure of 94% being brought in time. What is the number of cases that have been brought under the Limitation Act against the MOD? He says the limit gives certainty; well, it does give certainty to people—certainty that after those six years, they will not be able to take any claims at all.
Johnny Mercer
Many cases have been raised, I agree, such as Snatch Land Rover and the Royal Marines individual who has been mentioned a number of times. However, as I have outlined a number of times, none of those would be affected by this Bill, because the period starts from the point of knowledge. We have had this conversation before. I encourage people who feel that they could be disadvantaged to come forward, to speak to the Department or speak to me, but I have to operate in reality, not saying things that are not true. I include any non-service person who believes that they have a meritorious claim against the MOD, because fundamentally, we are not trying to stop legitimate claims.
Johnny Mercer
Of course it is in the best interests of claimants to bring cases in a timely manner, when memories are fresh and access to evidence is easier. We should also remember that the current time limit for bringing claims is three years for personal injury or death and one year for Human Rights Act claims. While the courts have discretion to extend those timelines indefinitely, claimants must persuade them that it is equitable in all the circumstances to do so.
Chris Evans
A quick question for the Minister: last week, in The Sun on Sunday, he said he would make it his personal mission to help to ensure that cases that might fall out after six years are brought within six years. Will he clarify how he would do that in action?
Johnny Mercer
Of course. Part of this Bill is a huge education campaign to get people to understand what their rights are. While we have drawn the line at six years, we have a duty to make sure all the people who are in our employment and who served with us understand what the rules are and where the boundaries are, and at the same time are protected from the vexatious sort of claims we have seen over the years. I genuinely believe it is a fair line to be drawn, and I reiterate that lots of cases have been raised, but when we have looked into them, none would have been precluded under the Bill.
Mr Jones
The Minister is not answering my hon. Friend’s question. I accept that there are good reasons for time limits; I have no problems with time limits on civil litigation and other things. I asked him earlier about the number of cases that have fallen outside the limitation period that the MOD has defended. I do not for one minute question the Minister’s commitment, but remember that he and I will not be here when this comes into force. I tell him now that the MOD will use this as a way to stop claims.
Johnny Mercer
I accept the right hon. Gentleman’s point that there is a risk of any legislation being interpreted in different ways by different Administrations over a period of time. That is the reality of life in this place, but I cannot accept the repeated regurgitation of cases. We have looked into individual cases. When these cases are raised, I write them down and go back to the Department to look into them. They are not affected by this legislation. Members can sigh and so on, but I cannot do anything other than operate within what is actually going on, rather than deal with stuff that is not true.
Members will remember that in one of the evidence sessions for the Bill, the representative of the Association of Personal Injury Lawyers, Mr Al-Nahhas, told us that he frequently rejects clients who want to bring claims that are out of time. Although I would urge everyone to bring meritorious claims as soon as they can, I know that sometimes the courts allow claims to proceed after the primary limitation period has expired. The Bill will not stop that happening. The courts will still be able to extend the primary limitation period for up to six years, but we are stopping claims—often unmeritorious—being brought many years down the track.
The amendments would effectively give the courts the same discretion that they currently have to extend the primary limitation periods indefinitely, but they are contrary to the intent behind the Bill and would reduce the certainty that we want to give to service personnel and veterans. Before I recommend that the amendments be withdrawn, I would love to give way to the right hon. Gentleman again.
Mr Jones
The Minister has raised something that is very complex for the courts. He said that the period will be six years from the date of knowledge, and the courts will be able to give discretion within the six-year period. Is he not expecting—some people will—to take this to court, in terms of saying that it is unjust if a case falls outside the six years? This will end up with a lot more confusion than just keeping what is there at the moment: section 33 of the Limitation Act 1980.
Johnny Mercer
I completely disagree; it is the current situation that we has produced the chaos we are trying to bring order to with the Bill.
Johnny Mercer
The right hon. Gentleman can say it has not, but people such as Bob Campbell, to whom he has alluded a number of times, would strongly disagree. We are trying to bring certainty for our veterans and service personnel going forward. That has been a strong Government commitment from the start of this Government, and I support it. I therefore recommend that the amendments be withdrawn.
Stephen Morgan (Portsmouth South) (Lab)
We wish to withdraw amendment 69 and pick up the issue at a later date.
Amendment, by leave, withdrawn.
The Chair
Thank you, Mr Jones. You have saved me from saying that it was not a debate on the amendment.
Stephen Morgan
I beg to move amendment 89, in schedule 2, page 17, line 5, at end insert—
“(c) the court must also have particular regard to the importance of the proceedings in securing the rights of the claimant.”
This amendment adds a further consideration to which the courts of England and Wales must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not subordinated.
The Chair
With this it will be convenient to discuss the following:
Amendment 90, in schedule 3, page 20, line 32, at end insert—
“(c) the importance of the proceedings in securing the rights of the claimant.”
This amendment adds a further consideration to which the courts of Scotland must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not subordinated.
Amendment 91, in schedule 4, page 25, line 5, at end insert—
“(c) the court must also have particular regard to the importance of the proceedings in securing the rights of the claimant.”
This amendment adds a further consideration to which the courts of Northern Ireland must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not subordinated.
Amendment 88, in clause 11, page 7, line 23, at end insert—
“(c) the importance of the proceedings in securing the rights of the claimant.”
This amendment adds a further consideration to which UK courts must have particular regard when determining whether to disapply the standard HRA limitation period of one year so as to ensure that the claimant’s interest in having their claim proceed is not subordinated.
That the schedule be the Second schedule to the Bill.
That schedule 3 be the Third schedule to the Bill.
That schedule 4 be the Fourth schedule to the Bill.
Stephen Morgan
It is a pleasure to serve under your chairmanship again, Mr Mundell. I rise to speak to amendment 89, which stands in my name. During the proceedings so far, there has been much discussion in recognition of the role that mental health plays in the cases to which the Bill applies. Although the Opposition recognise the importance of the Bill in cases where the court is given discretion to disapply the time limits of three years, the court must also have particular regard for the likely impact of the action on the mental health of any witness or potential witness who is a member of Her Majesty’s armed forces. There is still more to be done here. There is an imbalance in the consideration of civil claims in the Bill. I will say it once again: where the Opposition see that the Bill can be improved, we will highlight it.
We have tabled the amendment to ensure that both witnesses’ and claimants’ interests have been secured. The Bill asks the courts to have
“particular regard to the likely impact of the action on the mental health of any witness or potential witness who is a member of Her Majesty’s forces”,
but we can do better. It is important to ensure that there is equality under the law and that the interests of the claimant are also considered. The intent of the amendments is to balance the considerations UK courts must have particular regard for in determining whether to disapply the standard Human Rights Act limitation period so as to ensure that the claimant’s interest in having their claim proceed is not illegitimately subordinated.
Over the last few days, we have received written evidence highlighting this very issue, including the submission from Rights and Security International, a charity which works to promote just and accountable security policy; it has over 25 years’ experience working in the field of human rights and national security policy in the UK. In its evidence submission, it said that it is concerned about the creation of a one-sided discretion to disapply the standard limitation period within the six-year mark.
“First, the proposed considerations have a discriminatory impact against the claimants. This is because they are illegitimately weighted in favour of the MOD operating solely to the detriment of claimants. They are overly focused on factors tending to preclude claims with no reference to the interests of the claimant in having his or her rights vindicated. This has the effect of creating a hierarchy of values and subordinating the claimant’s interest in bringing the claim”.
Secondly, RSI says that there is a requirement that the court give particular regard to the likely impact of the action on the mental health of the witness or potential witness who is a member of Her Majesty’s forces. They argue this is an inappropriate and disproportionate test because it is heavily weighted in favour of precluding claims from proceeding. This is because giving evidence is almost always stressful to any witness be they members of Her Majesty’s forces or not. It continues:
“It is disproportionate because there are many alternative ways to support vulnerable witnesses that do not have the effect of preventing access to justice for potential victims of human rights abuses, wrongful death or personal injury. Were the Government really serious about protecting members of Her Majesty’s Forces, ensuring the provision of such support services would be the focus of reforms to the law, rather than provisions which have the effect of protecting first and foremost the MOD.
Third, it is questioned whether it is really necessary that the court gives particular regard to the likely impact of the operational context on the ability of individuals to remember relevant events or actions fully or accurately. This is because it has been determined that effective legislation can still take place way after the event occurred. For example, the Malmo litigation proceeded over 50 years after the incident. The courts were still able to identify systematic rights abuses and systematic flaws on the part of the Bill relevant to the British colonial administration. This is evidence of the fallacy of the allegation that effective investigations can never take place well after the fact due to a loss of evidence or decreasing reliability of evidence over time”.
That is a lengthy quote, but I think it makes some very important points, which I will take in turn. Once again, we have heard that the Bill is not designed to protect our service personnel but to protect the Ministry of Defence. The legislation is heavily weighted against the ability of service personnel to proceed with civil claims. These are not my words or Labour’s; they are from a highly respected organisation that has covered the issues raised here for many years and is highly experienced in this area.
In light of this, will the Minister recognise the mistake that is being made here for the sake of our service personnel? Why is he so intent on rushing through the House a Bill that will disadvantage our troops? There is another theme here, which we have covered before—something that we have called into question before in other areas of the Bill: fairness and balance.
In its current form, this part of the Bill would create a serious imbalance of fairness within the equality of the law. If the Minister will not address these issues for the sake of our armed forces personnel, will he not do it for the sake of equality under the law, for which our country is so well respected and renowned?
We received further written evidence highlighting this problem of an unbalanced weighting. The Centre for Military Justice is a charity established to advise current and former members of the armed forces, or their bereaved families, who have suffered serious bullying, sexual harassment, sexual violence, racism, or other abuse or neglect. In its evidence, the charity outlined the need for the Bill to take into account the mental health of claimants, not just their witnesses. Specifically, the CMJ said that
“there are often very good reasons why some claims or parts of them need to be issued 6 years after date of knowledge or diagnosis; or where some of the damage would have been caused outside of the 6 year limitation period and some within it. If you are suffering from PTSD you may become aware that there is something seriously wrong within the limitation period, but it may be very hard for you to get help then or even for some time after.
Imagine if you are a veteran with undiagnosed PTSD—you are drinking heavily, or having a lot of personal problems (because of what you have been through)—you may know there is something wrong—you may even go to your GP—so that might be said to be your date of knowledge for limitation purposes—but you may not be able to take the next step of getting properly diagnosed and/or be able to get legal advice. Those are the kinds of cases that need to have the option of applying to the court to extend time and it makes no sense to add a hard ‘long stop’. If there are good reasons to extend time, the claimant should be allowed to try and persuade the court and the court should be allowed to apply the existing criteria.
Last year, The Times reported the case of Mark Bradshaw, 44, who suffered from post-traumatic stress disorder (PTSD) since he was involved in a friendly fire attack in 2010 while serving with the Royal Artillery. Despite the immediate onset of nightmares and hypervigilance, the veteran was not given a formal diagnosis until 2016. By then he was drinking heavily, had suicidal thoughts and had left the service and become alienated from his family. He was eventually awarded a settlement, but not without a fight, and he fears that the proposed legislation could discriminate against those who do not develop PTSD, or receive a diagnosis, until many years later. He called the plan to impose a time limit on claims ‘horrendous’. The Times reported him saying, ‘I got pushed to the GP. How many people sick with mental health won’t go to the GP?’”
That tragic case, which we have already heard about in Committee, shows that we need a proper and fair weighting of both witnesses and claimants. I hope this will make clear to the Minister the changes required in the Bill. In the light of the fact that his legislation is heavily weighted against the ability of service personnel to proceed with civil claims, will the Minister, for the sake of our service personnel, recognise the mistake that is being made here? Why is he so intent on rushing through this House a Bill that disadvantages our troops? If he will not change his mind for the sake of our armed forces personnel, will he not do so for the sake of the equality under law for which our country is so respected and renowned?
Mr Jones
Thank you—I will ask some questions about the schedules as outlined.
Schedule 3 references Scotland, and schedule 4 is about Northern Ireland. Mr Mundell, your great nation has always had a separate legal system, which in many ways is far superior to the one we have in England, given some of the common sense it contains. I would be interested to know from the Minister what representations were received from the Scottish Law Officers regarding the application of the Bill. It references overseas operations, but is clearly going to affect many servicemen and women, and Scotland is a good recruiting ground for those servicemen and women.
Johnny Mercer
Does the right hon. Member understand—I am sure he does—that he is fundamentally wrong to say that the Bill would not have had an impact in the Major Campbell case, which he keeps referring to? He talks about the investigations taking so long. Those investigations are driven by bringing civil or criminal claims. Bringing in the longstop would mean that the worst Major Campbell could have had was going through to 2009; he has repeatedly said that. Those are the facts of the matter, and it is important to bear that in mind going forward. The Campbell case is a very emotional case; however, we have to stick with the facts, and the facts are that this measure would have limited the experiences to 2009, as he has said, and as we have laid out on a number of occasions.
Mr Jones
I am sorry; I totally disagree with the Minister. He is wrong. It was not the claims that drove that case. As Hilary Meredith said in her evidence to the Committee, part of the problem was that the MOD started to pay out large amounts of compensation to individuals. I think I explained the reason why that was done at the time; it was partly to follow a little bit what the Americans were doing, and it was partly a cultural thing in Iraq—for example, if there was a car accident, a certain amount of money was paid and that was that. It even got to where we might call it brutal. I remember sitting once in Basra with a claims officer, dealing with claims. They were everything from a car accident, “My goat’s been shot” and “You’ve run over my dog” right up to, “You’ve ruined my crop landing a helicopter, or flying something into it.” They were paid out, and it even got to a point, which we might find quite cold, that somebody’s death was covered by making a payment—blood money, I think, is how the Americans referred to it. That might seem harsh and callous, but we did the same things, just with a legal process. That led to others.
The Minister and I totally agree about people like Phil Shiner. There is no defence there. However, in Campbell’s case, if an accusation had been made to the MOD, not from a civil case but because someone came forward to say, “This happened,” it was not, then, the claim that kicked it off—it was the accusation. I accept that Shiner, in some cases, was trying to put forward things that were false, or encouraging people—I think there were even cases where he paid people—but the Bill would not stop that case coming forward, because when an accusation is made to the MOD, it will have to investigate it.
That is the problem for the Minister. He has focused in, with something of a gut reaction, against people such as Phil Shiner, and I sympathise with him—I have lots of sympathy with him on that. I have no time for those things, but the MOD created part of the problem itself, in the compensation culture that it engendered. Then it made it worse—I know the Minister was trying to be party political the other day, but I am not going to be, shudder the thought—by setting up the IHAT investigation in 2010, under a Conservative Government. That just fuelled things.
I still plead with the Minister to do now in the Bill what Campbell’s case needed, though I accept his officials will say, “Minister, we must wait until next year’s armed forces Bill.” No, put it in now. If he includes issues to do with controls over investigations, he will have my 100% support, because that is what will drive down cases such as the Campbell one. It was completely unacceptable that that happened. Yes, political decisions were made about Iraq and Afghanistan about paying compensation. A Conservative Government set up IHAT, and, as happens with a lot of these things, it became like a licking lollipop, in terms of the way they keep growing. However, if the suggestions of the Judge Advocate General, Judge Blackett, about looking at investigations were put in the Bill, that would stop the Major Campbell cases. Just introducing a limitation period will not stop cases. They will still be investigated.
Let us be honest, it is a proud testament to the professionalism of our armed forces that, in the horrendous situations that they have been involved in over the past few years, in Iraq and Afghanistan, we have had small numbers of disciplinary cases. That is testament not only to their courage but to the system of discipline in our armed forces. We have a set of regulations, laws and training that ensure that people know what they are doing, and that they follow. As to the cases that have been brought, such as Marine A, that was not started by an ambulance-chasing lawyer. It happened because someone took a video of Marine A shooting a wounded Taliban fighter, which was clearly contrary to all his training. The Bill would not stop that. In that and other relevant cases—I am racking my brain to think of them—the investigations were complete within two years. That was quite quick, so I think it can work. It is about case management.
There is another point to be made about that. When the service man or woman gets to court, do they get a fair hearing? In that case, he did. My question is why on earth the legal representatives did not argue—quite rightly—at the first hearing that he had suffered mental trauma and other things. He was found guilty by a military court—not a civil court—of murder on the first count. But when it went to appeal, it was reduced to manslaughter, which was quite right, taking into account the circumstances in which the incident occurred, as well as credible evidence from mental health professionals about his mental state at that time. That does not excuse what he did, but it puts context around it.
That is why, as I said before, I am a supporter of the military justice system, because cases are dealt with by people who understand that system. Putting a time limit on cases will disadvantage members of the armed forces by taking them out of section 33 of the Limitation Act, and for what? For something that will not reduce the number of cases.
There is another point we could deal with very easily. I ask the Minister again, how many limitation cases have there been from civilians or anybody else? I suggest there would be very few, but that is not the point. The point is that servicemen and women have a right to go outside of that time if there are exceptional circumstances. Having taken limitation cases—not personally—I know that they are done only in exceptional circumstances, because the threshold is so high. That is why when the Minister said the personal injury lawyers said they sometimes advise clients not to take these cases on limitation, he is quite right. I have done that myself, because I know there is not a cat in hell’s chance of the court ever saying that the reasons are justifiable in terms of the Limitation Act.
The Limitation Act is there for a good reason. It is not—I think this is what the Minister has in mind—a green light for everybody to come out of the woodwork after a huge period of time and say, “Yes, I want to put my case.” It is not like that; it is very difficult. I support that, because there must be time limits for cases, for the reason the Minister gave—I agree with what my hon. Friend the Member for Portsmouth South said—which is that we have to try, if possible, to get cases done as speedily as we can. That is fair for the victim and fair for the accused. But this Bill will not do that.
The other thing that is said is that the Bill will stop investigations. It will not stop investigations at all, and they could go on a long time. As I said in a previous sitting, that must be horrible. We cannot imagine being accused of some of the horrendous crimes that Major Campbell was accused of and having that hanging over us for a long time. That is not fair to that individual.
Johnny Mercer
It has never been the Government’s stated position to stop investigations. I think the right hon. Member knows that. We cannot run a Department and refuse to investigate allegations that people bring forward.
Mr Jones
No, I am not suggesting for one minute that it is. I am suggesting to the Minister—this is what Judge Blackett came forward with—that we need a way of managing those investigations, to ensure that they are speedily done and that there is judicial oversight of the process, not oversight from the MOD or the chain of command, which could lead to accusations. I came forward with three suggestions of how to do that. Get rid of all the minor cases in the system. That is just good case management, and it also helps the individual who has been accused. If the judge thinks there is no evidence, they should throw the case out. That can be done in magistrates courts; why can we not do it in this system? That is a huge missing bit of the Bill.
To reiterate, I am not for one minute accusing the Minister or the MOD of turning a blind eye to serious allegations. If an allegation is made, it has to be investigated.
The issue is the way it is investigated and the time it takes to investigate it. The idea is that the time limit process will somehow reduce the number of claims. I do not think it will, because people will bring a claim within six years, it will have to be investigated, and someone will have to ensure that it is case-managed through the system.
Johnny Mercer
I have listened at length and for many hours to a lot of the points that have been made, and I fear we are beginning to reach a point where we are repeating ourselves to a large degree.
Johnny Mercer
Fantastic, fantastic. With any such legislation, I understand that there will be people with fears or concerns, and there will be an element of risk. I cannot honestly stand here and say that the Bill disadvantages troops or service personnel. I accept that there is a difference of opinion here, but I would not even think about introducing legislation that disadvantaged them.
Looked at in the round—and as I have said many times—this is a good, fair and proportionate Bill. I will defend it. I have already outlined that Government are creating new factors to ensure that the courts are directed to consider the uniquely challenging context of overseas military operations when deciding whether to extend the primary limitation periods for personal injury and death payments, and Human Rights Act claims. Amendments 88 to 91 are therefore unnecessary. They introduce a further factor to which the UK courts must have particular regard when determining whether to allow claims beyond the primary limitation periods of one year for Human Rights Act claims and three years for personal injury and death claims. Their stated intention is to ensure that the claimant’s interest in having their civil claim proceed is not subordinated to the additional factors being introduced by this Bill, but the courts already take into account the interests of the claimant in having their claim proceed when determining whether it is equitable to allow a case to proceed beyond the primary time limit.
For personal injury and death claims in England and Wales, section 33(1)(a) of the Limitation Act 1980 states that the courts should have regard to any prejudice that might be caused to the claimant if the case is not allowed to proceed beyond three years. Prejudice would include the impact on the claimant’s ability to secure their rights through legal proceedings. For personal injury and death claims in Northern Ireland, article 50(1)(a) of the Limitation (Northern Ireland) Order 1989 has the same provisions. For personal injury and death claims in Scotland, section 19A(1) of the Prescription and Limitation Act Scotland 1973 sets out the equitable tests in more general terms, but that still includes considering the interests of the claimant in securing their rights through legal proceedings.
For Human Rights Act claims, section 7(5)(b) sets out that the court may allow claims to be brought beyond the primary 12-month period if it considers it equitable to do so, having regard to all the circumstances, which would include considering the interests of the claimant in vindicating their human rights through legal proceedings. The factors introduced in clause 11 do not replace the tests set out in section 7(5)(b) of the Human Rights Act; they just outline considerations that reflect the unique context of overseas military operations.
Liz Twist (Blaydon) (Lab)
As the Minister is arguing that there is sufficient protection within the law, can he explain the difference in the views taken by very many of the witnesses we saw in the first two days of this Bill Committee, the Centre for Military Justice, and Rights and Security International, whose primary focus is to ensure that our veterans and armed forces are properly represented? There seems to be a mismatch between what so many other people have said and what the Minister is saying.
Johnny Mercer
I accept that there was an imbalance of the views in the evidence that the Committee heard. Those groups, while I accept that they have a degree of concern for the welfare of service personnel and veterans, are not the sole arbiters or owners of that position. We are all here trying to help those who serve and veterans. In the end, we have to make a balanced judgment about what is in their best interests, and that is what this Bill is about.
This is not a sort of anti-human rights thing; it is simply bringing into that debate an understanding of the reality of modern combat that has not been there for many years and has resulted, as we have seen, in the experiences of people such as Major Bob Campbell. Those two things cannot be argued. There is, of course, the human rights element, but there is an application of the ECHR to the battlefield that is not correct and has resulted in what we have seen.
Liz Twist
What these amendments seek to do, and what those witnesses were asking us and the Government to look at doing, is improve the Bill so that it better reflects the broader range of interests. I am surprised that the Minister does not want to reflect on that and build in some of those protections.
Johnny Mercer
That is because I have reflected on those things, and in my and the Government’s view, which is allowed to be different, they do not improve the Bill. If we were to take away the six-year limit, we would start diverging away from one of the clearest aims we have, which is to provide certainty for veterans. I understand there are different views, but I am afraid I do not agree, and neither do the Government.
For those reasons, amendment 88 to 91 are not necessary. We have already discussed the reasons why clauses 8 to 10, which introduce schedules 2, 3 and 4, should stand part of the Bill, so I do not intend to repeat them here. I recommend that the amendment be withdrawn and schedules 2, 3 and 4 stand part of the Bill.
Stephen Morgan
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
Clause 9 ordered to stand part of the Bill.
Schedule 3 agreed to.
Clause 10 ordered to stand part of the Bill.
Schedule 4 agreed to.
Clause 11 ordered to stand part of the Bill.
Clause 12
Duty to consider derogation from Convention
Chris Evans
I beg to move amendment 57, in clause 12, page 8, line 20, at end insert—
“(1A) No order may be made by the Secretary of State under section 14 following consideration under this section unless a draft of the order has been laid before, and approved by, each House of Parliament.”.
This amendment would require significant derogations regarding overseas operations proposed by the Government from the European Convention on Human Rights to be approved by Parliament before being made.
Good afternoon, Mr Mundell. It is a pleasure to once again serve under your chairmanship as we head into the final straight of this Bill Committee. I rise to speak in support of amendment 57. I have concerns about multiple aspects of the Bill. This amendment is crucial to improving the Bill and safeguarding our reputation at home and abroad, and it can easily be implemented.
The amendment is simple. It asks that the Government seek approval from both Houses of Parliament before the Secretary of State for Defence approves any derogations from the European convention on human rights. I spoke in the last sitting about parliamentary scrutiny of the role that the Bill gives to the Attorney General, and I must once again raise the absolute importance of scrutiny. I remind the Government that the UK is not a presidential system—given what we see from the United States at the moment, amen to that. The Government draw their power from this House. This House must be consulted on matters as serious as derogating from our key international obligations. The Government are in danger of destroying our reputation as a country that upholds and defends international law. They should at the very least let Parliament act as a check on the worst urges that may come out this legislation.
The Bill would use article 15 of the European convention on human rights, the derogation clause. A guide from the Council of Europe says of article 15:
“It affords to Contracting States, in exceptional circumstances, the possibility of derogating, in a limited and supervised manner, from their obligations to secure certain rights and freedoms under the Convention.”
The words that stick out to me are “exceptional” and “limited”. If these cases are exceptional, there should be no problem with the Defence Minister seeking parliamentary approval on the very rare occasions when they deem derogation necessary.
Mr Jones
Does my hon. Friend agree that, although the Human Rights Act is often portrayed as being used by unscrupulous foreigners to attack us, it is very important for our servicemen and women if they are bringing claims against the MOD for injuries that they have suffered?
Chris Evans
My right hon. Friend is absolutely right. Human rights are a political football that is being kicked around by everybody. If hon. Members want to see the importance of the Human Rights Act, they would do well to look at the debate that I introduced last week about the Uyghur Muslims in China, and at what they are going through. We have had human rights problems with China. On the issue that my right hon. Friend raises, of course human rights are vital when claims are brought against the Ministry of Defence, and that should be considered. We should not attack anybody’s right to defend their human rights in court, and we should not view human rights as something bad. They are fundamental rights that we all have as humans.
Parliament can then decide whether a derogation is limited. If we are going to derogate from international obligations, consent must come from Parliament. The Equality and Human Rights Commission said in written evidence:
“At the very least, we recommend support for amendment 57, which would require significant derogations regarding overseas operations proposed by the Government from the ECHR to be approved by Parliament before being made.”
As it points out, the amendment is the very least that we should be doing to ensure that the UK upholds its very proud record of human rights across the world. To set a legal norm for derogation from the European convention on human rights would seriously damage Britain’s international standing. It would send a signal that these international conventions and treaties are not taken seriously by our nation, and would have the knock-on effect of harming the integrity of our troops.
In its briefing on the Bill, Redress said:
“the Bill risks undermining the UK’s influence on human rights in the global context”.
Derogating from the international conventions on human rights will clearly diminish our integrity on these matters. The Government should be keen to mitigate that in any possible way. The Opposition believe that this amendment is a good start if the option to derogate must be written into the Bill at all.
Martha Spurrier, the director of Liberty, said in one of the evidence sessions:
“The concern, of course, is when you take a wider view and look at this Bill as a whole, which very much signals the desire to water down the human rights arrangements”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 76, Q149.]
Surely the Government want to do everything in their power to counter those views and assure the global community that this country still regards human rights as of the utmost importance.
I echo the words of my hon. Friend the Member for Barnsley Central (Dan Jarvis), who said on Second Reading:
“At a time when we are witnessing an erosion of human rights…it is more important than ever before that we uphold our values and standards and not undermine them.”—[Official Report, 23 September 2020; Vol. 680, c. 1109.]
In a similar vein, the Equalities and Human Rights Commission warned:
“At a time when the UK Government’s adherence to international law”
and the relationship with Northern Ireland
“is under increased scrutiny, it is imperative that the UK is seen to show the highest regard for the international legal order.”
To write in a system of derogating from European conventions regarding human rights would severely undermine us. This clause, unamended, will determine our international reputation, and therefore the reputation of the brave men and women who serve in our forces.
Amnesty has said that, as it stands, the Bill
“will do irreparable damage to the reputation of the armed forces of this country, undermine basic principles of access to justice and send a bad message internationally.”
The former director of service prosecutions, Bruce Houlder, has called the Bill an “international embarrassment”. David Greene, the vice-president of the Law Society, has added to the voices warning of our loss of international standing, saying that while
“Our armed forces are rightly known across the world for their courage and discipline”,
the provisions allowing for a derogation from human rights conventions and breaking international law
“would undermine this well-deserved reputation”.
Multiple people and organisations say that the Bill will damage our international standing. After all, how can we call on other countries to respect international treaties on human rights, or to honour international obligations, when we are setting a precedent in our legislation for derogating from them? How are service people supposed to carry out missions overseas with the integrity that the British forces have if they know that they might not always be held to international standards by their own Government?
If the Government insist on writing derogations from the European convention on human rights into the Bill, the legislation must be scrutinised at the highest level. It is that important. The Government cannot simply ignore international conventions without getting approval for doing so from both Houses, and ensuring that derogations are considered case by case and are deemed exceptional actions. That would signal to other countries that we still valued international conventions on human rights.
Mr Jones
Does my hon. Friend agree that the problem with the European convention on human rights is that people are confused about how it relates to the European Union? Clearly, there is a dog-whistle approach to anything with the word “Europe” in it. The convention has nothing at all to do with the European Union. It is actually something of which we should be proud. Winston Churchill and others pioneered it at the end of the second world war.
Chris Evans
Yes, my right hon. Friend is absolutely right. He gets to the nub of the issues that we are facing nationally. In the press, and even in some quarters of the House, it seems that putting the word “European” on anything makes it something to do with the European Union, and then we open up a can of worms about Brexit. As he says, the European convention on human rights has a proud history, involving such luminaries as Sir Winston Churchill, who was responsible for setting it up.
My right hon. Friend is absolutely right to say that we have to be careful about confusion. When the word “Europe” or “European” is slapped on something, people think it is all about Brussels and its rules on bendy bananas, or whatever else people want to throw at us. This is a really important point. Whatever side of the argument people are on—whether they supported Brexit or wanted to remain in the EU—they should realise that the European convention on human rights has nothing to do with the EU. This is fundamentally about human rights.
Mr Jones
Does my hon. Friend congratulate the Members of this House who sit on the Council of Europe? Its role is to ensure that the European convention on human rights is a beacon of freedom and rights throughout the world, but in parts of Europe today—Ukraine being one, and Russia another—the human rights that we take for granted are not practised.
Chris Evans
I echo my right hon. Friend’s comments about the work of the Council for Europe; I know how important it is. If we want to talk about human rights more widely, look at what happened in Nigeria yesterday, and what has happened in Azerbaijan, Belarus, Ukraine and Russia. We are the guardians of the rule of law. This whole country is formed on the rule of law, but we have always had an international and Atlanticist outlook whereby we defend human rights to the hilt. There is a fundamental belief, which I think is shared across the House, that if one person loses their human rights, we all do. That is something we should be guided by.
No member state of the Council of Europe has previously derogated from the European convention on human rights in the manner proposed in the Bill. That is how unusual its provisions are. What we are asked to agree to today would make us an anomaly right across the continent of Europe and beyond. It is therefore clear that intense scrutiny of derogations would be highly sensible.
Mr Jones
I agree. On combat in overseas operations, the Supreme Court was very clear in the Smith case that combat immunity was not in any way prevented by the Human Rights Act 1998. In that case, the MOD was trying to extend the Human Rights Act to cover planning decisions that were taken in Whitehall about Snatch Land Rovers.
Chris Evans
It comes back to the point that my right hon. Friend has so eloquently made over the last few sittings. I tell the Minister this: I have enjoyed my right hon. Friend’s contributions, though they may have been difficult.
Chris Evans
Sometimes I am not sure.
I was not au fait with the case of the Snatch Land Rovers before I came here. The point my right hon. Friend the Member for North Durham has been making is that one day, in the near future—a nearer future for some than for others—we will not be here, and others will come in, but the legislation will stay. We have to get it right. He knows as well as anyone else, given his experience, that the Ministry of Defence will hide behind its lawyers. In this case, they would have used the Human Rights Act. That is why it is important that we have scrutiny at the highest level. It is important that the provisions are not left open for lawyers to use at will. I absolutely agree with my right hon. Friend.
To me, it is clear that intense scrutiny is highly sensible. It ought to be required when the UK decides to derogate from conventions; otherwise, we will be setting a dangerous precedent. This country has a unique role in global history. We have set the standard for so many countries to follow.
Mr Jones
The provisions may also pose a practical problem for deployment with other forces. Everyone agrees that in the future, many of our deployments will be with other nations, and if we have a derogation, and our situation is different from theirs, that could create problems in building alliances, or UK armed forces deploying with our allies.
Chris Evans
I absolutely agree. We do not know who will lead our combined forces in the future. If we have a piece of legislation that allows us to derogate from the European convention on human rights, that puts us at a disadvantage. This year we celebrated the anniversary of VE and VJ Day. Of course, during the famous D-day landings, we were led by an American, General Eisenhower. We might be putting our forces at risk if we are allowed to derogate from the European convention on human rights.
Given the UK’s standing and influence, there is a risk that if this provision remains in the Bill as it is, and is acted on without parliamentary scrutiny or consent, it would set a dangerous precedent to other countries in future conflicts. Having carte blanche to derogate from international conventions is not a precedent that the UK should set. As I said, other countries look to us for the standards that we have set in the past. We should be setting the highest standards in the future.
Other organisations have also raised their concerns about the Bill and giving the Government the ability to ignore international law. Justice stated:
“the Bill would damage the standing of the armed forces by acting contrary to established legal norms—both domestic and international…The Bill risks both contravening the UK’s obligations under the European Convention on Human Rights…and other international legal instruments, many of which the UK helped to create.”
Our country has a proud history of upholding international conventions on human rights across the globe, but the Bill threatens to undo our international standing as the rightful champion of human rights. Amendment 57 will make it clear that our country still sees international obligations and human rights conventions as vital. It states that the Government will not derogate from human rights conventions without real and significant cause. It shows a commitment to transparency and parliamentary scrutiny.
Mr Jones
My hon. Friend is just getting into his flow. Does he agree that the problem with the Bill is that it does not define the circumstances in which a derogation will take place? We have a Conservative Government today, but if there is no definition of the reasons for allowing a derogation, a future Government could use the provision to do anything.
Chris Evans
I agree with my right hon. Friend. We have to be careful; we are in the here and now, but we have to attempt to future-proof the legislation we pass. That is true of anybody. It will be difficult, but if, God forbid, there was an extreme Government in future, they could do whatever they liked, using this anomaly in the Bill, and would be acting within the confines of the law. That is why it is extremely important to remember that the legislation will remain long after each and every one of us has gone.
Mr Jones
That is not in the realms of fantasy. In Europe, we need only look at the way Hungary is going under the leadership of Mr Orbán, who seems to disregard a lot of what we would take to be human rights legislation. This argument is not based on a figment of the imagination, or fantasy.
Chris Evans
This is on our doorstep. Look at the annexation in Ukraine. Hungary is running over human rights like a tank. If we leave these anomalies in the legislation and do not tighten it up, people can do whatever they like in future. It is extremely important that we have certainty; that is the most important element of law. Judicial precedent and statutory interpretation are important, too, but we need certainty, and that is unfortunately not in the Bill. It would be lovely if the Government supported the amendment—it would be the first Opposition amendment that they agree to in the Committee—because it would ensure certainty.
If we cannot give certainty, because we do not know when we will use the provision, we can at least ensure parliamentary scrutiny of derogations. As Justice and other human rights groups have publicly stated, the Bill signals that the Government are willing to break international conventions. It signals a worrying disregard of the European convention on human rights and the Geneva convention. That cannot be allowed to pass unchecked. That is extremely important. Particularly as we leave the European Union, we should be aiming to highlight our commitment to international conventions such as those on human rights. Any derogation from the European convention on human rights must be checked by Parliament, decided on democratically, and subject to the highest level of scrutiny, as any derogation should be.
Mr Jones
My hon. Friend refers to the Geneva convention; there are very good reasons for such conventions. They are not just the right thing to follow, in terms of human rights; they afford protections to our servicemen and women. In the past, we have rightly criticised—and, going back to the Nuremberg trials, taken cases against—individuals who ignored the Geneva convention.
Chris Evans
Absolutely. Our troops must be defended, and they must have the right protection in law.
I point out, Mr Derogation—please forgive me, Mr Mundell; that was my first mistake in a number of sittings. I point out, Mr Mundell, that derogation from treaties is extremely rare. To derogate frequently from a treaty would be to undermine it. [Interruption.] I see that I am shaping up to be the most unpopular Member present, because I keep speaking and eating into lunchtime, so I will come back later this afternoon.
Ordered, That the debate be now adjourned.—(Leo Docherty.)
Overseas Operations (Service Personnel and Veterans) Bill (Tenth sitting)
Thursday 22nd October 2020
(3 years, 6 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 October 2020 - (22 Oct 2020)
Mr Kevan Jones (North Durham) (Lab)
Welcome back to the Chair, Mr Stringer.
My hon. Friend the Member for Islwyn spoke this morning about the duty to consider derogation from the European Convention on Human Rights. Clause 12 states:
“After section 14 of the Human Rights Act 1998 insert—
‘14A Duty to consider derogation regarding overseas operations”.
It then details ‘overseas operations’. I have a problem with that for many of the same reasons outlined by my hon. Friend. What do we derogate from, and for what reasons? The Human Rights Act 1998 gets a bad name in the sense that people start foaming at the mouth and think that it has something to do with Brussels and Brexit, but it is nothing of the sort. That is important to remember in view of the rights that it gives us and the signatories to it. The Act covers all 47 states that have signed the European Convention on Human Rights. As my hon. Friend said, this country has a proud history of acting as a champion of human rights under the convention, and was instrumental in the convention’s creation in 1950. It was championed by Winston Churchill, mainly as a result of the issues arising from the second world war. It is also important to note that the people who wrote it were members of the United Kingdom Government, and lawyers as well. That convention contains a fundamental part of British DNA—in fact it goes back to Magna Carta and the 1679 Habeas Corpus Act. We build up laws in this country over time, but the horrors of the second world war prompted us to enshrine basic rights for everyone. As I have said before, the Human Rights Act has been portrayed—as it has in terms of the Bill—as the means for nasty foreigners to be able to sue the Ministry of Defence. But the opposite is true: it is fundamental for members of our armed forces. I have already mentioned how it was used in the Smith case in connection with Snatch Land Rovers.
The Bill, as drafted, asks for derogations from the human rights convention. Such derogations are allowable, but subject to limitations, and an applicant must be clear about what they want. When people start chomping at the bit and foaming at mouth when we talk about the Human Rights Act and the human rights convention, I always say, “Just look at it and see what it does. Can you really disagree with it?” Unfortunately, some people do disagree with it, but article 2, which is the most quoted, relates to the right to life.
Chris Evans
In the past, the European Court of Human Rights has been judged as the most effective international human rights court in the world.
Mr Jones
It is, because it sets a standard that I do not think many British people could disagree with. Article 2 enshrines the right to life; I do not think that most people would disagree with that. Article 3 relates to freedom from torture, again I am not sure that anyone would disagree with that. People may say that that is self-evidently accepted these days, but not that long ago in Iraq, one of our closest allies, the United States, did commit acts of torture. I did not see any evidence that UK servicemen and women were involved in that when I was part of the rendition report produced by the Intelligence and Security Committee, but there were occasions when UK servicemen and women, and our intelligence agents, were present. Perhaps we all take it for granted that we should be against torture, but there were such cases in Iraq in living memory.
Article 4 relates to freedom from slavery. Again, a few years ago we may have thought about slavery in terms of historical cases and the transportation of slaves from Africa to America and the West Indies. But today, in all our constituencies, slavery is, sadly, alive and kicking, even in my constituency of North Durham, where we had a case of modern slavery about 12 months ago. It exists in modern society.
Article 7 relates to the right to a fair trial, and that comes to the heart of the Bill.
The Minister for Defence People and Veterans (Johnny Mercer)
The right hon. Gentleman has talked about articles 2, 3 and 4, and is about to discuss article 7. Is he aware that we cannot derogate from those articles, and nor would we seek to?
Mr Jones
I know. If he is patient, I have a full description of what we cannot derogate from. If he sits back and just enjoys it, he might learn something as well.
We have already discussed how the Bill is removing veterans and armed forces personnel from section 33 of the Limitation Act 1980, and I believe that that does not allow people access to a fair trial. But we would all agree that the right to a fair trial is a basic right. Article 8— Minister, do not worry, I am not going to read out the entire list of articles in the Human Rights Act, but I want to concentrate on those that may come within of the Bill’s remit and may be subject to derogation—relates to respect for family and private life. No one should disagree with article 9—freedom of thought, belief and religion. A normal society should have no problems with such a freedom.
The Minister intervened to point out that any derogations are subject to limitation. That leads on to the important question about why such a derogation is included in clause 12. It has always been accepted that the rights given to us under the Human Rights Act should be considered in law according to their hierarchy in the convention. In terms of the Bill and warfare, people have focused on the idea that somehow that Act and the convention on human rights stop a country like ours, or members of the armed forces, using lethal force.
To come to the issue that the Minister just raised, I should say that, yes, there are some absolutes that cannot be derogated from. For example, article 15(2) of the convention states:
“No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.”
That was upheld by the Supreme Court in the Smith case. It held steady—Hilary Meredith mentioned this point—in saying that lawful conduct cannot be questioned in terms of the use of the other ones, which the Minister referred to; this comes on to the rights that are absolute and cannot be impaired in any way. There is article 2, about the protection of the right to life, apart from the qualification that I have just given. Article 3 is about the prohibition of torture—something that the Bill could not derogate from.
I should say to the Minister that I disagree with some of my colleagues who said on Second Reading that the Bill gave carte blanche for torture. I simply said that, no, it does not, as would be clear if they read the Bill. Alas, these days many people hold forth in the Chamber without ever having read the relevant Bill—a bit of a disadvantage, I always think, if someone wants to make a useful contribution.
Article 4 is about the prohibition of slavery and forced labour. We cannot derogate from those issues. Article 7 is about punishment without law. One right that some might think we should be able to derogate from is in article 12—the right to marriage. We could not derogate from any of those rights. My issues with the Bill are not about the headlines that some have grabbed in saying that it gives carte blanche for torture. It does not, because of the limitations on derogations.
I then ask myself why the derogation that we are discussing is needed. All my hon. Friend the Member for Islwyn was trying to do—and I asked about this earlier—is establish what we can define about what derogations are actually needed, and why. Is this a way of trying to protect the MOD from civilian claims, as I was saying earlier?
Chris Evans
Article 15 of the European convention on human rights allows derogation in times of war. The last time this country asked for a derogation was in the wake of 9/11 and the rise of al-Qaeda; there was another time in the ’70s during the troubles in Northern Ireland. Does my right hon. Friend agree that derogation is so important? Even when it was granted in the wake of 9/11, this country had still had to argue the reasons for derogation.
Mr Jones
My hon. Friend obviously must be reading my mind; I was about to come to the Northern Ireland case, which is important in respect of the limitations of derogation and the controls around it. The other thing about when a state wants to derogate from the European convention on human rights is that it first has to inform the secretary-general of the Council of Europe, who should be given an explanation about why. Can the Minister tell us in what circumstances he sees this Bill being used, in terms of the derogation from human rights, particularly when it does not limit lawful combat actions in a conflict situation? The Bill also needs to give the reasons and measures, and how they will operate, and set out why it will not be withholding those rights. It comes back into the tier, as I said, where there are some that cannot be touched and others that can.
Chris Evans
I think my right hon. Friend is referring to the case of Lawless v. Ireland, where the European Court of Human Rights said that for it to be a state of emergency the entire population needs to be under threat for it to be possible to derogate from the convention on human rights. That underlines how significant it is to even ask for a derogation from the European Court of Human Rights.
Mr Kevan Jones
My hon. Friend is right on the second point, but that was not the first case I referred to. In the first case, legislation that the UK had put forward was challenged as a breach of the convention’s obligations. It is Brogan and others v. the United Kingdom. In that case, the judge ruled that the UK would only be able to apply for a derogation if it declared a state of emergency, pursuant to article 15.1 in the derogation clause of the convention. Under the Human Rights Act, there are good reasons why we are able to derogate, but, justifiably, they have to be damn good reasons. Those derogations were found to be unlawful, which allowed the respondents to claim compensation for unlawful imprisonment.
That demonstrates that these provisions are there for good reasons, but we should not use them loosely. I have not yet heard anything about why they are included in this Bill. Clearly, all the issues around warfare and people using lethal force on the battlefield are covered by the convention. That has been upheld by the Supreme Court.
Chris Evans
When a Government ask for derogation under article 15, the key words are “exceptional circumstances.” If, and only if, it is granted it is then limited and the Government have to justify that. That is the crux of the problem with the Bill and why we have introduced the amendment. The Bill seems to be going against the spirit of that article. Does my right hon. Friend agree?
Mr Jones
I do. I do not know why it is in the Bill, without an explanation about why one would want to use it. As my hon. Friend the Member for Islwyn said, there are perfectly good reasons why there are derogations in the Human Rights Act, for example in times of emergency. But for this area? I just do not see it, because as I say, lawful combat is covered. Torture and other things are proscribed anyway, so nobody can get derogations for those. For what other purpose would it be in the Bill? That is what I find very difficult to understand, and that is why I have a problem with some of this Bill.
The situation we are in is possibly due to the fact that the Human Rights Act 1998 has been portrayed by a lot of people as this horrible piece of socialist, human rights-hugging legislation brought in by a nasty Labour Government. It was not: all it did was incorporate the European convention on human rights into UK law. Previously, if claimants wanted to raise a case under the ECHR, they had to take that case to Strasbourg. Because of the Human Rights Act, those cases were able to be looked at in UK courts and decided by UK judges, which I think was a lot better than the previous scenario. It made it easier, but that is possibly why the focus and attention has been on human rights cases, or the uses of them.
The other thing about human rights cases, which gets into the mythology around those cases, is that the Human Rights Act is often quoted by lawyers and given as a reason why a case should go forward. It is often just struck out, because those lawyers are sometimes just flying a kite and seeing if they get anywhere, but it is quite a robust piece of legislation. It also gives us a lot of protections: it protects individual citizens, but more importantly, it protects individual servicemen and servicewomen when they are bringing cases against the MOD. That is the problem we have had with some of the optics around this, rather than what the facts themselves are. I have had these discussions with constituents, and when I tell them that the Human Rights Act has nothing to do with the EU and that it was actually Winston Churchill’s invention, they look at me agog.
The point is that, as my hon. Friend the Member for Islwyn said this morning, these are the standards that we apply when we are arguing the moral case, both in foreign policy and in anything else. These are the things we want people to follow, and if we are just loosely throwing derogations into this Bill, we are going to be quite rightly accused of not holding ourselves to the same high standards, or somehow trying to wriggle out of our basic commitments under the Human Rights Act, which is very difficult for me. As I say, I do not understand why this is in the Bill.
The other issue, which I have raised before and was also raised by Hilary Meredith, is the time limits under the Human Rights Act. There is a one-year limit on Human Rights Act cases, but what we are saying is that there should be a longstop, because they are covered by the Limitation Act 1980. We are arguing for a separation of that, in terms of the six-year longstop, and I think Hilary Meredith said in her evidence to us that it would be interesting to know how that fits with the EHCR and its incorporations. I am quite happy for the Minister to write to me on this topic, but he did say that the Bill complies with the Human Rights Act, and I would like to see the explanation from the lawyers about the implementation of the time limits, because I am not sure whether that is something we would have to run by the secretary-general of the Council of Europe. What we are saying, in effect, is that we are limiting someone’s access to human rights. That is the use of human rights legislation, so I think that is the important point.
The other issue is, as the Minister said, the growth in the areas for these cases. I admit that, in some of the Phil Shiner cases, the Human Rights Act was just flying a kite, basically. Those cases should have been knocked down very quickly, and it should have been said that they were nothing to do with the Human Rights Act.
The Defence Committee did a very good report—I think the Minister was on the Committee at the time—called “Who guards the guardians? MoD support for former and serving personnel”. It is worth reading—I have read it, and it is a good report. The main issue in it is investigations, which we have been talking about throughout this Committee. It is very critical of the £60 million spent on IHAT, for example. There was no mention of it being anything to do with the Human Rights Act. It outlines in detail the chaos when IHAT was set up in 2010 by—I reiterate yet again—the coalition Government.
I would like to know what the justification is for having this measure in the Bill. As my hon. Friend the Member for Islwyn said this morning, it potentially has huge implications for us.
Johnny Mercer
Clause 11 introduces new factors that the court must consider when deciding whether to allow human rights claims relating to overseas military operations to be brought in the normal time—[Hon. Members: “We are on clause 12!] I am sorry; I got carried away. Hon. Members are right—it is clause 12.
The measures in this Bill about derogation are not intended to change the existing and very robust processes that the Government and Parliament follow if and when a decision to derogate has been made. The requirement to consider derogation merely ensures that all future Governments are compelled to consider derogating from the ECHR for the purpose of the specific military operation. It is worth saying that the only change that we are bringing about in this Bill is the requirement to consider, rather than leaving it as an option. It is not actually a derogation; it is a requirement to consider a derogation and prove that it has been considered, not a derogation itself. That will ensure that operational effectiveness can be maintained by, for example, enabling detention where appropriate for imperative reasons of security. It is worth noting that the vast majority of the challenge that we face around lawfare has come from issues relating to detention.
Appropriate parliamentary oversight over derogation is already built into the Human Rights Act 1998. For the benefit of the Committee, I will spell out the existing obligations on the Government once they have made the decisions to derogate from any aspect of the European convention on human rights. The Human Rights Act requires that the Secretary of State must make an order designating any derogation by the UK from an article of the ECHR or a protocol thereof. The Secretary of State must also make an order amending schedule 3 of the Human Rights Act to reflect the designation order or any amendment to, replacement of or withdrawal of the designation order. A designation order ceases to have effect if a resolution approving the order is not passed by each House of Parliament 40 days after it is made, or five years from the date of the designation order, unless extended by order under section 16(2) of the Human Rights Act, or if it is withdrawn, or if it is amended or replaced.
Mrs Emma Lewell-Buck (South Shields) (Lab)
It is a pleasure to see you in the Chair again, Mr Stringer. I wonder whether the Minister can help me out, because I am a little confused. The Government’s own memorandum states:
“Clause 12 does not require derogation nor does it make a decision to derogate more or less likely; derogation is still entirely dependent on the particular circumstances under consideration at the time.”
It is unclear what the practical point of the clause is and what difference it will make. In other words, what is the point of it?
Johnny Mercer
The practical difference is that instead of it being optional to consider derogation from the ECHR, it becomes mandatory for Governments to demonstrate why they have derogated from the ECHR. It is much like in the prosecution setting, where we talk about factors to consider. Previously, people have said, “Well, they consider those anyway.” All we are doing is making it mandatory to prove that they have been considered, in order to demonstrate that the correct process has been gone through.
Mr Jones
My hon. Friend the Member for South Shields is right. This will have no effect whatsoever. I suspect it has just been put in the Bill for a bit of window-dressing—to suggest that the Government are feeding red meat to those who want to be against the entire Human Rights Act. The Minister is feeding the bogeyman around the Human Rights Act.
Johnny Mercer
Of course it is not.
In addition to the requirements laid out in the Human Rights Act 1998, the Government must communicate a decision to derogate to the secretary-general of the Council of Europe, including details of measures taken and the reasons for taking those measures, and inform the secretary-general when derogations have ceased. Those existing measures provide for an appropriate level of parliamentary debate of a decision to derogate. Requiring a parliamentary debate on decisions to derogate ahead of time could undermine operational effectiveness.
Johnny Mercer
The Government may have to make decisions quickly, meaning there simply will not be time for a debate.
Johnny Mercer
Requiring a debate before an order is made may also result in discussion of operations that rely on an element of surprise. That would defeat the purpose of derogation in relation to overseas military operations, which should enhance operational effectiveness. I therefore strongly recommend that the amendment is withdrawn.
Chris Evans
I am not going to go on forever and I will withdraw the amendment.
Mr Jones
I thank my hon. Friend for giving way. It is interesting that the Minister has read his speech into the record like he used to, and his Whip told him to sit down. Can my hon. Friend think of an example that was so urgent for operational reasons that it would have to be rushed through on this basis? The Minister clearly did not want to give one.
Johnny Mercer
I am happy to—for example, when the French conduct an operation in Mali and, without going too far, conduct counter-terrorism operations such as hostage rescue, whatever that may be, which will require them to detain in the country where there is not an agreement already, they will be required to derogate from ECHR compliance in order to make those detentions and those arrests.
Chris Evans
Does anyone else want to intervene now? I feel like a post box at the moment. With the amount of whys coming over my left shoulder, it was just like my four-year-old son asking me why all the time—I do not mean to offend my right hon. Friend the Member for North Durham.
I hope this matter is revisited on Report. I believe the derogation is very important and, as my right hon. Friend mentioned, article 15 is so important. It is usually in states of emergency that derogation is asked for. That means it needs to be scrutinised in both Houses. I will withdraw the amendment at this stage, but I hope that we will revisit the issue on Report, when the Bill comes back to the Floor of the House. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 ordered to stand part of the Bill.
Clause 13
Power to make consequential provision
Question proposed, That the clause stand part of the Bill.
Mr Jones
We are moving in the direction of a lot of things in this House being done by regulation. Here again:
“The Secretary of State or the Lord Chancellor may by regulations make provision that is consequential on any provision made by this Act.”
We have just had a discussion about the Human Rights Act, and I am less than convinced. The other issue—because, again, this is a contentious area—is the statutory instruments that will be used, and how the provisions will be amended. Once the Bill is passed, it will, I think, lead to a lot of problems, so I would just like to understand a bit more about how the powers will be used.
Johnny Mercer
I have little to add to what I previously said. The point of these provisions is simply to formalise our position and make sure that where we should have derogated previously to prevent the abuses that we have seen, and we have not, we simply bring forward legislation to make it mandatory to consider that derogation and prove the workings thereof.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14 ordered to stand part of the Bill.
Clause 15
Commencement and application
Question proposed, That the clause stand part of the Bill.
Mr Jones
Again, I want clarification about clause 15, because there is hype around the Bill somehow righting all past wrongs, and giving rights. Northern Ireland, which we spoke about this morning, is not covered by the Bill, but there is also the question of cases that are currently going on, or those that have been. I just want the Minister to give a response to the fact that the Bill will not apply to past cases relating to Iraq and Afghanistan, and there will not be any fast resolution. I want to get clear parameters from the Minister for which cases will fall within the Bill’s scope, because I think—there has been press comment on this—things have been a bit confused, perhaps intentionally and perhaps unintentionally.
Johnny Mercer
I am more than happy to answer that. If the Bill receives Royal Assent, it will apply immediately. It will not apply to any cases where an external, independent decision from the prosecutor on whether to prosecute is awaited, but it will apply from Royal Assent, and there is therefore an element of retrospection to it in that if further things come from Afghanistan, Iraq or wherever it may be, the Bill will apply and provide that certainty. We have been clear all along on the Northern Ireland issue. I have been clear that we will not leave Northern Ireland veterans behind. It was an important concession to achieve—that veterans who served in Northern Ireland will receive equal treatment to those who are covered by the Bill.
Johnny Mercer
The right hon. Gentleman can say no, but that is the reality of the position. The Northern Ireland Secretary has spoken before about how he intends to bring forward legislation before Christmas to do that, but it is an issue for the Northern Ireland Office, and I think the right hon. Gentleman knows that.
Johnny Mercer
That is not what I am saying; I am saying that they will have equal treatment as those who are covered by the Bill.
I appreciate that such matters are hard. When I started all this, I was told that we would never introduce this legislation, but we are. The balance is shifting, and we have a duty to those who serve. The Bill, and the measures from the Northern Ireland Office, will see that through.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16 ordered to stand part of the Bill.
The Chair
We now come to new clause 2, which we debated as part of an earlier group of amendments. Mr Morgan, do you want a vote on the new clause?
Stephen Morgan (Portsmouth South) (Lab)
indicated dissent.
New Clause 3
Access to legal advice for service personnel
“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation of access to impartial and independent legal advice for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, in relation to legal proceedings in connection with operations of the armed forces outside the British Islands, and lay a copy of the evaluation report before Parliament.”—(Stephen Morgan.)
This new clause would require the Government to commission and publish an independent evaluation of service personnel’s access to legal advice in relation to the legal proceedings covered by the provisions in the Bill.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
New clause 4—Access to legal aid for service personnel in criminal proceedings—
“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation of access to legal aid for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, in relation to criminal legal proceedings in connection with operations of the armed forces outside the British Islands, and lay a copy of the evaluation report before Parliament.”
This new clause would require the Government to commission and publish an independent evaluation of service personnel’s access to legal aid in relation to the criminal proceedings covered by the provisions in the Bill.
New clause 5—Access to legal aid for service personnel in civil proceedings—
“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation of access to legal aid for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, in relation to civil legal proceedings in connection with operations of the armed forces outside the British Islands, and lay a copy of the evaluation report before Parliament.”
This new clause would require the Government to commission and publish an independent evaluation of service personnel’s access to legal aid in relation to the civil proceedings covered by the provisions in the Bill.
New clause 9—Access to justice for service personnel—
“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation comparing—
(a) access to justice for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, in relation to legal proceedings in connection with operations of the armed forces outside the British Islands, with
(b) access to justice for asylum seekers and prisoners seeking to bring an action against the Crown.”
New clause 10—Duty of care to service personnel—
“(1) The Secretary of State shall establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.
(2) The Secretary of State shall lay a copy of this standard before Parliament within six months of the date on which this Act receives Royal Assent.
(3) The Secretary of State shall thereafter in each calendar year—
(a) prepare a duty of care report; and
(b) lay a copy of the report before Parliament.
(4) The duty of care report is a report about the continuous process of review and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—
(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;
(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;
(c) judicial reviews and inquiries into allegations of misconduct by service personnel;
(d) in such other fields as the Secretary of State may determine.
(5) In preparing a duty of care report the Secretary of State must have regard to, and publish relevant data in relation to (in respect of overseas operations)—
(a) the adequacy of legal, welfare and mental health support services provided to service personnel who are accused of crimes;
(b) complaints made by service personnel and, or their legal representation when in the process of bringing or attempting to bring civil claims against the Ministry of Defence for negligence and personal injury;
(c) complaints made by service personnel and, or their legal representation when in the process of investigation or litigation for an accusation of misconduct;
(d) meeting national care standards and safeguarding to families of service personnel, where relevant.
(6) In section (1) “service personnel” means—
(a) members of the regular forces and the reserve forces;
(b) members of British overseas territory forces who are subject to service law;
(c) former members of any of Her Majesty’s forces who are ordinarily resident in the United Kingdom; and
(d) where relevant, family members of any person meeting the definition within (a), (b) or (c).”
(7) In subsection (1) “Duty of Care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.
(8) None of the provisions contained within this clause shall be used to alter the principle of Combat Immunity.”
This new clause will require the Ministry of Defence to identify a new duty of care to create a new standard for policy, services and training in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigations arising from overseas operations, and to report annually on their application of this standard.
Stephen Morgan
It is a pleasure to serve under your chairmanship, Mr Stringer.
A running theme throughout the Committee’s evidence sessions was the sad cases of those who could have claimed justice had they received the proper support and advice. We are a country of fairness, one that prides itself on having a legal justice system that is seen as a bastion of truth, founded on the right to a fair trial. It has become clearer and clearer, however, that there are cracks in the system, and that we are not affording people the right support and guidance in accessing the right to a due process and a fair hearing.
There is also the concern that we are not affording our personnel the proper pastoral care and mental health and wellbeing support that they need when required. That is not acceptable. It is imperative that we ensure that our commitment to the armed forces covenant is maintained, and that that promise is honoured. Our country owes a huge debt to our service personnel yet many are unaware of or unable to access support—at least a fair hearing, for instance, when their employer may be liable for negligence against them, or other such claims, or even get the pastoral, mental and wellbeing support that they require when most needed. That is all because of a lack of resources and proper guidance. That risks breaching the armed forces covenant, and also undermines the reputation of our legal system. In turn, it also undermines our country’s wider international reputation, and I know that the entire membership of the Committee does not want that to happen.
Although Labour accepts that it would be counterintuitive and unproductive for the MOD actively to invite litigation and investigation into itself, the MOD has its own reputation to uphold. It is not just a matter of its standing in terms of representing our country throughout the world, whether on operations with our security partners or on humanitarian missions to provide support where it is needed most, but in terms of its own reputation. That cannot be compromised, and our partners need confidence in our MOD, whether that is in relation to an operational security matter, or a legal one. That confidence is necessary because of what it says about how effectively the Ministry is run. If that is called into question, that undermines confidence in two critical areas. First, it undermines our security partners’ confidence in the MOD to run an effective operation. Secondly, it undermines confidence in our MOD and, more broadly, the wider Government to operate our country’s security competently and effectively.
The Bill presents the opportunity to fix the problems that could cause such loss of confidence. We have an opportunity to get this right. I repeat what Labour has said throughout the process: we want to work with the Government to make the Bill better. Where we think we can see it improved, we will work constructively with the Minister, so that the Government get the Bill right. However, these amendments are just an example of how the Bill can be improved and, Mr Stringer, please do not just take my word for that; this issue was specifically raised in earlier evidence sessions by none other than Major Bob Campbell.
Mr Kevan Jones
I rise to speak to new clause 9, which is in my name. My hon. Friend the Member for Portsmouth South made an important point. We ask our servicemen and women to do dangerous, remarkable things on our behalf. Is there a straight read-across to an equivalent civilian job? No, I do not think there is, if we are talking about combat and some of the other things that we are asking people to do. We are asking two things: that they will ultimately have to take human life or give their own life in defence of this country and their comrades. That is a unique set of circumstances that many of us will never experience.
It is important, therefore, that we get it right and support our servicemen and women on two sides: where, because of their actions, they are accused of wrongdoing, or where, in the service of their country things are done to them through no fault of their own. They may contract a disease as a result of work conditions or the way a piece of equipment is designed. The problem with some of the Bill is that we are quite rightly focusing on the unique set of circumstances in foreign combat. There is also a whole swathe of areas where people are not in immediate danger but are capable of being injured while serving their country. That applies to a chef on a ship right through to somebody who is working in a maintenance depot.
If these service personnel were in civilian life, they would be allowed to join a trade union and to get independent legal redress. I think it was mentioned in the evidence session that the Dutch armed forces have a staff association or trade union. Although they do not have recognised trade unions in the United States, they have very strong regiment associations. The US Marine Corps has a very strong representative for its members and, having met the individual, very strong lobbying power on Capitol hill.
Chris Evans
When I was a young parliamentary researcher, a rather young hon. Member for North Durham raised this issue in a Westminster Hall debate in, I think, 2006—it might have been 2007. At the time, he was on the Back Benches and was yet to be appointed Minister for Veterans. What was stopping some form of staff association emerging? He argued for such an association in the Westminster Hall debate, but what sorts of obstacles did he encounter from military brass when he was in the Ministry of Defence?
Mr Jones
I am not in favour of a trade union for the armed forces—let me make that very clear—but there needs to be some type of representative body for members of our armed forces. The reasons argued against it were the same reasons that were argued when we brought in the service complaints commissioner and the ombudsman —that somehow it would affect the chain of command. Has the world stopped since we have had the ombudsman and the service complaints commissioner? No, it has not. It is not perfect, but the world has not stopped. I used to describe it as a pressure cooker: it allows another avenue for disputes or complaints to be dealt with in a timely way.
Reading the ombudsman’s annual report, I think she is making great progress, but there is a long way to go. A lot of the complaints that come forward are nothing to do with combat; they are to do with the way in which the Army handles its personnel issues—issues that, to be honest, would in some cases be very similar to what we would find in private industry.
I turn to the issue of representation. If we are going to have fairness, there has to be a level playing field. It surely must be right that there should be some way for members of the armed forces to have legal redress. I am not talking about minor disciplinary cases and things like that; I am talking about some of the serious cases that have been outlined. If you cannot sleep tonight, Mr Stringer, it is worth reading the Defence Committee’s 2016 report on this issue—I referred to it earlier—called “Who guards the guardians? MoD support for former and serving personnel.” The Minister was on the Committee at the time. The report was mainly about the issues around the IHAT inquiry. It did not only find, as we have already heard, the catastrophic delays that were happening, but it raised the issue of who represented the members of the armed forces who were being accused. As my hon. Friend the Member for Portsmouth South says, not only were they not represented, but they were actually encouraged in some ways not to take representation. I think even Major Campbell said in his evidence to us that he was more or less told, “Go away—it’ll be okay, everything will be all right.”, but it dragged on and on.
Chris Evans
I rise to speak in support of new clause 10 on a duty of care, but before I begin it would be remiss of me not to mention the good work that the Minister has done since he came to the House on the treatment of mental health, which I believe has put the issue to the forefront. We have a knockabout in this place—I speak for the Opposition; he for the Government—but when somebody is trying to do their best, they should be praised and that should be put on the record. I place on the record my thanks for all the work that he has done on mental health—not just since becoming a Minister, but since coming to this House. I think we can all agree that that has been the right thing to do.
New clause 10 provides for a duty of care to service personnel. It says:
“The Secretary of State shall establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.
(2) The Secretary of State shall lay a copy of this standard before Parliament within six months of the date on which this Act receives Royal Assent.
(3) The Secretary of State shall thereafter in each calendar year—
(a) prepare a duty of care report; and
(b) lay a copy of the report before Parliament.
(4) The duty of care report is a report about the continuous process of review and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—
(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;
(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;
(c) judicial reviews and inquiries into allegations of misconduct by service personnel;
(d) in such other fields as the Secretary of State may determine.”
That really drives at the heart of the concerns that we have had about the Bill. We have talked often about legislation and how it will change, but as we have seen in many interventions from my right hon. Friend the Member for North Durham and my hon. friend for Portsmouth North—
Chris Evans
Sorry. Maybe next time; that is the third mistake I have made today. As my right hon. and hon. Friends said, the crux of the Bill is not just about the law but the investigation. I believe from what the Minister has said that he has some sympathy for that as well.
The problem that we have with mental health, of course, is that we do not know what somebody’s background is when they join. Yes, they do psychometric testing and follow tests for reading and writing, and so on, but we do not know what was in their background. What was their family history? Might they have experienced personal distress or trauma in their childhood? That leads on to the problem that military investigations are often preceded by internal disciplinary acts.
What actually happens is that someone is faced with two pieces of law, especially if they have had a mental health problem. They have civilian law on the one hand and military law on the other, making things extremely complicated.
For example, investigations in military contexts are often more complex and involve additional investigative personnel, many of whom do not deal with investigations as their primary task. Therefore, we have all these multi- layered rules and regulations that are not in civil law.
Mr Jones
I agree with that. The Armed Forces Act 2006 tried to simplify the legal system, but the issue, again, is time delays. If we look at the ombudsman’s report each year, some of the simplest disciplinary issues should have been dealt with. That is not about investigations; it is about resources.
Chris Evans
As I said, the military are not employing full-time investigators. Many of the people who are investigating are doing other jobs as well.
It can get even more complicated. In cases of suspected disciplinary misconduct, the initial investigation is usually done by the immediate disciplining senior officer. That can then move on to the military supervisor, which makes it even more complicated again. In cases of suspected criminal acts, military police and probably legal advisers are called in as well. So we have large numbers of people who are not speaking to each other and who are getting confused about the rules, regulations and what is covered by what law. It is increasingly confusing.
Consider someone who already has problems with alcohol or drugs. I have some sympathy with what my right hon. Friend the Member for North Durham said earlier. When veterans are going through the criminal justice system—I am sure the Minister knows this—they often rely on the defence of post-traumatic stress disorder, but if we look at the facts, there is little research into how much it affects criminal behaviour. I am aware that 4% to 5% of the prison population—
Chris Evans
It was in 2016. The figure I have is 4% to 5%. If my right hon. Friend wants to correct me, I would be happy to take an intervention.
Chris Evans
That is the point I was getting to. Based on the Ministry of Justice figures that I have—the Minister may want to correct me—2,500 former members of the armed forces are in prison, largely because of sexual or violent crimes. However—again, my right hon. Friend might want to correct me, because I might be using out of date figures—0.1% were discharged from the armed forces, usually for mental health reasons. Are those figures that he recognises?
Mr Jones
The problem my hon. Friend underlines is the same problem I think the Minister will confirm we have today. Some people claim that 25% of the prison population is veterans, which is nonsense. The real problem—again, it was a problem when I was a Minister, and I am sure it still is today—is early service leavers. A lot of these people are early service leavers.
Chris Evans
Whatever the figures are, these people are still vulnerable to social exclusion and homelessness. I well remember a harrowing case from when I was growing up of a boy who joined the forces. He came straight out of care, and he did not do very well in the forces—he did not get above private. He had severe mental health problems. He came out and he could not operate outside of a stringent regime. He went to pieces and ended up in prison for committing a violent crime. It was very harrowing because I knew the family.
Mr Jones
Just because someone joins the armed forces, it does not mean that their mental health history is scrubbed at the recruitment door. My hon. Friend is right. A lot of things are put down to military service that are pre-military service. It is sometimes wrong to blame the service for some of those issues.
Chris Evans
My right hon. Friend is absolutely right. The person who was recruited in this case was clearly unsuitable for the forces. He did not take advantage of the fantastic opportunities that there are in the forces. He clearly had some sort of problem, and he needed to live in that regime where he was told what to do day in, day out. Once that left his life, his life went completely off the track. He said that he missed not just being told what to do but the camaraderie of his unit. Once that was gone, he felt friendless and alone.
However, the problem we have is that there is a dearth of academic research, and that is why we need a report. We do not know the unique factors that have an impact when it comes to military investigations, including the psychological wellbeing and the mental health of service personnel. I know that the Minister is a champion of this in the Government, and I am glad of that fact—I know that he will work on this issue for as long as he is a Minister—but that is the problem we have, and it is why we need a report. There are large numbers of factors that help personnel deal with the complexity of disciplinary and criminal proceedings and the potential of those two processes, but we do not know their effects.
Returning to the example from many years ago that I mentioned, there is also the point about camaraderie. When someone is under investigation, whether disciplinary or criminal, that has an effect on the morale of their unit, which in turn has a wider effect on their mental health. At the end of the day, many people who find themselves under investigation will say one thing: “I was simply following orders. Why am I the one being investigated?” Also, as my right hon. Friend the Member for North Durham alludes to, there are far more laws, regulations and rules in a military investigation. Some military laws have different objectives from criminal and civil laws: in contrast to the criminal law, military discipline has educational objectives, positive as well as negative.
I am not an expert on military law, but I would say that it is confusing. Take the example of a military guard guarding a checkpoint in Helmand 15 years ago, protecting the security of a region’s population. An approaching vehicle opens fire on them—imagine it is you, Mr Stringer. In this role, you as the guard are the victim: you have been fired on. However, you return fire, and you kill the alleged insurgents in the vehicle. That could mean you are investigated simply for following orders and returning fire. That is the crux of the problem: on one hand, somebody is the victim of a crime; on the other hand, they are the perpetrator of a crime, simply because they have followed orders. That is the type of thing I hope we can clear up in future.
Jack Lopresti (Filton and Bradley Stoke) (Con)
It is always a pleasure to hear the hon. Gentleman speak, and I am enjoying his contribution, but I think he is perhaps being overly simplistic. At the stage he describes, we are not sure that a crime has been committed. There are clear rules of engagement, so there is not a perpetrator and a guilty party at that stage. The military needs to investigate quickly, and as long as the rules of engagement have been followed and that guard can demonstrate that, in their own mind, they were acting to protect life—their own or that of people around them—a crime has not been determined to have been committed at that stage.
Chris Evans
I thank the hon. Gentleman for that intervention: he is always thoughtful, and his intervention was helpful. I should apologise, because I should have put “allegedly” in front of that example. I hope Members will accept that apology. The hon. Gentleman is absolutely right, and that was a very helpful intervention—I would not expect anything different from him.
However, what I would also highlight about these investigations—again, this is because of the lack of academic research—is the vulnerability of so many of these people, and I want to say something about learning disabilities.
Mr Jones
The hon. Member for Filton and Bradley Stoke makes a very good point, because these things are covered by the rules of engagement and the training that takes place. However, they are incredibly easy to look at and make a determination about while sat in a nice, comfy armchair away from the place where they occurred. These cases involve split-second decisions, and mistakes do happen. The important thing, surely, is that the investigation that comes afterwards should be done as rapidly as possible so that it takes the onus and pressure off the potentially accused individual.
Chris Evans
My right hon. Friend is absolutely right: the investigation should be effective and efficient. As I said while building up the background to this issue, if we could cut the multi-layered process that people have to go through down into one simplified investigation, that issue would be resolved pretty quickly.
Mr Jones
Would that not be achieved by including in this Bill the suggestions that I made in my new clauses—suggestions that are completely missing from the Bill—about making sure there is some judicial oversight of those investigations after a certain period of time? The individual my hon. Friend refers to would at least be able to have his or her case looked at judicially after a certain period of time, and if the investigation was going nowhere it could be dismissed.
Chris Evans
That is eminently sensible, and I hope that at some stage the Government will accept that and perhaps put it in the Bill. That is up to the Government, but I think that that is absolutely right. The problem is that these investigations seem to go on for ever and ever. For ex-service personnel or veterans, if there is no end in sight, that will affect their mental health. That is surely one resolution that could be written into the Bill.
I want to talk about learning disability. Obviously, if someone has a physical disability, they are disbarred from joining the armed forces, but we have to address the issue of mental disability. Someone can go through life without being diagnosed as dyslexic or autistic, or as having attention deficit hyperactivity disorder. There are many cases of people in their 40s and 50s being diagnosed with those conditions, which we do not know about. When someone is under investigation, how do we know that they do not have those types of disabilities? Usually, if someone is arrested under civilian law, they have a responsible person with them—a designated person. People do not have access to that in the military.
Mr Jones
My hon. Friend makes a very good point. When I was a Minister, the average reading age of some of the infantry when they were recruited was 11 years of age. All credit to the Army and the Darlington College at Catterick for doing a great job of getting people’s reading ages up,. The problem that was spotted, which had never been spotted before, was dyslexia. Individuals had gone through the education system without being diagnosed until they were in their late 20s.
Chris Evans
There is still a huge stigma in relation to illiteracy, as my right hon. Friend knows. A lot of issues in the prison population concern people with undiagnosed learning difficulties. There are higher than normal levels of illiteracy that we need to address. However, someone who has come through the basic tests to join the forces might be on the autistic spectrum but still able to function, and they need the help of a designated person as well.
I have written down something about a split decision. I do not know whether Members remember the case of Alexander Blackman, a Royal Marine who had his conviction for murder quashed on the grounds of diminished responsibility in 2016 after he had fatally wounded a Taliban prisoner. Blackman’s lawyers argued that he had an adjustment disorder at the time of the killing, because of months on the frontline in terrible conditions, and we can see how that would affect his mental health.
The whole issue of investigations comes down to one thing: training. Written evidence from David Lloyd Roberts and Dr Charlotte Harford stated:
“Regular and effective training for the armed forces on compliance with the law of armed conflict can reduce the risk of situations arising in which allegations of war crimes are levelled at British service personnel serving overseas. There is no need for military personnel to be given a comprehensive legal education. However, if knowledge of and consistent respect for the following ten principles, at least, can be instilled in all members of the armed forces, they should have little reason to fear prosecution…Torture is prohibited in all circumstances…Summary executions are prohibited…Those hors de combat may not be attacked…Only military objectives may be deliberately attacked…Civilians may not be deliberately attacked unless they are taking a direct part in hostilities…Buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law may not be deliberately attacked…Combatant adversaries may not be treacherously killed or wounded…The wounded and sick must be collected and cared for…Prisoners of war should be evacuated from the combat zone as soon as possible…The dead may not be despoiled or mutilated …Effective training on the law of armed conflict is likely to take the form not of the testing of theoretical knowledge, but of presenting members of the armed forces on a regular basis with hypothetical (but realistic) scenarios in which to practise thinking how military operations in a particular context might be conducted effectively in compliance with the above principles.”
I think that is eminently sensible, but if we are producing a report to Parliament, we can start building on the gaps in knowledge about mental health and its effect on service personnel. I look forward to the Minister responding on the basis of his knowledge. I am sure he will give us an interesting insight.
Johnny Mercer
I pay tribute to the hon. Gentleman. This place can get packed with people who left the military quite a long time ago who think that they are the sole voices that matter on these issues. They are clearly not, and I have always maintained that. [Interruption.] I am talking about people such as my hon. Friend the Member for Aldershot. [Laughter.]
Just to be absolutely clear on the previous point, the correct position on commencement provisions is that the Bill does not apply to any proceedings that started before the provisions come into force. I mentioned prosecutions; it is proceedings before any provisions come into force.
On this part of the bill, I want to speak to the new clauses, and then I will finish with a couple of remarks. New clauses 2, 3 and 4 would require the Defence Secretary to commission and publish an independent evaluation of access—
The Chair
Order. We are on new clauses 3, 4, 5, 9 and 10. We have dealt with new clause 2.
Johnny Mercer
Sorry. New clauses 3 and 4 would require the Defence Secretary to commission and publish an independent evaluation of access to legal advice and legal aid for service personnel and veterans in relation to the legal proceedings covered by the Bill. The MOD has a long-standing policy that, where a service person or veteran faces criminal allegations in relation to incidents arising from his or her duty, they may receive full public funding for legal support, as well as pastoral support for as long as they are serving. That was not the case when I first came here, and Bob Campbell indicated to us his experiences. The situation changed when I was running the inquiry into the Iraq Historic Allegations Team. Clearly, my views on that are well known, and they have not changed just because I have become a Minister.
Johnny Mercer
Yes. There is full pastoral support and full legal support, paid for by the MOD, for everybody swept up in these investigations. My right hon. Friend is absolutely right. It was not like that until about two years ago, so that is a very fair point to raise.
We do that because we should look after our armed forces, both on the battlefield, where they face the traditional risks of death or injury, and in the courts, where they face the risk of a conviction and a prison sentence. We therefore aim to provide legal aid case management and funding for those who are, or were at the time of an alleged incident, subject to service law.
Because of the risks our service personnel and veterans face, our legal support offer is now very thorough. For the benefit of the Committee, I will set out some if its provisions. The legal aid provided by the armed forces legal aid scheme provides publicly funded financial assistance in respect of some or all of the costs of legal representation for defendants and appellants who appeal against findings and/or a punishment following summary hearings at unit level. That includes applications for extensions of the appeal period by the summary appeal court, for leave to appeal out of time, or to have a case referred to the Director of Service Prosecutions for a decision on whether the charges will result in a prosecution. That includes offences under schedule 2 of the Armed Forces Act 2006, which are referred directly to the Director of Service Prosecutions by the service police, as well as matters referred to the Director of Service Prosecutions by the commanding officer. It also includes those who are to be tried in a court martial or the service civilian court; those who wish to appeal in the court martial against the finding and/or sentence after trial; and those who are entitled to be tried in a criminal court outside the UK.
The legal aid scheme applies equally to all members of the armed forces, including the reserve forces when they are subject to service law, as well as to civilians who are, or were at the time of an alleged incident, subject to service discipline.
Mr Jones
The Minister calls it a legal aid system, but does it mirror that system? Unfortunately, over the last few years the cutbacks in the legal aid system have made it difficult for many people who we—including myself, the Minister and you, Mr Stringer—would not think of as having access to a lot of resources, and they are finding that they have no recourse at all. Does it mirror the national legal aid system, or is it a bespoke system without the financial constraints?
Johnny Mercer
It is a bespoke system for military personnel. It is now used extensively by veterans in particular, who previously have not been supported. For example, Government legal services were provided in the al-Sweady inquiry. The challenges came when these investigations got to the case of, for example, Major Bob Campbell. They were not being funded at the time, but they are now. It is based on the same principles as the civilian criminal legal aid scheme. They are the same principles but it is bespoke for the military. It makes necessary adjustments to take into account the specific circumstances and needs of defendants and appellants in the service justice system. As a result, I am confident that we are already ensuring that service personnel veterans are now properly supported when they are affected by criminal legal proceedings.
Mr Jones
An issue I have always felt very passionate about is the representation of families at coroners’ inquiries. Does it also cover that? Many service men and women, and many families, felt daunted that they were up against legal representation, when they were there on their own in many cases.
Johnny Mercer
I am happy to write to the right hon. Gentleman on that subject. As I understand it, a coroner’s court is different. There is support for service personnel or for bereaved families in those cases. These are often not criminal proceedings so the requirement for legal aid is not there, but they are supported and I am happy to outline that in a letter.
I am now confident that service personnel and veterans are properly supported when they are affected by criminal legal proceedings. The armed forces legal aid scheme does not provide legal aid funding for civil proceedings, but we are content that the funding available for service personnel and veterans through the legal aid regimes in different parts of the UK is now sufficient. If a service person or veteran brings a claim against the MOD, we obviously cannot fund that claim as there would be a conflict of interest. We have heard from a number of law firms, as well as the Royal British Legion, that may be prepared to support those cases if they see merit in them. If veterans or service personnel need to access the legal aid scheme, they would be doing so on the same terms as a civilian would. However, in the first instance—before considering whether to bring a claim—I would encourage any service person or veteran to consider the armed forces compensation scheme, which the right hon. Member for Durham North mentioned. It provides compensation irrespective of fault across the full range of circumstances in which illness, injury or death may arise as a result of service, and it avoids the need for claimants to go to court.
Liz Twist (Blaydon) (Lab)
A number of our witnesses, including Hilary Meredith of Hilary Meredith Solicitors, talked about the lack of support for veterans. If someone is still serving in the armed forces there may be something, but for a veteran it is as if they were not formally part of the armed forces. These new clauses, among other things, were designed to assist in that progress towards ensuring that the support is in place.
Johnny Mercer
I am confident that the support is of a different nature from the support available when I started this process years ago. Obviously the Department cannot fund legal action against itself, because of the conflict of interest. What is being requested here is not deliverable. As I outlined previously, the RBL and many law firms are prepared to support cases if they see merit in doing so. For cases where individuals are called to be witnesses at inquests and public inquiries, of course we provide legal advice, and logistical and financial support, to those who need it to attend court and inquest hearings. As I have outlined, a comprehensive support package is in place in relation to legal proceedings. There is also the provision of welfare and pastoral support. I will cover that in more detail in relation to new clause 10. I therefore suggest that a review is unnecessary, given how comprehensive our legal support package now is.
Mrs Lewell-Buck
As we are coming to the end of the Committee, it is appropriate to remind the Minister that on 5 October, at the Joint Committee on Human Rights, in accepting that there were deficiencies in the Bill, the Minister said he wanted to
“work with Committee members and Members across the House to…improve this Bill”.
Can he point to where he has done that in Committee? Since he acknowledges that there are flaws in the Bill, what does he intend to bring forward on Report to improve a Bill that he has already acknowledged is flawed?
Johnny Mercer
I do not accept that and have never said that this legislation is flawed.
I have already covered the comprehensive legal support that we already provide to service personnel and veterans in relation to legal proceedings, so I will not repeat them here. In terms of mental health, welfare and pastoral care, a range of organisations are involved in fulfilling the needs of personnel who become involved with legal processes, which will vary according to individual need and circumstance.
Veterans UK is the official provider of welfare services and supports former service personnel throughout the UK. It will often act in partnership with service charities or other third sector organisations—for example, the Royal British Legion, Combat Stress and SSAFA—towards whom veterans are directed. The regimental association of a veteran’s parent regiment will often be the most familiar and accessible link through which the individual can maintain the link to the military hierarchy, which allows any issues of concern to be raised with the Army chain of command or the MOD, outside of legal channels. That is often the most relied upon and effective way of providing pastoral support. Of course, veterans can also access help and support 24/7 via the Veterans’ Gateway.
In relation to service complaints, there is a well-established process through which service personnel can make complaints. The Service Complaints Ombudsman reports annually to Parliament on that. These are all well-established policies and processes, but of course we continually review them to ensure that they provide the best support and care possible for our personnel. We are clear about our responsibilities to provide the right support to our personnel, both serving and veterans, and to seek to improve and build on them wherever necessary. I do not believe that setting a standard for duty of care is therefore necessary, and nor does it require an annual report to Parliament. I therefore request that new clauses 3, 4, 5, 9 and 10 are not pressed.
Question put and negatived.
Overseas Operations (Service Personnel and Veterans) Bill
Tuesday 3rd November 2020
(3 years, 5 months ago)
Commons ChamberRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 3 November 2020 - (large print) - (3 Nov 2020)
18:00 - The House divided: - Ayes: 266 / Noes: 336 - Question accordingly negatived.
18:17 - The House divided: - Ayes: 262 / Noes: 335 - Question accordingly negatived.
18:32 - The House divided: - Ayes: 269 / Noes: 334 - Question accordingly negatived.
19:00 - The House divided: - Ayes: 345 / Noes: 260 - Question accordingly agreed to.
Mr Kevan Jones (North Durham) (Lab)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dame Eleanor Laing)
With this it will be convenient to discuss the following:
New clause 2—Limitation of time for minor offences—
“No proceedings shall be brought against any person in relation to a relevant offence, where—
(a) the condition set out in subsection 3 of section 1 is satisfied,
(b) the offence is subject to summary conviction only, or is one in the commission of which no serious, permanent or lasting psychological or physical injury has been caused, and
(c) a period of six months has passed from the time the offence was committed or discovered.”
This new clause would dispose of minor allegations of misconduct by imposing a time limit similar to that which exists in relation to summary only matters in Magistrates’ Courts.
New clause 3—Access to justice for service personnel—
“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation comparing—
(a) access to justice for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, in relation to legal proceedings in connection with operations of the armed forces outside the British Islands, with
(b) access to justice for asylum seekers and prisoners seeking to bring an action against the Crown.”
New clause 4—Ability to conduct a fair trial—
“The principle referred to in section 1(1) is that a relevant prosecutor making a decision to which that section applies may determine that proceedings should be brought against the person for the offence, or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”
This new clause is intended to replace Clause 2 of the Bill. It replaces the presumption against prosecution with a requirement on a prosecutor deciding whether to bring or continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.
New clause 5—Restrictions on time limits: actions brought against the Crown by service personnel—
“Nothing in this Part applies to any action brought against the Crown by a person who is a member or former member of the regular or reserve forces, or of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies.”
This new clause amends Part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the Part imposes in respect of actions relating to overseas operations.
New clause 6—Duty of care to service personnel—
“(1) The Secretary of State shall establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.
(2) The Secretary of State shall lay a copy of this standard before Parliament within six months of the date on which this Act receives Royal Assent.
(3) The Secretary of State shall thereafter in each calendar year—
(a) prepare a duty of care report; and
(b) lay a copy of the report before Parliament.
(4) The duty of care report is a report about the continuous process of review and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—
(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;
(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;
(c) judicial reviews and inquiries into allegations of misconduct by service personnel;
(d) in such other fields as the Secretary of State may determine.
(5) In preparing a duty of care report the Secretary of State must have regard to, and publish relevant data in relation to (in respect of overseas operations)—
(a) the adequacy of legal, welfare and mental health support services provided to service personnel who are accused of crimes;
(b) complaints made by service personnel and, or their legal representation when in the process of bringing or attempting to bring civil claims against the Ministry of Defence for negligence and personal injury;
(c) complaints made by service personnel and, or their legal representation when in the process of investigation or litigation for an accusation of misconduct;
(d) meeting national care standards and safeguarding to families of service personnel, where relevant.
(6) In section (1) “service personnel” means—
(a) members of the regular forces and the reserve forces;
(b) members of British Overseas Territory forces who are subject to service law;
(c) former members of any of Her Majesty‘s forces who are ordinarily resident in the United Kingdom; and
(d) where relevant, family members of any person meeting the definition within (a), (b) or (c).
(7) In subsection (1) “Duty of Care” means both the legal and moral obligation of the Ministry of Defence to ensure the well-being of service personnel.
(8) None of the provisions contained within this clause shall be used to alter the principle of Combat Immunity.”
This new clause will require the Ministry of Defence to identify a new duty of care to create a new standard for policy, services and training in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigations arising from overseas operations, and to report annually on their application of this standard.
New clause 7—Duty of care to service personnel—
“(1) This section applies where—
(a) a person has been acquitted of an offence relating to conduct on overseas operations; or
(b) a determination has been made that an investigation into an offence relating to such conduct should cease under section (Judicial oversight of investigations).
(2) No further investigation into the alleged conduct shall be commenced unless—
(a) compelling new evidence has become available; and
(b) an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong.”
This new clause would require a judge advocate of the armed services to determine if new evidence is sufficient to grant reinvestigation of armed forces personnel for alleged offences in which they have been acquitted or the original investigation was ceased.
Amendment 11, page 1, line 4, leave out clause 1.
Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.
Amendment 18, in clause 1, page 2, line 2, leave out “5” and insert “10”.
This amendment is one of two providing that the presumption against prosecution should apply after 10 years (instead of 5 years).
Amendment 19, in clause 1, page 2, line 4, leave out “5” and insert “10”.
This amendment is one of two providing that the presumption against prosecution should apply after 10 years (instead of 5 years).
Amendment 64, page 2, line 12, leave out clause 2.
This amendment, which would remove Clause 2 from the Bill, should be read together with NC4, which replaces the presumption against prosecution with a requirement on a prosecutor to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.
Amendment 13, page 2, line 18, leave out clause 3.
Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.
Amendment 24, in clause 3, page 2, line 20, leave out
“(so far as they tend to reduce the person’s culpability or otherwise tend against prosecution)”.
This amendment would ensure that, in giving particular weight to the matters in subsection (2), a prosecutor may consider whether any matter tends to reduce or increase culpability, tending against or in favour of prosecution respectively.
Amendment 21, in clause 3, page 2, leave out lines 23 to 29.
This amendment is one of two that together would delete the requirement for a prosecutor to give “particular weight” in a prosecution decision after 5 years to the adverse effect on a person of the conditions the person was exposed to during deployment.
Amendment 25, in clause 3, page 2, line 33, at end insert—
“(ba) the thoroughness, promptness and efficacy of any ongoing investigation into the alleged conduct or any relevant previous investigation, and the reasons for any delays in such investigations;”.
This amendment would ensure that the adequacy of any investigative process to date is given particular weight by a relevant prosecutor.
Amendment 26, in clause 3, page 2, line 33, at end insert—
“(bb) the public interest in maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces;”.
This amendment would ensure that a relevant prosecutor gives particular weight to maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces.
Amendment 27, in clause 3, page 2, line 33, at end insert—
“(bc) the nature of the alleged conduct, in particular whether it engaged the obligations of the United Kingdom under Articles 2, 3, 4 or 5 of the European Convention on Human Rights;”.
This amendment would ensure that particular weight is given by a prosecutor where the alleged conduct engages the UK’s obligations under Article 2 (right to life), Article 3 (prohibition on torture and inhuman or degrading treatment, Article 4 (prohibition of slavery and forced labour) or Article 5 (prohibition of arbitrary detention) ECHR.
Amendment 28, in clause 3, page 2, line 33, at end insert—
“(bd) whether the person had command responsibility for the alleged conduct, and to what extent;”.
This amendment would ensure that particular weight is given by a relevant prosecutor where the person had command responsibility for the alleged conduct.
Amendment 38, in clause 3, page 2, line 33, after subsection (2)(b), insert—
“(c) the quality and duration of relevant investigations.”
This amendment would require prosecutors to give weight to the quality and duration of relevant investigations when deciding whether to bring or continue proceedings against a person relating to alleged conduct during overseas operations.
Amendment 22, in clause 3, page 2, leave out lines 34 to 43.
This amendment is one of two that together would delete the requirement for a prosecutor to give “particular weight” in a prosecution decision after 5 years to the adverse effect on a person of the conditions the person was exposed to during deployment.
Amendment 14, page 3, line 1, leave out clause 4.
Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.
Amendment 15, page 3, line 15, leave out clause 5.
Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.
Amendment 31, in clause 5, page 3, line 29, at end insert—
“(c) where the offence is punishable with a criminal penalty by the law of Scotland, except with the consent of the Lord Advocate.”
Amendment 39, in clause 5, page 3, line 29, at end insert—
“(3A) Where the consent of the Attorney General is sought under subsection (2) or (3) above, the Attorney General must prepare a report containing his reasons for granting or withholding consent, as the case may be, with reference to sections 1 to 3 of this Act, and must lay a copy of this report before Parliament.”
This amendment requires the Attorney General to lay out their evidence and assessment as to why they granted or refused consent to prosecute.
Amendment 16, page 3, line 40, leave out clause 6.
Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.
Amendment 20, in clause 6, page 4, line 13, at end insert—
“(2A) An offence is not a “relevant offence” if it amounts to—
(a) torture, within the meaning of section 134 Criminal Justice Act 1988; or
(b) genocide, a crime against humanity or a war crime as defined in section 50 of the International Criminal Court Act 2001.”
This amendment provides that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide or torture.
Amendment 32, in clause 6, page 4, line 13, at end insert—
“(3A) A service offence is not a “relevant offence” if it is an offence whose prosecution is required under the United Kingdom’s international treaty obligations.”
This amendment would exclude the prosecution of serious international crimes (such as torture, genocide, crimes against humanity, and certain war crimes) from the limitations otherwise imposed by the Bill.
Amendment 17, page 4, line 27, leave out clause 7.
Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.
Amendment 33, page 6, line 4, leave out clause 8.
Amendment 34, page 6, line 15, leave out clause 9.
Amendment 35, page 6, line 26, leave out clause 10.
Amendment 23, page 6, line 38, leave out clause 11.
This clause would introduce a hard deadline for human rights claims and also includes detailed provision around the impact of proceedings on the mental health of Armed Forces witnesses. This amendment deletes this clause from the bill.
Amendment 60, in clause 11, page 7, line 23, at end insert—
“(c) the importance of the proceedings in securing the rights of the claimant.”
This amendment adds a further consideration to which UK courts must have particular regard when determining whether to disapply the standard HRA limitation period of one year so as to ensure that the claimant’s interest in having their claim proceed is not subordinated.
Amendment 46, in clause 11, page 7, line 30, leave out from “before” to the end of line 34 and insert
“the end of the period of 6 years beginning with the date of knowledge.”
This amendment is one of a series that change the relevant date from which the six-year longstop starts to run so as to account for legitimate and explicable delays commonly experienced by persons bringing claims under the HRA arising out of overseas operations.
Amendment 41, in clause 11, page 7, line 34, at end insert—
“(4A) The court may disapply the rule in subsection (1) (b) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for UK courts to allow a Human Rights Act claim arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 29, in clause 11, page 7, line 36, leave out
“first ought to have known”.
Amendment 47, in clause 11, page 7, line 40, at end insert—
“(c) of the manifestation of the harm resulting from that act which is the subject of the claim; and
(d) that they were eligible to bring a claim under the Human Rights Act 1998 against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”
This amendment is one of a series that change the relevant date from which the six-year longstop starts to run so as to account for legitimate and explicable delays commonly experienced by persons bringing claims under the HRA arising out of overseas operations.
Amendment 40, page 8, line 14, leave out clause 12.
Clause 12 would require the Secretary of State to consider making a derogation under Article 15(1) ECHR in respect of any significant overseas operations. This amendment would remove this requirement.
Amendment 37, in clause 12, page 8, line 20, at end, insert—
“(1A) No order may be made by the Secretary of State under section 14 following consideration under this section unless a draft of the order has been laid before, and approved by, each House of Parliament.”
This amendment would require significant derogations regarding overseas operations proposed by the Government from the European Convention on Human Rights to be approved by Parliament before being made.
Amendment 66, page 11, line 1, leave out schedule 1.
This amendment is consequential on Amendment 16.
Amendment 1, in schedule 1, page 12, line 6, at end insert—
“(13A) An offence under section 134 of the Criminal Justice Act 1988 (torture).”
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 2, in schedule 1, page 12, line 40, leave out “or” and insert—
“(b) a crime against humanity within article 7.1(f),
(c) a crime against humanity within article 7.1(i)
(d) a crime against humanity within article 7.1(k), or”.
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 3, in schedule 1, page 12, line 42, leave out “or” and insert—
“(ii) article 8.2(a)(ii) (which relates to international conflict),
(iii) article 8.2(b)(xxi) (which relates to international conflict), or”.
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 4, in schedule 1, page 13, line 2, at end insert “, or
(iv) article 8.2(c)(i) (which relates to armed conflicts not of an international character) insofar as it relates to the offences of cruel treatment and torture,
(v) article 8.2(c)(ii) (which relates to armed conflicts not of an international character).”
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 5, in schedule 1, page 13, line 14, leave out “or” and insert—
“(b) a crime against humanity within article 7.1(f),
(c) a crime against humanity within article 7.1(i),
(d) a crime against humanity within article 7.1(k), or”.
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 6, in schedule 1, page 13, line 16, leave out “or” and insert—
“(ii) article 8.2(a)(ii) ((which relates to international conflict),
(iii) article 8.2(b)(xxi) (which relates to international conflict), or”.
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 7, in schedule 1, page 13, line 18, at end insert—
“(iii) article 8.2(c)(i) (which relates to armed conflicts not of an international character) insofar as it relates to the offences of cruel treatment and torture,
(iv) article 8.2(c)(ii) (which relates to armed conflicts not of an international character).”
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 8, in schedule 1, page 14, line 8, leave out “or” and insert—
“(b) a crime against humanity within article 7.1(f),
(c) a crime against humanity within article 7.1(i),
(d) a crime against humanity within article 7.1(k), or”.
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 9, in schedule 1, page 14, line 10, leave out “or” and insert—
“(iii) article 8.2(a)(ii) ((which relates to international conflict),
(iv) article 8.2(b)(xxi) (which relates to international conflict), or”.
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 10, in schedule 1, page 14, line 12, at end insert—
“(iii) article 8.2(c)(i) (which relates to armed conflicts not of an international character) insofar as it relates to the offences of cruel treatment and torture, or
(iv) article 8.2(c)(ii) (which relates to armed conflicts not of an international character).”
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 67, page 15, line 33, leave out schedule 2.
This amendment is consequential on Amendment 33.
Amendment 48, in schedule 2, page 16, line 5, leave out
“the section 11 relevant date”
and insert “the date of knowledge”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.
Amendment 30, in schedule 2, page 16, line 5, at end insert
“save for exceptional cases where the overriding interest of justice should be served.”
Amendment 42, in schedule 2, page 16, line 5, at end insert—
“(1ZAi) The court may disapply the rule in subsection (1ZA) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for personal injury arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 49, in schedule 2, page 16, line 30, leave out
“the section 11 relevant date (ignoring, for this purpose, the reference to section 11 (5) in paragraph (a) of the definition of that term)”
and insert “the date of knowledge.”
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.
Amendment 50, in schedule 2, page 16, line 35, leave out
“the section 12 relevant date”
and insert “the date of knowledge”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.
Amendment 43, schedule 2, page 16, line 36, at end insert—
“(2Bi) The court may disapply the rules in subsections (2A) and (2B) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 61, in schedule 2, page 17, line 5, at end insert—
“(c) the court must also have particular regard to the importance of the proceedings in securing the rights of the claimant.”
This amendment adds a further consideration to which the courts of England and Wales must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not illegitimately subordinated.
Amendment 51, in schedule 2, page 17, leave out from beginning of line 35 to end of line 5 on page 18, and insert—
“‘the date of knowledge’ means the date on which the person bringing the proceedings first knew, or first ought to have known—
(a) of the act complained of;
(b) that it was an act of the Ministry of Defence or the Secretary of State for Defence;
(c) of the manifestation of the injury resulting from that act which is the subject of the claim, and
(d) that they were eligible to bring a claim against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury and wrongful death arising out of overseas operations.
Amendment 68, page 20, line 1, leave out schedule 3.
This amendment is consequential on Amendment 34.
Amendment 62, in schedule 3, page 20, line 32, at end insert—
“(c) the importance of the proceedings in securing the rights of the claimant.”
This amendment adds a further consideration to which the courts of Scotland must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not subordinated.
Amendment 52, in schedule 3, page 20, line 41, leave out
“the section 17 relevant date”
and insert
“the date of knowledge (see subsection (13))”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.
Amendment 53, in schedule 3, page 21, line 4, leave out
“the section 18 relevant date”
and insert
“the date of knowledge (see subsection (13))”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.
Amendment 54, in schedule 3, page 21, line 9, leave out
“the section 17 relevant date”
and insert
“the date of knowledge (see subsection (13))”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.
Amendment 44, in schedule 3, page 21, line 9, at end insert—
“(7A) The court may disapply the rules in subsections (5) to (7) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for the courts of Scotland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 55, in schedule 3, page 22, leave out lines 12 to 17 and insert—
“‘the date of knowledge’ means the date on which the person bringing the proceedings first knew, or first ought to have known—
(a) of the act complained of;
(b) that it was an act of the Ministry of Defence or the Secretary of State for Defence;
(c) of the manifestation of the injury resulting from that act which is the subject of the claim, and
(d) that they were eligible to bring a claim against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury and wrongful death arising out of overseas operations.
Amendment 69, page 23, line 38, leave out schedule 4.
This amendment is consequential on Amendment 35.
Amendment 56, in schedule 4, page 24, line 5, leave out
“the Article 7 relevant date”
and insert “the date of knowledge”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.
Amendment 45, in schedule 4, page 24, line 5, at end insert—
“(1Ai) The court may disapply the rule in paragraph (1A) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for the courts of Northern Ireland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 57, in schedule 4, page 24, line 29, leave out
“the Article 7 relevant date (ignoring, for this purpose, the reference to Article 7(5) in paragraph (a) of the definition of that term)”
and insert “the date of knowledge”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury out of overseas operations.
Amendment 58, in schedule 4, page 24, line 34, leave out
“the Article 9 relevant date”
and insert “the date of knowledge”.
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.
Amendment 63, in schedule 4, page 25, line 5, at end insert—
“(c) the court must also have particular regard to the importance of the proceedings in securing the rights of the claimant.”
This amendment adds a further consideration to which the courts of Northern Ireland must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not subordinated.
Amendment 59, in schedule 4, page 25, leave out lines 25 to 43 and insert—
“‘the date of knowledge’ means the date on which the person bringing the proceedings first knew, or first ought to have known—
(a) of the act complained of;
(b) that it was an act of the Ministry of Defence or the Secretary of State for Defence;
(c) of the manifestation of the injury resulting from that act which is the subject of the claim, and
(d) that they were eligible to bring a claim against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”
This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury and wrongful death arising out of overseas operations.
Mr Jones
My hon. Friend says, “Please do,” but I am sure that other Members want to contribute to this debate.
Since speaking on Second Reading and in Committee, it has been my aim, and that of the Labour Front-Bench team, to try to improve the Bill. In my nearly 19 years in this House, I have been someone who is proud of our armed forces, considers myself a friend to them and wants to help them in any way I can. I stand up for them, and I speak passionately, I think, in defending not just them but the case for defence.
It has therefore been disappointing that the Government have not really engaged to amend the Bill. Yesterday, my right hon. Friend the Member for Wentworth and Dearne (John Healey) said to the Defence Secretary that he wished to work with the Government to try to improve the Bill today, and he got a single-word reply: “No.” We then had the reply from the Minister for Defence People and Veterans in response to a question on the Bill when he said that he would be
“happy to work with anybody to improve this Bill, but we must operate in the real world.”—[Official Report, 2 November 2020; Vol. 683, c. 13.]
The only problem with that is that it is the real world according to the Minister, and that world obviously has a different colour sky from the one that we all live in. The idea that, somehow, as long as he is saying it, it has to be true, even when his evidence is counter to that put forward by various witnesses in Committee, is telling. What was sad in Committee was that all the Minister did was read out his civil service brief to us in response to the various amendments. He was reluctant to accept any interventions, even from rottweilers such as my hon. Friends the Members for Blaydon (Liz Twist) and for South Shields (Mrs Lewell-Buck). When it comes to the Government Members on the Committee, I must congratulate the Whips Office on selecting so well, because those Members must have taken a collective vow of silence, which would have been admired by any silent ecclesiastical order. We had no contribution whatever from them, so it has been very difficult trying to engage with the Government on this Bill. The line is, clearly, that this is the answer, irrespective of what has been raised in Committee. We had some very good witnesses before us in Committee, but the Government are just not interested in changing the Bill, because the world and this Bill are perfect, according to the Minister and the Government.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I concur with much of what my right hon. Friend is saying. He has always been a champion of the armed forces, both in his time in Government and, indeed, during the course of this Bill. Does he share my surprise that even the Government witnesses were saying things that disagreed with the Government’s account of this Bill? Professor Richard Ekins said that the Bill certainly does not stop investigations. He said:
“In fact, if one were to make a criticism of the Bill, one might say that it places no obstacle on continuing investigations”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 35, Q63.]
Does he not find it surprising that even Government witnesses did not agree with the Government?
Mr Jones
Indeed. Time and again, supposed Government witnesses went against the Government. My hon. Friend raises a good point with the example that he has just provided.
The other thing that came out, which relates to my new clause, was about investigations. Investigations, or the problems that lead to these issues around investigations, were the thread that ran throughout the evidence. In spite of that, what we had at the weekend—this was a really dangerous move on the part of the Ministry of Defence—was tweets promoting this Bill from the MOD and saying that it would stop investigations. It will do nothing of the sort. As a former Defence Minister myself, using the MOD’s website and tweets to politicise things would not have been allowed in my day. What was put out is just not going to happen. Let us look at the evidence that we heard in Committee from a number of witnesses. The first one I will mention, again a Government witness, is Hilary Meredith, solicitor. She was very good and concentrated on the issue around investigations. She said:
“It is the procedure and investigation in the UK that need to be reviewed and overhauled, and not necessarily a time limit placed on…prosecutions.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 16, Q24.]
Ian Paisley (North Antrim) (DUP)
The right hon. Gentleman has a long track record of supporting the armed services here. Is he concerned by the expression of doubt that has been put by members of the Royal British Legion? They have put in writing to all Members of Parliament the fact that they believe that part 2 of this Bill should be improved and that the time limit really gravely concerns them.
Mr Jones
I am, and I will come onto part 2 in a minute. The hon. Gentleman has hit on an issue relating to the Government’s approach to this Bill. The Minister is saying that it is standing up for members of the armed forces. It is doing nothing of the sort. In part 2, it is actually taking away rights.
The Minister for Defence People and Veterans (Johnny Mercer)
Will the right hon. Gentleman give way?
Johnny Mercer
I just wish to intervene briefly. It is a litany of accusations and they are complete rubbish. Where have I ever said that I wanted to stop investigations in this Bill? That is what I would like the right hon. Gentleman to indicate to me.
Madam Deputy Speaker (Dame Eleanor Laing)
Order. That is a perfectly reasonable question, but, although it is not exactly unparliamentary language, perhaps the Minister, speaking as he does with dignity from the Front Bench, might use a different phrase than “complete rubbish”—just something a little bit different.
Mr Jones
It is better than he did in Committee when he called me a hypocrite, Madam Deputy Speaker, but if he listens to what I am saying, he will know that I am not saying that. I know that his attention span is not very good, and he does not tend to listen. What he tends to do is just stick to what he has in front of him and his view of the world, rather than hearing what people are saying. The issue is—[Interruption.] Well, he can say “brilliant” and chunter as much as he likes, but this is the issue—the delays that are taking place because of the investigations.
I have referred to Judge Blackett, and the Minister was there when the evidence was taken. Judge Blackett is a just-retired senior judge of the service justice system, and he said:
“The Bill is effectively looking at the wrong end of the telescope. It is looking at the prosecution end, and you have got to remember that you do not prosecute until you investigate—and you have got to investigate. This will not stop people being investigated and it will not stop people being re-investigated and investigated again. Lots of investigations do not go anywhere, but the people who are investigated do not see that.”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 120.]
That came up when we took evidence from Major Campbell. I will put it on record again that his case was a disgrace, because it took 17 years, but this Bill will do nothing to speed up such cases or to ensure that reinvestigations do not occur. That is the key problem. The problem is not the prosecutions, because their number is very small.
Dr Julian Lewis (New Forest East) (Ind)
I have put in three written questions about this Bill, and yesterday I had answers to them. Two of the answers were helpful, but one, on the point that the right hon. Gentleman is making, was not. I was trying to establish how many investigations had not resulted in prosecutions, and I could not seem to get an answer, yet that is central to the whole problem. The core of the problem is not the small number who get prosecuted but the large number who get investigated.
Mr Jones
The right hon. Gentleman is correct. That came out in evidence that we took throughout the Committee. The issue is not the number of prosecutions but the number of investigations and how we can speed up the length of time they take.
The problem is that the Ministry seems to have a deaf ear when it comes to recognising that we need to address the issue around investigations, which is what new clause 1 would do. It would ensure that we had judicial oversight of the investigations. We can see what we have at the moment from the example of Major Campbell’s case, which went on and on. New clause 1 states that after a certain period of time, the evidence should be put before a judge to see whether there was a case to answer. Clearly, if the evidence did not meet the test and the case was going nowhere, it would get thrown out there and then. Alternatively, it could be decided that the case needed further investigation, but at least that would ensure that, after six months, there was some judicial oversight of the investigation. That would be a way of ensuring that these investigations did not go on for a long time.
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
My right hon. Friend has always been a strong supporter of the armed forces. Does he agree that, while drafting the Bill, the Government, who claim to be champions of our armed forces, continued to ignore the impartial advice of the Royal British Legion, which has stated again and again that it breaches the armed forces covenant?
Mr Jones
But it really does not matter, because if my hon. Friend wants to see the attitude of the Minister to the Royal British Legion, he has only to read the evidence that came before the Committee.
New clause 2 would provide a way of ensuring that minor offences were dealt with speedily. As Judge Blackett said, this could be done in a magistrates court, where, after a period of time had passed, the cases could be looked at judicially and ticked off and dismissed on the basis that the there was no evidence to go forward. That would deal with a lot of the smaller issues. People ask why that is important, but if we look at the Iraq Historic Allegations Team—IHAT—and Northmoor, some of those cases involved assault and other things that in normal circumstances could be dealt with very quickly in a magistrates court. At least if we had a judge looking at them, he or she could make a decision as to whether or not those cases had any merit. It is amazing that the Government fail to recognise that the problem is not prosecutions but actually the investigatory process.
Then, halfway through the Bill Committee, the MOD announced it was coming forward with a review of investigations, to feed into next year’s Armed Forces Act, when the obvious place to have put that would have been in this Bill. The reason for doing that was given away by the Minister in the evidence session: this Bill has nothing to do with making sure of these matters. There is no reason why what I am suggesting and other issues around investigations could not be put in the Bill now and improve it, yet for reasons of tidiness the MOD wants to do it next year.
I have some sympathy with the MOD on that, because perhaps the best way to do this is in those five-yearly reviews of the Armed Forces Acts—and I think I have been on the Committee for every single one for the past nearly 20 years as either a Minister or Back Bencher. But the reason this Bill is before us has nothing to do with that; the Minister let the cat out of the bag in Committee when he said he had to get this through now, because one of his general election pledges was to do it within 100 days. I am sorry, but that is not a good way of bringing in legislation—just trying to press it forward irrespective of whether or not it is flawed.
Mr David Davis (Haltemprice and Howden) (Con)
I have a lot of sympathy with what the right hon. Gentleman is saying, but may I drag him away from his politics for a second? Would it not be very simple to incorporate the recommendation in a 1960s magistrates Act of a judge advocate general, as that would deal with exactly what he is talking about?
Mr Jones
It would. That and judicial oversight would improve the Bill tremendously. It would then actually do what it is supposed to do, which is stop reinvestigation and stop the worry that these individuals have, but it does not do that; that is the big hole in the Bill.
It is not as though the Minister has not had a chance to look at this. I have raised it with him—I tabled amendments in Committee, which he pushed aside, and we are going to go ahead with what we have now, which will be a flawed Bill. Once it has passed, it will lead to a situation whereby a lot of people think that as a result they have protections when, frankly, it will do nothing of the sort, because it will not stop investigations and reinvestigations. One of the worst things we can do in politics is promise people things and give them the impression that we have done something when actually we have not, because once the penny drops and they see it is not actually the case, they rightly feel very bitter.
As the right hon. Member for Haltemprice and Howden (Mr Davis) has just said, there is time to put this in the Bill. If Ministers are not going to do it in this place, they should do it in the other place, because it will improve the situation.
There is another dishonesty with this process. From, again, using the MOD website, which I do not think is appropriate for political reasons, we see there is a promise about Northern Ireland. The Minister is on record as saying that similar legislation will be brought in to cover historical cases in Northern Ireland. Well, I am sorry, but it will not do so if it is like this Bill; if it is like this Bill then, frankly, it will do nothing at all on investigations. If it is a mirror image of this Bill, all those people who think that somehow they are going to get protection will find that they do not, and that is just not fair.
Ian Paisley
I am sure the right hon. Gentleman will agree that the officers who served under Operation Banner have been completely jettisoned and abandoned. That is the bottom line, and that is the crying shame of this—and I do not trust anyone in the Northern Ireland Office to bring forward a Bill that will help those ex-servicemen in the years to come.
Mr Jones
The hon. Gentleman makes a clear point: do I feel it right that, frankly, people in their 70s or 80s and even younger are worried about this happening? No, I think that is appalling, frankly, because there is an evidence test: is it in the public interest for those individuals to be now dragged before the courts? No, it is not. Here we have another promise that will not be delivered. I must say he is right in terms of the Northern Ireland Office. I have looked at the matter in detail—I have met all parties in Northern Ireland, including Sinn Féin, along with the right hon. Member for New Forest East (Dr Lewis)—and I think that finding a mechanism is going to be virtually impossible.
Ian Paisley
I thank the right hon. Gentleman for his comments. The fact is this will end up in Northern Ireland Operation Banner officers being a trade-off between what the NIO finds politically helpful to buy off bartering with the Provisional IRA and Sinn Féin.
Mr Jones
I defer to the hon. Gentleman’s knowledge of Northern Ireland politics, but I will say that this will not be solved by the promise that has been made. That again is not the issue.
I turn to new clause 3. It relates to the point that was raised on part 2 and is covered by an amendment tabled by Members on the Labour Front Bench. The issue is the stripping away of rights from veterans. I find it absolutely astonishing that, in this week of remembrance, we have a Government who have introduced a Bill that will actually take rights away from veterans. The longstop of six years will mean that veterans—and families—will not have access to section 33 of the Limitation Act, which allows people to bring cases out of time.
In Committee there was a lot of discussion about how many people would be affected. The Royal British Legion was very clear in its opposition to part 2 because, as Charles Byrne said in response to the Minister:
“I think it is protecting the MOD, rather than the service personnel”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q163.]
He said that the Royal British Legion thought it did breach the armed forces covenant. I agree, because the covenant states:
“Those who serve in the Armed Forces, whether Regular or Reserve, those who have served in the past, and their families, should face no disadvantage compared to other citizens in the provision of public…services”
and so on. I agree with that, but this strips away their rights under section 33, which means that if somebody brings forward a case after the six-year longstop, they cannot have recourse to section 33 of the Limitation Act, because the Bill will take those rights away. Those rights are open to every single Member in the House today, and to prisoners and asylum seekers—anybody who wants to bring a case.
The Minister said that 94% of cases were brought within the time limits anyway. That is irrelevant to me, because 6% clearly are not, and it is those 6% that will then possibly use the Limitation Act.
May I put this on record, as I did in Committee? Bringing forward a section 33 case is by no means easy. It pertains to a very small number of individuals who could not bring their case within the time limit because their circumstances were unique; and they have to go before a court and argue out the reasons. I have done it myself when I worked for a trade union on injury or disease cases that were out of time—although you would not take on such a case in the first instance if you thought you would not get anywhere. However, there are those important cases that you can take, and which do make a difference.
The case that was mentioned time and again in Committee was the Snatch Land Rover decision in 2016. The families took forward the case under the Human Rights Act, which I will come on to in a minute, on the basis that their loved ones had been killed and injured in Iraq because of negligence on behalf of the MOD.
Madam Deputy Speaker (Dame Eleanor Laing)
Order. Just for clarification, in the silent exchange that the right hon. Gentleman and I have just had, I was trying to indicate to him that it would be helpful to the House if he concluded his remarks quite soon. I know it seems that he has not been speaking for very long, but it has been 22 minutes. I appreciate that he has taken a lot of interventions and this is important. I am requiring not that he finishes now but that he takes into consideration that there are many points of view on this Bill and that there are many people who wish to speak and, although we have a long time, we do not have long enough for everyone to take more than 20 minutes. He has some serious points to make, and I trust he will make them as quickly as possible.
Miss Sarah Dines (Derbyshire Dales) (Con)
Could the right hon. Gentleman take a moment to reflect on what he said in his opening remarks, when he said there was near silence from Conservative Members in Committee? I was there, and I did not hear silence, but his contributions probably put us to sleep. With respect, could he think about it again for one moment?
On our side, we had valuable contributions from Members of Parliament who have served this great country of ours, like my hon. Friends the Members for Wrexham (Sarah Atherton) and for Wolverhampton South West (Stuart Anderson). They know what they are talking about. Would the right hon. Gentleman care to think again about saying they were silent?
Madam Deputy Speaker
Order. Let us get this straight. Interventions will also be brief this afternoon. We want interventions because there is a serious debate to be had. As I look around the Chamber, I see experienced parliamentarians and others who understand that this is a very important Bill, and much of it is very sensitive, so let us try to behave with sensitivity and consideration for others.
Madam Deputy Speaker
Order. I do not care how many interventions there were in Committee. This debate is not about Committee; it is about the important matters before us, and that is what we will stick to.
Mr Jones
Sorry, Madam Deputy Speaker, but I was being polite in replying to the hon. Member for Derbyshire Dales (Miss Dines).
The families took the case against the MOD on the basis that they did not know about the Snatch Land Rovers until the Chilcot inquiry reported. That was way past any time limit.
Jack Lopresti (Filton and Bradley Stoke) (Con)
Surely the right hon. Gentleman realises that the proposed six-year time limit applies from the point of knowledge or the point of diagnosis, so it is not clear what point he is trying to get across.
Mr Jones
He who waits it all comes to. I was going to answer that point in a minute.
The MOD argued two things in that case. First, it argued that the case was out of time, and the families won the limitation hearing to take the case forward. The hon. Member for Filton and Bradley Stoke (Jack Lopresti) has just said it would be within the six-year limit. No, it would not. Let us suppose they had taken the case not in 2016 but six years later. They would not be able to take a limitation hearing at all. The Minister does not quite understand that problem.
The case I raised in Committee was of an aircraft engineer who developed a very serious nerve condition from paint. The only reason he was able to take forward his case was because the technology had changed and research had shown that the paint actually damages people’s nervous system.
The Minister said in Committee that, somehow, he is on record in The Sun as guaranteeing that no one will lose out, but he cannot because that will not happen: as I said to him in Committee, using the Robin Day analogy, we are all here-today, gone-tomorrow politicians. Frankly, what will happen is that MOD lawyers will use this to stop people making claims.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Will my right hon. Friend give way?
Lloyd Russell-Moyle
My right hon. Friend does not have to if he does not want to.
Will the passing of the Bill mean that civilians working for the MOD down the road will end up having, in effect, more rights than Army service personnel who have served in operations overseas? Does that not bring us back to the fundamental issue of the breaking of the armed forces covenant, on which the Government really must think again?
Mr Jones
It does. The Bill’s provisions will also mean that prisoners will have more right to sue the MOJ, for example, than armed forces personnel. The Minister said in Committee, “That’s terrible because you’re comparing armed service personnel with veterans”; no, I am not. I am saying that if the Bill goes through, prisoners will have more rights than armed forces personnel. That cannot be right. The Minister mentioned the 6%; I am sorry, but if even one veteran loses their rights under this Bill, I am not prepared to support that.
My next point is about the Human Rights Act. I support the amendments tabled by my hon. Friend the Member for Barnsley Central (Dan Jarvis) and the right hon. Member for Haltemprice and Howden (Mr Davis), because it is about how this looks in terms of our international reputation. There is derogation in the Bill; I accept that there cannot be derogation for torture, but it can and will be used to stop claims by MOD personnel against the MOD itself. The Snatch Land Rover case was brought under the Human Rights Act. Some people have the idea that the Human Rights Act is there to protect nasty foreigners and people we do not like; no, it is not. It is there to protect us all, including armed forces personnel. I am sure that that derogation will be used again by the MOD to deny the rights of individuals to take cases.
People should look at the Smith judgment on that case. What were the Government arguing? They were arguing that combat immunity, which is covered and was reinforced by the Supreme Court judgment, applied in that case because it happened in Iraq. No, that was not the case; the case was actually about the design and the decision to procure those Land Rovers and put them into theatre. The derogation will clearly be used in such a way.
I wish to make one final point, about our standing in the world. I am a supporter of the service justice system—it works well and we should be proud of it—but the problem with the Bill is this: do I want to see British servicemen and women tried in the International Criminal Court? No, I do not. I want them to be tried by their peers in a court in this country. As the Judge Advocate General, Judge Blackett, said in Committee, under this Bill there is a danger that if we have a presumption against prosecution and the issue around torture, we will get a situation whereby individuals will be tried not here but elsewhere. That would be terrible, not just for those individuals but for this country’s international reputation.
Madam Deputy Speaker (Dame Eleanor Laing)
I had been hoping to manage this afternoon’s proceedings without a time limit, but I do not think that is going to work; therefore, I am now obliged, in order to try to get a fair and equitable debate, to start with a time limit of eight minutes, but that will be significantly reduced later in the debate. If hon. Members who have eight minutes choose in an honourable way to speak for less than eight minutes, that would be remarkable.
Tom Tugendhat (Tonbridge and Malling) (Con)
The right hon. Member for North Durham (Mr Jones) set me a target of 30 minutes, Madam Deputy Speaker, and you have reduced it to eight. It is a crying shame.
The Bill’s importance comes down to the penultimate points that the right hon. Gentleman was talking about. The importance of the Bill is all about the Human Rights Act. It is all about the defence not just of British service personnel—which is absolutely right—but of these islands, this nation and our citizens. The point about this Bill is that the law not only interferes inappropriately in the way that the combat forces of our country conduct themselves, but it actually weakens the defence of our realm. Let me break down what I mean by that and explain clearly why this is a problem.
We are seeing today armies being stopped from deploying in certain areas and individual personnel being asked to stop operations because the law is geared to a civilian environment. We have seen legal action brought against the MOD to protect the rights of an individual on operations who has volunteered and specifically stepped up to serve in a risky environment, knowing the dangers and the consequences. The important difference between the civilian environment and the military one and between, to use the jargon, international humanitarian law and international human rights law—or the Geneva convention and civilian law, if you like—is that the law is geared to the environment. If it is not, we end up doing something most unfortunate that nobody in the House wants to do: we end up giving ammunition to the enemy and power to those who would seek to take power from us.
Mr Kevan Jones
I like the hon. Member, but he is talking complete nonsense. If he has read the Smith case, which went before the Supreme Court, he will know that combat immunity is completely covered under the Human Rights Act. It did not change that one iota, so what he suggests just will not happen. That case reiterated the point about combat immunity under the Human Rights Act.
Tom Tugendhat
I am sorry, but the right hon. Member is completely wrong. If he reads “The Fog of Law” written by—oh—me in 2013, a paper for Policy Exchange written alongside actual lawyers, rather than me, such as Richard Ekins, with a foreword written by Lord Moses of the Supreme Court, he will see exactly what I am talking about. If he reads “Clearing the Fog of Law”, which explains the situation, he will see clearly why this is a problem. This is absolutely an issue.
Tom Tugendhat
I will carry on.
It is also an issue for the human rights of some of the people we are fighting. Bizarrely, there were situations in Afghanistan where individuals could only be detained for a certain number of hours. They could not, for various reasons, be handed over to the Afghan authorities, despite the fact that we were, in theory, supporting the Afghan Government. It meant that after a certain number of hours—normally about 96 hours—they had to be released. The fact that they were known bomb makers who had definitely been handling explosives because chemical evidence showed it, could not be used, because in order to be used, those people would have had to be handed over to the Afghan authorities, and various people argued that the Afghan authorities were too inappropriate, too corrupt or too violent.
So, what happened? What do you think happens when someone who has taken up arms against you, literally tried to kill you and planted bombs to try to maim you cannot be detained? It is simple: after the legal limit was reached, the prisoners were released and followed for a number of hours, until they did exactly what we would expect: they went back to a weapons cache or arms unit and were engaged again as lawful military targets. How is that a defence of the human rights, even of the individual concerned?
Lloyd Russell-Moyle
The hon. Gentleman, who is a good Member and a friend, is making a really interesting argument, but I fail to understand how it has anything to do with the Bill. How has limiting the ability of service personnel to take civil action against the MOD got anything to do with what he is talking about? How is requiring a five-year statute of limitations on things like torture anything to do with what he is saying about the operation in war? Can he explain how the interesting points he is making are relevant to what is in the Bill? I and, I think, my colleagues fail to see it.
Tom Tugendhat
I am sorry that the hon. Member is failing to see it, because I thought I explained it quite clearly with the Ukraine example. We also see in other operations how the use of law has undermined the combat effectiveness of the armed forces. We see time and again in operations the opportunity for an individual with nefarious intent to try to bring legal action against the MOD to prevent operations.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
Will the hon. Member give way?
Tom Tugendhat
I will not give way any more; I had two interventions and they are done. We see again and again how legal intervention could be used to try to prevent operations. That, absurdly, prevents the armed forces from doing exactly what they are there for: to be the strong defending the weak. Instead, soldiers deployed on lawful operations will not be able to act in defence of the most vulnerable. The Bill clearly intends to go some way towards dealing with that. I do have a criticism of the Bill in that it does not go far enough to prevent multiple investigations, but the Minister for Defence People and Veterans, my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer) will agree with me on that. It is true that it goes some way, but not nearly far enough.
Dan Jarvis
I declare an interest as a veteran. It is a pleasure to be called in the debate and a pleasure to follow the hon. Member for Tonbridge and Malling (Tom Tugendhat). I do not share his analysis on this occasion, but it is a pleasure to follow him none the less.
I begin with what I hope is a point of agreement across the whole House. We all appreciate and understand the strength of feeling and high regard that Members across the House have for those who serve in our armed forces. Sadly, we are all too familiar with stories of our armed forces personnel being hounded for years and years. The Bill seeks to address such abuses but—here is where I part company with the Minister and the Government—in a manner that I believe will see Britain reneging on its international legal commitments. I will focus my remarks on the exception of torture from the Bill.
Torture, aside from being wholly ineffective, is illegal, immoral and inhumane. However, having listened to the Government’s arguments throughout the passage of the Bill, I remain convinced of the need for safeguards on torture. For the most part, Ministers have sought to dismiss the suggestion that the triple lock will weaken our stance on torture, yet an ever-growing number of legal experts, military figures and parliamentarians on both sides of the House think there is a need for a rethink.
It is obvious to see why there is a problem with the Bill. In my view, the Government have taken the correct decision to exclude sexual offences from the Bill. They could not have been more explicit when doing so. In response to the public consultation, the MOD said:
“the use of sexual violence or sexual exploitation during conflict is never acceptable in any circumstances.”
I believe that the same applies to torture. It is never acceptable in any circumstances. When pushed on that matter, Ministers have argued that an allegation of torture could arise as a consequence of the unique and often dangerous tasks that soldiers are instructed to carry out on overseas operations. That is just not correct. The rules on detention and interrogation are clear. The British Army’s training on detainee handling and tactical questioning is rigorous and leaves no room for doubt.
There is no debate on what constitutes torture, nor can an act of torture be conducted in error or as a result of a split-second misjudgment. It is a premeditated action for which there can be no justification. There is a reason why our soldiers are taught where the line is: we lose our legitimacy if we sink to the level of our opponents. By not excluding torture in the Bill, the Government are taking another step backwards on international law and on human rights.
Stephen Doughty
My hon. Friend is making points with which I absolutely concur. The prohibition on torture is absolute. I have witnessed first hand the training given to our armed forces personnel on the issues that he has described. Does he share my concern, which was expressed in Committee, that not excluding torture in the way that the Government could have done, and have done on sexual offences, puts our armed forces personnel at bigger risk of being taken to places such as the International Criminal Court in The Hague, which nobody wants to happen?
Dan Jarvis
My hon. Friend raises an incredibly valuable point. That is a real risk and an unintended consequence of the Bill. I hope that the Minister gives pressing thought to that during the remainder of its passage through the House.
My hon. Friend will have seen the excellent report by the Joint Committee on Human Rights, which raised significant concerns that the Bill breaches the UK’s international legal obligations under international humanitarian law, human rights law and international criminal law. The Committee recommended that at a minimum, the Government should exclude torture, war crimes, crimes against humanity and genocide from the Bill’s presumption against prosecution. That is precisely what the Government should be doing.
When I spoke to the Minister before Second Reading, he said that he was amenable to looking at such changes. I am sure he believes, as I and many right hon. and hon. Members on both sides of the House believe, that torture is incompatible with the values and standards of our armed forces.
Jack Lopresti
There is nothing in the Bill that prohibits any investigation within or after the five years for any such acts. There is nothing that favours them; there is no amnesty, no pardon, and no statute of limitations. By the way, I enjoyed the hon. Gentleman’s book, which I read a couple of weeks ago, but I have to say that on this occasion, he is mistaken.
Dan Jarvis
I thank the hon. Gentleman for the comments towards the end of his remarks. There is a weight of expert opinion. I am reassured about the strength of the case that I and other hon. Members are seeking to make today by the contacts I have had with my former colleagues who are still serving in our armed forces. There is a genuine debate still to be had about this. I am sure that the Minister will want to engage with the substance of the debate. Let us keep talking about it.
Dr Julian Lewis
When the Defence Committee was looking at the matter in the previous two Parliaments, it recommended a Bill of this sort provided that the time limit was qualified by the absence of compelling new evidence. Is the hon. and gallant Gentleman saying that he does not feel that that proviso is in the Bill? If that proviso is in the Bill, if there were compelling new evidence that had not come forward in the first five years but came forward afterwards, then indeed a prosecution could proceed.
Dan Jarvis
The right hon. Gentleman makes a very important point. I certainly assume that all of us attend this debate and seek to make contributions in good faith, and I think there is a genuine desire from Members from all parts of the House to improve this Bill. The Minister has indicated on a number of occasions that in good faith he wants to have that continuing conversation with Members about how we can improve the Bill. There is still time to do so, and I very much hope that we will not miss out on that opportunity.
Mr David Davis
It is a privilege to follow the gallant and hon. Gentleman, who is a co-signatory with me to amendments 1 to 10, which deal with the issue of torture. If this country stands for anything, it stands for the rule of law. That enhances our reputation abroad and increases our influence abroad. It is also important to the reputation and effectiveness of our armed forces, who are made safer and more effective because of it. The right hon. Member for North Durham (Mr Jones) spoke at length about the Bill not dealing with investigations, so in the interests of time I will move past that.
As the hon. Member for Barnsley Central (Dan Jarvis) said, the Judge Advocate General—the most senior judge in the Service Prosecuting Authority, the person who is the most knowledgeable about all these issues and who was in place for 16 years when these issues were being dealt with—says that this Bill does not address the issue. I will quote him again later on, because he is clearly not some left-wing, liberal lawyer or somebody who wants to undermine the armed forces; he is somebody who wants this country to succeed.
In the witness statements to the Bill Committee, the overriding view of the witnesses was that the principal failing was the failure to include war crimes, crimes against humanity and torture in schedule 1, which in their view contravenes the UK’s commitment to international law and invites the attention of the International Criminal Court.
Bob Stewart (Beckenham) (Con)
Article 3 of the Geneva conventions covers torture and crimes against humanity, and there is a convention on torture itself. When I was a member of the armed forces, we were subject to that as our highest priority. Indeed, I often used the Geneva conventions to justify my actions, and the Geneva conventions guide the armed forces. All those people who go on operations are guided by the Geneva conventions, I promise that.
Mr Davis
My hon. and gallant Friend is exactly right, and I want to see the reputation that comes from that preserved after this Bill becomes law.
I will briefly address the weaknesses of two parts of the Bill separately—this addresses directly my hon. Friend’s comments: first, the criminal prosecutions and then the civil cases.
Prosecutions against armed forces personnel are not brought by just any lawyer. They are brought by the Service Prosecuting Authority, which is part of the Ministry of Defence. As it stands, a prosecution can be brought only where there is sufficient evidence that the accused committed the offence and where it is in the public interest that the prosecution should be made. There is therefore already a high threshold for prosecution. As a result, since 2000, there have been 27 prosecutions. Given how many thousands of members of our armed forces have been in operations in difficult circumstances—in close quarters with the civilian population, fighting against an asymmetric enemy—that is an astonishingly low number. That is not a prosecution system that is out of control. That alone shows that the system is not slanted against soldiers.
Dr Julian Lewis
I agree with my right hon. Friend that the prosecution system is not out of control, but does he agree that the investigatory system is? To answer my own intervention on the hon. and gallant Member for Barnsley Central (Dan Jarvis), is my right hon. Friend aware that clause 3(2)(b) says that the five-year limit will not apply unless
“compelling new evidence has become available”?
Why is he not reassured by that?
Mr Davis
I will tell my right hon. Friend in a moment exactly why I am not reassured by that, but he is quite right that the issue is the repeated investigation of people who are innocent, in most cases. That is a harassing and destructive thing. The best known case is that of Major Campbell, who underwent eight investigations. I am afraid that the real blame lay with the Ministry of Defence for at least four of them. That is what we should address.
As I say, the prosecution system is not slanted against soldiers. I will give the rather gruesome, well known example of Baha Mousa, a 26-year-old Iraqi man who, in 2003, was dragged from his desk while working as a hotel receptionist by British soldiers, handcuffed and taken to a detention facility in Basra. Thirty-six hours later, he had been beaten to death, having suffered 93 separate injuries while in the custody of British forces. The number of solders convicted of murder as a result: zero. The number convicted of manslaughter: zero. There was a single conviction of one soldier, who confessed to inhumane treatment and got one year in prison.
It is difficult for prosecuting and other authorities to make out a clear-cut case of torture, inhumane treatment or even manslaughter, so I do not believe that the system operates against the interests of the armed forces. Indeed, on the several occasions on which the Government have been asked to produce a case of vexatious prosecution—not investigation, but prosecution—they have never been able to name one. That is not surprising. The Service Prosecuting Authority—the body that brings prosecutions—already dismisses claims that it believes are vexatious. In evidence to the Joint Committee on Human Rights, Nicholas Mercer, the former Command Legal Adviser in Iraq, said:
“Before I left the army, I gave legal advice on a number of prominent cases…I found a case that was without merit and I closed it. It was as simple as that. I do not need legislation to do that. It happens already.” That is a good reflection on our system, and we should not be ashamed of it.
The area of contention, which has been mentioned by the hon. and gallant Member for Barnsley Central, is the triple lock against prosecutions. The Government’s own stated aim is to raise the bar for prosecutions after five years. In its scrutiny of the Bill, the Joint Committee on Human Rights concluded:
“a limitation period that would prevent prosecutions is unlawful under international law if it prevents investigations and prosecutions in relation to torture, war crimes, crimes against humanity and genocide.”
The Government state that the measure is not a statute of limitations. The Law Society, which some may dismiss, agrees with the JCHR, and concludes that the presumption against prosecution creates a “quasi-statute of limitation” that is “unprecedented” in criminal law, and represents
“a significant barrier to justice.”
Rather more importantly, the Judge Advocate General, whom I described earlier, has said:
“In my view, what this Bill does is exactly the opposite of what it is trying to do. What it is trying to do is to stop ambulance-chasing solicitors and vexatious and unmeritorious claims. The Minister quite rightly said we want rigour and integrity. What it actually does is increase the risk of service personnel appearing before the International Criminal Court. That is why I said it was ill conceived.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c.117-18, Q234.]
That is the Judge Advocate General, the most expert person in the country on this subject. He also described, incidentally, the Bill as bringing
“the UK armed forces into disrepute”.
If the Government really think that schedule 1 does not make justice more difficult, they would not have excluded sexual offences from the remit of the Bill. If it is not difficult to get a prosecution, why exclude any category? It was right to exclude sexual offences, and the Government should exclude torture on exactly the same grounds. That is the point of the amendment in my name and in that of many others.
I have a couple of minutes, so I will deal briefly with the issue of civil claims. There have been 1,000 civil claims, according to the Ministry of Defence, all of them against the Ministry, not against individual soldiers—as far as I can tell. Surprise, surprise, someone trying to get money goes to the Ministry, not to a poverty-stricken soldier. However, that does not help veterans; it actually hinders veterans.
The point has been made by other Members, so I will press it no further, except to quote the British Legion director-general:
“it protects the Ministry of Defence from civil action—from someone bringing a case. That longstop does not protect the armed forces personnel.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q161.]
Of course, what the Bill could stop are the sorts of cases that exposed Snatch Land Rover, the lack of provision of body armour and a number of other scandals, which quite properly improved the operation the MOD.
The Bill does the same for torture cases. All the stories about torture and rendition came in the first instance from civil cases—all of them. That is what brought them into the public domain; there was not a single criminal prosecution in the first instance. It is difficult to bring a torture case. In most, only two people know about the torture: the victim and the oppressor—the torturer, or torturers. Typically, no other evidence is available in the public domain. A case is difficult. Even in the case of Belhaj, the most famous torture case—we delivered Mr Belhaj and his pregnant wife to the Libyans, for heaven’s sake—it took 10 years, essentially, to get to court, and of course he got an apology from the Prime Minister. That is why the issue of torture is almost impossible to bring to court.
Time is running out, so I will finish by quoting the questions that the Judge Advocate General put to the Minister in Committee. He said that
“six Royal Military Police were killed…in 2003”,
and asked:
“would we accept that there would be a presumption against… prosecution”
of their murderers? Would we expect special arrangements—
Mr Deputy Speaker (Mr Nigel Evans)
Order. I will let the right hon. Member read the quote before finishing.
Mr Davis
I will read the quote:
“Would we be content that a member of the Iraqi Government’s consent would be needed to prosecute? Would we accept a decision by that person not to prosecute? In my view, there would be outrage in this country if”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 128, Q278]—
the Iraqis behaved in that way. The Judge Advocate General said that we should always remember that the law should be “even-handed” to all people.
Gavin Robinson (Belfast East) (DUP)
It is a pleasure to contribute to the debate on Report, and to do so early, following the right hon. Member for Haltemprice and Howden (Mr Davis) and a number of other contributors. Time is tight on proceedings, but had the right hon. Member for North Durham (Mr Jones) spoken for the entirety of the Opposition, Members would have been largely content. I was clear on Second Reading that, while we support the Bill, many aspects of it could have been—and I regret were not—improved in Committee.
I will make this broader point at this stage: just because the Government have the strength of votes does not mean that they have a monopoly on wisdom, or that they should not engage more productively and proactively with some of the concerns that have been expressed. I do not say that belligerently or to cause difficulty; those who have served with me on the Defence Committee know that I approach such matters sincerely. I say it because we want to see the right outcome and the right protection for our service personnel. I am afraid that, following the Bill Committee, we are not quite there yet. We have the opportunity this evening to make necessary amendments.
I will repeat at this stage, although it is not part of the Bill, that I resent the fact that Northern Ireland provisions have not been brought forward. The Minister gave me a commitment on Second Reading—I am glad that he did—that the Government will not resile from the commitments that they have given to veterans who served in Northern Ireland. I accept that progress on those provisions is now, regrettably, outwith the Minister’s domain, but that commitment is still there from the Government and we look forward to seeing how they will honour it.
Colum Eastwood (Foyle) (SDLP)
Does the hon. Member recognise that there is already an international agreement—it is called the Stormont House agreement—to deal with issues of legacy in Northern Ireland? It seems now that the Government are determined to abandon that agreement and abandon the victims of the conflict too. Does he think that that is a sensible way to proceed—that the Government will again abandon an international agreement?
Gavin Robinson
The hon. Member’s contribution is timely. We know what commitments were given during the New Decade, New Approach agreement on legacy matters in Northern Ireland, and we wait to hear from the Government where they are. Both of us have engaged in conversations recently about where that may go. While we may wish it to go in different directions, I am not sure that either of us will be overly satisfied with what emerges.
I want to touch on a number of key aspects of the Bill. I saw that the Minister, with his normal enthusiasm, talked at the weekend about some of those seeking to amend the Bill being “deeply disingenuous”, “repeating campaign lines” and
“talking a good game…but fundamentally unwilling to lift a finger”
to protect service personnel. He made those comments. I am sharing them because I want to say categorically that they do not accord with me as a signatory of amendments 1 to 10, and nor do I believe that they appropriately accord with others who have signed the amendments.
I think it is right to say that people are being disingenuous if they think that war crimes or genocide are issues that are precluded under the Bill. They are not—they are clearly included in schedule 1—but the Government are wrong not to refocus and think again about torture. Torture should be exempted from the provisions of the Bill. I say that very clearly, drawing on the comments by the right hon. Member for New Forest East (Dr Lewis). He was right to reflect that clause 3(2)(b) draws on cases where there has been an investigation before, but what it does not do, and what it should do—I referred to this on Second Reading—is rule out the provisions of the Bill being used where there has not been an investigation at all.
Can it genuinely be the case that where issues are raised around torture where there has not been an investigation at all, we accept that the presumption against prosecution should be engaged? I do not think so. I have clearly argued, alongside the Minister as a member of the Defence Committee, that where the state has discharged its duty through a satisfactory investigation, then we can seek to protect our service personnel from prosecution, but not before.
We are asking the Attorney General to make the determination through the provisions of this Bill. That is the very same Attorney General who will be asked to agree that, because this Bill is being used, our service personnel have to go to the International Criminal Court. That cannot be right. Take these issues back to St Aquinas on what a just war is; he considers the morality of war. We as a country stand firmly against torture. When we engage in armed conflict, we operate on the basis that we share those values—that there is an international norm: our guys will not be tortured because we give a clear commitment that we will not torture theirs. That goes with this Bill.
Stephen Doughty
The hon. Gentleman is making an incredibly strong and important point. Does he not also agree that it potentially undermines our standing in some of the key institutions which we are party to internationally? He may not be aware, but we are actually chair of the optional protocol to the convention against torture subcommittee. The gentleman who chairs it on behalf of the United Kingdom is a graduate of Llanrumney High School in my constituency. We have a key role to play in international institutions and in setting standards for the world. If we undermine that through the Bill, we risk Britain’s reputation globally.
Gavin Robinson
The hon. Gentleman is right that there is a huge danger. The Government are not tearing up our international obligations—I accept that. The Government are not resiling from our international obligations to say torture is wrong, it is abhorrent, it is immoral and it is not something that we will engage in. I agree with the Government on that. But if that is their position, then why not close the circle in the Bill? Why leave it to others to determine in the International Criminal Court, when those issues should be determined here? I say again very clearly that in the context where there has been no investigation at all that cannot be right, be it five years, 10 years or whatever else. I will listen thoughtfully to the Minister in his summing up and hear what he has to say on that. I know he has the strength of numbers. I know he can push it through. I know he can reject the amendments that have been tabled, whether they are amendments 1 to 10 or amendment 32. But I ask him to reflect seriously on that.
Finally, the right hon. Member for North Durham dealt with this issue well in his new clause 1, but new clause 1 should be what the Bill is about: not dealing with the prospect of a prosecution five years after the fact, but dealing with repeated investigations, again and again and again, before the provisions of the Bill are ever engaged. That door remains open. We know some of the Northern Ireland cases that are going through the courts at the moment do not just involve a veteran, elderly and frail, but have also included dawn raids on an elderly and frail veteran of service in Northern Ireland in the ’70s and ’80s. That is outrageous, but none of that is precluded under the terms of the Bill. The investigations issue is worthy of further exploration during today’s proceedings.
Mr Deputy Speaker (Mr Nigel Evans)
We will have to introduce a five-minute limit now, because of the pressure of speakers.
Jack Lopresti
I will address briefly some of the points raised in this excellent debate. First, I would like to congratulate the Minister for Defence People and Veterans, my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), for his efforts to bring the Bill before the House. He has been a tireless champion of the veterans community ever since he was elected and it has been a privilege to serve on the Public Bill Committee with him. And I am so pleased he has had his haircut, finally.
This is a Conservative Government who are delivering on our manifesto commitment to begin to ensure that the men and women this House sends on operations, often into harm’s way, are safe from the sort of vexatious, repeat investigations and harassment that some have had to endure after operations in Afghanistan and Iraq. In this country, we are rightly proud of the men and women of our armed forces. In this season of remembrance, it is right for the House to be considering legal safeguards for them on future operations overseas. The Bill begins to address what many have talked about over many years and which we are finally getting to grips with: it provides some reassurance and protection for those deployed in the service of our nation on operations abroad in the future.
With the greatest respect to Members across the House, there has been a great deal of nonsense spoken about this proposed legislation during the passage of the Bill so far. The statutory presumption against prosecution after five years of any incident does not constitute a pardon, an amnesty or a statute of limitations. Prosecutors will still have discretion over whether to act, bearing in mind the public interest and if there is adequate or new evidence, and, critically, after careful consideration from the Attorney General, who will act in the public interest.
Our service personnel are trained to the highest possible standard and are taught about the laws of armed conflict, as well as the Geneva convention, as some Members mentioned. The Armed Forces Act 2006 clearly states that any criminal act will be considered as an offence under UK law. This proposed legislation does not overturn that principle or statute. This Bill does not make it virtually impossible to bring prosecutions for charges of torture—this is not correct—and I welcome the fact that the threshold for a new prosecution will have to be of an exceptional nature after five years. This legislation will dramatically change the existing culture, where our armed forces personnel are seen as fair game by some lawyers. It is right that any investigation must consider the unique pressures of conflict and decisions made under great stress. This provision will, I am sure, be welcomed by serving personnel and veterans.
This Bill does not prevent personnel from bringing civil claims against the MOD. The six-year time limit proposed applies from the point of knowledge or the point of diagnosis. The MOD estimates that 93.8% of claims by service personnel or their families arising from service in Afghanistan or Iraq would be eligible under the provisions of this Bill. I also welcome the establishment by my right hon. Friend the Secretary of State for Defence of the judge-led review of the wider service justice system. This will I hope ensure that from the beginning when allegations are made or incidents occur, they will be dealt with more swiftly.
The message from this House must be clear to our allies around the world: this Bill does not exclude British personnel on operations from their obligations under international law or the Geneva convention. The wider interpretation of the European convention on human rights has produced additional confusion. In an area where we have unattributed forces acting in grey zone operations, or not wearing uniforms or insignia, the opportunity to provoke incidents and then claim the use of excessive force will be a more attractive option from these states or others who wish us ill. Crucially, other NATO allies, such as France, obtain a derogation from the ECHR when their forces are deployed overseas on operations. This Bill will put in statute the proviso for Ministers to consider that they would derogate from the ECHR.
In welcoming this Bill, I look forward to supporting the Government’s measures to extend similar protections to our Northern Ireland veterans, which is long overdue. This Government are proud to stand up for our armed forces while they protect human rights, democracy and the rule of law.
Mrs Emma Lewell-Buck (South Shields) (Lab)
I will speak to the amendments and new clauses tabled by my right hon. and hon. Friends on the Opposition Front Bench, those in the name of my right hon. Friend the Member for North Durham (Mr Jones) and those that I have signed tabled by my hon. Friend the Member for Barnsley Central (Dan Jarvis) and others.
I do not want to stray too far from the amendments to hand, but I would like to say that I have sat in on many Bills in this place and I have yet to see one leave Committee completely unamended. Most Ministers accept that Bills as introduced are never perfect. They engage and listen to evidence sessions and Members in Committee, and try to make changes accordingly. It is astonishing that the Bill before us today is identical to the Bill we were presented with on Second Reading—astonishing because not a single witness in oral evidence or in written evidence has expressed full support for the presumption against prosecution in part 1 of the Bill or the civil litigation longstop in part 2 of the Bill.
In fact, there have been strong calls to scrap part 2 of the Bill in its entirety. If the civil litigation longstop part of the Bill remains unamended, there is a high risk that the Ministry of Defence will not be held accountable for violations of soldiers’ and civilians’ rights. The largest proportion of claims made against the MOD are claims of negligence and of breaches of the MOD’s duty of care towards its soldiers. Between 2014 and 2019, the available data shows that such claims amounted to more than 75% of all claims. This legislation will benefit only the Ministry of Defence, yet the Ministry of Defence is the defendant in all those claims. There is a clear conflict. The Minister and the Department have created legislation that protects them from legitimate legal claims. I am unaware of any other instance of our legislation being drafted in such a way to give such inbuilt protection to the defendant over the claimant, especially when there is already legislation in place under the Limitation Act to strike out any baseless claims.
This Bill allows the MOD to strike out not just baseless claims, but any claims, including rightful ones. Those suffering from hearing loss or post-traumatic stress disorder will not always be able to bring claims within the six-year timeframe, for the reasons many in our Committee’s evidence session gave.
There remains a lack of clarity about the number of people who would be disadvantaged by the longstop, but the Government’s impact assessment shows that at a minimum, 19 injured or bereaved members of the forces community who made claims from operations in Afghanistan and Iraq would have been blocked had the legislation we are debating today been in place. One member of our brave forces being blocked from a claim is completely out of order, never mind 19. Crucially, we do not know what will happen in the future, but it is likely that there will be drastic unintended consequences and our forces will have less protection than civilians and, in some cases—as has been said—prisoners. There is simply no justification for introducing a time limit where one currently does not exist.
Sarah Atherton (Wrexham) (Con)
It is a pleasure to follow the hon. Member for South Shields (Mrs Lewell-Buck), who is a fellow patron of the women’s veterans charity Salute Her, part of Forward Assist and the only other female who sits with me on the Defence Committee.
In consideration of new clause 1, I remind the House why the Bill is necessary. The Government of the day sent the British military into operations in Iraq and Afghanistan, and for over a decade after, these troops were hounded by lawyers, chasing the money and putting our troops through hell once again. So prolific was this hunt that it was given the name “lawfare”, and it is this lawfare that we seek to address.
Over the past few months, I have spoken to a significant number of serving personnel and veterans about the Bill. What sticks in my mind are five soldiers who specifically told me about their experiences of being investigated through Operation Northmoor and the Iraq Historic Allegations Team. All were vexatious claims and four left the service as a direct consequence of their treatment—exemplary soldiers all feeling let down and betrayed. All five believe the Bill would have protected them in some form, and they all welcome its introduction.
Retention is a big challenge for the military, especially the Army. In the British military, we train soldiers to the highest standard. Their professionalism and capabilities are renowned across the globe, but the military is a bottom-up organisation. Someone cannot enter the Army as a regimental sergeant major. Promotion comes from within the ranks. We have lost many to this lawfare and even worse is the feeling that service personnel and veterans are not valued. There have been over 4,000 lawfare compensation claims made against personnel, and only one went to prosecution. Just think about that litigious process and what it did to the remaining 3,999 people’s mental health and wellbeing and the impact on their families, and it was allowed to happen.
Opponents of the Bill suggest that it protects soldiers from prosecution against war crimes and crimes against humanity, and I support the comments made by my hon. Friends the Members for Filton and Bradley Stoke (Jack Lopresti) and for Beckenham (Bob Stewart) regarding the Geneva convention. The Bill offers no such protection. The service personnel I have spoken to are unanimously affronted by the suggestion that they want and would be protected by such an Act. They find the mention of blanket immunity abhorrent.
I cannot miss out on the opportunity to mention Northern Ireland. More service personnel died in those troubles than in Iraq and Afghanistan put together, and I have already received ministerial assurances, but I urge the Secretaries of State for Defence and for Northern Ireland to expedite this provision for those veterans who served.
Jim Shannon (Strangford) (DUP)
The hon. Lady brings up a pertinent point. Obviously, the Bill provides protection, but there does not seem to be the same protection for soldiers who served on Operation Banner, the greatest operation in British history. Does she feel that this protection should be extended to those who served in Northern Ireland on Operation Banner, so that they have the same protection as they would have if they had served in Afghanistan or Iraq?
Sarah Atherton
I am just about to say that they, too, should be afforded certainty that the unique operational pressures placed upon them will be taken into account. Prosecution decisions are made on alleged historical offences, and I understand that there will be some debate in this House on that matter.
I have spent the past few weeks scrutinising the Bill line by line in the Public Bill Committee, along with a number of other Members. Is the Bill perfect? No, it is not, but it is infinitely better than where we are now. No Bill or Act will ever suit all people in all circumstances, but which group would object to this Bill the most? It is the group who would lose out the most: the unscrupulous human rights lawyers. Service charities welcome the Bill, although I acknowledge that they have some reservations. But all service personnel and veterans want to be and should be supported by the Government, their politicians and their people. After all, they are prepared to, and do, put their lives at risk for us, and this is the duty of care these service personnel want. This Bill goes some way in offering that support, and I welcome it.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
I am grateful to you for the opportunity to take part in this debate, Mr Speaker. As the hon. Member for South Shields (Mrs Lewell-Buck) indicated, it bears a remarkable similarity to the one we had on Second Reading, because, it would appear, of how matters were proceeded with in Committee. That is unfortunate, because on Report the House is charged with the more detailed scrutiny of the sort we would normally expect to have and the Bill will be the poorer for its lack. I have listened with care and attention, occasionally trying to intervene, but I am struck by the fact that so many of those who speak in favour of the Bill continue to do so on the basis of seeking somehow to limit civil claims being brought against the Ministry of Defence.
The hon. Member for Wrexham (Sarah Atherton) spoke about lawfare and made a good point; I speak as a distantly former solicitor and the behaviour she refers to was disgraceful. However, the way to deal with such utterly disgraceful behaviour lies with the regulatory authorities for the legal profession; it is not necessarily for this House to start driving a coach and horses through the important protections we all enjoy, which ultimately benefit most of our armed forces personnel. I do not understand why part 1—an interference with the prosecution and the creation of a presumption against prosecution in criminal cases—will make any difference to the spectacle we saw in relation to lawfare.
Let me deal briefly with the provisions tabled by the right hon. Member for North Durham (Mr Jones). His suggestion in new clause 1 is sensible: judicial oversight of some sort for investigatory processes in the context where, as we all know, it is difficult to come by evidence, because it has to come from a theatre of conflict. That sort of protection is sensible, and it is unfortunate that the inadequacy of our proceedings today will not allow his proposal the sensible scrutiny and debate it deserves.
However, I wish to focus the bulk of my remarks on amendment 1, tabled by the hon. and gallant Member for Barnsley Central (Dan Jarvis) and the right hon. Member for Haltemprice and Howden (Mr Davis). For me, the operation of the presumption against prosecution in relation to torture is the most egregious aspect of this Bill. I suspect that if we could sort that—I am pretty certain that it will be sorted when the Bill goes to the other place—then we could probably fairly easily build a consensus around the Bill: the sort of consensus that, by and large, we manage to achieve most of the time in relation to the conduct of and support for our armed services.
I was struck by what the hon. Member for Filton and Bradley Stoke (Jack Lopresti) said about the various protections that he claims are within the Bill and how that would still make it possible to bring prosecutions in the exceptional circumstances envisaged by its authors. There is some merit in his proposition, but it did occur to me that if these provisions are adequate for torture, they should also be adequate for protections against sexual offences—but sexual offences are carved out in schedule 1 expressly because they should never be countenanced under any circumstances. It is absolutely right that they should be carved out in schedule 1 for those reasons, but it is for those reasons that torture should also benefit from the same sort of exemption that we have seen in respect of sexual offences.
The right hon. Member for Haltemprice and Howden touched on Belhaj. I will say only this: let us remember that the Belhaj papers were only found, following the fall of Gaddafi, entirely by accident. That is how difficult it can sometimes be to obtain the evidence of torture.
Joy Morrissey (Beaconsfield) (Con)
I thank my hon. Friend the Minister for being a tireless advocate for veterans and making this Bill possible. I also thank the right hon. Member for North Durham (Mr Jones) for his loquacious advocacy for veterans throughout the Bill Committee. He raised questions about the participation of other Members, but I would wager that his words that poured forth throughout the Committee covered every aspect of anything we may have an interest in.
Stuart Anderson (Wolverhampton South West) (Con)
I was not in the Chamber when that was said earlier, but it is fair to say that I made over 40 interventions in the Back-Bench debate, so I certainly contributed to the Bill Committee in that regard, as did many other Members. It would therefore be unfair to say that there was no contribution from Conservative Members.
Joy Morrissey
It was indeed an honour to serve on the Committee, because I myself, although not serving in the military, had two brothers who were veterans, and I saw the way that war and conflict tore their lives and our family apart.
I have spoken to many veterans who have said that they were at the point of wanting to kill themselves—some attempted it—for the fear of being prosecuted through these kinds of claims. The Bill protects the men and women who have risked their lives and fought to keep us safe and free. It allows our brave servicemen and women to go overseas to fight and represent us, and then come back and safely carry on their lives. That is what the Bill was intended to do, and I believe that that is what it will do.
I appreciate the plethora of amendments presented by the right hon. Member for North Durham. I am grateful for his studious nature in making sure that we have covered every aspect of these clauses. As my right hon. Friend the Member for New Forest East (Dr Lewis) mentioned, the investigative system is out of control. The Bill goes some way towards mitigating that, and we could perhaps have gone even further. The issue of derogation, which was raised at the start, was not further discussed, but we could have done so with a greater level of debate.
Joy Morrissey
Not at the moment.
The issue of derogation before an overseas conflict or an overseas mission is started might go a long way in any claims made retrospectively after the mission and whatever conflict we have engaged in is completed.
Those are small things that we could have looked at in further detail, but I appreciate and support the Bill. I am grateful to all those who have contributed, and I hope that we will be able to do what we promised in our manifesto commitment, which is to take care of veterans.
Sarah Owen (Luton North) (Lab)
Since this Bill came before us, I have had serious misgivings about its aim and its effectiveness. As it has progressed unamended, we have heard evidence from military and legal experts as well as charities, all stating that the Bill does not provide the protections that the Government claim it does for our armed forces. Worse than failing to protect our armed forces and their families, it risks limiting them from holding the Ministry of Defence to account when it fails to equip armed personnel properly or when it makes serious errors leading to injury and, in some cases, sadly, death. That was confirmed when the Royal British Legion director general told MPs on the Committee:
“I think it is protecting the MOD, rather than the service personnel”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q163.]
During the past 16 years, there have been 25,000 civil cases against the MOD by British troops who have been injured or their families. If this Bill goes through without protecting the armed forces covenant, we could potentially see thousands of personnel, veterans and families left wanting when what they deserve is justice. When looking at legislation, I always ask, “What’s the problem that this is trying to solve?” When we compare the 25,000 civil cases against the MOD with the number of vexatious claims, we should be questioning who is really being protected with this Bill. Unlike the Minister, I completely agree with the Royal British Legion’s director general: this Bill is about protecting the MOD, not service personnel.
Johnny Mercer
It is important to correct the record. The claims that the hon. Lady refers to have not happened overseas, so those figures are not right. This Bill is specifically designed for overseas operations, and the figures that have repeatedly been raised are incorrect.
Sarah Owen
As has been raised many times by Members on both sides of the House, we would like to know exactly how many, yet we are left wanting.
We know that the armed forces risk their lives every day—[Interruption.] The Minister does not want to hear this. I have already had to suggest to him that he should turn off Twitter and listen to the genuine concerns of Members around the House. We know that the armed forces risk their lives every day, and we owe them a huge debt. We also know that they are sometimes faced with difficult decisions, but even in the heat of war, the rule of law still applies. The Government have provided no rationale for why sexual crimes should be excluded from the Bill, but not torture and other war crimes. All is not fair in love and war. Our armed forces are still bound to international humanitarian law, and the Bill risks UK personnel being dragged to the International Criminal Court, which is why I urge Members to support the amendments tabled by my hon. Friend the Member for Barnsley Central (Dan Jarvis) and the right hon. Member for Haltemprice and Howden (Mr Davis).
The exclusion of sexual crimes but not torture is important. Under international law, torture is clearly defined as intentional infliction of very serious or cruel suffering, yet the Minister said in Committee that
“we expect our service personnel to undertake activities that are intrinsically violent in nature. These activities can expose service personnel to the possibility that their actions may result in allegations of torture”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 14 October 2020; c. 206.]
The definition of torture in international law is clear, yet the Minister seemed to deliberately muddle the violent nature of the work of the armed forces with legitimising torture. Given the world that we live in at the moment, that is a very dangerous path to go down. We are rightly condemning the horrendous abuses by the Chinese state in Xinjiang, the violations of human rights in Kashmir and the plight of the Rohingya people, but how can this Government call out other states for their use of torture and human rights abuses when they seek to pass legislation that legitimises the very same? Some Members on the Government Benches have loudly, and in some cases rather surprisingly, become self-appointed champions of protecting human rights overseas, yet we will see them again walk through the Lobby to vote for a Bill that erodes the international human rights laws that we should all uphold. Our armed forces can and should be held to the same high standards, being protected by, and adhering to, the same international law that we expect of others.
Carla Lockhart (Upper Bann) (DUP)
It is a privilege to follow the hon. Member for Luton North (Sarah Owen) in this debate.
My colleagues and I support the good intention of this Bill. It is the right thing to do to protect those who have protected us and this nation, and indeed many other innocents, in the face of the threat to life and the oppression of fundamental rights.
The Bill is not drafted perfectly, but tonight we have an opportunity to address and debate its deficiencies. One area of significant concern is torture. Amendments 1 to 10 seek to address that deficiency and, indeed, go a long way towards addressing this matter of grave public concern. That is the right thing to do. Like sexual offences, torture must fall outside the provisions of this Bill. Let us do nothing to undermine the values we hold dear as a nation. Where no investigation has taken place, it is absolutely right that the provisions of this Bill do not apply.
Cognisant of the purposes of today’s proceedings, I still wish to raise once again the plight of veterans of Operation Banner. I represent many such veterans who live in my constituency, and indeed hon. Members right across this House do so as well. While the operation was in Northern Ireland, those who served came from right across our United Kingdom and beyond. In the previous debate on this Bill, my hon. Friend the Member for Belfast East (Gavin Robinson) and I asked the Minister to state that the provisions of this Bill will not become law until the assurances made in the House on 18 March regarding Northern Ireland are fulfilled. The Minister said in response:
“We are clear that we will deliver our commitments to Northern Ireland. In a written ministerial statement on 18 March, we committed to equal treatment for those who served on Op Banner. We will not resile from that position.”—[Official Report, 23 September 2020; Vol. 680, c. 1049.]
That is a good intention—it is the right intention—but there is no guarantee. I know from our conversations with veterans that the longer this delay continues the more suspicious they get. This is wrong, and I need to know that the Minister believes it is wrong as well, so what is the cause of the delay? Those who await the knock at the door for standing up to terrorism deserve answers, and I urge the Minister to give those answers today.
The Bill is welcome and delivers on promises made by the Government, but we must no longer leave some veterans behind as prey to vexatious prosecutions. That is wrong, especially if, as suspected, it is for no other reason than to give a sop to the political front of the very people who killed and maimed many of those they served beside.
James Sunderland (Bracknell) (Con)
Having been spared the commitment of serving on the Bill Committee, I am fortunate also to have been spared some of the polarisation that has affected this Bill, so I talk today from a position of complete objectivity. Having also tracked this important journey very carefully for many years, both professionally and personally, I believe this is an essentially good piece of work that deserves a fair passage through Parliament.
As I stated on Second Reading, any new legislation needs to be set in the context of the prevailing macro-conditions and previous legislation. This Bill fills a void where little has previously existed, so I commend the Minister for his vision, resilience and fortitude to date.
The bottom line is that this Bill delivers on the Conservative manifesto commitment to address the issue of vexatious claims and makes the first substantial amendments of their kind to the Human Rights Act by limiting the time during which claims can be brought. I can say from experience that this is what our armed forces want. They aspire to better protected in law. They want to know that the country values their service. They need to know that they will be supported if they pull the trigger lawfully and, after the misery of the ambulance-chasing years, they want the threshold for prosecution to be raised so that the endless knocks at the door finally stop. This is a no-brainer.
Bob Stewart
Not only the ambulance-chasing lawyers, but it is really good that we will not ever see the Iraq Historic Allegations Team, which really made our soldiers’ lives hell when it investigated them. That will not happen again either.
James Sunderland
I could not agree more.
I am aware that several amendments were tabled in Committee, but none was agreed to. The Bill is hence essentially unaltered from Second Reading, so perhaps it is no surprise that such a large list is being considered today. I will admit that some of the amendments have merit. Having been contacted over the weekend by the eminent hon. and gallant Member for Barnsley Central (Dan Jarvis) and my right hon. and gallant Friend the Member for Haltemprice and Howden (Mr Davis), I have looked in particular at amendments 1 to 10. My view, however, is that this Bill will not prevent the UK from rightly prosecuting acts of torture, war crimes, crimes against humanity or genocide, and that the Bill does not need to exclude these from its triple lock because existing provisions already exist in law.
I also struggle with the notion that the MOD would somehow fail to investigate or prosecute, because the bad apples will always face justice, as indeed they did during my time in uniform. Regarding torture, the Government’s position is that the presumption against prosecution will not prevent any prosecutor from considering the severity of the crime or the unique circumstances in which it was committed. Indeed, war is a nasty business, so I do not believe that a court should somehow be prevented from giving weight to the mental health of the individual or the prevailing conditions. Hence I am minded against amendments 21 and 22. I agree with the Minister that this would be nonsensical, as prosecutors should give recognition to the difficulty, the trauma and the acute stress of military operations, as any member of HM forces will testify.
In addition, the Bill confirms that on a case-by-case basis, a prosecutor can determine that a crime is exceptional, so there is no collision course here with the UN convention against torture, the Geneva convention, the Hague or even NATO, as nothing will be swept under the carpet. As for the five-year time limit, this is correct, as the clock will start ticking from the point at which matters come to light, not from the time of the alleged incident. That was also the overwhelming preference during the public consultation. Not only should it be possible for all the evidence to be gathered within a five-year period, but I concur with the Minister that memories do fade, that evidence does deteriorate and that it remains in the interests of everyone involved to deliver justice quickly. I do not therefore support amendments 18 and 19, which seek to lengthen the period to 10 years. This is ultimately about taking pressure off our people, not prolonging it.
Part 2 of the Bill relates to claims by service personnel against the MOD. As 94% of all employer liability claims against the MOD since May 2007 have been brought within the limitation longstop of six years, I agree that there should be a time limit here, too. To be fair, I have considered the suggestion that this Bill is more about protecting the MOD than it is about protecting HM forces, but that, too, is ridiculous. I note that the time limit extends here, too, from the point at which the issue first came to light. There is more than enough time here for any complaint to be submitted, and the MOD cannot simply write a cheque for yesteryear. I will be voting against new clauses 5 and 6 and amendment 23 if they are divided on.
Lastly, I am aware that this Bill has attracted lots of interest in the media in recent months, so I want to set the record straight: I am not convinced that the criticism from the Royal United Services Institute, the Royal British Legion, the Joint Committee on Human Rights or other senior figures is necessarily fair, as the Bill delivers what it says on the tin. Having read it in detail, I am clear, too, that any new presumption against prosecution is not a statute of limitations and does not in any way create a bar to either investigations or prosecutions. Unlike some, I have complete faith in both our legal system and our armed forces, so I commend this Bill to the House.
Lloyd Russell-Moyle
We all agree that the aims of the Bill are noble, and that the idea of revolving investigations or a life in investigatory purgatory, never knowing when a vexatious investigator will come knocking at the door, is wrong and must end. The mental stress of that legal uncertainty needs clarity. The loopholes need to be closed and fixed, but this Bill does not do that. It does not even come close. In fact, in a number of areas, it makes things worse.
Imran Ahmad Khan (Wakefield) (Con)
During last year’s general election campaign, the protection of our service personnel and veterans was the biggest issue that I encountered on the doorsteps of Wakefield, beside Brexit. From tackling the morally bankrupt state of homelessness among the veteran population to ensuring that they are protected from vexatious litigation claims, I am proud to stand behind 4,200 veterans in my constituency and will continue not only to represent and defend them but to champion their causes and those of their families, and to ensure that they receive fair treatment by our society, to which they have given so much.
It is the Conservative party that has always championed and defended our service personnel and veterans. It is the Conservatives who have consistently defended Trident and raised defence spending above the NATO target of 2%. This Bill is doubling down on our beliefs and commitments. It is designed to provide our service personnel and veterans with the protections needed from vexatious claims and repeated investigations.
We should, of course, hold our armed forces servicemen and women to the highest standards. For that exact reason, the Bill does not prevent prosecutions where genuine wrongdoing is found to have occurred. The five-year threshold for prosecutions means that victims have a long window in which to put forward their allegations. As I understand the Bill, the threshold does not apply in cases that are exceptional and begins only from the point of knowledge, such as in the case of post-traumatic stress disorder.
Those on the Opposition Benches unfairly claim that the Bill legalises torture and war crimes committed by service personnel, risks undermining our justice system and defends only the Ministry of Defence. That is ridiculous and demonstrably false. Credible investigations can and will be pursued when there is either new compelling evidence or, as I mentioned, in exceptional circumstances, such as cases of sexual offences.
For almost 20 years, before I was returned to this place, I often found myself in diverse places spanning four continents, living and working alongside our courageous armed forces. I am committed to ensuring that those who have, continue to or will gallantly serve the United Kingdom in our armed forces should not have to face repeated investigations years after they have served on operations. The Bill advances the protection of our service personnel, but not to the detriment of victims or at the cost of our revered justice system. I urge all Members from all parties to support the passage of the Bill.
Nadia Whittome (Nottingham East) (Lab)
Elizabeth Wilmshurst, the former deputy legal adviser at the Foreign and Commonwealth Office, says that the Bill calls into question the UK’s commitment to a “rules-based international system”. As of today, nearly a dozen United Nations human rights special rapporteurs and experts have declared that the Bill will violate the
“UK’s obligations under international humanitarian law, human rights law and international criminal law”.
The Equality and Human Rights Commission says that it is
“profoundly concerned by the risk to human rights that this Bill poses.”
The Judge Advocate General of the Armed Forces says that the Bill risks bringing
“the UK armed forces into disrepute”.
How can the Minister justify sticking his fingers in his ears in the face of such grave concerns voiced by legal, defence and human rights experts? Why is this legislation so out of step with the similar legislation of allied countries such as the US and Canada?
I am proud of the strength and unity of Labour’s opposition to the Bill on final Reading, because our party has a record of championing human rights and fighting for the dignity of workers and for the rule of law—everything that the Bill flies in the face of. As my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) said at the time of the recent publishing of the Human Rights Joint Committee report, it is not the drafting of the Bill that is the problem, because it is perfectly drafted in accordance with the policy; it is the policy itself that is the problem.
This Bill is rotten to its core. Speaking of the Human Rights Joint Committee report, the Minister was unable to explain which vexatious prosecutions would have been stopped by the Bill, so perhaps he can tell us today. No? I didn’t think so, because the answer is none. What is particularly disrespectful and distasteful is this Government’s disingenuous claim that anyone who opposes the Bill is anti-armed forces. I suppose that includes the Royal British Legion, too. A Government source, in characteristically anonymous fashion, told The Guardian this morning that Labour’s stance on the Bill
“confirms their long-held disdain for armed forces personnel”.
Let me tell Conservative Members what disdain for our armed forces personnel looks like. It is shoving through this Bill, despite concerns from the Royal British Legion and senior military figures; it is breaching the armed forces covenant; it is stripping soldiers of their employment rights; and it is rewarding new recruits with poverty pay, with one of the lowest salaries in the public sector at just over £15,000 a year. For more than 300 years, torture has been illegal in this country. The Bill would overturn that principle, and that would be a moment of national shame. So tonight, as a matter of pride, I will be voting against this Bill—this irredeemable anti-veteran and anti-human rights piece of legislation—for the second time.
Stuart Anderson
I am sure that I will have a different view to the hon. Member for Nottingham East (Nadia Whittome). I find myself in a surreal place, because I have gone full circle. I once moaned, as a soldier, about not enough being done in this House for the armed forces. Now, I am contributing to legislation that I honestly believe will have a positive impact on our armed forces.
Looking back at the different overseas operations I have served on and being able to bring those experiences to the House has been a huge honour. I was fortunate enough to speak in the first debate about what I did on operations, and also to sit through several weeks of scrutiny on the Bill Committee. I have learnt a lot during this process, and gained a greater understanding of the huge complexities involved in bringing legislation through this House. It is clear that the Minister for Defence People and Veterans has done so much to get the Bill here, and I pay tribute to all the work he has done to get it to this stage.
When I look at all that is said in this House in support of our armed forces, I scratch my head and wonder why it has taken this long to bring this legislation to the House. I have looked back and reflected to try to find out why this was the case. When I joined the Army straight from school several decades ago, the armed forces were not popular. We were not high on satisfaction ratings. We were not allowed in any of the places in the towns where we were posted. We were restricted from most places we went to. People did not come out into the streets and clap for the armed forces, so maybe it would not have been a popular decision to bring a Bill such as this to the House at that time. This has quite rightly changed now, and people do support our armed forces. Maybe that is why people are now saying so much about the forces that they have not said in the past. In this House, you cannot move for support for our troops, yet it is only now that this Bill is being brought forward.
I genuinely think that there is honest support across the House for our troops, and that all Members want the best for them. However, words do not protect our troops. We need to go further, and action is what is needed. As MPs, if we suffer a bad day, we hit the headlines. We might have a media campaign against us, someone might put graffiti on our office or we might end up having harassment. None of that is right, but it passes. It does not change our lives forever. However, when someone is serving on overseas operations, a split second can change their life forever when that shot is fired, that improvised explosive device is set off or that rocket comes into their base when they are asleep. A limb is lost. They witness a friend being killed. Ultimately, people lose their lives.
After an overseas operational tour, something is left on that battlefield. You never come back the same. The time for words has passed. We now need to support our armed forces, and we need to do so by supporting the Bill.
Gareth Bacon (Orpington) (Con)
It is a pleasure to speak in the debate and to follow my hon. Friend the Member for Wolverhampton South West (Stuart Anderson). When my hon. Friend the Member for Wrexham (Sarah Atherton) was in her place, she outlined the concept of lawfare. There can be no doubt that that exists and has been exploited, leading to vexatious claims against our brave armed forces personnel over a considerable period of time.
Cases such as that of Major Robert Campbell are absolutely scandalous. This man had to face eight separate investigations over 17 years into a single incident that took place back in 2003. He is only 47, so we are talking about more than a third of his life. Each investigation cleared him, only for the goalposts to be moved for each successive investigation. The toll taken on that completely innocent man, who put his life on the line for his country, is enormous.
Tragically and shamefully, he is not alone. To put it into perspective, a long-running streak of claims have been dismissed as far back as the 2009 al-Sweady inquiry, which took five years, cost £25 million and the conclusion of which was that the allegations were
“wholly without foundation and entirely the product of deliberate lies, reckless speculation and ingrained hostility”.
Furthermore, the Iraq historic allegations team determined that 70% of cases did not have a case to answer or that it would be disproportionate to conduct an investigation. Similarly, as of June, the service police legacy investigations had closed or were in the process of closing 1,200 allegations. Operation Northmoor, which took three years and cost £10 million, resulted in no charges, but all that takes significant time and causes huge distress to those under repeated investigation.
Our servicemen and women make enormous sacrifices on behalf of our country and the practice of hounding them must come to an end. It is therefore right that the Government seek to raise the bar for prosecutions in overseas operations by requiring prosecutors to have proper regard to the uniquely challenging circumstances into which we send our personnel to risk their lives on our behalf, as we heard from my hon. Friend the Member for Wolverhampton South West.
Opponents of the Bill have said that it would issue an amnesty for torture and war crime offences, but that is simply not the case. As the Minister has been at pains to make clear, the Bill does not provide blanket immunity from prosecution; it merely raises the threshold for the prosecution of alleged offences. Those opponents have also claimed that it would damage the reputation of our armed forces. I question instead what sort of a country we would be if we allowed our armed forces to continue to make enormous personal sacrifices only to return back home and be at the mercy—for years—of tank-chasing lawyers such as Phil Shiner, who was, of course, struck off for his actions. The Minister has outlined at length how the Bill meets the UK’s obligations under domestic and international law. I look forward to hearing him do so again in his closing speech.
Most Members on both sides of the House sincerely support our armed forces, but there have always been some who have taken sides against our armed forces and shown no respect whatsoever for our veterans. I am not among them. I am inclined to agree with my hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat), who said that the Bill goes some way to protecting our armed forces but probably not far enough. However, it does improve the current unacceptable position. I therefore support the Bill to protect our armed forces.
Ian Paisley
May I say at the outset that I am extremely proud of our armed services and their conduct, their calibre and their gallantry? They are well renowned and well supported across Ulster. They are applauded, and have been for many years, even through the dark years when people did not like the armed services so much, because people know the sacrifice that young squaddies made to hold the line between peace and chaos in a part of the United Kingdom. They were, and are, applauded.
In principle my party welcomes the Bill and wants to support it. We do think there are many ways in which it could be improved, and we hope the Minister is listening to those calls for improvement. We are bitterly disappointed that the legislation will fulfil only part of the Government’s manifesto commitment—part of the commitment on which Members canvassed around the whole of this nation to obtain support. I will come to the detail of that in a moment.
When I was a student at university, I had a tutor from Germany. She recounted to me a story about one of her earliest and most confusing experiences of Northern Ireland. She wanted to call a colleague here at King’s College London, and for her it was not a problem. She picked up the phone, she dialled the number, and she was told by the switchboard operator at Queen’s University, “That’s fine—that’s a local call.” Some time later, she had to call a colleague at Trinity College, Dublin, but she was not able to make the call, and was told by the switchboard operator, “Oh, that is an overseas call, down to Dublin.”
So I understand the confusion that some people might have, and indeed the justification that the Government have put into this piece of legislation to leave Northern Ireland out, and leave Operation Banner soldiers out, because in theory Northern Ireland is not overseas, and service in Northern Ireland is not an overseas matter: it is a local matter—a domestic issue. But the Government’s manifesto commitment was to all of their personnel, and no matter what way we cut it, and no matter what the small print may now say, those brave and gallant people and soldiers who served in Northern Ireland under Operation Banner have been jettisoned by this piece of legislation.
Johnny Mercer
It may be helpful if at this stage I restate to my hon. Friend the commitment in the Conservative manifesto, which we do not resile from one bit—that those who served with such distinction in a very, very difficult time in Northern Ireland will be entitled to equal treatment when that Bill is brought forward. They have not been jettisoned, they have not been forgotten about, and we will not leave them behind.
Ian Paisley
I thank the Minister for getting to his feet and making that commitment again from the Dispatch Box. That is important, and will go some way to alleviate some of the concerns that have been expressed.
I would just say this. People in Northern Ireland—for good cause—do not believe in the good will of the Northern Ireland Office and its mandarins there. They believe that their attitude to our armed services is that they are expendable, and that there will be a time, when push comes to shove, and if it is expedient, that our soldiers who served in Operation Banner and the police officers in the gallant RUC who supported them would be easily jettisoned in some sort of trade-off with the people who were quite happy to fire bullets at our armed service personnel.
Bob Stewart
I support exactly what my very great friend is saying, but may I point out to the House that no Bill will protect someone like Dennis Hutchings, who has been repeatedly brought back and reinvestigated, in Northern Ireland or elsewhere? This legislation will not be retrospective, as I understand it. Does my hon. Friend agree?
Ian Paisley
I thank my dear friend, who has travelled widely in Northern Ireland, both as a soldier and as my guest in my constituency, with former squaddies. The applause that they gave to him is now legendary in Ballymoney; but the Minister will forgive me for saying that probably the less said about that adventure, the better for both of us.
Some Members have made the point that it is difficult to make a prosecution stick. One of the cases that got me into active politics was that of the UDR Four, on which I worked as a researcher, where four soldiers were wrongly convicted of the murder of a civilian in Northern Ireland. Many Members have advocated today the books that they have written on these subjects. I actually did write the book on the case for the UDR Four, with an exceptional foreword by Robert Kee, the eminent historian. In that book, we detailed the case for those soldiers and how their conviction should be quashed. I am delighted to say that three of those convictions were quashed, but it took us 10 years to get that case before the courts and to have those wrongful convictions quashed. So I do not buy that prosecutions will be hard to pursue and make stick.
There is, unfortunately, an unhealthy appetite out there among some people to blame veterans and our armed services. That will not end with this Bill, but we wish it Godspeed and hope that we can get a piece of legislation that will defend our armed services with the integrity that the Minister speaks with.
Olivia Blake (Sheffield, Hallam) (Lab)
I rise to support amendments 1 to 10 in particular. I thank my hon. and gallant Friend the Member for Barnsley Central (Dan Jarvis) for his eloquent argument for the amendments, and I thank the right hon. Member for Haltemprice and Howden (Mr Davis) for putting them forward. I am proud to have put my name to them.
I fear that the Bill fails to meet our obligations on human rights abroad, but it also fails to meet our obligations to service personnel when they return home. The UK should rightly aspire to be a global torch-bearer for human rights, and our military should be held to the highest professional standards. The triple lock and five-year limit on prosecutions in the Bill make a mockery of any claim that we might have respect for human rights and international law. Human rights do not change depending on the miles travelled or the borders crossed. They are universal and non-negotiable. From Hallam to Herat, we all have the right to live free from torture and war crimes. That is why I was appalled to read in the report of proceedings in Committee that Ministers had excluded torture because
“we expect our service personnel to undertake activities that are intrinsically violent in nature,”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 14 October 2020; c. 206-207.]
which may lead to “allegations of torture” or “war crimes”.
Torture is clearly defined in international law. It is never accidental. It is not a grey area. It is an intentional act of inflicting very serious and cruel suffering on another person. It cannot be justified with heat-of-the-moment arguments, and it is ridiculous to say that conventional military operations could be mistaken for torture. Alongside hundreds of constituents who have contacted me about the Bill, I completely oppose any suggestion that there are any circumstances in which torture might be excusable.
Not only are these proposals an affront to human rights, but they fail to support our veterans, the group the Government say they are defending. The largest number of civil claims made against the MOD are claims of negligence brought by former soldiers. The proposal for a six-year limit on lodging civil claims makes it harder for ex-military personnel to sue the MOD for failure in its duty of care to them. It means that troops who develop PTSD, blindness and other conditions will be left with no recourse to justice. Far from supporting veterans, the Government’s proposals are entirely self-serving.
We should reject any attempt to run down the clock on civil claims, and there can be no “get out of jail free” cards for torture or war crimes. There is no stopwatch on justice, and there are no exceptions—no ifs or buts—on torture or human rights. That is why I will join colleagues in supporting amendments 1 to 10 this evening and in voting against the Bill.
Kim Johnson (Liverpool, Riverside) (Lab)
When the Government brought this Bill forward, their aim was to end vexatious claims against former service personnel and the Ministry of Defence, but the evidence does not bear out what the Government say is the scale of the problem. No service personnel, present or former, deserve to be investigated and prosecuted for a crime they did not commit, or to be repeatedly investigated without good reason, but the figures, as the Government well know, are not of a scale that would justify the proposals in the Bill.
In relation to Iraq, only a handful of prosecutions have been brought against junior personnel.
Of the civil prosecutions against the MOD over the past five years, just 0.8% related to Iraq. The Minister has said, in relation to the majority of the repeat investigations or delayed prosecutions, that
“one of the biggest problems…was the military’s inability to investigate itself properly and the standard of those investigations…If those investigations were done properly and self-regulation had occurred, we probably wouldn’t be here today”.
Rather than put forward proposals to tackle the real reason behind any repeat investigations or delayed prosecutions, the Bill instead proposes unprecedented and dangerous legal protections, which will create a legal regime that secures immunity for serious offences and inequality before the law for victims of abuse and armed forces personnel.
Apsana Begum (Poplar and Limehouse) (Lab)
I am grateful to be called in this important debate.
I believe that this House should promote internationalism that is anti-imperialist and peace seeking, yet as I have raised before in this House and as has been noted by many, the Bill before us could result in torture and other serious crimes being protected from prosecution five years after being committed. That is so clearly in breach of the human rights of those affected by conflicts involving UK armed forces. Due to the amount of time that trials relating to services personnel often take, the five-year period proposed in the Bill is likely to mean that many prosecutions would not be made. Indeed, the whole tenor of this Bill is to deter cases being brought regardless of their merit. I echo Grey Collier, advocacy director at Liberty, when I say that a war crime does not stop being a war crime after five years. This Bill also offers no protection to armed forces personnel; neither does it offer them access to justice.
Bob Stewart
I thank my good friend the Deputy Speaker and the hon. Lady for allowing me to intervene. I do not understand why she thinks a war crime will not be a war crime after five years. A war crime is a war crime forever, and if the Attorney General considers it to be a war crime, it will be brought to a court. I do not think this Bill stops a war crime being prosecuted if a British soldier, sailor or airman carries one out.
Apsana Begum
I thank the hon. Gentleman for making his point, but I disagree with him. The point I am making is about prosecution and allowing for that war crime to be considered by the courts.
If I can continue, I believe in a fair justice system for all. Such a system would have built into it access for justice for armed forces personnel and those bringing cases against them. Most fundamentally, in order to pay tribute and show respect to those who have lost their lives in foreign conflicts—both from the UK and abroad—we must set in place a system of transparency and political accountability. We must face head-on the lasting effects that wars in, for example, Iraq and Afghanistan and sectarian conflicts have had on the lives of many in the UK and around the world. It is only with proper accountability and transparency that we can ensure that such mistakes and injustices are a thing of the past.
Hiding from accountability does not do anyone favours. Rather, it feeds mistrust, because for most people it is only those who have something to hide who fear scrutiny. Going to war and other activity by the armed forces involve decisions about some of the most fundamental values, and people have the right to know what is being done in the name of our country.
I conclude by saying that this Bill will act only to entrench a culture of fear and mistrust, increase the risk of crimes being committed overseas and instigate an opaque justice system, benefiting neither armed forces personnel nor the victims of war.
Mr Deputy Speaker (Mr Nigel Evans)
Wind-ups will begin at 5.26, so I will ask whoever is on their feet at that time to resume their seat.
Stephen Farry (North Down) (Alliance)
I have co-sponsored a number of amendments in the hope—perhaps it is naive—that some of the rougher edges of the Bill can be improved. Ultimately, I think this Bill is flawed from top to bottom and is unnecessary. We have, for example, existing prosecutorial tests. One is the evidential test and the second is the public interest test, which are more than adequate to take into account some of the concerns raised by Members. The Bill also raises the question whether our judiciary are not capable of weeding out vexatious claims whenever they come before them. I believe they are, and we should have confidence in their abilities to address those very points.
The Bill creates some very difficult and unnecessary precedents by breaking up the long-standing convention that everyone is equal before the law. There is no need to put in place measures that create additional prosecutorial tests and hurdles to be jumped in relation to certain categories of people—even those who on the face of it are incredibly deserving of our support, such as our veteran community and current active service personnel.
The most egregious aspect of the Bill is what it does in relation to torture. A number of Members have already said this, but in effect it decriminalises torture. I say “in effect” because that is not on the face of the Bill. That is the outworking of what the provisions entail. People will say that torture and war crimes can still be prosecuted through the courts, but it is a fact that a triple lock of additional hurdles, which do not exist for any other category of criminal offence, is to be put into law, and that makes this situation much more difficult and challenging.
I am conscious that we are all looking across the Atlantic today to see what happens in the US presidential election, and there is a clear interest in ensuring that the values of decency and support for democracy, human rights and the rule of law prevail over those who are pursuing other agendas. At the same time, it is deeply troubling that the Government, and potentially this House, are willing to implement measures on torture in legislation that overturns centuries of precedent. That should be very troubling to us all.
Bob Stewart
I rise to oppose that comment. The Bill does not decriminalise torture. Torture remains a major crime, and I speak as someone who has given evidence in five war crimes trials at The Hague. Torture is torture, and it is still something that the Government deeply oppose. The Bill does not actually legitimise torture in any way.
Stephen Farry
I am grateful to the hon. Member for his comments. I very much respect his service, and his commitment in that service to upholding the rule of law and the highest standards of international humanitarian law. The point I am making, however, is that while on the surface the Bill does not do what he says, the fact that the triple lock and the additional prosecutorial hurdles in effect create that outcome is, I think, deeply troubling to us all.
There are just two other points I want to make in conclusion, to try to let someone else say a few words. First, anyone who opposes the Bill today should not be labelled as someone who is opposed to our armed forces. It can be viewed and construed as respecting our armed forces. Let us ask ourselves the question: what was it that they were actually fighting for, particularly when they were in Iraq and Afghanistan? I appreciate that both of those interventions were controversial in many respects, but surely it is about peace, upholding the rule of law in those countries and upholding international law? We therefore do ourselves a great disservice if, in recognising their contribution, we in turn undermine those very values in what we do in the Chamber today.
My final point relates to Northern Ireland. Members have made reference to potential legislation in that regard. I do not look forward to seeing similar legislation being put in place for Northern Ireland—
Mr Deputy Speaker (Mr Nigel Evans)
Order. We must come to the winding-up speeches. I call Stewart Malcolm McDonald.
Stewart Malcolm McDonald (Glasgow South) (SNP)
I am grateful, Mr Deputy Speaker, and I am only sorry we did not get to hear the end of the speech by the hon. Member for North Down (Stephen Farry).
I rise to support the new clauses, and to speak to amendment 32 in my name and those of my hon. Friends. I want to begin by thanking my hon. Friends the Members for Glasgow North West (Carol Monaghan) and for West Dunbartonshire (Martin Docherty-Hughes), who served on the Bill Committee, among other hon. Members who find themselves here this afternoon. I am afraid to say to hon. Members, particularly those who were with us on Second Reading, that very little has changed from what I said then. In fact, almost nothing has changed from what I said then and that is a great shame. It is the case, then as now, that senior legal, military and political opinion was united in consensus against the Bill. That has not changed. [Interruption.] That did not take very long, did it? The Minister should not worry; I will come to the points that he loves to chunter.
Stuart Anderson
It is not fair to say that opinion is united against the Bill. That is not factual from the evidence given to the Bill Committee.
Stewart Malcolm McDonald
Well, we will go through some of that evidence, shall we? We will go through some of the comments made by senior military, legal and political opinion that make it quite clear that what I have said is correct. I accept, of course, that there are differences of opinion within those fields, but it is the case, I am afraid to say to the hon. Gentleman and to the Minister chuntering at me from the sidelines, that senior military, legal and political opinion believes that the Bill is farcical in several respects. I will go through them in turn.
Mr Kevan Jones
We cannot get more distinguished than the Judge Advocate General, Judge Blackett, who was firmly of that opinion. The Minister did not perhaps listen, but the judge made his position about the Bill very clear.
Stewart Malcolm McDonald
Yes, that is entirely correct. Or we could take the former Conservative Defence Secretary, Sir Malcolm Rifkind. I think I said in the previous debate that he is not exactly known as a sandal-wearing, lentil-munching, Guardian-reading lefty hipster type, is he Mr Deputy Speaker? I suspect you know him way better than I do, although we have some experience of him in Scotland, of course. He is against the provisions in the Bill. So when the Minister chunters away that what I have said is incorrect, I am afraid what he needs is a mirror, because what he is saying is fundamentally incorrect.
It did not have to be this way. Back in that Second Reading debate, I said, along with others, that we would try to bring forward amendments to get a Bill we could support. But with every attempt to do so—we will see it again, I am quite sure—we have had the door slammed shut in our faces.
The Minister might win in the Lobby tonight, but for a man so convinced of his powers of charm and persuasion, he has failed to bring forward a Bill that the House can unite behind. Those who were here before the election, and who have been in the few defence-related debates we have had since, will know that, on defence matters—setting aside the nuclear question, certainly for myself—there is actually a lot of consensus in the House. So why is it that the one Minister who brings forward a Bill on issues of security, supporting the armed forces and the rule of law, where that consensus exists, has failed to get any Opposition Member to support him? It is his failure that the Bill will divide tonight, with one or two honourable exceptions, between Government and Opposition Benches.
Lloyd Russell-Moyle
Does the hon. Member share my worry that potentially putting our armed forces up against the International Criminal Court could be the beginning of a path to undermining the Court itself? It is quite easy to see a situation where British service personnel are investigated, and then Conservative Members start braying for us to leave the Court in its entirety.
Stewart Malcolm McDonald
That is exactly the slippery slope I fear we are on. I hate the phrase “the thin end of the wedge”, but I am afraid that it rather fits where we are with this Bill and this Government. We have those senior opinions in military, legal and political circles against the Bill. That is before we get to the recent damning report by the Joint Committee on Human Rights, which made clear the number of flaws in the Bill.
I am conscious of time, so I will conclude. The Chairman of the Foreign Affairs Committee, the hon. Member for Tonbridge and Malling (Tom Tugendhat), suggested that, were we to change our defence posture with regard to training or peacekeeping in supporting Ukraine, we could be subject to what he called “a Russian hand” trying to take legal action here—no doubt that Russian hand is a Tory donor. That is exactly the kind of thing that would see UK personnel further exposed to the International Criminal Court.
Stewart Malcolm McDonald
No, I am going to wind up.
The Minister has to take that into account, but he has failed, and the failure is his alone. I do not want him to think that, when he gets his way tonight, the job is done. The job is not done. He has promised the House legislation to fix the investigation system. My goodness, I hope he will do a better job on that than he has done on this Bill.
John Healey (Wentworth and Dearne) (Lab)
This is not a wind-up speech. We have had a good debate, with 23 Back-Bench contributions, some really good speeches and serious concerns about the Bill raised on both sides of the House. We are legislating, and I want to say to the Minister that it is wrong to see all criticism as opposition or all opposition as hostility. The Government never get everything right, especially with legislation, and no one has a monopoly on wisdom, especially Ministers. I say to him, it is wrong to dismiss anyone arguing for amendments to the Bill as ill informed or ill willed. There has never been a Bill brought to this House that could not be improved—this is certainly one of those. That is our job as legislators.
John Healey
I will not give way, if the hon. Gentleman does not mind. I am going to deal with some of the points made in the debate, despite this not being a wind-up speech.
From the outset, I have said that Labour wants to help build a consensus to convince the Government on the changes needed to make this legislation fit for purpose—that is, a new legal framework for this country when we have in future to commit our servicemen and women to conflict overseas. There has been a long-running problem, with baseless allegations and legal claims arising from Iraq and from Afghanistan under both Labour and Conservative Governments. But this Bill, as it stands, is not the solution.
The Public Bill Committee heard powerful evidence on a series of problems that our amendments on Report, and others on the amendment paper, are designed to fix. I want to stress the strength and depth of those criticisms. On investigations, the former Judge Advocate General, Geoff Blackett, said:
“The presumption against prosecution does not stop the investigation; the investigation happens.”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 127, Q275.]
The expert from Policy Exchange, Professor Richard Ekins, who originally published “Clearing the fog of war”, said:
“It certainly does not stop investigations. In fact, if one were to make a criticism of the Bill, one might say that it places no obstacle on continuing investigations”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 35, Q63.]
On criminal prosecutions, the former Commander Land Forces in the Army, General Sir Nick Carter, said:
“I do not understand why sexual acts have been excluded, but not murder and torture. I do not understand why that distinction has been made”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 96-97, Q196.]
The Judge Advocate General again, as the right hon. Member for Haltemprice and Howden (Mr Davis) stressed, said of the Bill:
“What it actually does is increase the risk of service personnel appearing before the International Criminal Court.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 117-118, Q234.]
On civil claims, the former chairman of the British Armed Forces Federation said:
“Imposing an absolute time limit places armed forces personnel claimants themselves at a disadvantage compared with civil claimants in ordinary life”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 9, Q6.]
The director for the Centre for Military Justice said that
“it is quite extraordinary that part 2 will only benefit the Ministry of Defence, and the Ministry of Defence is the defendant in all those claims.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 57, Q108.]
The director-general of the Royal British Legion said of the Bill:
“I think it is protecting the MOD, rather than the service personnel”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q163.]
When my hon. Friend the Member for Portsmouth South (Stephen Morgan) pressed him—
“So it would breach the armed forces covenant, in your view?”—
he replied:
“That is what we think, yes.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 84, Q155.]
Our new clause 7 and our amendment 38 are designed to sit alongside the amendments of my right hon. Friend the Member for North Durham (Mr Jones). The answer to the right hon. Member for New Forest East (Dr Lewis) about the number of investigations is this: only 27 prosecutions have arisen from Iraq and Afghanistan, yet 3,400 allegations were considered by the Iraq Historic Allegations Team and 670 from Operation Northmoor. Therefore, less than 1% of allegations were prosecuted.
The problem here is investigations. The serious, consistent problems lie in a system of investigation that has proved to be lacking in speed, in soundness, in openness, and in a duty of care to alleged victims or to the troops involved. Those are all problems well before the point of decision about prosecution, which is the point at which the provisions of the Bill kick in.
That is a widely held criticism. It is a widely held conviction, one held by the Minister himself. Before he became a Minister last year, he declared that
“one of the biggest problems….was the military’s inability to investigate itself and the standard of those investigations…If those investigations were done properly…we probably would not be where we are today”.
He was right then; he is wrong now to resist using the Bill to correct those problems.
Another review, Minister? Look, there have been three reviews—and this one will be chaired by Richard Henriques—in the last five years. There are more than 80 recommendations on investigations that the Government could act on. For goodness’ sake, get on and do that! The amendments are in scope, workable and implementable. The Bill is an opportunity to fix long-standing problems. I hope the Government will start to see our proposals on investigations as being additional to what is in the Bill, not as a direct challenge.
Part 1 of the Bill restricts prosecutions of certain offences. The Bill’s purpose is to make it harder to prosecute British troops for some of the most serious crimes under the Geneva conventions. It does that by legislating for a presumption against prosecution after five years. Our new clause 4 deals with that presumption against prosecution; it replaces it with a requirement on the prosecutor, in coming to a decision, to take into account the passage of time, and whether it prejudices the prospect of a fair trial.
The Government say that sexual crimes, in all cases, are so serious that they will be excluded from this presumption, but they are placing crimes outlawed by the Geneva conventions—torture, war crimes, crimes against humanity—on a lower level, and downgrading our unequivocal British commitment to upholding international law. That poses the direct risk that the International Criminal Court will act to put British armed forces personnel on trial in The Hague if the UK justice system will not.
Let me dwell on that point. The contradiction that we are creating in the Bill is this: under clause 2, only exceptionally are proceedings defined in clause 1 to be brought, or continued, against a person. However, as the Red Cross has made clear,
“only in exceptional circumstances will the Prosecutor of the ICC conclude that an investigation or a prosecution may not serve the interests of justice.”
In other words, in the International Criminal Court, it is exceptional not to pursue a case; we are making it exceptional to pursue a case. That is the contradiction, the risk, and the jeopardy for our troops serving overseas in future.
If we adhere to the highest standards of legal military conduct, we can hold other countries to account when their forces fall short—a point made clearly by my hon. Friend the Member for Barnsley Central (Dan Jarvis). If we do otherwise, it compromises our country’s proud reputation for upholding the rules-based international order that Britain has helped to construct since the days of Churchill and Attlee.
On civil claims, new clause 5 would amend part 2 of the Bill so that claims by troops or former service personnel were not blocked in all circumstances, as they are under the Bill at present. It is simply wrong for those who put their life on the line serving Britain overseas to have less access to compensation and justice than the UK civilians whom they defend—or indeed than their comrades whose service is largely UK-based. There are already safeguards in the Limitations Act 1980, but part 2 penalises this group of people by applying to them a unique deviation from that Act. That clearly constitutes a disadvantage for those armed forces personnel, their families and veterans. It directly breaches the armed forces covenant, as the director general of the Royal British Legion has confirmed. Frankly, it beggars belief that Ministers are asking Members of this House to strip forces and their families of their right to justice—to penalise them, instead of protecting them. Our new clause 5 flatly rejects that.
On the duty of care and our new clause 6, one of the things that struck me most when talking to troops and their families who have been through the trauma of these long-running investigations is that they felt cut adrift from their chain of command and from the Ministry of Defence. We heard that clearly from Major Campbell, who gave such dramatic evidence to the Committee. When he was asked what support the MOD gave him, he simply replied, “there was none.” Of course, for veterans, it is even worse: for them, there is nothing, not even the chain of command, as Hilary Meredith, the specialist solicitor told the Committee. I have to say to the Minister that although some of the previous decisions—for instance, to cover the legal costs of those who were involved in the Iraq Historic Allegations Team investigation—were welcome, there is a higher standard to reach for us in this regard. I hope that, as we move the Bill into the Lords, he will use new clause 6 as a model so that we can establish a new duty of care standard providing legal, pastoral and mental health support to those who are put under pressure and under investigation or prosecution. I hope that he will do the same with our amendments on derogation and on the Attorney General’s veto. We need greater transparency. We need some role for Parliament in both those areas, and I know the Lords will be keen to look at that.
Johnny Mercer
I appreciate all the contributions made this afternoon, some of which were very thoughtful.
I know that Members get upset when I think that they are disingenuous, but the amount of misinformation that has come over today is quite extraordinary. The right hon. Member for Wentworth and Dearne (John Healey) just said that the Royal British Legion has said that this directly breaks—
Mr Kevan Jones
On a point of order, Madam Deputy Speaker. The Minister has just accused my right hon. Friend the Member for Wentworth and Dearne (John Healey) of being disingenuous. Is that actually parliamentary?
Madam Deputy Speaker (Dame Rosie Winterton)
I am sure the Minister meant “unintentionally disingenuous”.
Johnny Mercer
It is quite extraordinary the way that individuals carry on in this House. That is precisely why I became a Member of Parliament—because quite frankly the military were sick and tired of some of the warm words that come out of this place when actually the actions are what matters.
I thank the Chairs of the Public Bill Committee and my fellow members of the Committee for their scrutiny of the Bill. As I said in Committee, we may not always agree, and that is to be expected, but I have listened to the views put forward, including those of Members who have spoken today. I hope that I will be able to address a number of the points raised and set out the Government’s position on the amendments chosen for debate.
On part 1 of the Bill, as I have said before, I fully recognise the importance of striking an appropriate balance between victims’ rights and access to justice. This has meant seeking to have a balance in the Bill. On the one hand, we are introducing protective measures that set a high threshold for a prosecutor to determine that a case should be prosecuted and ensuring that the adverse impacts of overseas operations would be given particular weight in favour of the service personnel or veterans. On the other hand, we must ensure that in circumstances where our service personnel fall short of the high standards of personal behaviour and conduct that is required, they can still be held to account. That is one of the reasons why we have not proposed an amnesty or a statute of limitations for service personnel and veterans as part of these measures—a claim again produced by Labour Members today. That is not true. [Interruption.] The right hon. Member for Wentworth and Dearne can chunter from a sedentary position about what is in the Bill, but all that has been mentioned all afternoon is what is not in the Bill. It is literally a waste of everybody’s time. I see that Momentum has said this afternoon that we have forced Labour Front Benchers to vote against it. I was unaware that Momentum had any seats in the House of Commons, but clearly Labour Members are unable to think for themselves. However, that is a matter for them. We have also ensured that the measures are compliant with international law.
I recognise that 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. Nobody should underestimate the often inordinate difficulty in delivering timely justice in relation to investigations of alleged historical offences. As we have heard in many oral evidence sessions, this can leave our service personnel with stress and mental strain for many years afterwards. There is a danger that if we fail to recognise that all the elements of the armed forces have come a long way from the beginning of the Iraq conflict, it looks like we are not continuing to learn and adjust. That is not true, which is why the Secretary of State has announced, in parallel with this Bill, a judge-led review of how allegations of wrongdoing on overseas operations are raised and investigated. The right hon. Member for Wentworth and Dearne raises time and again the issue of the investigations, but he knows that they are for the forthcoming armed forces Bill and will be addressed there. That is why it might be unintentionally disingenuous to suggest that nothing is being done, Madam Deputy Speaker.
A number of amendments are proposed to clause 6 and schedule 1. A number seek to exclude torture offences from the presumption, and we know what this is; I should make it clear again that there is no requirement in customary international law for a state to prosecute a war crime or other breach of the Geneva convention in all circumstances where it has sufficient evidence of the offence, irrespective of this clause. We believe that the statutory presumption, which still allows the prosecutor to continue to take decisions to prosecute, is consistent with our international obligations.
Similarly, amendments 1 to 10 seek to ensure that the offences in section 134 of the Criminal Justice Act 1988 in relation to torture, and the relevant sections of the International Criminal Court Act 2001 in relation to offences of torture, genocide, crimes against humanity and war crimes, should be excluded offences in schedule 1. I am very much aware that many people have misinterpreted the decision to exclude only sexual offences from the presumption against prosecution, including by suggesting that it somehow undermines the UK’s continuing commitment to upholding international human rights law and humanitarian law, including the UN convention against torture. As Opposition Members well know, that is completely untrue. The UK does not participate in, solicit, encourage or condone the use of torture for any purposes, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law.
Johnny Mercer
I think I have put up with enough this afternoon; I will not take any interventions.
The Bill does not decriminalise torture or war crimes, and it will not encourage or allow our service personnel to act with impunity. We will continue to take other offences such as war crimes and torture extremely seriously. The severity of the crime and the circumstances in which it was committed will always be factored into the prosecutor’s considerations. I have previously explained the Government’s decision to exclude only sexual offences from the Bill, and I am not going to say it again.
I wish to discuss new clause 5, which seeks to amend part 2 of the Bill so that it explicitly excludes actions brought against the Crown by current or former service personnel. None of the measures in part 2 of the Bill will prevent service personnel, veterans or their families from bringing claims against the MOD in connection with overseas operations within a reasonable timeframe, which most have done historically. To exclude, as Opposition Members would want to me to, claims from service personnel and veterans from part 2 of the Bill would amount to a difference in treatment between categories of claimants, including the civilian personnel who deploy alongside service personnel on overseas operations. That would not be justifiable and it would likely be discriminatory. Therefore, in the interests of fairness to all claimants, claims from service personnel and veterans are not excluded. I am confident that these measures do not break the armed forces covenant. The new factors and limitation longstops apply to all claims in connection with overseas operations, and I have dealt with that point a number of times before.
I wish to say to colleagues that this House has a poor record on looking after those who serve. There comes a tangible moment, which the public can see and feel, when Members must cross the divide. In my experience, Members never tire in this place of warm words towards our armed forces or sombre reflections, particularly at this special time of year, as we run into remembrance weekend, but, as I said, there comes a moment, which the public can see and feel, when we must do better and match our words with action. This is that moment—one our predecessors have consistently failed, time and again, to seize. I am proud that this Government will move from warm words to actually dealing with how we look after those who have served. Gone are the days when this was an afterthought, and I pay tribute to this Prime Minister for his resolution to allow me to change this.
There are a lot of amendments that I am unable to speak to, but what I will say is that I have listened to all the contributions. I know that there is this kind of feeling that I do not listen and that I am not going to change the Bill. The reality is that I did not write the amendments—
Johnny Mercer
No, I am not giving way—I have suffered enough. The House has suffered enough at the hands of the hon. Gentleman. I have listened to all the points about the amendments, but I did not ,write them. I wrote the Bill and the Bill as it stands deals with the problem that we are trying to fix, and hon. Members fully know that. Imagine my surprise—the Al-Sweady inquiry has been picked out by Opposition Members, but they would not believe who was the Minister at the time of the Al-Sweady inquiry: the right hon. Member for North Durham (Mr Jones). If Members are really going to contribute honestly with a debate that they know the answers to, it has to be done with the sort of standards, values and ethos that we expect our people to adhere to.
Mr Kevan Jones
Actually, it was the Minister of State who was dealing with the Al-Sweady inquiry. As I told the Minister in Committee, it was not the Labour party that set up the IHAT committee or Northmoor—it was his Government—so he should not start lecturing people when Members on the Government Benches at the time were calling for investigations.
Johnny Mercer
I appreciate the intervention, but the fact is that when the Al-Sweady inquiry took place, the right hon. Gentleman was a Minister in the Department. The claimants in the Al-Sweady case were supported by Leigh Day. Leigh Day gave £18,000 to the Labour party. This stuff is quite transparent ,and it is all on the record.
Look, at some point, hon. Members have to make a decision as to whether they are just going to speak very warm words, feel very strongly and think that our armed forces are the best of us, or actually do something that will change their lives, improve their lives, protect them from this new pernicious nature of lawfare and vote with the Government to get things done. I commend the Bill to the House.
Mr Kevan Jones
My right hon. Friend the Member for Wentworth and Dearne (John Healey) and others have tried to improve this Bill. The Minister is just not listening. He throws cheap shots. I am sorry, but I stand up for members of our armed forces and veterans. I do not need to get paid £85,000 a year, as he did as a Back Bencher, to support veterans. I do it for nothing because I believe in them, so do not give us lectures about people who take money to support veterans for their own pockets, rather than just supporting our veterans.
The problem is that the Bill has gone through Committee and today’s debate and it is not going to be amended. The Minister is not listening at all. He said that actions are what matter. Yes, they do, because what we are going to have is a Bill passed here tonight that does not address the main issue, which is investigations, because the Minister will just not accept it. Part 2 means that veterans and members of the armed forces will have fewer rights than anybody in this House—fewer rights than prisoners—and he cannot say, in the lead-up to Remembrance Sunday, that taking fundamental rights away from members of our armed forces is right. But that is exactly what he is—
Mr Jones
No, I am not going to take an intervention. I am sorry; the Minister, both in Committee and tonight, is one thing if one thing only—consistent. He sits there, chunters from a sedentary position, never takes interventions, reads his civil service brief and will just not listen to anyone because he thinks he is right. I am sorry; he is wrong on this.
I will not press my new clauses and amendments to a vote, but I will end with this point. The Bill is flawed. It could have been improved in Committee and it could be improved here tonight. It will not be, because the Minister stubbornly refuses to accept it. He will then use the parliamentary majority in this House to ram it through. This Bill will do nothing to protect veterans. They will still be investigated. They will still be prosecuted, possibly before the International Criminal Court, and their basic rights, which we should all have under section 33 of the Limitation Act, will be taken away from them. That is shameful.
I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
The Secretary of State for Defence (Mr Ben Wallace)
I beg to move, That the Bill be now read the Third time.
First, I acknowledge the hard work that has got us to this point today and the thousands who responded to our public consultation and shaped the measures in the Bill, as well as the legal and legislative experts who have ensured that it provides measured and calibrated protections. I thank Members from all parties who have participated in debating the Bill’s merits, including in Committee. In particular, I thank my hon. Friend the Minister for Defence People and Veterans. His passion and determination to do the right thing by personnel and veterans is genuine and his commitment to his cause is unwavering. Such central determination and duty should be a lesson to us all.
The Bill is more than just a manifesto commitment; it is a necessary and overdue strengthening of the legal framework for dealing with the vexatious claims and repeated investigations that have arisen from recent overseas military operations. There have been many inaccurate and wild accusations about the measures in the Bill. It does not prevent armed forces personnel from being prosecuted for crimes they may have committed. It does not remove prosecutors’ independence or ability to prosecute on the basis of any new or compelling evidence of any crime at any time. It does not undermine the UK’s adherence to the UN convention against torture, its commitment to international law or its willingness to investigate and prosecute any alleged criminal offences. As such, it does not increase the likelihood of International Criminal Court prosecutions.
But do not take my word for it; take the words of the former Attorney General for Northern Ireland, John Larkin QC, probably the lawyer most experienced in dealing with legacy military and security investigations across the United Kingdom, who said in a paper published this September that
“the Bill does not create, or come close to creating, ‘de facto immunity’ for serving or former service personnel in respect of serious crimes.”
However, the Bill does raise the threshold for prosecution, thereby reducing the likelihood of investigations being repeatedly reopened without new and compelling evidence. It does ensure recognition of the unique circumstances of overseas operations, including the constant threat to life and repeated exposure to traumatic events. It does take into consideration the public interest in criminal and civil cases’ being brought to a timely resolution, so that the courts can assess them while memories are fresh and evidence is more readily available. That is entirely in line with the principles of the ECHR. In short, the measures do provide greater protection from the likes of Phil Shiner Solicitors, whose motivations were not justice but money.
It is the right thing to do to defend the men and women who risk their lives to protect us. It is for all these reasons that the House should support the Bill’s Third Reading. But it is just one piece in the jigsaw to fix this issue. Let us not forget that the overwhelming number of these incidents that triggered the pursuit of veterans happened under Labour’s stewardship of defence. They failed to keep training compliance with the ECHR. They failed to equip personnel properly. They failed to reform the service justice system to ensure that they were ECHR-article 2-compliant, including the right hon. Member for North Durham (Mr Jones), who was a Minister in that Ministry at that time, so it is a bit rich—
Mr Wallace
No, I will not. It is a bit rich for them to come here today and condemn the legislation. On the other hand, it is we who have commissioned—
Mr Wallace
The hon. Gentleman has had plenty to say on the Bill; I will not give way. We do not have time to conclude these exchanges. On the other hand—[Interruption.] They can shout me down, but I will just continue to use up Third Reading time, and I will then listen to other speeches. I will not give way; I have made it clear to the hon. Gentleman.
Mr Jones
On a point of order, Madam Deputy Speaker. The Minister has now added mind-reading to his many skills. The Minister, who is actually a good friend of mine, has just made an accusation against me and has not given me the right to reply to it. It was his Government, in 2010, who set up IHAT and Northmoor, not the Labour Government.
Madam Deputy Speaker (Dame Rosie Winterton)
I do not want the point of order to become a subject of debate, but obviously—[Interruption.] Thank you; I can cope. Obviously, the Secretary of State has referred to the right hon. Gentleman, and he may feel it appropriate to give way.
Mr Wallace
It is a shame that the right hon. Gentleman used up more debating time by raising a bogus point of order, but nevertheless, in case Opposition Members think the way to conduct a Third Reading is to shout people down, I will repeat that this legislation is one very important part of the jigsaw. We must not forget, given the point raised by the Opposition about the thoroughness of the investigations, that it was not under their stewardship that the investigative capability of our armed forces was strengthened; it was not under their stewardship that the training for men and women about detention of suspects was improved; it was not under Labour’s stewardship that article 2 compliance was met, often, on some of these investigations that allowed those lawyers to come back and repeat inquests, inquiries and investigations into our veterans.
On the other hand, it is we, a Conservative Government, who have commissioned and started implementing a service justice review programme, who appointed a respected former judge to review and scrutinise the investigative process, and who have brought legislation to actually do something about it.
The Government have listened to many of the contributions throughout the Bill’s progress, but we have been unable to accept the amendments because they would have undermined rather than strengthened the Bill. In the case of the Opposition, they are simply, as it turned out, opposed to its aims, as Momentum has boasted today.
Despite all the warm words and sympathy, the Labour leopard has not changed its spots. In this week of all weeks, with Remembrance Sunday approaching, veterans up and down the country will note Labour’s opposition and recognise what fair-weather friends they are. However, this Government have been determined and resolute in acting to protect our armed forces, and that is why I commend the Bill to the House.
John Healey
We all want the same thing—Labour, the Government, the public, the armed forces: we all want to protect British troops and British values, and that should not be a matter of party politics. It is simply wrong to make debate on the Bill divisive, or to brand those who challenge Ministers on the content of the Bill as somehow standing against British troops.
This is a Bill to deal with long-running problems that have arisen under successive Governments—Labour and Conservative—and the Minister in charge was right when he just said that we must do better, but we can do much better than this Bill as it stands. We want this to be a Bill that protects British troops and their right to justice and a Bill that protects Britain’s reputation as a force for good in the world, upholding universal human rights and a rules-based international order.
In truth, the closer people look at this legislation, the less they like it. Two things have become clear since Second Reading. First, this is a dishonest and damaging Bill that does not do what it says on the tin. It entirely fails to deal with the main problem, which is baseless and repeated investigations and, worse, it breaches the armed forces covenant, it risks British troops being dragged before the International Criminal Court, and it does more to protect the MOD that it does our armed forces personnel. Secondly, despite a growing cross-party concern and chorus of criticism, especially from those with military experience or connections, Ministers are in denial about the flaws in this Bill. With the arrogance of an 80-seat majority, they dismiss those who argue for amendment as disingenuous.
This demands a signal of how serious we see these flaws as being, which is why we will vote against Third Reading. We want our troops to be better protected. We want our British military to be held in the highest regard around the world. We want our British justice system to set standards that others follow. It is because we passionately believe in these values that we cannot accept this Bill as it stands.
Stewart Malcolm McDonald
I also thank the Clerks and the staff of the House who have worked on the Bill and the Library staff who have worked hard to ensure that Members are briefed properly. I want to mention Clorinda Luck, our own researcher, who has put a lot of work into this as well.
I echo much of what the shadow Secretary of State has said. We all wanted to solve the Phil Shiner problem. I do not think that any of us wants to see Phil Shiner mark 2, but this was not the way to do it. The Minister, with whom I enjoy these exchanges, has let himself down. He could have had a chance, as he said he wanted on Second Reading, to bring together all the Members of the House who wanted to solve the problem, and he did not accept one single amendment. On arithmetic, he might win this evening, but his powers of persuasion and politics clearly need a lot more polishing than he thinks. When this legislation comes forward on investigations next year, I hope that he will look back at the Hansard of this debate and at how he conducted the passage of the Bill and do it differently next time. He has good will in the House that I fear he has squandered irreparably, especially in the passage tonight. This Bill does not protect the armed forces; it risks them being dragged in front of the ICC. If he is happy with that as his legacy, that is for him to resolve, but it is not something that we can support. For that reason, we will be against the Bill in the Lobby tonight.
Mr Kevan Jones
May I too thank the Bill Committee Clerks, who worked very hard? I congratulate the Minister for Defence People and Veterans on his excellent reading of his briefs in Committee and today.
This is sad, because the Bill is fatally flawed. It will take rights away from veterans, which cannot be right, and it will lead to our international reputation being at stake. It does not solve the problem, which is investigations. That could have been put right in the Bill, but unfortunately, the Minister is not prepared to listen. He says that he is prepared to work with people; the exact opposite has been the truth throughout the passage of the Bill.
As for the Secretary of State trying to blame all this on a wicked Labour Government, it was a Labour Government who met the armed forces pay review every year and ensured that defence expenditure kept pace with inflation. It was his Government who, in coalition, put IHAT and Northmoor in place in 2010. When these cases were going on when I was a Minister, it was Conservative Members who were asking why we were not investigating them more. There is selective memory on the Government Benches. We had an opportunity to get a good Bill that would address the issues and improve the situation for veterans, and that has been missed because of the arrogance of the Minister who has led it through the House.
Overseas Operations (Service Personnel and Veterans) Bill
Wednesday 4th November 2020
(3 years, 5 months ago)
Lords ChamberRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 3 November 2020 - (large print) - (3 Nov 2020)
Overseas Operations (Service Personnel and Veterans) Bill
Wednesday 20th January 2021
(3 years, 3 months ago)
Lords ChamberRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 3 November 2020 - (large print) - (3 Nov 2020)
Baroness Goldie
That the Bill be now read a second time.
Relevant document: 9th Report from the Joint Committee on Human Rights
The Minister of State, Ministry of Defence (Baroness Goldie) (Con) [V]
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.
Lord Touhig (Lab) [V]
My Lords, across this House, there is overwhelming support for Britain’s Armed Forces, and I echo the Minister by paying tribute to them. The British people value the men and women who serve in our Armed Forces. They value them for their total support at home battling Covid, and for protecting our country and securing our safety.
Britain’s Armed Forces are renowned for upholding international law and the highest standards of legal military conduct. It was Britain which led the way in establishing a rules-based international order after the Second World War. We were the champions of universal human rights and international law.
However, I fear that the thrust of this Bill puts that at risk and, sadly, it is part of a pattern: a pattern from the Government of disregarding international law and risking Britain’s reputation. Last year, the internal market Bill made headlines around the world for breaking international law and, as drafted, this Bill does the same. It calls into question Britain’s proud commitment to the Geneva conventions and undermines our role at the United Nations. It threatens our moral authority to require the conduct of other nations to meet the standards set by international conventions. But I do not despair because, as with the internal market Bill, this House can make a difference to this legislation.
At the outset, I want to make it clear that we recognise the need to protect our troops from vexatious claims. We have all heard stories of ex-servicemen being accused of committing the most awful crimes overseas, and of cases involving claims without any historical or truthful basis and their awful impact on the accused and their families. But this Bill will not put a stop to that.
I have no doubt about the honest ambition of the Veterans Minister in the other place to end vexatious claims, but last September he himself said that the Bill may—not will, but may—reduce the number of vexatious claims, a point that the Secretary of State for Defence made in a note to Members today. It does not cover Northern Ireland or tackle the cycle of reinvestigations, nor create a legal framework for the future. I make it clear that we welcome any opportunity to fix this flawed legislation and will work with colleagues on all sides to build a consensus—because outside Parliament, from the Royal British Legion to Liberty, people are desperate for us to get this right.
Labour’s aims are threefold: first, to protect British troops against vexatious claims and repeat investigations; secondly, to protect British troops and their rights to justice from the MoD itself; and, thirdly, to protect Britain’s reputation as a force for good in the world, upholding human rights and the rules-based international order.
Part 1 introduces a statutory presumption against the prosecution for any alleged offences committed while overseas more than five years previously, save for exceptional circumstances. There is a requirement that the consent of the Attorney-General is obtained if a prosecution is to proceed.
The Explanatory Notes state:
“Nothing in this Bill will stop those guilty of committing serious criminal acts from being prosecuted”,
but many disagree. Our own Delegated Powers Committee, chaired by the noble Lord, Lord Blencathra, said:
“These measures would appear to make prosecutions for ‘relevant offences’ much less likely.”
Many also have serious concerns about how this relates to Britain’s international legal obligations. Clearly, presumption risks breaching the Geneva convention, the convention against torture, the Rome statute, the European Convention on Human Rights and other long-standing international legal obligations. Indeed, presumptions against prosecution could even increase the risk of service personnel appearing before the International Criminal Court. That was made clear by the ICC prosecutor, Fatou Bensouda; in a statement on Iraq and the UK, she says that the ICC is:
“tasked with determining whether it should exercise its own competence in a criminal case, in place of a State … To do so, the ICC must be satisfied that no relevant proceedings have been undertaken, or … because the State is unwilling to do so”.
A very good friend of mine, a distinguished parliamentarian and Minister for the Armed Forces, Adam Ingram, asked me over the weekend this simple question: how will this Bill stop the ICC from prosecuting British service men and women? Perhaps the noble Baroness could provide an answer.
The Bill also explicitly excludes sexual violence from presumptions, but not torture or war crimes. Surely a British Government do not really want to decriminalise torture or war crimes.
Part 2 reveals a different motive. It is about reducing compensation paid out to troops and
“protecting the MOD, rather than the service personnel”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 86.]
Those are not my words but the words of the director-general of the Royal British Legion. The Bill removes the current discretion of the court to extend the time beyond six years for compensation claims for personal injury or death overseas. Over the past 15 years, for every 25 cases brought by injured British troops against the MoD, just one case was brought by alleged victims against our troops. Britain deployed 140,000 troops in Iraq over six years and, in 1,000 civil claims against the Government, the MoD paid compensation in just 330 cases. But the Government seem determined to limit access to the compensation that these men and women deserve. The Association of Personal Injury Lawyers said that this will give service personnel fewer rights than a prisoner. This Bill gives British service personnel fewer rights than a person convicted of a crime and serving a prison sentence. That cannot be right.
I draw the attention of the House to the case of Alistair Inglis, who received nearly £550,000 for hearing loss caused by a negligent exposure to noise while serving in the Royal Marines. This brave man served in Northern Ireland, the Gulf and Afghanistan, and left the forces because of his injuries. Only in 2014, seven years after he was first aware that he had a problem with his hearing, did he speak with a lawyer. If this Bill had been on the statute book then, he would probably not have got a penny. It is plain wrong that those who put their lives on the line for Britain should have less access to compensation than the British citizens that they are there to defend.
Furthermore, the Royal British Legion fears that Part 2 risks breaching the Armed Forces covenant. It says that it will prevent personnel holding the MoD to account if it fails to properly equip them, or when it makes serious errors that lead to death or injury.
Vexatious claims are a problem that needs to be solved, but in a lawful and effective way that does not trash Britain’s reputation and standing as a country that takes its international obligations seriously. But the Bill will not stop reinvestigations. Long-running litigation, repeat investigations and judicial reviews are signs of a flawed system that has failed British troops under successive Governments. Seventy percent of the complaints looked at by the Iraq Historic Allegations Team were rejected as there was no case to answer. In other words, those allegations did not warrant a full investigation, but they would have been wholly unaffected by the Bill had it been on the statute book then. Why? As Dr Julian Lewis MP pointed out in the other place, this Bill deals only with prosecutorial decisions and not investigations. The Government promised a review into this, but there have been three reviews in the past five years with more than 80 recommendations on investigations.
On this side, we believe that prosecutors should give weight to the quality and duration of relevant investigations when deciding whether to bring or continue proceedings. The Judge Advocate-General of the Armed Forces should determine whether new evidence is sufficient to grant reinvestigation. We will also argue for better case management, with cases brought before a judge in a specific period and setting, and target times for police investigations.
Many noble Lords want to take part in this debate, so I shall conclude my remarks. We want to build a consensus across the House to improve the Bill. To the Minister I say that we will work with you. Will you work with us to forge a constructive consensus on the changes needed to overhaul investigations; to set up safeguards against vexatious claims that are entirely consistent with our international obligations; and to guarantee troops the right to compensation when MoD failures lead to death or injury overseas? From these Benches, I can say that Labour and the Armed Forces ultimately want the same thing: to protect British troops and British values. Those are not Labour hopes alone: Conservatives, Liberal Democrats, Cross-Benchers and non-aligned colleagues in this House all want that too. Working together, we have an opportunity to make a real and lasting difference. For God’s sake, let us take it.
Lord Thomas of Gresford (LD) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Touhig, and to assure him that we will stand with him in his opposition to the Bill.
It is a hot and sticky night in Iraq; in a small prefabricated, concrete guard hut, 20 men are detained by British soldiers. Their heads are hooded and their arms bound behind their backs. There is no battlefield stress—this is the secure British headquarters in Basra, and these are civilians. They are forced into stress positions, half-squatting without support. They cannot see, but they can certainly hear; they are yelled at and called “apes”. Their moans are orchestrated by their mocking captors into a choir, with a corporal in charge conducting them—literally. If they move from the stress positions they are struck, either with a stick or a fist. The smell is indescribable. Passing soldiers are invited into the hut to get their own punch in, and some do. The post mortem reveals 93 separate injuries to a man who died, Baha Mousa. That was the evidence I heard unfold at the court martial in Bulford.
Let us reverse the picture and suppose that the men being beaten are captured British soldiers. Every noble Lord can think of a young and enthusiastic serving soldier who risks that fate. Their captors say to them: “You do this to us; we will do it to you”. Let us wind the clock on in this scenario and suppose that the enemy state has investigated. It has taken its time, but it has identified the torturers—but their law follows the British precedent set by the Bill. They cannot be prosecuted, and the British soldiers cannot claim compensation because it all happened six years ago. There is no prosecution, no punishment and no compensation.
Veteran soldiers have been trained to go into battle, to face bullets and bombs on our behalf, but the Government suggest that questioning by a British court would be too stressful—too stressful for the soldiers to go into a witness box or the dock; they would have to relive horrific events, even if they have themselves caused or participated in them. Everything is wrong about this Bill. “We are against ‘lawfare’”, they say—legal constraints around armed conflict. What do they want, “unlawfare”? Is there a single noble and gallant Lord speaking today who will say that his decisions made in actual conflict were hampered by the Geneva conventions; that he would have acted differently if it were not for the law; that he would have tortured prisoners of war for information? War is a bloody and barbaric event. Western democracies have sought to curb its worst excesses. Is it to be the policy of Her Majesty’s Government to abandon those international standards and to give effective immunity against anything to her Armed Forces in the field? Can you abuse, shoot and kill not just the armed opposition but civilians like Baha Mousa, a hotelier, without any consequences at all?
Looking at the Bill, it is obvious that the Government have forgotten that there can be no prosecution without an investigation. It is two stages: investigation first, prosecution second. There is absolutely nothing in the Bill—no time limitation—which prevents an investigator knocking on the door of a veteran 30, 40 or 50 years after the event and arresting, interrogating and charging him. The Minister called it “corrosive uncertainty”. Well, that is stressful, but investigation may not seem worth the trouble. If the investigator has produced a file with sufficient evidence of, say, torture, to convict, the Bill obliges the director to ignore it. He must go straight to the second question: is it in the public interest? Regardless of the merits, the presumption against prosecution kicks in. Even if he decides to prosecute, he can be overruled by the political decision of the Attorney- General, which probably depends on how many people are protesting in Parliament Square.
There is an anomaly. Sexual offences are excluded from the presumption, so if a soldier tortures, rapes and kills a civilian, there is a presumption against prosecuting him for the torture and the murder but not for the rape. This is surely indefensible on any policy or moral basis. I hope that amendments to excise Part 1 entirely will be brought forward to preserve our moral leadership in the world, which is the passionate plea from Theresa May in today’s papers.
What about the five-year limitation period for criminal proceedings? Investigating what has happened in overseas operations is no easy task. Witnesses have to be found. There are language difficulties which can mislead an investigator. There are logistical difficulties in bringing witnesses to this country for the trial. I shall never forget the lady brought all the way from a dusty village in Iraq to give evidence to the 3 Para court martial in Colchester in 2005. She stepped into the witness box, took the oath on the Koran and addressed us. She said that now she had sworn on the Koran she had to tell the truth. The incident she had described to investigators, of a soldier ripping off her clothing, was entirely a figment of her imagination. Former Judge Advocate-General Jeff Blackett told the Commons Committee on the Bill that the two murder cases from Iraq in which he was the judge—the 3 Para and Marine A cases—had been brought to trial within two years of the events. It is not the prosecuting procedures which cause delay, it is protracted investigations, about which the Bill says nothing.
What signal does it send to an enemy if a Minister announces a derogation from the European Convention on Human Rights? Will Parliament have a say on the wilful killing or torture of prisoners? The Bill is silent. Does the Minister agree that such a serious step, of such danger to any of our troops falling into enemy hands, should be taken only with the consent of both Houses, on a vote, and that that should appear on the face of the Bill?
On the civil side of this litigation, the current system has not failed. Unmeritorious claims have been dismissed and Paul Shiner has been struck off the roll. That is over, but the Government have paid out some £32 million in compensation to claimants, mostly for allegations of torture during interrogation. In answer to my Written Question last June, the Minister herself replied:
“If … it is found that there is substance to the allegations and there has been negligence on our part, compensation is paid”—
£32 million. So all the claims that have been brought are not unmeritorious. The Government have settled rather than face a court hearing when the allegations can be publicly ventilated. The Bill does not protect veteran servicemen because they do not need protection. They are never involved in the proceedings, even as a witness, because it all happens in discussions in the robing room outside court—if it ever gets that far. It is surely wrong to pretend that immunity from suit is for veterans when, in practical terms, it only saves the Government paying out millions on claims which they would agree are meritorious.
The Bill is all wrong. It creates greater risks for currently serving soldiers, whose enemies will do unto us as we do to them. It destroys even further the British reputation for the rule of law and the upholding of human rights. It does not protect veterans from intrusive investigations years after the event. The International Criminal Court is watching us today. We promoted and ratified the Rome treaty, which binds us to it. It has no limitation period, no presumption against prosecution, no triple lock. It opened a dossier on the UK two years ago, to monitor whether we deal properly with war crimes such as torture. People may think that the court is concerned with Bosnian leaders or African dictators but, if the Bill goes through, we will one day suffer the ignominy of seeing a British serviceman dealt with by that court because our system has failed to bring him to justice. In the Baha Mousa murder trial, there was only one conviction: of the corporal who “conducted the choir”. He pleaded guilty to a war crime. That was the first ever, and the last, conviction of a British soldier for a war crime. He was sentenced to 12 months’ imprisonment.
Lord Dannatt (CB) [V]
My Lords, we have waited far too long for a Bill to be introduced that provides adequate protection for British service men and women to conduct operations free from the fear of retrospective investigation and possible prosecution—a justifiable fear that hangs over individuals for many years, or even decades, after events have taken place. Today we are debating a Bill that attempts to meet that requirement. As the Secretary of State for Defence said in introducing this Bill, it is,
“to protect our veterans against repeated reinvestigations where there is no new or compelling evidence against them, and to end vexatious claims against our Armed Forces.”
Although the Bill refers only to overseas operations, there are closely related issues with regard to Northern Ireland, about which noble Lords have frequently expressed their concern, not least in a debate in my name on 5 September 2018.
As much as we welcome this attempt to address the legislative aspiration by the Secretary of State and expanded on by the Minister just now, we have already heard from the noble Lords, Lord Touhig and Lord Thomas of Gresford, that the Bill, as currently drafted, does not meet the aim that it purports to satisfy. Although it has passed all its stages in the other place, many amendments were tabled and debated but rejected by the Government, whose majority in the House of Commons ensured that outcome. Moreover, there has been considerable criticism of the Bill outside Parliament, and our inboxes have been filled with briefings by well-respected commentators and professional groups, many urging that it be defeated or at least paused.
Here lies the dilemma: do we ultimately reject the Bill and lose the opportunity to provide the protection needed by our serving soldiers and veterans, or do we do our constitutional duty and seek to amend it, so that legitimate concerns are addressed, while ensuring that our servicepeople get the protection that they need? As parliamentary time, especially in the other place, is always at a premium, I am loath to give up the Bill, or even to pause it, and I therefore believe that the focus in this Chamber must be to amend the Bill to make it fit for its legitimate purpose.
Within the time constraints of this debate, I will raise three points. First, the Bill, which complements the Armed Forces covenant, needs to set out very clearly the Ministry of Defence’s standard of duty of care in relation to the legal, pastoral and mental health support provided to service personnel involved in investigations arising from overseas operations. If an example is needed as to why this is important, I refer to the case of Major Bob Campbell, who, along with two Royal Engineer colleagues, was investigated no fewer than eight times over 17 years before being exonerated. He is now a broken man, his career and health in ruins. He fell well outside any reasonable duty of care.
Secondly, the very sensible presumption against prosecution set out in Part 1 of the Bill needs to be more closely defined, removing the doubts that have been raised that such a presumption opens the way for cases such as rape and torture to go potentially unpunished. It has been argued that this presumption against prosecution is not needed because there have been very few prosecutions. But that is not the point. The point is that an outrageous number of allegations and investigations have proved groundless, thus resulting in very few prosecutions. It is well recorded that a virtual industry to pillory British soldiers was set up following the unpopular intervention in Iraq in 2003. As the Secretary of State for Defence has said, for example:
“In 2004, Phil Shiner, a lawyer, went fishing. He fished for stories, he fished for victims and he fished for terrorists.”—[Official Report, Commons, 23/9/20; col. 984.]
That conduct was completely unacceptable and Mr Shiner was quite properly struck off, but the damage to the reputation of the British Armed Forces had been done. Thus, a presumption against prosecution is a very reasonable safeguard, as is the five-year time limit, unless, of course, new and compelling evidence emerges. Those are the “exceptional circumstances” to which the Bill quite properly refers.
Thirdly, there is the relationship that the United Kingdom should have with international bodies to meet our wider obligations. The Bill suggests an amendment to the Human Rights Act 1998 to provide for the Secretary of State to consider whether it would be appropriate for the United Kingdom to make a derogation. While this has superficial attractions, I believe that—like the recent flirting in the internal markets Bill—the UK would run the risk of weakening our reputation as an upholder of international law and conventions. Moreover, such derogation could place the British soldier on the battlefield at even greater risk from his or her enemies, if international standards of conduct are overturned. War is a two-way exchange and actions have consequences.
I support the Bill, but it needs radical amendment to achieve its stated purpose.
Lord King of Bridgwater (Con) [V]
My Lords, I am pleased to have the opportunity to follow the noble Lord, Lord Dannatt. I agree with his final conclusion and I agree, if I am right, with what the noble Lord, Lord Touhig, said. They both recognised that it is time to deal with this long-standing grievance, which was such a scar on our scenery at the time and has been so unfair to a lot of veterans and some serving soldiers, with the procession of investigations and attempted prosecutions, in often very difficult circumstances.
Some speeches have already indicated all the problems that arise with the Bill, but I admire and respect the Government and Ministers for having the courage at last to deal with this issue—to address it and not to duck it, as has happened for far too long.
I have one question to raise. The Bill of course deals with overseas operations, and one area in which a lot of these grievances arose is Northern Ireland. I hope that when she replies the Minister can make the position on that quite clear. I understand that a further Bill is possibly coming forward on Northern Ireland, but can she confirm the present position?
I also notice that there seems to have been a good deal of misrepresentation about what the Bill does. We know that some countries, faced with this difficulty, introduced amnesties and others introduced statutes of limitations. Of course, neither is suggested in this legislation, nor is the decriminalisation of serious crimes.
On the time limit, I do not think five years is unreasonable in the current climate, but it is a sensible provision that this is not necessarily an absolute time limit and can be exceeded if the prosecutor can demonstrate exceptional circumstances that justify prosecution after a longer period.
One area where I will be interested to hear the further discussion in Committee is that of why sexual relations are excluded but torture and war crimes are not. I hope that the Minister can reply on that and that this will come up in further discussions in Committee.
We have all lived with the history of some very unhappy investigations and tragic events that have affected some of our veterans, many of them quite unfairly, leading to much personal distress and family grievance. It is time that this was dealt with. It is also important because in some areas it undoubtedly has an impact on recruitment. There may be people who would think of joining the Armed Forces and putting themselves in harm’s way for the nation’s sake, but do not want to be treated in this way. Even more important, when we are living in a world of fake news as well as the world of social media, knowing what the truth really is in many circumstances is much more difficult. We need, therefore, to strengthen our defences, with proper protection and stewardship of those who serve our Armed Forces.
I join in the tributes paid to the quality of all those who go into some exceptionally nasty and dangerous circumstances—especially at the present time—in defence of our country and its interests. It is our duty as a legislature to make sure that, where they deserve protection, they get it. I therefore certainly support the progress of the Bill. It is very important not to abandon the stage—I think the noble Lord, Lord Thomas of Gresford, suggested that it was almost too difficult. There must be a brave attempt to deal with this and establish at last an Act of Parliament to give proper protection against some of the grievances that we have faced.
The Lord Bishop of Portsmouth [V]
My Lords, reflecting on the Bill, its intentions and likely legal effect reminded me of something I learned during my time as chaplain of Wadham College, Oxford, during the febrile days of the 1980s. Wadham was then, as now, a crucible of intellectual innovation, not least in literary studies. Its senior English fellow then was Terry Eagleton, who interested himself in a method of criticism known as deconstruction. This meant, I think, that the story we thought we were reading or being told was undermined by another narrative hidden within the text, so what we might have thought meant one thing often meant something entirely different.
The Bill before the House represents a model of deconstruction. The Government’s stated intention is, as we heard in the gracious Speech,
“to tackle vexatious claims that undermine our Armed Forces”.
I regret to say that I cannot see how the Bill, as drafted, fulfils that intention. The Government may then deserve two cheers for acting when other Governments have not, but action is not the same as outcome. The good intentions of Ministers and their statements in Parliament and the media do not match what the Bill will do. The Bill would do what the Bill states, not what the Government would like it to do, or what an MoD press release announces as its objectives. I leave it to other noble Lords far better qualified than I to reflect on the very troubling risk that the Bill might lead to crimes of torture going unpunished as well as providing an attractive precedent for those countries that have historically accepted lower standards than our own.
But I would like to comment on one aspect of the Bill. I applaud the Government’s stated intention to protect service personnel from being hung out to dry under the risk of investigations over many years, but I wonder whether, as a matter of law, this Bill provides the protection that the Government seek. I doubt it does. Indeed, I worry that we risk offering false comfort to the men and women of our Armed Forces, who deserve our support.
Moreover, I am troubled that the effect of the Bill would be to reduce, indeed take away, the legal rights of our service personnel. That concern is shared, as we know, by the Royal British Legion. I say this because the Bill introduces a six-year time limit for bringing personal injury and human rights cases against the Government. Such an absolute prohibition does not apply to civilians, because the courts can use their discretion to extend the time limits available. This Bill, as it stands, would therefore mean that service personnel have fewer legal rights than civilians, while the Government are provided with an additional protection against what might be entirely deserving late claims.
Protecting the Ministry of Defence from legitimate claims might not be the Government’s intention, but it would be the effect of this Bill. That is a poor position for the Government to get into, and, to put it as gently as I can, it is difficult to see how it accords with the commitments the Government and we have made under the military covenant. Good intentions are one thing; bad law is another. This Bill, I say with deep regret —and understatement—is disappointing, and it would represent disappointingly poor law.
Lord Robertson of Port Ellen (Lab) [V]
My Lords, this is an important Bill, but it has to be examined closely so that it does not create more problems than it sets out to solve. Ordinarily, I would almost instinctively be in favour of legislation that gave protection to our troops from vexatious legislation and the miseries of legal ambulance chasers. My association with the Armed Forces has left with me a huge respect and admiration for those who wear the British uniform and the crucial civilians who support them. In my time as Secretary of State for Defence, I had to issue orders to deploy troops abroad, and I shouldered that responsibility with enormous care and sensitivity.
I fear that aspects of this legislation suffer from the law of unintended consequences. In a brief speech, I can only mention a few of my reservations about this Bill. First, I believe that this is the first time in legal history in this country that a specific group of citizens will be the subject of a statute of impunity. There may in some people’s minds be a justification for such a break with such long-standing tradition and precedent. However, I personally do not think that curtailing the rights of vexatious lawyers justifies that kind of unprecedented change. Even if there were justification, there needs to be a much bigger, more profound debate on the import of this kind of decision, occasioned by this kind of Bill.
Secondly, I strongly agree with those in the Commons, and in this debate, and in the country, who cannot see the justification for exempting torture and war crimes from the list in the Bill. By including torture and war crimes, this new apparent statute of impunity seems incongruous and indefensible. My own former Chief of Defence, the noble and gallant Lord, Lord Guthrie, has made it clear in an open letter to the Times, and in articles, that torture is indefensible in a civilised military, as well as ineffective as a tactic. We should listen to his wise words and those of the noble Lord, Lord Dannatt, who has just spoken, as well.
My third objection—here, the law of unintended consequences really comes into its own—is that the International Criminal Court will now claim jurisdiction for the first time in Britain because we have introduced these apparent immunities. I was in Government when we signed up to the International Criminal Court; we did so safe in the knowledge that the integrity of our fair, impartial legal system would mean that the ICC could not act against our troops in conflict. I fear that the changes in UK law in this Bill would render our forces liable to be investigated and potentially prosecuted by the International Criminal Court. We now know that the ICC prosecutor has already made that point—that threat—as well.
The Policy Exchange is the Government’s go-to think tank, and this week it published a document with a foreword by Lieutenant-General Sir Graeme Lamb, who said,
“good intentions are not enough as the Bill as it stands may fail to protect our troops adequately.”
We do a disservice to our troops, now and in the future, if we put them on a different legal basis to the society they represent and defend. We can and should make improvements in this House. The Government should take some time before they bring the Bill back to consider it. In that way, we might avoid that iron law of unintended consequences. We have a duty to do so.
Baroness Northover (LD) [V]
My Lords, it may be that this Bill was well intended—to protect those in our Armed Forces who may be subject to vexatious claims. We certainly owe those Armed Forces a huge debt of gratitude. But I do not think I have ever participated in a piece of legislation which is so evidently flawed, except perhaps the Brexit Bill which sought to break international law. What legal advice did the Government receive? Did they override it?
The noble Baroness is a formidable Minister, and she will not want her reputation tarnished. There was much in the introductory general remarks to her speech with which we would all agree, but not when she got into the details of the Bill. I am sure she recognises this. I think the right reverend Prelate the Bishop of Portsmouth hit the nail on the head. He said that the Bill will do what is stated within the Bill, not what the Government would like it to do—or, I might add, what they hope it will do.
This morning, we received a defensive note, not from the Minister, or the Bill team, but a politically and newly appointed special adviser. That says to me that the MoD knows the mistake it is making here. I note the devastating critique by the Joint Committee on Human Rights and its conclusion that simply tabling this Bill has already damaged the reputation of the Armed Forces and the United Kingdom internationally.
I am used to receiving requests that Bills should be amended. I am not used to receiving requests that the whole Bill be thrown out. But that is what is being requested by Liberty and Amnesty International among others, and they know a thing or two about the importance of international law and how it has been painstakingly built up over time to protect us all, including our military forces, of which we expect so much.
We are often warned about the Dangerous Dogs Act as being legislation rushed through in response to an event which does not achieve what is sought but, most of all, has negative consequences. The noble Lord, Lord Dannatt, identified that we have another such Bill here. We seem to be dealing in particular with the unacceptable practice of a corrupt solicitor, Phil Shiner. In the other place, my right honourable friend Alistair Carmichael recommended building “an easy consensus”, as he put it, on acting against vexatious civil claims, starting with engagement with the regulatory authorities in the legal profession. I note here that Phil Shiner was struck off.
Instead, we have the Bill, with its potential to damage our military, potential victims and standing in the world, and break our commitment once again to international law. On the day that President Biden is sworn in, are we choosing this moment to step aside from international law? The implication surely is not that we believe in British exceptionalism: that our troops should not be subject to international law, as others are. I expect the Chinese Communist Party and Putin think that of theirs. Trump certainly thought that of his followers.
As the Bingham Centre and others have pointed out, the Bill undermines the basic concept that we are all subject to the law, no matter who we are. It makes it harder for victims to access justice. Grave war crimes face substantial legal barriers before there could be a prosecution. The exception for crimes committed against British soldiers undermines equality before the law, giving our victims more rights than others. The Bill grants a veto on prosecutions after the five-year mark to the Attorney-General. This undermines the value of our independent prosecution service—[Inaudible]—interference, as my noble friend Lord Thomas pointed out.
If we fail properly to investigate, we are breaching our domestic and international obligations under the Geneva conventions and the UN Convention against Torture. Having, in effect, a statute of limitations here makes it more likely that British soldiers will be prosecuted by the ICC, as the noble Lord, Lord Robertson, wisely pointed out. It even makes it harder for anyone—civilian or soldier—to hold the MoD to account, as my noble friend Lord Thomas and the right reverend Prelate pointed out.
The Minister emphasises that exemptions do not have to be taken. But where there are those possibilities in the legislation, that is the risk. The Government have much they say they wish to do to build back better after the pandemic. This Bill has so many flaws that it should not be taking up our time. Whether it can be made into useful legislation surely has to be a moot point. The risk is that amendments passed in the Lords and large sections taken out of the Bill may be overturned in the Commons, given the Government’s majority. We should all be acutely aware of that risk.
Lord Hope of Craighead (CB) [V]
My Lords, there are indeed various reasons to be concerned about the Bill but I should like to concentrate on two of them: the omission of torture from the list of offences which are excluded from the restrictions on prosecution in Part 1, and the duty to consider derogation from the convention in Clause 12. In doing so, I am drawing on my experience when I was sitting as a member of the Appellate Committee of this House in the cases of Pinochet in 1999, which was brought under the torture convention, and A v the Secretary of State in 2004, in which we held that a derogation order allowing for indefinite detention should be quashed.
Prohibition of the crime of torture has been recognised for many decades as one of the most fundamental obligations of the international community. It cannot be derogated from in any circumstances and all nations have an equal interest in the apprehension and prosecution of the offenders. In 1987 the UN Convention against Torture, which the United Kingdom did much to promote, came into force. One of its achievements is to prevent evasion of punishment by the torturer moving from one state to another. This is because article 5 requires each state party not only to establish its jurisdiction over torture when the alleged offender is a national of that state, but to take jurisdiction over any alleged offender who is found within its territory. This is an international crime against which there is no safe haven.
For us to apply the measures listed in Part 1 of the Bill, the practical effect of which would, at the least, risk conferring immunity on the torturer after five years, would run counter to everything that the convention stands for. For that to happen would be a manifest breach of international law. As for the offender, such immunity as he may obtain in this country would be no protection against his being brought to justice elsewhere, as Senator Pinochet was to discover. It is not only the risk of having to face the International Criminal Court; it is the risk of being prosecuted for his crime in any other state that is a party to the convention to which he may go. The damage to our reputation, if that humiliating situation were to occur, would be incalculable. How could we be taken seriously in our attempts to promote the rule of law in those countries that least respect it? Torture should be on the list of exclusions.
Article 15 of the convention on human rights allows the state to
“take measures derogating from its obligations … In time of war or other public emergency threatening the life of the nation”
but only to the extent that this is “strictly required”. The words
“threatening the life of the nation”
are understood to mean an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community. The standard that these words set is very high. Furthermore, derogation from protection of the right to life, for which we should note our own Armed Services personnel may also benefit, is permitted only for lawful acts of war, and no derogation at all is permitted from the prohibition of torture or inhuman or degrading punishment. This leaves the right to liberty, derogation from which would allow indefinite detention without charge, as the Secretary of State looked for in the case of A.
We are concerned in this Bill only with overseas operations, in which members of the Armed Forces come under attack or face the threat of attack or violent resistance. It seems that the need to conduct operations overseas, however significant, is very unlikely on its own to meet the test for derogation. Could it be said in these circumstances that the Secretary of State was facing a crisis or emergency which affects the whole population of this country and constitutes a threat to the organised life of the community? If not, prompting him nevertheless to consider derogation from the convention would be pointless, as the attempt would fail. In any event, do we really think that the Secretary of State would need to be reminded of this provision if the extreme situation that really does justify derogation were to occur? This clause looks like mere window-dressing. I suggest that it should be removed from the Bill.
Lord Garnier (Con) [V]
My Lords, the speech just given by the noble and learned Lord, Lord Hope, was characteristically clear and compelling. I hope that in Committee we can expand on what he has brought to us. On 20 July last year my noble friend the Minister, whom I thank for her opening remarks today and for her helpful briefing on the Bill last week, repeated an Answer given in the other place to an Urgent Question about this Bill. In essence, my noble friend said that the policy behind the Bill was to protect our Armed Forces from being relentlessly harassed by investigations into their alleged conduct when on dangerous overseas operations, often many years ago. She said that the Government wanted to be fair to complainants and to the military personnel under investigation, hence the provisions in the Bill; she said as much again today.
I understand the policy. I can think of nothing worse for a serving or retired member of the Armed Forces of any rank than to have to live under the shadow of prolonged investigations to do with operations in Kenya, Northern Ireland—although that is not in the Bill—Iraq or Afghanistan, never knowing whether being absolved of blame meant the end of the matter or was the prelude to a new investigation. Lasting exoneration on the one hand, and a just but concluded finding of civil or criminal liability on the other, are essential in these matters. Justice and the public interest demand finality. Delay and uncertainty sap a soldier’s peace of mind and entitlement to finality; nor do they assist the complainant.
Although I listened with care to the noble Lord, Lord Thomas of Gresford, I will support the Bill today. That said, I am not convinced that, having posed the right question, the Government have arrived at the right answer to the problem. Like the noble Lord, Lord Dannatt, and the right reverend Prelate the Bishop of Portsmouth, I see this as a Bill that promises more than it can deliver. While its proponents are well motivated, I am fearful that expectations will be disappointed. It will need close scrutiny hereafter.
In this short contribution, I cannot cover every part of the Bill so I will concentrate on Part 1. But before doing so, when my noble friend the Minister comes to wind up, can she define the word “significant”, which is to be inserted by Clause 12 into Section 14A of the Human Rights Act? Last July I asked my noble friend why, if the factors set out in Clause 3 that support a decision not to prosecute five years after an offence are so powerful, they do not apply before five years have elapsed. I was told that they do, but not in statutory form.
We do not have limitation periods in our criminal law and, properly considered, this Bill does not introduce one. However, some may be confused into thinking that Clause 1(4) means that after five years there is immunity from prosecution. It does not and there is not. Under this Bill, certain crimes committed by service personnel on overseas operations can be prosecuted long after the event, so long as the Attorney-General consents and the statutory considerations have been undertaken. The need for exceptionality in Clause 2 is not going to prevent a 75 year-old veteran being prosecuted many years hence on a charge of torturing or murdering a prisoner or committing war crimes 50 years before—nor should it. But, rather than allowing people to get the impression that the Bill will create a new regime when it will not, why not just be straight- forward?
Instead of these complicated provisions, we should provide that, no matter when the offence took place, there can be a prosecution with regard to an overseas operation only with the consent of the Attorney-General in England and Wales or the Lord Advocate in Scotland. Clause 5(3)(b) refers to the consent of the Advocate-General for Northern Ireland for proceedings under the law of that jurisdiction. That office is held coterminously by the Attorney-General, not by a Northern Ireland law officer, but in all UK jurisdictions the relevant law officer’s consent should be required for a prosecution at all times and not just after five years.
It is not—and here, as a former Solicitor-General, I disagree with the noble Lord, Lord Thomas of Gresford —the political decision of a political Minister, but a legal decision of an independent law officer. Political convenience or the Government’s preferences are irrelevant. I note that presently the Bill does not appear to require the Lord Advocate’s consent for a Scottish law prosecution five years after the event. The same requirement should apply across the whole of the United Kingdom. This simpler approach means that the relevant law officer will always apply the prosecutors’ code before initiating a prosecution to ensure that there is both a sufficiency of evidence and that it is in the public interest to prosecute.
The matters in Clause 3, which are to be given particular weight, can be considered under the public interest limb of the code either side of a five-year timeline. It is not necessary, still less permissible, to rape or sexually abuse anybody, military or civilian, in pursuit of a military objective, so crimes of that nature are rightly excluded from the Bill’s current qualifications on a prosecution. While I heard the Minister’s explanation of why torture is not to be excluded, I hope, like my noble friend Lord King, the noble Lord, Lord Robertson, and the noble and learned Lord, Lord Hope, that in Committee we will be able to test that reasoning more fully than we can today.
Baroness Liddell of Coatdyke (Lab) [V]
My Lords, it is indeed unfortunate that the Government did not reach across this House in constructing this piece of legislation, as my noble friend Lord Touhig said. It has been clear this afternoon that there is a range of respect for, and also knowledge of, our armed services that should have been in the mix as this Bill was put together. I was pretty shocked when I read the remarks of the Advocate-General, the most senior judge in the armed services, that the Bill is “ill-conceived” and
“brings the UK armed forces into disrepute.”
I am not a lawyer and I had intended to concentrate my remarks on Clause 2 of the Bill. Before I do that, I have to say I have a particular concern that the Bill does not take into account the repeated reinvestigation of cases. That must have a much greater impact on the mental health of those who are the subject of accusations, as the noble Lord, Lord Dannatt, pointed out, than the timescale for complaints. The MoD investigation effort is underresourced, insufficiently independent and not timely. This point was made with some force by the Joint Committee on Human Rights. I am pleased that the Secretary of State has now said that there will be an ongoing opportunity to investigate that, but it should have been done before the Bill was put together and it should have been acknowledged in the Commons.
I move now to Clause 2. This is a clear area where Armed Forces personnel and their families are very much at a disadvantage compared with civilians who have similar complaints against other employers. As outlined by others, there is a complete cliff-edge at six years that the MoD has set. According to the MoD it promotes “greater protection”, but in reality it means less protection for the armed service personnel and more protection for the Ministry of Defence. In some cases, health conditions show up only at death. Asbestosis is one such case and there are other conditions, such as PTSD and deafness, that can take many years to show up. Why should the MoD as an employer get off scot free from claims that do not show up to a timetable? We all have a duty of care to our service men and women, and I am surprised that this was not amended when it was exposed in the House of Commons. Indeed, no amendments were passed in the House of Commons, and that is why I feel very concerned about the ability of this House to bring about amendments.
Like many others, I received a very helpful briefing from the Royal British Legion which shows that 500 claims have been made since the Iraq and Afghanistan wars, some of them by bereaved families. It makes the very specific point that safeguards already exist to ensure that claims brought forward are judged appropriate.
Others have referred to the Armed Forces covenant. There is a specific clause in it that says members of the Armed Forces
“should face no disadvantage compared to other citizens.”
During the passage of this Bill in the Commons, it was suggested that the principle of no disadvantage in the covenant could not apply when comparing those injured or bereaved as a result of overseas operations with the general civilian population. But no caveat such as that exists, and nor should it exist—and it certainly was not in the Armed Forces Act 2011 that brought the Armed Forces covenant together. The covenant explicitly states that those who are injured or bereaved are additionally eligible for special recognition as they have given most in service and should be given greater, rather than lesser, protection.
In the passage of this Bill in this House, we have the opportunity to amend it and make it a better Bill. I would like to see us do that, but we need the humanity that should exist in the House of Commons to make sure that it is passed again. It is very unfair to our armed services, and God forbid that any one of us should suffer some of the disadvantage we see outlined in the background to the Bill.
Lord McCrea of Magherafelt and Cookstown (DUP) [V]
My Lords, in general I welcome this Bill, insofar as it seeks to provide fair protection to our armed personnel who served overseas from vexatious and repeated investigations long after they have served. Whether it actually does this is open to question, and many believe that it promises more than it can deliver—but we shall surely examine that in our debate.
In this Bill, the threshold for prosecution of current and former personnel is raised for alleged offences committed on operations outside the British Isles more than five years ago. I join with the Minister in paying tribute to the bravery of our serving personnel and the burden their families carry when they are on duty.
For those of us from Northern Ireland, our genuine concern is not so much what is in the Bill but what is not in it. Missing from this Bill is equal protection for those brave service men and women who served in Northern Ireland, facing a vicious and evil onslaught from the IRA. Government Ministers in the other place have pledged to progress the principle of equal treatment, but their actions to date have certainly not matched the spirit of their promises.
In March 2020, the Secretary of State for Northern Ireland, Brandon Lewis, made this Statement to coincide with the introduction of the overseas operations Bill:
“Today the Government announced the introduction of legislation to provide greater certainty for service personnel and veterans who serve in armed conflicts overseas. Alongside this, we are setting out how we propose to address the legacy of the past in Northern Ireland in a way that focuses on reconciliation, delivers for victims, and ends the cycle of reinvestigations into the Troubles in Northern Ireland that has failed victims and veterans alike—ensuring equal treatment of Northern Ireland veterans and those who served overseas.”—[Official Report, Commons, 18/3/20; col. 168WS.]
During debate on this Bill in the other place, Parliamentary Under-Secretary of State Johnny Mercer said:
“We are very clear that we will not leave Northern Ireland veterans behind. The commitment of equal treatment in any Northern Ireland Bill that comes forward will be absolutely adhered to. This Government will not resile from their commitments to those individuals. We recognise, value and cherish the service and sacrifice of everyone who served in those operations.”—[Official Report, Commons, 23/9/20; col. 1022.]
We are told that Northern Ireland’s absence from the Bill is largely down to differences in the legal framework in which soldiers in Northern Ireland operated compared to those operating outside UK jurisdiction. However, this can often be misconstrued. It is vital that noble Lords recognise the valiant service and sacrifice of those who fought to keep peace for so many years in Northern Ireland, bring stability and protect democracy in our Province. I suggest that this is no different from those who defend our interests abroad. Our nation entered into a covenant with members of our Armed Forces; it ought to apply equally in scope and content to all personnel, regardless of where they serve. The progression of this Bill without legislation granting the same protection to our Northern Ireland veterans is wholly unacceptable.
My colleagues and I have often stressed that we do not support an amnesty or any equivalence of our soldiers with paramilitaries. That is why we cannot support the Government’s insistence on the need to separate Northern Ireland legacy issues from the overseas operations Bill. This serves only to differentiate or set apart the service of men and women in Northern Ireland from the sacrifice of our Armed Forces elsewhere, which could be considered discrediting to their contribution.
Let me be clear: I do not support an amnesty for soldiers who have committed criminal acts, but I am deeply concerned about the practice of veterans in their senior years being arrested and brought to Northern Ireland to respond to allegations which have already been investigated, often on multiple occasions, and for which no new compelling evidence is provided. In my humble opinion, that is persecution of our veterans. It is an intolerable burden to place on those veterans who ought to be enjoying, in their later years, the appreciation we give to their sterling service.
I have listened and will listen carefully to other noble Lords as they point out weaknesses and flaws in this Bill. I will certainly give them genuine consideration. I hope that, together, we can take forward legislation that is worthy of our support.
Lord Burnett (LD) [V]
My Lords, I draw attention to my entries in the register of interests. I had the honour to serve in the Royal Marines, during which time I was involved in overseas operations.
Before I speak to the Bill, I will highlight matters relevant to it, in relation to courts martial, which I believe should be changed. These matters arise from the successful campaign to rectify the terrible miscarriage of justice in the case of Marine A, to which my noble friend Lord Thomas referred. His name is Sergeant Blackman, then of 42 Commando, Royal Marines. He is an exemplary individual. I have referred to these matters in the House before; I should remind the House that, in the seven years or so leading up to the incident, Sergeant Blackman had been deployed on operational service six times in Iraq and Afghanistan— six six-month tours of intensive combat operations in seven years. No one in the Royal Marines complains of that level of deployment, but the Court Martial Appeal Court recognised that this causes great stress for even the best-trained, bravest and most determined of our elite troops. These are individuals of the highest calibre, who deprecate any torture or war crimes.
I will reiterate what I have said before. First, when charges such as these are contemplated, no expense should be spared in mentoring and assisting a defendant, who will need an experienced individual to guide him through the maze of criminal law and procedure. The defendant should have access to the very best legal team available and be able to access medical assistance to engage with the effect of the stress of operations, including being in mortal danger most of the time, and often in searing heat. This should all be at public expense.
Secondly, there should be a duty on the Judge Advocate-General to bring the possibility of battle fatigue and diminished responsibility to the attention of the panel.
Thirdly, and most importantly, a simple majority at a court martial can convict a person; in Sergeant Blackman’s case, five of the panel found him guilty and two found him not guilty. This would be insufficient for a conviction in a civilian criminal court. The court martial majority rule should be changed to follow the civilian criminal law standard.
Fourthly, the ethos of a court martial is that a person is supposed to be tried by his peers who have served in similar combat operations as the defendant, and who therefore appreciate the burdens and demands of such operations. No one who has not served through the horrors of the front line in Iraq and Afghanistan or similar conditions can appreciate the stresses and dangers that will affect even the strongest and best-trained human being. All members of the panel in a court martial should have had similar experiences to those of the defendant. No one who has never heard a shot fired in anger should be on the panel of any combat military personnel. Fifth, and finally, panel members should be drawn from suitable people of all ranks.
I have considerable sympathy for the Bill in that it seeks to overcome problems, but I have grave concerns about some of the solutions it proposes. The Access to Justice Act 1999 greatly extended the scope for conditional fee agreements. Basically, the lawyer is paid on a no-win no-fee basis; if there is a win, the lawyer receives considerably more money. Therefore, the lawyer has a substantial financial stake in the outcome. This has tempted a number of lawyers to trawl for work in countries where service personnel were deployed, sometimes many decades ago. There are cases where evidence has been fabricated and individual complainants have sometimes been bribed to perjure themselves. The lives of innocent serving and retired personnel have been ruined. The Government should examine the extent, consequences and impact of these conditional fee agreements.
It deserves to be emphasised that the vast majority of members of our Armed Forces have exemplary standards and give fantastic service to this country. There can occasionally be an individual who falls short of these high standards and blemishes the wonderful service given by so many.
I am concerned about the short time limit for making claims and the fact that these claims often arise from long-term conflicts, where it takes time for the dust to settle. I believe the time limit should be extended. I agree that sexual offences should have continuing liability—so should torture and war crimes. Furthermore, I am concerned by the relatively short time limits sought to be imposed on the service personnel’s ability to sue the Ministry of Defence.
Finally, I take this opportunity to pay tribute to all members of our Armed Forces and their families, who give such courageous, unselfish and superb service to our country.
Baroness Buscombe (Con) [V]
My Lords, I declare several interests: a son serving in the Fleet Air Arm; as a recent former Lords Minister with responsibility for the Armed Forces and veterans at the Department for Work and Pensions; and as a barrister, not proud of those in my profession who have profited from vexatious claims, making life pure hell for some of our courageous veterans.
As a past member of the Joint Committee on Human Rights, I have an abiding memory of its current chair either failing or refusing to understand the import of what the then Secretary of State, Michael Fallon, was saying as he explained the very high bar for process and protocols that the MoD and our Armed Forces must meet against a tight timeframe prior to making the decision to release an unmanned missile.
It is abundantly clear to me, having read recommendation 8 of its report on the Bill, that the JCHR still cannot or will not accept that life can be very different for the military. One cannot begin to compare the environment, actions, challenges and decisions that, in real time, face our military on overseas operations with that of a civilian’s life choices. The Bill strikes a proportionate balance between the rights of genuine victims’ access to justice in a reasonable time and fairness to those who defend our country. A good starting point should be: what is proportionate, what is the environment within which an action is taking place, and what is reasonable in all the circumstances?
The Bill is about raising the threshold of prosecution to reduce the likelihood of investigations being repeatedly reopened without new and compelling evidence. Our rules of engagement for our Armed Forces are extraordinarily stringent and, as it is, we send our young into battle with one-and-half arms tied behind their backs, sometimes in the most appalling conditions. In order to satisfy tough but necessary rules of engagement, our serving men and women understand entirely that they are not above the law, and the Bill is not about any immunity from the law. In short, this Bill does not allow our Armed Forces personnel to act with impunity.
In addition, recommendation 13 of the JCHR report demonstrates a lamentable lack of knowledge of life in the Armed Forces. Believe me, Armed Forces personnel are constantly at risk of being stepped down from duties if they show the slightest sign of illness, physical or mental. I urge all noble Lords to read the government responses to the JCHR report. So much of military life is nuanced, and that is the nub of why the Bill is before us—and rightly so. It is not perfect, but it is a symbolic step in the right direction.
Concern was expressed in another place regarding the exclusion of torture from Part 1 of the Bill. In addition to the Government’s clear response on this matter, I refer to paragraph 2.2435 of The Report of the Al-Sweady Inquiry, which I attended briefly. It provides a stark example of why the issue of torture is not clear-cut. It illustrates the utterly dreadful impact of modern weaponry, which can undeniably create a presumption of torture in the eyes of anyone unaccustomed to seeing bodies following battle—most particularly their families. I make that point simply to emphasise the brutal and nuanced reality of combat. Torture is never, ever acceptable, and the Bill does not in any way undermine the UK’s adherence to the UN Convention Against Torture, its commitment to international law or its willingness to investigate and prosecute any alleged criminal offences.
I have two questions for my noble friend the Minister. First, what is the latest thinking at the MoD regarding the issue of investigations being fully addressed in the Bill? Secondly, with reference to the definition of “overseas operations” as it applies throughout the Bill, does it include operations beyond our territorial waters—for example, acts of piracy and the seizure of drugs and other contraband?
In conclusion, in paying tribute to the heartening, intelligent and articulate voices of our ex-Armed Forces Members in another place, I shall quote the honourable Member for Bracknell, James Sunderland, who, when referring to Armed Forces personnel, said:
“They aspire to better protected in law. They want to know … they will be supported if they pull the trigger lawfully and, after the misery of the ambulance-chasing years, they want the threshold for prosecution to be raised so that the endless knocks at the door finally stop. This is a no-brainer.”—[Official Report, Commons, 3/11/20; col. 239.]
Lord Carlile of Berriew (CB) [V]
My Lords, it is a great pleasure to follow the noble Baroness, Lady Buscombe. She made a clear and compelling case for the Bill. One thing on which I agree with her is that we need clarity, so that troops and former troops who have served our country well have clarity.
I thank the Minister, the noble Baroness, Lady Goldie, for engaging with Members of the House who wish to engage with her on the Bill. It has been helpful and, if I may say so, she is a remarkably good listener. I want to add to her tribute to Her Majesty’s forces. As is clear from my entry on the Register of Members’ Interests, I have a connection with the Royal Navy for a charity that I chair and I very much wish to ensure that we do the best that we can for all those who so courageously serve their country. We need to take all reasonable and proportionate steps to protect them against injustice. I fear, however, that the Bill, in its present form at least, fails to do just that.
The Bill has its origins in a 2013 report by the respected think tank, Policy Exchange. I look forward to its director, my great friend Dr Dean Godson’s arrival in this House, I believe in early February. His interventions in future stages of the Bill could well be instructive. Yesterday, Policy Exchange issued a document entitled, Ten Ways to Improve the Overseas Operations Bill. I take that as recognition by Policy Exchange, seven years after its report, The Fog of Law, of 10 material deficiencies in the Bill. It is a little shocking that after a gestation of seven years, with all the scans, scrutiny and consideration that it will have had, the Bill comes to this House having left the Commons with so many deficiencies.
What Policy Exchange highlights fairly is that, for all the cases envisaged to be dealt with, there must be efficiency, expedition and fairness. Unfortunately, I cannot accept at least five of its 10 suggested improvements to the Bill. For example, Policy Exchange has suggested changes in the approach to the public interest test for prosecution but appears to have done so without even having taken the elementary step of carefully reading paragraphs 4.9 to 4.13 of the Crown Prosecution Service code dealing with the public interest test. Clear care is already taken with such decisions and it is possible in exceptional circumstances for a public interest decision to be taken before examination of the evidence. Policy Exchange has suggested the Attorney-General’s consent to prosecutions. I listened with enormous respect to the noble and learned Lord, Lord Garnier, who is a former law officer, and an excellent one. I admire him enormously. However, I wonder why the independent Director of Public Prosecutions, who is appropriately accountable to the law officers, is not sufficiently independent to make the requisite decisions.
I suggest to your Lordships that, despite a seven-year gestation period, this Bill is far from being oven-ready, to coin a phrase. It still has many deficiencies, as Policy Exchange has recognised, and will need concentrated work in Committee if it is to be given a Third Reading. I am grateful to the highly respected Bingham Centre, which has made thoughtful and well- argued criticisms, with which I agree—one of which is that the Bill undermines our obligations under the Geneva conventions and the UN Convention Against Torture, and this would take us outside international law. I commend to your Lordships the Bingham Centre’s rule of law concerns about the Bill.
In truth, the Bill as it stands would diminish the United Kingdom’s enviable reputation for adherence to the rule of law. We cannot accept that in your Lordships’ House. Major amendment is required.
Lord Robathan (Con)
My Lords, a soldier is not as other men. When he thinks that he is, he ceases to be their guardian. I was told many years ago that that was a quotation from Julius Caesar. I have tried to verify it, but I am afraid that I could not find it, so it may not be a quote. However, it is apposite because it shows that we expect higher standards from our soldiers.
In this debate, I should like to put the Bill in some context, using examples—some of which will be from Northern Ireland, of which I have some personal experience, although it is not in the Bill. The context is both complex and confused. We—that is, this Parliament —send young people of 18 and 19 years of age into an alien environment in which people who are not in military uniform but in civilian clothes are trying to kill them. All civilians are therefore suspect because we cannot identify terrorists. We send the soldiers to protect us and the national interest, often in ghastly and uncomfortable conditions. We expect them to carry out their duty at our behest. So let us start by being grateful. I should declare a family interest in that my son recently passed out of Sandhurst.
Soldiers are not perfect but they usually try their best. They are not lawyers with many years of study and training. They are not policemen. They are trained to defend us by killing people, if necessary, with rifles and bayonets; that is why they have them. Training is mandatory in the Geneva conventions and the law of armed conflict. Every solider knows, for instance, that torture is illegal. When I was in Northern Ireland, we used to have a yellow card that told you when you could open fire. There are always rules of engagement, and the watchword is “restraint”.
I want to give two examples from Northern Ireland. The first is the pitchfork murders, carried out near Newtownbutler in Fermanagh in October 1972 by soldiers of the Argyll and Sutherland Highlanders. They had lost eight men, murdered on a four-month tour. Newtownbutler itself saw five murders in the preceding seven months, including those of a Garda instructor, off-duty local soldiers and Protestants. Nothing excuses these murders. When, finally—after several years—the ex-solider murderers were convicted, they were rightly jailed for life. However, the context is relevant. Nobody has been tried for a huge number of the murders of soldiers, UDR and policemen in Northern Ireland, some of whom were friends of mine.
My second example is particularly pertinent to this debate: the murders in March 1988 of Corporals Howes and Wood, who inadvertently drove into a funeral in Andersonstown. When trying the murderers, the judge described the murders as “particularly savage and vicious”. Both corporals had 9 millimetre pistols but were uncertain whether they could use them when surrounded by a screaming mob, which included IRA gunmen. These soldiers did not shoot the 20-odd people they could have done if they had been so minded.
I also have two examples from Iraq. The first is the Battle of Majar al-Kabir, where six Royal Military Policemen, each armed with 50 rounds, were killed in June 2003. They were surrounded by a hostile crowd of some 600 people, including the gunmen who shot them in the end. They were murdered because the RMP’s standard operating procedures do not include firing on a crowd.
The second example is that of Trooper Williams, who in August 2003 was in a patrol that stopped a group of Iraqis pushing a cart full of mines and ammunition. A scuffle ensued and 18 year-old Williams shot a man whom he believed to be about to shoot another solider. This was properly investigated by the Special Investigations Branch and the Army Legal Services Branch advised that there was no case to answer, so it was dismissed. However, the Adjutant-General later wrote a letter in March 2004, saying:
“With the current legal, political and ginger-group interests in the deaths of Iraqi civilians … there is a significant possibility that … our investigation and subsequent failure to offer for prosecution could become a cause célèbre for pressure groups.”
Williams was put on open arrest for a year before being tried in the High Court. For a 19 year-old boy, it was pretty traumatic. When he finally got to court, on day one, the Crown offered no evidence and Mrs Justice Hallett formally acquitted him.
Finally, I refer to a well-known case that has already been mentioned: that of Sergeant Blackman, who was filmed as he criminally and foolishly shot a Taliban fighter—who was probably dying anyway—saying, “Shuffle off this mortal coil.” More than 400 British soldiers may have been killed by the Taliban and he may have been under huge stress and pressure—he had seen comrades blown to pieces—but he was rightly tried and sentenced for his crime.
These and other cases, which are sometimes confusing, mean that young soldiers now spend a long time debating when they may open fire. When I worked in the MoD under the coalition Government, the appalling Phil—not Paul—Shiner and other lawyers were scouring Iraq and using public money to fund spurious cases against soldiers. Shiner was found to have been paying people to bring vexatious complaints, and some allegations were found to be “deliberate and calculated lies”. In Northern Ireland, which is not part of the Bill, Sinn Féin and the IRA are pursuing 14 year-old cases against soldiers. The IRA is now winning the peace.
So, on the one hand, we have public servants putting themselves in harm’s way and doing their duty to defend us, our country and the national interest, often in terrifying, dangerous and ghastly circumstances. On the other, we have pressure groups and very clever lawyers—often not well disposed towards the Armed Forces and often left wing—sitting in comfortable, warm offices in London and picking over every split-second decision made in a foreign country by scared young people doing their duty. Soldiers do not always get it right. Some behave maliciously or criminally, and some rightly go to jail, but I stand up for the young men doing their duty to the best of their ability who have been pursued by smug, overpaid lawyers.
I thought that my noble friend the Minister’s speech was excellent; I agreed with almost every part of it. I am disappointed by some of the criticism that has been dragged up, but I found it entertaining to be lectured on moral leadership by a Liberal Democrat. The Bill may not be perfect in this difficult context and it may warrant amendment, but it goes a long way to protect those who put their lives on the line to defend us.
Lord West of Spithead (Lab) [V]
My Lords, the Government are to be congratulated on bringing forward this Bill, which aims to put an end to the egregious injustice of historical allegations and prosecutions made again and again against members of our Armed Forces for past actions overseas in conflict and its aftermath. It is not before time. Successive Governments have failed to take action, not least because it has such complex legal implications. It is so much easier, is it not, for people to say, “It’s much too difficult. Let them continue to suffer”. I am very glad that the Government are moving this forward.
When I entered the Royal Navy in 1965, we assumed that, if we undertook actions in good faith in war and peace, the nation would protect us. That has seemed a false hope in the past few years, with the hounding of personnel for actions that they took in good faith abroad and overseas on operations and afterwards, often decades ago. What has not changed is that our sailors, soldiers and airmen hold themselves to the highest of standards: a force for good, and seen to be so, both at home and abroad.
While I salute the Minister’s wish to support those serving in the military and our veterans, who give so much to this nation of ours, the Bill as it stands has a number of—to put it mildly—wrinkles that need much fuller explanation; indeed, a number of them must be ironed out. In its current form, this legislation would seem to decriminalise acts of torture by members of the Armed Forces if they are reported after five years; a lot of previous speakers have covered this point. This cannot be the intention and serves the interests of no one. Indeed, in their attempt to protect the military the Government may well do individual personnel and our international standing serious harm. We must be wary of creating a perception, and certainly not a reality, that this is the case.
The Government seem to understand that it is in the interests of all for allegations of torture to be investigated fully whenever they might arise. In the initial consultation on this legislation it was suggested that time limits would not be imposed on allegations of sexual offences or torture being investigated. The latter was quietly removed with no explanation. Notwithstanding what the Minister said, it is somewhat bizarre that sexual offences are covered and torture is not—as is also true of genocide and war crimes.
On the subject of war crimes, referring back to what the noble Lord, Lord Robathan, said about lawyers, when I was at a debate on the subject a senior citizen told us about tying a German officer to the front of his scout car before fighting back through enemy lines in Normandy. I asked him what unit he was in. He said, “Oh, the Inns of Court & City Yeomanry”. I found out that he was a highly decorated judge. So I do not want to judge lawyers too harshly.
An added concern is that the legislation seems to make our service men and women more likely to be hauled before the International Criminal Court. Surely this cannot be what the Government want. It is something that we work very hard to avoid. There must some error there; something must be changed.
Another issue that needs clarification is claims against the MoD; a number of noble Lords touched on this. The de facto six-year time limit for claims being brought against Ministers and the MoD arising from active service abroad seems at first sight far from protecting our people, but rather reducing the rights of individual service personnel. Again, I am sure that that cannot be the intention. Something must be changed.
I firmly believe that th0065 Bill is needed, but if I had to mark it out of 10 I would give it a five. If the Government truly want to get a 10 and do their best to support our brave service men and women, they must accept a number of amendments to the Bill, which are really necessary.
Lord Ramsbotham (CB) [V]
My Lords, as the noble Lord, Lord West, has pointed out, although the Government are to be congratulated on the intention behind the Bill, there are several wrinkles to be ironed out. First and foremost, there must be no provisions within it that would lead members of our Armed Forces to believe that they are sanctioned to break the rule of domestic or international law. In 1965, during confrontation with Indonesia, every company cross-border operation had to be authorised by the Cabinet, because in effect it involved an invasion—but that was an extreme.
Like many other noble Lords, during the remainder of the time allowed I shall concentrate on torture, which has been prohibited in this country ever since 1640. The most recent renewal of this prohibition was the Criminal Justice Act 1988, which designated it as a domestic offence, covering the torture of anyone, anywhere in the world. MoD doctrine makes clear that there are no circumstances in which torture, inhuman or degrading treatment can ever be justified. In the public consultation that the Government conducted prior to the Bill, HMG suggested that torture might not be covered by any presumption against prosecution. In the published Bill, however, only sexual offences are excluded from this presumption, acts of torture remaining subject to the Bill’s triple lock.
In the other place, 269 voted in favour of an amendment tabled by two ex-military MPs, David Davis and Dan Jarvis, to remove torture from the scope of the Bill. I give notice that I intend to table a similar amendment in Committee, or to attach my name to one removing it if another noble Lord should table one. Moreover, the Bill’s granting of immunity from prosecution to perpetrators of torture would not only break the UK’s obligations under the Geneva conventions, the UN Convention against Torture, the International Covenant on Civil and Political Rights, the Rome statute and customary international law, it would leave members of our Armed Forces more rather than less likely to face prosecution at the International Criminal Court in The Hague.
I join all other noble Lords who have praised and thanked the members of our Armed Forces, and I will always be proud of having served on overseas operations. Unfortunately, this Bill breaches the long-standing principle of military law that soldiers are subject to the same laws as all ordinary citizens, particularly with regard to torture, and we owe it to all service veterans and service men and women to scrutinise the Bill most thoroughly.
Lord Stirrup (CB)
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.
Lord Arbuthnot of Edrom (Con) [V]
My Lords, following the noble and gallant Lord, Lord Stirrup, is a daunting task, but the fact that I agree with what he said makes it easier.
The Bill has my support. It may not be perfect and it may need to be amended, but it helps to address the twin issues of, first, our service men and women living under a constant threat of litigation and prosecution years after events in which they were involved, and, secondly, enemies of our country and of our values using our legal system and our liberal values against us in a way that was never intended when our laws were drafted.
We are a country that believes in and upholds the rule of law. It is sad that it should be necessary to say this, but the disgraceful inclusion in the United Kingdom Internal Market Bill of clauses designed to break the law both makes this necessary and weakens the Government’s arguments. However, those clauses would never have passed your Lordships’ House, so the country was able to reassert that we indeed believe in the rule of law. I disagree with the assertion by the noble Lord, Lord Touhig, that this Bill is anything like the internal market Bill in that respect.
We have received extensive briefing against the Bill. I have to say that I found it unconvincing. I do not believe that there is anything wrong with reasonable time limits for civil litigation, nor that the Bill legitimises or decriminalises torture. Above all, I do not think there is anything wrong with a limited rebuttable presumption against prosecutions after a lengthy time. Our service men and women do a lot for us, and I believe that we should give them this.
Baroness Chakrabarti (Lab) [V]
My Lords, on the day when so many around the world breathe a sigh of relief at the departure of Donald Trump from the US presidential office that he has so tarnished, I fear that we must debate a policy that has at times, though not here, been almost Trumpian in its promotion and, if enacted, will in my view do considerable damage to the UK’s standing in the world. This is not a British loyalty test. The Bill does not give greater meaningful protection to the brave men and women of our Armed Forces. It is not at all as hitherto advertised.
The Government are fortunate indeed to have the Minister presenting the Bill to your Lordships’ House; in my experience, she is one of the most courteous and skilful advocates in either Chamber. Sadly, though, I cannot say that for those who presented the Bill in the other place, with blanket attacks on human rights and lawyers as an entire species. At one point the atmosphere was so toxic that a young and new Conservative Member, speaking from the very back of those Benches during the truncated debate, appeared almost to apologise for once having studied law. Is that what our democracy has come to?
I do not want anyone, let alone those that we put in harm’s way in open or covert conflicts not of their own making, to fear lengthy, shoddy repeat or politicised investigations, but Part 1 of the Bill does nothing at all to address the speed, finality or robustness of criminal investigations arising from overseas conflicts. Instead, as has been pointed out by a host of critics, many of them of distinguished military rank and service, it creates a de facto presumptive five-year statute of limitations on even grave crimes such as torture and restricts the decision to prosecute after that point to a politician, the Attorney-General.
I fear that the distinction made by the Minister between torture and sex offences was not convincing as, sadly, both can be the subject of false allegation. Five years is a particularly short time in relation to secret operations. Such a limitation, as has been said, will only increase the possibility of British personnel facing the jurisdiction of international courts in future. That would be a perverse outcome.
On the involvement of the Attorney-General, I am afraid I have to agree with the noble Lord, Lord Carlile, not the noble and learned Lord, Lord Garnier, however much I admire him. The involvement of the Attorney-General risks a prosecution being prevented by the very same law officer who previously advised on the legality of the precise military operation now impugned. Alternatively, it risks a prosecution being brought by a subsequent Government’s principal lawyer whose party may have been very publicly critical of the conflict now in question. Both scenarios risk politicisation or at least jeopardising the trust of both the public and, crucially, service personnel themselves.
Part 2 of the Bill is just as troubling, not least because it would strip away the vital protection for veterans and their families who may have had no advice or bad advice or been completely unable to establish a causation between their suffering, which they may well have known about, and negligence by the MoD within the six-year period. Instead, the courts are currently well capable of handling their discretion under the Limitation Act and MoD lawyers are well able to robustly defend the Government. This is clearly a protection for a government department, perhaps even for its political masters, but not for those veterans who too often have been put in the most dangerous and damaging circumstances with inadequate kit, training and planning. It is a breach of trust with them.
As for the duty to consider derogations from the Convention on Human Rights, this provision is either totally unnecessary, dangerous showboating or an attempt domestically to dilute the convention’s own very high bar for derogation, which is, as we have heard from the noble and learned Lord, Lord Hope, strict necessity
“in time of war or other public emergency threatening the life of the nation”.
That will not cover all overseas operations, and of course no derogation at all is allowed from the absolute prohibition on torture.
The overwhelming majority of Armed Forces personnel and veterans I have ever had the privilege of meeting are decent, disciplined and brave. They do not fear human rights or the rule of law; to the contrary, they are inspired to fight for them, sometimes at devastating personal cost. This Bill neither honours nor protects them—quite the opposite.
Lord Anderson of Ipswich (CB) [V]
My Lords, I applaud the motivations behind the Bill, which are to address vexatious claims and repetitive investigations, yet, along with other noble Lords, I have difficulty in seeing how either objective is furthered by what is described as the presumption against prosecution in Part 1 of the Bill. It is common ground, I think, that there is no problem of vexation prosecutions of service personnel; indeed, prosecutions have been conspicuous by their rarity. Nor does Part 1 have anything to do with civil claims or the Human Rights Act. Its effect would be to prevent prosecutions after five years for even the most serious criminal offences, save in exceptional circumstances and with the permission of the Attorney-General. Its specific purpose is to prevent the prosecution of cases that would currently be brought to trial after an independent prosecutor had judged the exacting evidential and public interest tests to be satisfied.
The Brereton report of last November illustrates what this would mean in practice. It found evidence of 39 murders of civilians and prisoners of war in Afghanistan between 2009 and 2013 involving 25 Australian service personnel: crimes committed on overseas operations, but not in the heat of battle. If Australia had a similar law to Part 1 of this Bill, who is to say that any of those people would be prosecuted? The matters to be given particular weight under Clause 3 are all factors that militate against prosecution. Nor would the severity of the crime establish exceptionality, given what will rightly be said to be Parliament’s clear intention, if we pass the Bill unamended, that even torture, war crimes and genocide should be subject to the presumption against prosecution.
Part 1 is indeed particularly problematic in its application to crimes which fall within the jurisdiction of the International Criminal Court. It is not just the obvious injustice of a law which would allow a soldier to be prosecuted for the sexual assault of a civilian but not, despite equally strong evidence, for her murder; nor is it just the risk that the Bill would violate our obligations to prosecute under the treaties listed at paragraph 57 of the Joint Committee’s report, including, but not limited to, the torture convention; it is also what Judge Advocate-General Blackett described to the Defence Secretary in a leaked letter, since echoed by the ICC prosecutor’s office, as the increased likelihood of UK service personnel being brought before the ICC.
The noble and learned Baroness, Lady Scotland, said in this House on 15 January 2001, during debate on what became the International Criminal Court Act:
“If there should ever be any allegation that a British citizen or member of the British Armed Forces has committed one of these crimes we shall be able to launch our own investigation. Any such accusations will be tried in British courts.”—[Official Report, 15/1/01; col. 927.]
If the Judge Advocate-General is correct, Part 1 of the Bill dilutes that promise. How counterproductive it would be, and how shaming, if, by reducing the scope for prosecutions in this country, we were to increase the scope for prosecutions in The Hague.
The timely prosecutions of those at the appropriate level of command and the nipping in the bud of vexatious civil claims would both be made easier if investigators got it right first time around, undefeated by the “wall of silence” or by attempts at cover-up. As Mark Goodwin-Hudson, NATO civilian casualty and mitigation team lead in Afghanistan, told the Bill Committee, the best way to stop what he called the “spiralling of reinvestigation” would be
“the ability to conduct accurate and timely investigations in theatre”.
I therefore welcome the Government’s announcement last October of a review led by Sir Richard Henriques, which
“will consider options for strengthening internal investigation processes and skills”.—[Official Report, Commons, 2/11/20; col. 17.]
I shall welcome it even more if the Minister can confirm that the remit of the Henriques review extends to the independent element of the investigation, and to recommending any statutory changes that might be needed to reinforce the powers and independence of the service police.
Lord Lancaster of Kimbolton (Con)
My Lords, I declare my interest as a serving member of the Army Reserve.
I support the Bill, which in my mind is long overdue. But I recognise that it seeks to walk a tightrope between giving reassurance to members of the Armed Forces and veterans that they will not be unfairly pursued or suffer repeated investigation and that they will be prosecuted only in exceptional circumstances for historic events, while maintaining our standing in the international community by not seeming to countenance criminal behaviour within our military or by disrespecting international humanitarian law or organisations such as the International Criminal Court.
Nobody is suggesting that a tiny minority of members of our Armed Forces have not committed crimes while on operations; the examples are there for us all to see. But these rare events must not be allowed to overshadow the facts that, despite often being under the most extraordinary pressure, the overwhelming majority of our Armed Forces behave impeccably on operations; and that their professionalism and high moral standards in ensuring that the rules of war are observed are second to none.
This is because of not only the quality of the individuals but the quality of the mandatory annual training and—as I experienced myself before deploying to Bosnia, Kosovo and Afghanistan—the operational pre-deployment training they undertake. This training ensures that the high values and standards of the British military and our respect for international law are ingrained in our service personnel. I know that they would be the first to say that it is imperative that any legislation Parliament passes must not undermine their sense that they deploy on operations firmly on the moral high ground.
Aspects of the Bill are certainly open to criticism but, in reading much of the commentary, I have been struck by how little of it actually relates to the words written on the face of the Bill. What is clear is that the Bill does not create, nor come close to creating, “de facto immunity” for serving or former service personnel, even in respect of offences that are not excluded by Schedule 1. This is for several reasons.
First, the Bill at most creates a test of exceptionality for prosecution only after the period of five years has expired. Although the clause heading is “Presumption against prosecution”, what is being provided for is an exceptionality test and what is “exceptional” will be provided for by an independent prosecutor and the Attorney-General. Secondly, nothing in the Bill limits the investigation of offences. While some have questioned, probably fairly, the effectiveness of MoD investigations in the past, I must say that during my time at the MoD I witnessed a considerable improvement in the quality of investigations, from the IHAT investigations in Iraq to the Op Northmoor investigations relating to Afghanistan. That said, I too am pleased that the eminent retired judge Sir Richard Henriques has been appointed by Ben Wallace to conduct a review of MoD investigations; this is a most welcome move. Thirdly, nothing in the Bill limits the determination by prosecutors of whether in any case the evidential test has been met.
But taken together, the Bill’s provisions constitute what could be described as an enhanced filter on prosecution after the lapse of five years. The purpose of this filter is clearly that service personnel should have some assurance that they are much less likely to face prosecution once five years have passed from the events in question. Having received many letters from distressed veterans living in fear of the uncertainty of prosecution, I can say that it is the lack of finality of investigation that has caused so much stress for so many. The Bill’s requirement for prosecutors to take into account the public interest in finality, where there has been an investigation and no new evidence found, and to take due consideration of the challenging circumstances to which UK forces are subject while on overseas deployment seem to me perfectly sensible.
If—and it is a big if—the Bill delivers what it seeks to achieve, the positive impact on veterans’ mental health should not be underestimated. But let us be clear: it is not preventing anyone from being prosecuted for a crime they have committed. No person is above the law and, unlike a civilian, UK forces rightly are also subject to service law and the law of armed conflict. It would be a cause for justified alarm if the Bill were to seek to permit UK forces to breach this legal regime with impunity, but it does not.
Time does not allow me to comment in detail on all aspects of the Bill today, but there are several areas I look forward to exploring in Committee—for example, in Schedule 1, under excluded offences, why sexual offences are specifically excluded but torture is not, as many other noble Lords have highlighted; in Part 2, the circumstances under which the Secretary of State would consider derogating from the European Convention on Human Rights regarding future overseas operations; why the Bill treats overseas territories differently from how they are treated in the Armed Forces Act; and, finally, exploring the Government’s view towards some of the points raised by Judge Jeff Blackett during his evidence session to the committee.
As other noble Lords have said, this Bill needs work, but I will support it at Second Reading.
Baroness Jones of Moulsecoomb (GP)
My Lords, with every Bill this Government present to this House, we see a further erosion of civil liberties, the rule of law reduced and, of course, a constant attack on parliamentary democracy—and this Bill is no different. It is pretty terrible. I am really heartened to have listened to the comments so far, which clearly indicate that there is a lot of dissatisfaction about the Bill, and I presume that it will be very heavily amended.
The Bill is very much at odds with the United Nations special rapporteurs. The Government, Ministers in particular, have consistently expressed some horrific sentiments over the years which seek to marginalise and undermine the UN special rapporteurs as being somehow politically motivated. This has come up in relation to the Government’s treatment of people who are in poverty or homeless, people with disabilities, and now victims of torture and other crimes at the hands of British troops. It undermines any claim that the United Nations might be a global leader for peace, justice and human rights.
Beyond the United Nations, many other experts have warned about how the Bill undermines the UK’s so-called commitment to human rights and a rules-based international order. Indeed, today in the Daily Mail there is a headline: “Theresa May blasts Boris’s ‘moral failure’”. She has criticised Boris Johnson, our Prime Minister, “for abandoning British values” and
“slammed his threat to break international law and tear up foreign aid.”
The article says:
“The former prime minister says the two actions were not ones that ‘raised our credibility in the eyes of the world’. If Britain is to lead internationally, she says, we must live up to ‘our values’.”
The Bill clearly does not live up to our values. It is based on fiction and conspiracy theories—it could have been written by the Daily Mail comment section. It stems from a false assertion that there is some sort of crisis of vexatious claims against UK forces, although in truth, hardly any criminal prosecutions have been brought against service personnel in relation to Iraq and Afghanistan. On the contrary, the inquiry into the death in of Baha Mousa in September 2003 revealed torture, unlawful killing and the use of prohibited techniques by British soldiers. It makes harrowing reading.
Instead of fiddling with prosecutorial discretion and the statute of limitations, Parliament should instead be implementing a comprehensive, effective, independent system of investigation of complaints against military personnel. Repeat investigations are ordered by courts because the original investigations were so shoddy that they needed to be conducted again. We are talking about interference by the chain of command and refusal to pass on to military police and prosecution. Service personnel would be greatly helped if they knew that future allegations would be fairly, reasonably, independently and rigorously investigated within a sensible amount of time, and one way or another resolved. However, this legislation does not address any of that, and the provisions in the Bill are nonsense.
The courts already have a very wide range of case management powers. They can throw out unmeritorious and vexatious claims at a very early stage and can make court orders against vexatious claimants. The Government must explain why this is not sufficient to deal with these claims, and then explain why the military needs a special system of dealing with unmeritorious claims which is not available to other defendants in legal proceedings.
Then there is the downright stupid fact that this legislation, rather than protecting service personnel, would in fact be likely to open up British forces to the jurisdiction of the International Criminal Court, as other noble Lords have already mentioned. This prospect renders the whole Bill counterproductive and downright dangerous. Rather than face investigation and prosecution in the UK, troops would be exposed to the risk of international arrest and, of course, prosecution and trial at The Hague.
I asked a former general for his advice on the Bill. After some thought, he gave a considered answer, saying that it could be dangerous for our troops because it might mean that other regimes and the troops of other countries would be more inclined to torture our troops or treat them badly, in return for our lack of concern about torture.
I therefore feel that the Government should pause the Bill and start to think quite seriously about whether it is needed and, if it is needed, about how to improve it.
Lord Browne of Ladyton (Lab) [V]
My Lords, during my time as Secretary of State, I had the privilege to work closely with our Armed Forces. I have the highest regard for those who serve and for their integrity. Sadly, we are all too familiar with stories of our Armed Forces personnel being hounded for years and years. The Bill is to be commended for seeking to address such abuses. It seeks to find a balance between the difficult truths that, sometimes, service personnel have been the subject of prolonged legal jeopardy, while sometimes they have broken the laws of war, as we have heard—acts which must be investigated and, where the evidence is sufficient, reliable, and credible, prosecuted and punished.
We all have a responsibility for taking too long to deal with these issues, but the fact is that the Bill does not resolve the problem of repeated and prolonged investigations because the Government have chosen to frame the issue as a legal problem, when the truth is that it is a problem about the timeliness and quality of investigations. Further, the Minister responsible for the passage of the Bill, Johnny Mercer, knows this to be the case. In a Guardian podcast in 2019, he was challenged about the existence of video evidence of apparent abuse, specifically “torture and beatings of civilians”. His interviewer suggested to him that “something has gone very wrong there surely?” I will read out his reply in full, because it is important: “You are absolutely right, and it is a very fair point, that actually one of the biggest problems with this was the military’s inability to investigate itself properly and the standard of those investigations, and it is that precise point which is being challenged by other lawyers and I totally understand that, and this behaviour has been totally unacceptable and the military has a role to play in this as well, and can’t just blame everybody else. If those investigations were done properly and self-regulation had occurred, we probably wouldn’t be here today.”
It is no answer to this criticism that the Government have now belatedly set up a further inquiry into how these investigations are conducted. Not only is the Bill aimed at the wrong target, it will see Britain reneging on its international legal commitments, none more so than our legal commitments to investigate allegations of torture and international crimes and, where appropriate, prosecute.
The Government rightly have decided to exclude sexual offences from the Bill. In response to the public consultation, the MoD said that
“the use of sexual violence or sexual exploitation during conflict is never acceptable in any circumstances.”
Nor is torture. Torture is not only ineffective but illegal. For these reasons, we need unqualified safeguards on torture. Ministers who deny that the triple lock will weaken our stance on torture dismiss these arguments with a wave of a hand, even though a growing and diverse coalition of military, legal and other experts maintain that it will do exactly that, and explain comprehensively why.
The Bill undermines our obligations under the Geneva conventions and the UN Convention against Torture to investigate and prosecute grave breaches of international humanitarian law. It promotes the dangerous idea—recently attempted, unsuccessfully, during the passage of the UK Internal Market Act—that the UK can simply set aside international obligations in law. Its entry into force will be yet more evidence of what Theresa May today called the abandonment of the UK’s moral leadership on the world stage.
Additionally, what is effectively a de facto statute of limitations on the prosecution of war crimes makes it much more likely that British soldiers will be prosecuted by the International Criminal Court, which acts only where countries are unwilling to prosecute their own citizens. Recently, the Office of the Prosecutor of the International Criminal Court warned that if a proposed presumption against prosecution were introduced, it
“would need to consider its potential impact on the ability of the UK authorities to investigate and/or prosecute crimes allegedly committed by members of the British armed forces … against the standards of inactivity and genuineness set out in Article 17”
of the Rome Statute. We should remember that we have a solemn commitment to our Armed Forces, given on ratification, that no member would ever be at risk of appearing in The Hague.
Finally, the provision in the Bill which requires the Government to consider derogating from the European Convention on Human Rights has been described as
“legally meaningless and only has rhetorical value.”
What exactly is the objective? Do the Government think that they can simply state that human rights do not apply? Do they appreciate that they cannot derogate from the prohibition of torture and can do so only in respect of killing if it happens because of lawful acts of war, which then engages the Geneva conventions?
I end with a question for the Minister. For what precisely do the Government want this provision, and how will they use it?
Lord Houghton of Richmond (CB)
My Lords, I sense that no-one who speaks on the Bill today will not have the interests of British service men and women at heart, and that is certainly my primary consideration. Undoubtedly, the situation that many service people have found themselves in over recent years in respect of vexatious claims absolutely demands government action. I seriously worry, however, that the political desire to resolve this problem has primarily resulted in a wish to change the law. My worry is twofold. First, I believe that this issue is a practical not a legal one. Secondly, I worry that legal solutions may bring with them unforeseen consequences, some of which will be absolutely contrary to the stated intent. I will summarise my views in five points.
The first is context. As we have heard, much of the source of the current problem has nothing to do with shortcomings in the legal framework. Rather, it is due to the Government’s inability to properly resource adequate investigative capacity and a weakness—indeed a failure, I admit—of the whole chain of command to ensure that investigations have been pursued with vigour and integrity. As a priority, we should correct these deficiencies.
My second point concerns the legal framework itself and the dangers of exceptionalism. It is true that the framework is a complex aggregation of historical conventions and both international and national law, but it is an acceptance of this evolved framework and a determination to function within it that gives our Armed Forces both their legitimacy and their moral authority. To seek to legislate to make ourselves exceptions to this framework, even in cleverly construed legal ways, produces multiple risks: to our international standing; to our reputation as a trusted ally; to the true status of our moral authority; to the justification of reprisals from our enemies; and ultimately, as many have mentioned, to the unquantifiable risk that our people will be brought before the International Criminal Court rather than our own national ones.
My third point concerns effective training. As I have said, the legal framework for the use of force and wider conduct of operations is complex. It is a challenge to convert this framework into a set of rules and procedures that are easy to both teach and comprehend. Our Armed Forces have, over the years, developed some very effective means of simplifying the legal framework and of employing sophisticated methods of judgmental training in how to operate within it. The aim has always been to make what is legal and what is morally proper also that which is natural and instinctive.
Therefore, to introduce even greater complexity into the legal framework, complexity that at least appears to differentiate between the gravity of certain acts—between murder, torture, rape and sexual violence for example—all of which are illegal, seriously prejudices the intuitive understanding of service men and women. I have heard it said that the Bill presents some external presentational challenges. It would also create some significant and potentially dangerous internal ones.
My fourth point is about command responsibility and leadership. Recent experience clearly shows that, particularly when operations are intensive, prolonged and conducted from remote and isolated bases, the requirement for strong leadership and command oversight, while more difficult, is even more vital. I do not believe that the law has ways of holding the chain of command to account, but I am absolutely certain that the chain of command cannot distance itself from the responsibility to actively mitigate the conditions that can contribute to individual failings. I am interested to know what lessons we have learned about this for the future and what action we intend to take.
My final thought on this issue is more esoteric. In the military, we often say that the nature of warfare endures, but the character of warfare changes. Perhaps one recent facet of this changing character has been the advent of lawfare. This represents a new vector of attack, where our enemies will exploit our vulnerabilities to delegitimise our use of force and the moral authority we hold. If our response to this threat is a recourse, however well intentioned, to legal exceptionalism, I fear we will actually be showing weakness. We will risk surrendering our moral advantage and our enemies will be encouraged, not deterred.
I will finish where I started. No one who speaks today will not have the interests of our servicemen and women at heart, but my strong view is that we will not legislate ourselves out of this problem through amendments to the law. There is a very strong chance that, regardless of good intentions, we may make things worse for the very people we are trying to protect.
Baroness Warsi (Con) [V]
My Lords, I start where my noble friend just ended. Like him, many colleagues and the Minister, I begin by paying tribute to the brave men and women of our Armed Forces, including brave men and women from my own family—from my paternal and maternal grandfathers to my daughter, who once again has chosen a life in uniform and dedicated her life to defending the freedoms and values that we hold precious. It is in this vein that I make my remarks today.
No one can doubt the Government’s stated intentions. I support those stated intentions, but I worry that the Bill as drafted does not. We must always protect our Armed Forces from vexatious claims. Families and lives have been destroyed through such claims, and I would not want my family—indeed, any family—to be on the receiving end of such claims. However, alongside that and in seeking to do so, we must not undermine the very values we seek to protect, including through military action.
Tragically, the wars that form the backdrop to the Bill are often remembered not for what good we achieved but for the harm our intervention unleashed, including the tragic loss of life, torture and sexual violence. Thankfully, much of what I can term rogue behaviour was the action of troops other than UK troops, but sadly, as your Lordships have heard, our young men and women were not immune from conduct that was, at best, unethical and immoral, and, at worst, serious criminal acts leading to death. We have heard examples today. Those individual incidents are appalling singularly, but collectively impact on our reputation and thus, I would say, our military’s ability to function at its most effective in the multiple roles in which we deploy it in these times.
My question for my noble friend is one that has been previously asked: why is sexual violence—rightly, in my view—excluded from the triple lock, but not torture and war crimes: something we, sadly, saw in both Iraq and Afghanistan? My noble friend referred to the unique nature of warfare in her opening remarks and said that this means that in exceptional circumstances the lock will not apply. Torture is, by its very nature, exceptional. It should not have to be deemed as such on a case-by-case basis for the triple lock not to apply, and we certainly should not be providing blanket legal protection. We must be sure that individuals who partake in torture, whoever they may be, have a clear message that such acts will not go unpunished.
It cannot be that absolute accepted positions of our commitment to the Geneva Convention are left unclear by the Bill. Our commitment, over generations, to human rights conventions forms the bedrock of many an argument that we are intervening in places around the world—to protect and promote human rights and to prevent human rights abuses. It would be hard for us to justify such interventions if the first step we take before intervention is to derogate from our own human rights obligations.
What is further troubling is Clause 6(2), which would exempt from the triple lock prosecuting offences committed against members of the Regular Forces or Reserve Forces, members of a British Overseas Territory force, Crown servants and defence contractors. I find this hard to reconcile with our commitment that all are equal before the law. Perhaps my noble friend can explain the reasoning behind why the murder of a fellow British co-worker is more serious than that of, say, an Iraqi or Afghan civilian. Surely the crime cannot be judged differently depending on the victim, rather than the act and intention of the perpetrator.
In 2014, during my time as FCO Minister with responsibility for the International Criminal Court, we were engaged in meetings with the prosecutor Fatou Bensouda about claims of abuse made against our troops in Iraq. In discussions about where these matters would be tried and what role the ICC would play, our strongest argument was our domestic system, both investigations and prosecutions. The Bill may undermine what has been the strongest protection for our Armed Forces: that even those who may have engaged in criminal conduct will be dealt with here, in our courts. We must make sure that, in this Bill, we do not make the error of changing that.
Lord Dodds of Duncairn (DUP) [V]
My Lords, I thank the Minister for her introductory remarks. I too begin by paying tribute to members of the Armed Forces of the United Kingdom of Great Britain and Northern Ireland. Their courage and professionalism are truly remarkable and it is important that we recognise them not just by our words, but in the actions that we as a country take to protect those who work so hard to protect us. I therefore welcome the Bill. It introduces important safeguards and protections for our veterans, who have the right to know that we take their concerns on these issues very seriously indeed. We have all heard and read tragic stories of veterans being dragged through the courts. They are often elderly and suffering terrible mental anguish at being subjected to repeated, unwarranted legal processes.
Of course, as many have said we must have a system that allows proper, fair investigation and prosecution, where appropriate, of wrongdoing by members of the Armed Forces, but what we have seen, particularly in Northern Ireland, is a one-sided approach to investigations into the past. That cannot endure. I want to make it clear that we do not believe in any form of amnesty. The Bill does not include any such provision, and it would never be accepted.
It is important to remember that the Bill ensures compliance with Article 6 of the European Convention on Human Rights, namely, the entitlement to
“a fair and public hearing within a reasonable time by an independent and impartial tribunal”.
It is important that any allegations of wrongdoing are investigated as close to the event as possible, but the problem that has arisen has been the relentless pursuit, often for nefarious reasons, of veterans who are being hounded time after time long after the events in which they are accused of wrongdoing. Surely everybody can agree that it is important to end the vexatious pursuit of service personnel in later life, so I welcome the fact that under the Bill prosecutors will be obliged to have due regard to the impact on soldiers, sailors and air men and women of being prosecuted long after the event.
The Bill applies to veterans who served on overseas operations. I add my voice to the plea that has already gone forth in the House that the Government look at the situation of some 300,000 veterans who served in Northern Ireland in Operation Banner. The Government gave a solemn commitment in March in a Statement to Parliament that those who served in Northern Ireland would get equal protection along with the veterans covered by the Bill. Will the Minister confirm very clearly this evening that a Bill will be introduced very soon to honour that commitment? I would be very grateful if she can indicate a timescale for the introduction of that legislation.
The Bill is the Overseas Operations (Service Personnel and Veterans) Bill, and we understand the difference between protecting veterans who served overseas and protecting veterans undertaking domestic operations within UK jurisdiction, such as those involved in Operation Banner in Northern Ireland. But it important that the brave service men and women who served in Northern Ireland over so many years are included in the protections and safeguards being offered to those who served overseas. As the Secretary of State for Northern Ireland has said, it is also important to note that members of our police suffered terribly during the so-called Troubles and more than 300 of them died. Their cases need to be looked at in the same way, and I am glad that the Government have made commitments in that regard.
I look forward to the Bill being further debated and the issues that have been raised in this general Second Reading debate being pursued in more detail in further stages of deliberation. I look forward most of all to the Government honouring their commitment in relation to protecting service men and women who served in Northern Ireland, as well as those who served overseas.
Baroness Whitaker (Lab) [V]
My Lords, I declare an interest as a member of the advisory board of the British Institute of Human Rights. I speak as someone who became aware of the conduct and, especially, the high reputation of our Armed Forces overseas in the actual areas where they operated when I was involved in international development. We are fortunate in the high standards of our Armed Forces and can be rightly proud of them.
That is the main reason why I find parts of the Bill distressing and inappropriate. The level of prosecutions hitherto has been very low. There has not been victimisation of soldiers through due process. A recent freedom of information request by the Minority Rights Group found that from all operations in Iraq, from 2003 to the present, there was only one prosecution under the ICC Act and in the lesser category of offences alleged by members of the public there were only five prosecutions. In Afghanistan from 2001 to the present—some 20 years—there were only nine convictions. This is hardly a picture of soldiers needing supralegal protection, even if it were desirable. For that matter, since the Bill deals only with prosecutions, it would not prevent vexatious litigation in the course of investigations, and even those cases have been speedily thrown out under our current legislation.
Yet the Bill appears to assume that very serious crimes may be committed by service personnel and proposes to reduce substantially their openness to prosecution, even in cases of torture, war crimes and genocide, after only five years. As a signatory to the UN convention against torture the UK has always repudiated torture, and freedom from torture is the only absolute unqualified right in the whole armoury of human rights. It would tarnish our reputation indelibly to allow it tacitly in any circumstances. That is not the only international standard that the Bill breaches—those which by definition cannot be set aside, not excluding the law of armed conflict itself. The result will be that our servicemen, in the unlikely event that there is such an allegation against them, will, as has been said very widely in your Lordships’ House, go before the International Criminal Court, which was hitherto reserved for states which are too undemocratic to hold a fair and legal trial. That is a matter of shame.
Then there is the issue for service personnel of the deprivation of the right to profit by the discretion of the court if claiming after the expiration period is over, of which there have again been very few examples. This would adversely affect veterans who have served their country, and those veterans’ families. The provision may even breach the Armed Forces covenant, according to the Royal British Legion. There would indeed be merit in a better investigation procedure, as the noble Lord, Lord Anderson, said, and there is certainly a case for more certainty, but that is what the Bill lacks.
Our Armed Forces deserve better. I echo Lord Guthrie, General Sir Nick Parker, the Royal British Legion and many noble and noble and gallant Lords this evening in saying that we have no justification for abandoning our respected tradition of upholding international human rights law, nor for jeopardising our reputation and that of our soldiers in the international community.
Baroness D’Souza (CB) [V]
My Lords, all that needs to be said about the Bill has already been said, and I will merely reiterate my main concerns in the interests of both my conscience and solidarity.
I welcome the Bill. It is long overdue and will greatly contribute, above all else, to improving morale in the Armed Forces. That said, there are many elements of it that were queried through amendments which were rejected in the other place but which would, I believe, have added clarity to the Bill and, more crucially, would have ensured that the UK remained within its obligations under several international treaties to which it is a state party.
Clearly, I am among many who have raised these issues. I refer to the clauses that allow certain war crimes to remain uncontested and unprosecuted due to an in-built statute of limitations. It appears that there are three specific issues of concern that not only contravene several conventions—the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the convention against torture—but leave survivors of torture without redress. Here, I might add, having worked with torture survivors for many years, that many of them yearn for a formal acknowledgment, in terms of a prosecution, of the wrongs that have been done to them so that they might begin their recovery.
There is a triple lock of presumption against prosecution, the requirement that prosecutions against torture can happen only in exceptional cases and the right of the Attorney-General to exercise a veto against prosecution. Taken together, these are in effect a decriminalisation of torture. Astonishingly, it is conceded in the Bill that sexual offences are never acceptable under any circumstances, the implication being that torture, by its omission, is acceptable.
The passing of the Bill into statute in its current form would undermine the UK’s long and good reputation for having championed legislation against war crimes and would negate its actions on the atrocities in Cambodia, Rwanda and the former Republic of Yugoslavia.
The statute of limitations for prosecution is unrealistic, to say the least. Given that most investigations are nearly always very slow to start and often subject to many delays, the presumption of no prosecution will in fact apply to almost every case. It would be both counterproductive in providing a dubious precedent to other, less democratic states and embarrassing for UK officials to call for prosecution of war crimes at international forums on, say, Syria, Iraq or Myanmar, while denying victims in the UK the same legal freedoms. Those concerns will undoubtedly be addressed in later stages of the Bill.
Lord Caine (Con)
My Lords, the motives and purpose behind the Bill ought to be regarded across the whole House as unimpeachable. Our Armed Forces are the very best of us and they do a superb job to keep the people of this United Kingdom safe and secure in an ever-dangerous world. In return, they should command our respect and admiration, and enjoy our strongest possible support, not only in the tools they have to do the job we ask of them but through the legal framework in which they operate.
As the noble and gallant Lord, Lord Stirrup, made very clear, our Armed Forces should always carry out their duties to the highest standards of professionalism and integrity, and within the law, as the vast majority do. Where individuals fall short of those standards and in some cases act unlawfully, they should always face proper investigation and the consequences. At the same time, they should not have to act in a conflict situation fearful that at some unspecified point in the future they will be subject to spurious and vexatious claims or hounded by corrupt individuals, such as the odious Mr Shiner.
That is what the Bill seeks to address, and I look forward to the detailed scrutiny of its provisions in Committee and on Report. In this context, I too commend the paper published today by Policy Exchange entitled Ten Ways to Improve the Overseas Operations Bill, by Professor Richard Ekins and the former Northern Ireland Attorney-General, John Larkin QC.
In the short time I have today, I wish to focus on the one area not covered by this legislation and to explain why, importantly, it is right that it is not. I refer of course to Northern Ireland.
The purpose of the Bill is to protect service personnel deployed in military conflict or war situations. I am conscious that for many soldiers there is little distinction between the dangers they faced in Basra or in Belfast—a point made to me forcefully by the Veterans Commissioner for Northern Ireland, Danny Kinahan, in a conversation this morning.
However, there is a critical legal and political distinction between the two. Operation Banner in Northern Ireland was never an overseas military conflict or a war. The role of the Armed Forces was to provide support for the civil power in upholding democracy and the rule of law against a criminal terrorist threat in an integral part of our United Kingdom. To characterise it any differently or by referring to what happened in Northern Ireland as a conflict or, even worse, as a war, as some have done, risks playing directly into the hands of those who wish to rewrite history, legitimise terrorism and promote some kind of moral equivalence between those who upheld the law and those who sought to destroy it. These are things that the United Kingdom Government must always resist. We should avoid anything that allows former terrorists to justify past misdeeds or, indeed, helps dissidents to recruit today.
It follows, therefore, that Northern Ireland requires bespoke arrangements that give protections to former members of our Armed Forces and the Royal Ulster Constabulary while, at the same time, providing potentially better outcomes for victims and survivors. They need to reflect the fact that 90% of deaths during the Troubles were caused by terrorists, both republican and loyalist, and they must be consistent with the rule of law. I have always opposed amnesties or statutes of limitation that would have to apply equally across the board to include former terrorists—something that many of us would find absolutely repellent.
As noble Lords have pointed out, on the day that this Bill was published in March last year, my right honourable friend the Secretary of State for Northern Ireland issued a Written Statement setting out the Government’s latest thinking on legacy issues in Northern Ireland. Like other noble Lords, I wonder whether the Minister, in winding up, will be in a position to update the House on where we are with that process.
In conclusion, all of us who believe in the union, and indeed all of us in these islands who cherish democracy and the rule of law, owe those who served throughout Operation Banner—both the RUC and the Armed Forces—the most enormous debt of gratitude. As I have said on many occasions, they are the unsung heroes of the peace process, and it was their efforts—and, sadly, in too many cases their sacrifice—that provided the space for politics eventually to succeed in Northern Ireland.
We need to repay that debt but never in ways that, unwittingly or otherwise, undermine all that we stood for in ensuring that the future of Northern Ireland would always be determined by democracy and consent. So I fully support the fact that Northern Ireland remains outside the scope of the Bill as we give it its Second Reading, but I look forward to the Government’s proposals in due course.
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
The noble Lord, Lord Rogan, has withdrawn from the debate, so the next speaker is the noble Lord, Lord Hain.
Lord Hain (Lab) [V]
My Lords, if the Bill passed unamended, it would put the UK at serious risk of being in breach of the Geneva conventions and other international treaties. Far from protecting veterans from prosecution, it would
“increase the risk of service personnel appearing before the International Criminal Court.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 118.],
as Armed Forces Judge Advocate General, Jeff Blackett, pointed out. By reneging on the UK’s legal obligations, what is set out in the Bill would in fact betray those who serve our country with bravery. How can high standards of professionalism in our Armed Forces be reconciled with giving them effective legal immunity?
But on the back of the introduction of the Bill in the other place, another related issue was raised—referred to by the noble Lord, Lord Caine—which gave an ominous insight into the Government’s dangerously flawed understanding of the Northern Ireland peace process and the central importance to it of dealing sensitively with the legacy of the past.
On 18 March 2020, the Secretary of State for Northern Ireland issued a two-page Written Ministerial Statement, thus conveniently avoiding scrutiny on the Floor of the House, outlining proposals to
“ensure equal treatment of Northern Ireland veterans and those who served overseas”
and to address the broader legacy issues of Northern Ireland’s violent past. Unilaterally and without reference to any victims and survivors stakeholder groups, political parties or the Irish Government, he announced that the cross-party-backed Stormont House agreement and the legacy proposals contained it in were to be set aside. Instead, he proposed a speedy—for “speedy”, I fear we can read “cursory”—desk-top review of all unresolved cases and, unless there was compelling new evidence that could lead to prosecution, they would be closed for ever, never to be reopened.
This would be a de facto amnesty that would cover the vast majority of murders that were carried out by republican and loyalist paramilitaries. Not only would the permanent closure of unresolved cases be without legal precedent, but it would deal a devastating blow to all those bereaved—including the families of many of the over-500 military personnel killed during the Troubles—to be told that the state no longer has any interest in what happened to their loved ones. The Northern Ireland Affairs Committee initiated an inquiry into these proposals by Brandon Lewis in April, and I gave evidence to it, along with the noble Lords, Lord Caine and Lord Cormack. However, in a damning interim report, the committee reached the unanimous conclusion that the proposals were “unilateral and unhelpful”.
I welcome the fact that the Secretary of State will belatedly give evidence to NIAC this afternoon—he may already have done so—and I also welcome his acknowledgement that the Operation Kenova model is worth looking at because it has won widespread support from victims. What victims and survivors want above all is to know that the life and death of their loved one mattered and that their murder has been properly investigated. That can only be achieved through a robust investigative process, one that is truth-seeking rather than prosecutorial, like Kenova.
I am struck by the link between the words “amnesty” and “amnesia”: the great fear that many victims and survivors have is that they are forgotten. It is one of the cornerstones of our democracy that everyone is equal before the law and subject to the rule of law. To tamper with those precepts, in the case of the overseas operations Bill, by granting partial immunity to veterans should be done only when there is an absolutely compelling case that some greater good will result. The Government have not made that case with this legislation, and what the Secretary of State proposed in relation to the legacy in Northern Ireland takes us even further into dangerous territory. Both should be firmly resisted.
Lord Boyce (CB) [V]
My Lords, I declare my interests as set out in the register. This Bill is to be welcomed in principle as an attempt to mitigate the pernicious effect that “lawfare” can have on the fighting efficiency and morale of our Armed Forces. However, there are aspects of this Bill that could be improved, such as the way that allegations of torture should be handled and the Government’s proposed six-year limit on service people bringing civil claims, which means, in effect, that service personnel will have fewer rights than the general public in seeking damages against their employer, as we heard earlier this afternoon—surely, this must be a breach of the Armed Forces covenant. Some noble Lords have covered these two points already, and I am sure that more will do so before this debate winds up.
I will focus on two other points, which, again, have already been mentioned by earlier speakers. First, I note the length of time a service person often has to endure while lengthy investigations into an alleged offence take place, sometimes having to suffer a second or third investigation, or more, into the same matter, even when the accused has been cleared at the first investigation. It is interminable investigations, which too often have been vexatious or unmeritorious, rather than the threat of prosecution, that so drain the morale. The Bill needs to be tougher in showing how this problem might be addressed. In particular, there has to be a way of terminating investigations when it becomes clear that they are going nowhere: there needs to be a timetable for those investigations to ensure they are as short as possible, do not become fishing expeditions and provide an opportunity for a judge to stop an unmeritorious or vexatious investigation early.
On the implications that surround the Bill, which have been mentioned, about having the stress of someone under investigation alleviated by having a presumption against prosecution after five years, as proposed in the Bill, I say that this absolutely does not remove the Damoclean sword of prosecution, because it is still possible for prosecution to take place after the five years if the Attorney-General so instructs, as the Minister reminded us in her opening speech.
Secondly, as we have heard often this afternoon, by not proceeding to prosecution under the conditions set out in the Bill, we lay ourselves open to investigation by the International Criminal Court. Many experienced and learned commentators would agree with this view. I am afraid that I am not convinced by the placatory words of Ministers and others on this. Once the ICC decides to investigate a person’s conduct, we are looking at an extremely lengthy process, as I have cause to know.
Frankly, given what I have already said, a presumption against prosecution should be withdrawn from the Bill. It would do little, if anything, to relieve the stress on our service personnel who had been accused of an offence and it would take us into the territory of the ICC having an excuse to bring a prosecution.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
The noble Baroness, Lady Altmann, has withdrawn, so I now call the noble Baroness, Lady Blower.
Baroness Blower (Lab) [V]
My Lords, it is always a pleasure to join a debate in your Lordships’ House and to follow such erudite speakers as the noble Lord, Lord Thomas of Gresford, the right reverend Prelate the Bishop of Portsmouth and, of course, my noble friend Lady Chakrabarti.
I have taken the opportunity of this debate to read widely on the issues which the Bill seeks to address. I have found that a wide range of organisations and individuals consider the Bill to be flawed in its entirety. It is on that basis that I advance just a few of the arguments that I have found persuasive in coming to a position of opposition to the Bill.
I am well aware that giving the Armed Forces more legal protection was a Conservative Party manifesto commitment, but, as Professor Michael Clarke, former director of the Royal United Services Institute and visiting professor in the Department of War Studies at King’s College, has written:
“The Bill is effectively in two parts, both of which stand to affect the UK’s international reputation”—
he did not mean in a good way. His commentary concludes:
“As for ‘Global Britain’, the Bill sends some very disturbing messages to allies who are as concerned as us about the health of the rules-based international order, and opens up some intriguing possibilities for our adversaries, who love to claim international legitimacy for their blatantly illegal behaviour.”
It seems that many who have drawn up commentaries on the Bill agree that it undermines Britain’s obligations under the UN Convention against Torture and the Geneva conventions. On that basis, neither part of the Bill is acceptable.
Testimony submitted by the Royal British Legion in appendices to its evidence on Part 2 of the Bill lays out clearly that the six-year limit is a problem. The legion expresses concern that such a limit creates “a unique deviation” from the Limitation Acts of the UK. Rather than helping armed services personnel and their dependants, this would seem explicitly designed to reduce the number of claims against the Ministry of Defence.
The Royal British Legion offers a long but not exhaustive list of reasons why claims might not be made within six years, including: concern over impact on a career; progressive conditions such as hearing loss; conditions where attributability may not be established or realised until much later; lack of knowledge of the ability to make a claim, especially in the case of bereaved families who may not see the MoD as a liable employer; changing external knowledge in cases where new evidence comes to light on the health impact of historic MoD decision-making; and, possibly, ingrained help-seeking stigma in the Armed Forces community. These would all suggest that, rather than being of assistance to forces personnel, such a limit will precisely deter claims against the Ministry of Defence or diminish the possibility of their success.
Part 1 of the Bill is equally flawed. Its intention is ostensibly, as we have heard, to reduce and therefore protect the armed services from investigation and reinvestigation of historical events. However, the Bill does not address, as the briefing from Justice explains, the measures that could be taken to ensure that allegations are properly investigated and resolved within a reasonable period of time. Investigations should of course always be prompt and thorough. The presumption against prosecution after five years would breach obligations under Articles 2 and 3 of the ECHR to conduct an effective investigation into unlawful killings and torture.
There is much to be said about the proposed triple lock, which would ensure that prosecution after five years could happen but would be exceptional. I leave it to the lawyers in your Lordships’ House to discuss the role in the triple lock of the Attorney-General, and whether a presumption against prosecution offends against the articles of the Rome statute of the International Criminal Court. However, it must be the case that, if this Bill once again calls into question adherence to the rule of law, it puts us all on a perilous path.
Sally Yates, US Deputy Attorney-General, appointed by President Obama in 2015, famously quoted Martin Luther King Jnr saying that
“the arc of the moral universe is long, but it bends toward justice”.
But she added a flourish of her own when she said that it does not get there on its own. I am sure that she had in mind that the international rule of law needs to be securely in place and observed to assist in this, as I am sure the Minister agrees.
Lord Woolf (CB) [V]
My Lords, it is with satisfaction that I follow the last speaker, because I have very little to say about this Bill, other than that it is clearly in need of drastic treatment.
The Bill has two sides, one in relation to the criminal law and the other in relation to the civil law. With regard to the civil law, the obvious course to take is for a consultation to take place with the Lord Chief Justice on the handling of civil claims, with a degree of expertise being built up in the judiciary to ensure that the claims are properly handled. This could be readily done, and it would not involve the departure that Part 2 of the Bill involves, with inconsistencies that are impossible to justify.
So the Bill must go on now—we owe no less to our gallant forces, who have been affected by—[Inaudible]—investigated.
The Earl of Shrewsbury (Con) [V]
My Lords, I declare an interest as a former honorary colonel of A Squadron, RMLY, the Staffordshire Yeomanry. I pay tribute to our Armed Forces who, in often appalling circumstances, keep us protected. Our debt to them is substantial.
We should take great note of the words of the noble and gallant Lord, Lord Stirrup, the noble Lord, Lord West, and my noble friend Lord Robathan, and the many former military noble Lords taking part in this debate. They are the vastly experienced voices of sense and wisdom, and we ignore their words at our peril.
I shall take up very little of your Lordships’ time in giving a welcome to the Bill, which of course, among a number of other matters, delivers my party’s manifesto commitment to tackle the disgraceful issue of vexatious claims. Noble Lords will doubtless recall the scandalous behaviour of Phil Shiner and Public Interest Lawyers. I and many others are delighted not only that they received their just comeuppance but that Her Majesty’s Government sought to tackle this issue full-on by the publication of this Bill. It is not before time, and I shall give it my support.
As have most noble Lords, I have received communications from a number of bodies, mainly objecting to, or questioning the contents of, Part 2 of the Bill. I have taken considerable notice of the comments made by the Royal British Legion, an excellent organisation for which I have the highest regard. It does a fantastic job and I support it whenever I am able to. I am less sympathetic to many of the others who have sent lobbying notes that I have received. I understand exactly where the Legion is coming from, and I am certain that your Lordships will scrutinise the arguments it promotes during the passage of the Bill. This is what this House exists for: scrutiny and improvement. It has to be said, however, that the Bill had a clear journey through the other place. We shall have to see what happens in this House. There would appear to be a need for a variety of amendments, and the Government would be very wise to listen carefully and to exercise an amount of flexibility when the time comes. But in conclusion, I wish the Bill well and I shall support it.
Lord Walney (Non-Afl)
My Lords, it is a pleasure to follow the noble Earl and, by coincidence, to almost mirror his opening in saying that it is a privilege to listen to the weight of expertise and experience in your Lordships’ House on this profoundly important matter.
We have heard from three former Chiefs of the Defence Staff, the noble and gallant Lords, Lord Stirrup, Lord Houghton and Lord Boyce; a former Chief of the General Staff, the noble Lord, Lord Dannatt; a former First Sea Lord, my noble friend Lord West; and a former Secretary-General of NATO, my noble friend Lord Robertson. All of them have raised serious questions over the constitution of this Bill as it currently stands, and I hope that that alone will prompt Ministers to pause, reflect and reconsider before we enter Committee.
I will focus my brief remarks on consideration of the potential impact of these measures on Britain’s wider national security and place in the world. In other settings, a number of noble Lords who have contributed today have set out the view that the chief threat to the United Kingdom in decades hence will come from hostile powers seeking to loosen and subvert the rules-based order that binds the international community together; to sow disharmony and despair among those who built up the multilateral system after the Second World War; and to build a new world order governed not by the consent of member states but by naked authoritarian power and fear, in which honour and the global rule of law is swept aside as a naive irrelevance.
There is a clear need for legislation, as has been compellingly set out again today, and the Government should be commended for maintaining their commitment to bring forward a Bill and get something on to the statute book. Yet this is not a case of simply choosing between practical measures to protect our troops and an academic debate over the strategic drivers of geopolitics. Those in our Armed Forces who deserve increased protection are of course the same men and women who will be placed in harm’s way in any future conflict.
The laws governing such conflict are but one part of the rules-based framework over which there is an ongoing struggle, but they are not an insignificant part, so we should be aware of the potential for significant change, as several of these measures would currently constitute, and the way in which this could influence what may be a fragile balance of power between ourselves and our adversaries in the years ahead. We should proceed only if we can be confident that what we propose will not produce a damaging ripple effect, weakening vital global safeguards such as the Geneva conventions, which have been mentioned a number of times today, and indeed the threat of opening up the United Kingdom to the International Criminal Court.
Professor Michael Clarke, formerly of RUSI, who was mentioned by a recent speaker, put it well recently when he warned that, if we overstep the mark with this Bill, malign actors may gleefully seize on the precedent that we set, dragging our reputation down as part of a tactic to avoid international sanctions and condemnation for significantly worse and more damaging measures. The way that the United Kingdom projects itself matters greatly. We should not disavow or diminish the impact of our determination to uphold vital international norms on the battlefield and beyond.
So let us test the arguments thoroughly in Committee to ensure that the final Bill presented to Her Majesty is one in which we can all genuinely take pride.
Lord Dubs (Lab) [V]
My Lords, I am a member of the Joint Committee on Human Rights, which recently produced a report on the Bill and the whole issue. I hope this will be helpful later, in Committee and on Report. I acknowledge that many Members of this House who have spoken have enormous senior military or ministerial experience in defence. I cannot claim to emulate that, but I will mention one thing. A few years ago, I was invited by the MoD to join a delegation to visit Afghanistan; we went to Camp Bastion and Kandahar. Although I spent only a few days there, it was a totally revealing, fascinating and helpful experience. I came away with an even greater respect for our Armed Forces than I had at the outset. They dealt with very adverse conditions; their morale, friendship and positive attitudes were pretty good. At that time, there were some concerns about the quality of the Army’s equipment, and I asked them about that. Very loyally, they would not bite and did not want to comment at all about whether their equipment was up to standard. My respect for the Armed Forces was enhanced enormously, and they deserve a bit better than this Bill.
I will look at two considerations in particular. First, what does the Bill do for the reputation of the Armed Forces? Not all that much. Secondly, what does it do for our international reputation? The international reputation of this country is at stake and I fear that, as drafted, the Bill will lead to damage to how we are seen abroad. The House has already heard many mentions of the possible problem of members of the Armed Forces being brought before the International Criminal Court. The Bill makes that much more likely.
The JCHR learnt that MoD investigations were frequently prolonged and that there were repeat investigations. This is quite unacceptable, because there was no sense of finality for the soldiers charged; it put them in an impossible position. It was generally agreed that MoD investigations had not been adequate. This is not addressed in the Bill, but I understand that the Government have agreed to look at it. This is really urgent because it is disgraceful that our Armed Forces have to put up with this type of threat when it is simply the inefficiency of the investigation system that is putting them in this difficulty.
I do not like the five-year period for presumption against prosecution. If the MoD Service Prosecuting Authority is satisfied by the evidence, why is there a need for a further limit? Surely what is in the public interest must be the test, not an arbitrary time limit. Initially, this was going to be 10 years, but the Government reduced it to five. I wonder why.
My most fierce anxiety, which has been reflected in many of this afternoon’s speeches, is that the presumption against prosecution does not exempt torture, war crimes, crimes against humanity and genocide. The presumption must surely be amended so that it does not apply to these. This is the most disgraceful part of the Bill and, judging by the debate so far, it is reasonable to predict that this House will reject it. Let us hope that it does, because it is a slur on this country, and the Armed Forces, that we have to protect them in this way when the likelihood of any of them being subject to this provision is very small, and that is my concern.
The JCHR report says that
“the introduction of a presumption against prosecution may mean that members of the British Armed Forces are at risk of being prosecuted either in another State or before the International Criminal Court. This is a real risk if it is considered that this presumption (combined with the existing concerns about the inadequacy of MoD investigations) leads other States or the ICC to conclude that the UK is unwilling or unable to investigate and prosecute for war crimes.”
We have heard quite a lot about the need for powers to strike out vexatious claims. They are utterly reprehensible but, fortunately, very rare. In any case, the MoD Service Prosecuting Authority has the power to strike down such claims, as I am sure it has done and will always do.
Finally, I appreciate what my noble friend Lord Hain said about Northern Ireland. We will have some tough debates about it in the future. He certainly set down some clear indications of how many of us will wish to debate that issue.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Dubs, who served along with us in Northern Ireland as a Northern Ireland Minister. I have some deep concerns about the provisions in the Bill, as I believe they would act contrary to human rights conventions and put a time limit on justice by decriminalising torture after five years. The Joint Committee on Human Rights, of which he is a member, has pointed to the various failures in the Bill, with its lack of proper regard for well-known human rights conventions. Other commentators have stated that the new Bill plans to ignore conventions in protecting military personnel and civilians in overseas operations. The Bill seems more about protecting the Ministry of Defence than veterans or civilians.
In fact, the Law Society of England and Wales has been critical of the Bill; it believes it goes beyond the Government’s stated aim of reducing spurious claims against service personnel and victims. The Equality and Human Rights Commission has stated that the “presumption against prosecutions” in Part 1 is
“akin to a statute of limitations”.
I note what the Minister has said—that that is not the intention—but the commission has said that Part 1 will clearly be
“seen as incompatible with the international human rights framework and customary international law.”
The Joint Committee on Human Rights published its report on the Bill on 29 October, following the end of Committee in the House of Commons. It criticised the Bill and argued that several changes needed to be made, saying that there was
“little to no evidence that … cases with no case to answer”
were being allowed to proceed in the courts. It said that the statutory presumptions against prosecution in the Bill were unjustified, and that it was concerned that the Bill could breach the UK’s obligations under international humanitarian law, international human rights law and international criminal law. The report included a recommendation that Clauses 1 to 7 should be removed from the Bill. The Joint Committee also criticised the introduction of a time limit to human rights and civil litigation, arguing that this risked breaching the UK’s human rights obligations and preventing access to justice, and that the more important problem was of long-running and flawed investigations. It said that the MoD needed to improve the way investigations were conducted.
The noble Lord, Lord Hain, like other noble Lords, has already referred to the situation in Northern Ireland. I note that the Bill does not refer to Northern Ireland but there are serious issues there. On 18 March 2020, when the Bill was published, the Secretary of State for Northern Ireland published in tandem a letter about the way that issues to do with veterans and legacy there would be dealt with. Can the Minister update us on that? Like the noble Lord, I believe that the only way to deal with legacy issues in Northern Ireland is to go to back to the Stormont House agreement to deal with them in that methodical, fair and equitable way—and where no organisation, whether the Armed Forces or the paramilitaries, republican or loyalist, gets any amnesty for any wrongdoing that may have taken place which resulted in untold misery right across our community.
I look forward to Committee, but there is one important premise: time limits should not be placed on accountability and justice. I hope that the Minister will make that the hallmark of this legislation and seek to redress the problems of the Bill with further amendments.
Lord Craig of Radley (CB) [V]
My Lords, I shall concentrate on Clause 12. The international court will accept that it is primarily a matter for the state requiring derogation to judge the imminence and severity of the threat faced. But the court is not going to give a free pass. Has the state gone beyond what is strictly required by the exigencies of the situation? The danger must be actual, clear, present and imminent. Derogation will not be allowed because of a mere apprehension of potential danger.
The link between a public emergency threatening the life of the nation and an overseas operation must be established. To quote Lord Bingham:
“It is hard to think that these conditions”—
of Article 15—
“could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw.”
Put simply, there is no guarantee that the Secretary of State will gain derogation for an overseas operation. A prior hurdle for the Secretary of State would almost certainly be that parliamentary approval, possibly even beforehand, must be gained.
There are further historical issues. When the Human Rights Act 1998 was being debated, and I first raised concerns about the legal conflicts between it and the Armed Forces Acts, the Lord Chancellor for the Government argued that it would always be possible to derogate and clear the high bar required. But since then the Act’s reach, both territorially and temporarily, has been extended by judgments in the European court and our own Supreme Court.
There is a further problem. Much of the UK’s resistance to these enlarging findings was based on the submission that the HRA applied territorially only to the UK. Were the Secretary of State to seek derogation in support of an overseas operation, this would mean the UK’s acceptance of increased territorial reach, and so would be inconsistent with our previous, strongly argued position.
So my conclusion is that Clause 12 is flawed. I agree with the noble and learned Lord, Lord Hope of Craighead, that it is no more than window dressing and it would be more honest to delete it. The Secretary of State does not need a statutory diktat to consider derogation. The possibility was accepted way back when the Human Rights Act became law.
When the forthcoming human rights legislation review takes place, it should consider how to resolve its incompatibilities with the Armed Forces Act. The most critical concern should be how to protect a commander in the heat of battle from having to weigh up the concerns of human rights legislation with the command and direction of armed conflict when the pressure of events leaves little or no time to consider anything more than the successful execution of a military action. The boundaries of combat immunity should be clear before conflict, not established seriatim years later in a court of law. I regret that this even more worrying aspect of the interaction between the convention and armed conflict has not been addressed fully in the Bill.
I have one final thought. Legislation of critical importance to the activities of our armed forces should be consolidated into the Armed Forces Act. Having a single source of legislation critically important to the Armed Forces would help those in the forces and their legal authorities and would avoid inconsistencies in the separate legislation. This Bill does that for the Human Rights Act and the Limitation Act: why not, where relevant, for the Armed Forces Act? The quinquennial reviews would then ensure that these difficult issues were regularly considered.
Lord Kirkhope of Harrogate (Con) [V]
My Lords, I first declare my interest as a practising solicitor and as the president of the West Yorkshire branch of the Soldiers’, Sailors’ and Airmen’s Families Association. No one could or has claimed that the issues bringing about this legislation are straightforward. One only has to look at the way it has progressed through the other place to recognise that there are many complexities, and the emotions which have been shown are a further indication of how much is at stake.
I support this Bill. It is a clear and timely attempt to find a way through. It acknowledges the vital and valued role of our Armed Forces in carrying out their duties to protect us and our values all over the world. It also acknowledges that being engaged on military operations is not like any other occupation. Fighting battles is both dangerous and testing. All those who do so need our support and gratitude. Sometimes the pressures of conflict inevitably result in behaviour which is outside the norms of civilian conduct, and when that results in unauthorised actions and other adverse results, it is perfectly proper to investigate it in a way that is appropriate and controlled, and to prosecute if necessary.
The international community has recognised the special features of conflict over the years. The Geneva convention, which has been referred to by many speakers, dates from 1929. It laid down requirements, especially for wartime prisoner treatment, and established the basis for the protection of civilians in a war zone. It was ratified by 196 countries and remains in effect. International humanitarian law is based on a series of accepted treaties which appreciate the legitimate use of force and is the basis for military operations. Abuse of those provisions can ultimately be brought to the international criminal tribunals.
Within the armed services there are clear codes of discipline and punishment and I would suggest, despite some noble Lords suggesting otherwise, that our country leads the world in maintaining those codes. I would submit that, with modifications, these should remain as the first base for our military engagements and would normally offer the right balance between our ability to take action and the need to avoid unnecessary suffering or abuse.
However, as other speakers have said, the complications afforded by the European Convention on Human Rights and the Human Rights Act 1998 are now matters which have had direct implications for this area. The two codes simply do not mix. Some noble Lords are, in my view, trying to confuse even further by trying to mix them. This has unfortunately resulted not only in confusion but, in some cases, great unfairness. The emergence of the so-called shocking “lawfare”, with bad and egregious lawyers trying to apply strict human rights law to conflict situations, has produced results which I do not believe are acceptable. Even the European Court of Human Rights, in the 2014 case of Hassan, accepted that any application of the convention should be respectful of the wider and more understood international humanitarian law.
Because no previous Government have effectively tackled these contradictions, large numbers of vexatious claims have been encouraged, which sadly have eclipsed some genuine and disturbing cases but which—based on the wrongful use of domestic legislation—have left service men and women in unfair jeopardy. The proposals in this Bill are rather modest, but necessary. Unfortunately, they cannot be retrospective, and I hope the Government will consider making amendment to ease the terrible burdens lying on the shoulders of some veterans.
I know some noble Lords are unhappy about the possibility of any derogation from the European Convention on Human Rights. I am, in general, a supporter of the convention and would certainly not wish us to abandon it or emasculate domestic application. However, I do not think that a specific derogation when we are engaged in conflict will be anything other than the proper course, and any derogation is a permissible step under Article 15, which refers to being
“in time of war or other public emergency threatening the life of the nation.”
Ultimately, anything we can do to clarify the responsibilities of our Armed Forces when engaged in warfare must be helpful. We owe it to those who risk their lives to protect us to offer them understanding and full support.
Lord Hendy (Lab) [V]
My Lords, I share, without repeating them, the concerns expressed by so many noble Lords over Part 1 of the Bill and the proposal in Clause 12 to consider derogation from the European convention. I wish to focus my few minutes on Part 2, on civil claims. As a barrister, I resent and refute the denigration of members of that honourable profession uttered by some noble Lords today, but I will not indulge myself by developing that further.
Some years ago, I was instructed in a matter that was very different from my usual diet of industrial relations cases. Mrs Smith, as I will call her to protect her anonymity, was a dignified lady who lost her son in the Iraq war of 2003. He was a tank commander, killed with a fellow crew member when his tank was hit by two high-explosive shells.
The facts emerged over time. First, she learned that the shells were fired by a British tank in an adjacent battle group. She felt not the slightest urge to sue the commander of that tank—friendly-fire accidents are all too frequent—but over the years more relevant material emerged. There was an inquest. Reports from various prolonged official inquiries by the MoD and the military police were obtained. Documents slowly came to light. A military expert was instructed on behalf of the bereaved.
Eventually it became clear that there had been serious failings on the part of the Ministry of Defence. Modern sophisticated combat identification equipment, urged on the MoD long before 2003 by the National Audit Office and a Commons Select Committee, had not been fitted. Up-to-date identification training courses had not been provided to either of the tank commanders. There were other errors too, involving the demarcation of arcs of fire and so on. Nearly 15 years after her son’s death, without any suggestion of any delay on her part or indeed that of her lawyers, the case was finally settled with the payment of a significant sum to her by the MoD—as usual, without an admission of liability.
My point is that it takes a very long time in such complex cases, where an individual is up against a well-resourced bureaucracy such as the MoD, for that person, having dealt with her own grief and change of circumstances, to appreciate that there might be a claim to be brought; to find someone to act for her; to make inquiries; to obtain documents; to seek the evidence of witnesses and experts; and then to evaluate the prospects of success and decide whether to bring a case and face the possible ordeal of going to court.
There is already a statute of limitation; no more is needed. My concern with Part 2 of the Bill is that the absolute six-year time limit will deny many—not all but certainly some—of our Mrs Smiths access to justice. Let us be clear: shutting the door of the court to our Mrs Smiths is a denial of justice to their sons and daughters who served this country. Who benefits from such a bar? Certainly not serving men and women or their families. This part of the Bill is plainly intended to protect the MoD against genuine and meritorious claims. I do not see how it is supportable, and I ask the Minister how she justifies people like Mrs Smith being barred from the doors of the court if their claim takes more than six years to formulate.
I say that especially given that the Government have announced that they will not proceed with plans to introduce a new combat compensation scheme for Armed Forces personnel and veterans, pursuant to the Better Combat Compensation consultation. Part 2 is neither necessary nor acceptable.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, it is a great pleasure to speak after the noble Lord, Lord Hendy, whose powerful account the Government would do well to listen to.
In introducing this debate, the Minister referred, with apparent disapproval, to the increasing judicialisation of war. That surprised me. Over a significant period, this party in government has shown strong international leadership against rape as a weapon of war. I hope that the Minister’s words do not signal a move away from that; perhaps she can reassure me on that point.
My noble friend Lady Jones of Moulsecoomb, who has considerable experience and expertise in the oversight of criminal investigation and policing, focused on the detail of the Bill, so I will focus more on what it could do, if passed, to our international position and standing. I say “if passed” because, while other noble Lords have talked about seeking to improve it, it has become clear that the Bill is profoundly ill conceived. Many respected human rights organisations are calling for it to be stopped, as the noble Baroness, Lady Northover, noted.
It is worth thinking for a second about the international context in which this Bill appears before us. What does the UK look like to the rest of the world? From today, Boris Johnson is vying with Jair Bolsonaro as the most prominent remaining global leader of Trumpism, and is demonstrating that with his plan to reverse election promises on international aid. We also have the continuing chaos of Brexit and the tragically world-leading disaster that is our Covid-19 death rate. In summary, the UK is not starting from a great place in the international arena—a point made powerfully by the Prime Minister’s predecessor on the front page of today’s Daily Mail.
This Bill is clearly in line with the Trumpisation, tabloidisation, coarsening and simplification of our national dialogue—reduced down to slogans and knee-jerk reactions—that has marked the past few years, as the noble Baroness, Lady Chakrabarti, noted. We have been in line with developments in other parts of the world but, if we continue down this path, we will look increasingly isolated. The threat to our reputation was noted even by a supporter of the Bill—the noble Lord, Lord Lancaster of Kimbolton—as well as by the noble Baroness, Lady Blower, who highlighted the risk it presents in encouraging other human rights abuses around the world.
The Bill does not square with some of the other directions that the Government are taking on human rights—notably their stance on China, where they are showing tentative signs of stepping up over the genocide against the Uighurs. I am confident that your Lordships’ House will try to assist the Government with that in the Trade Bill, speaking out as a signatory to the Joint Declaration on Hong Kong over China’s breaking of that international treaty. I declare my position on the All-Party Parliamentary Group on Hong Kong.
It is almost as though we have two different Governments tugging in opposite directions. It is a great pity that the Integrated Review of Security, Defence, Development and Foreign Policy has been delayed by the Covid-19 pandemic. It will surely look at these issues and whether it is, as I strongly suggest it is, in the interests of our national security and the stability of the global order on which we depend for us to line up with nations that are seen as global leaders on human rights, sustainability and poverty alleviation. This includes nations such as New Zealand, Norway and Costa Rica, whose diplomacy would be greatly boosted by the presence of the UK among the ranks of those who understand that co-operation, not competition; peace, not war; aid, not weapons; healthcare, not corruption; and stability, not runaway climate change, are the way forward to a genuinely secure world.
However, this Bill points absolutely in the opposite direction. The highly regarded Nation Brands Index already has us ranked relatively low for governance. The Bill would surely be a huge blow in that regard. To quote no less a body than the Equality and Human Rights Commission, the Bill runs the risk of
“harming the UK’s reputation as a global leader on human rights, and weakening our compliance with universal standards”.
So, we are at a crunch point. There is a real risk that, even if the integrated review comes up with a truly transformative visionary plan for the UK to become a leading force for peace and democracy—living within the planetary limits—we have already damaged so badly the world’s view of us with this Bill, the CHIS Bill and the Trade Bill that such a plan is not possible.
Finally, the Minister talked in her introduction about reflecting the governing party’s commitment to armed forces personnel and veterans. How much more that might reflect reality if it were a move to provide better wages and conditions—particularly better housing and mental health services—and to ensure that they are not put into deadly situations without better planning and equipment, as the noble Baroness, Lady Chakrabarti, noted, rather than to take away their rights, as the noble Lords, Lord Touhig and Lord Hendy, pointed out.
Baroness Deech (CB) [V]
My Lords, this is a difficult subject: a complex Bill, which, despite its detractors, is not as bad from the perspective of human rights as it looks on first reading. Members of the Armed Forces should not be hounded for the rest of their lives, having acted to protect us in, and from, circumstances that most of us could never imagine, so I hesitate to pontificate on their actions.
However, there is a feeling of unfairness, given the perception that so many terrorists escape justice. Also, one’s instincts are that there should not be a statute of limitations for war crimes—I would be the first to say that Nazi criminals should be pursued and prosecuted for the rest of their lives—so it is worth considering whether to exclude all war crimes from the five-year regime.
The Bill will not prevent prosecution of serious allegations of torture which are supported by evidence, but filters prosecutions that take place after the lapse of five years. During those five years, all the usual rules for prosecutions apply, with no holds barred, and there is no guarantee of immunity from prosecution after five years. A judgment that it should happen might still be made if it is in the public interest and the evidence is sufficient, as well as other pertinent considerations. A similar limitation is present in Part 2, which imposes a six-year time limit on claims by service personnel injured through negligence during overseas operations. It might be better, in the alternative, to set up a scheme of no-fault compensation rather than putting the injured and their families through the court system.
The Bill emphasises the possibility of derogation from the European Convention on Human Rights in relation to overseas operations. That derogation should only ever be exceptional and should certainly not be normalised. It must be remembered that derogation can be challenged in our courts and in the Court of Human Rights. There are other situations in the law where the consent of the Attorney-General is required before prosecution; this is therefore not exceptional.
The important standard in all these discussions should be the law of the International Criminal Court. I posit that it should be avoided at all costs and that decisions and operations in scope of this Bill should be carried out in the shadow of the law—namely, the International Criminal Court’s jurisdiction. None of the largest states with the largest armed forces is party to the treaty of Rome which established the court—China, India, Russia and the US—with the honourable exception of this country, though the Government have rightly indicated that the court needs reform. The court was set up for war crimes, crimes against humanity and genocide. One has but to mention genocide to see how ineffective the court’s jurisdiction has been: too slow, too late, too retrospective and, some say, too Africa-focused.
However, once indicted, an individual’s reputation is gone for ever, even if subsequently cleared. The ICC has recently examined alleged crimes committed by UK nationals in the context of the Iraq conflict and occupation from 2003 to 2008, including murder and torture. After some six years of consideration, the court prosecutor said in December that, although it was reasonable to believe that crimes had been committed and command failures had occurred, the UK was genuinely willing to investigate them and to prosecute.
What should drive decisions to prosecute or not prosecute under this Bill is the standard laid down by the ICC—thoroughness and genuineness. Arguably, military investigations into incidents have been inadequate, insufficiently resourced, insufficiently independent and not done in a timely manner. Nevertheless, what the Bill should control are repeated investigations; it would be wise to restore the view of Lord Bingham, whose name is synonymous with the rule of law, that the Human Rights Act should not have extraterritorial application. Quality of decision-making rather than length of time should be the goal. I suggest that the Bill, once passed, should not start in operation until the investigation scheme has been reformed.
Lord Naseby (Con) [V]
My Lords, I am a former—[Inaudible]—RAF pilot who nearly saw service and action at Suez. My son was in the front line in the retaking of Kuwait.
This is an important Bill, not just because it was in the manifesto of the Conservative Party but because its progress will be watched overseas, particularly by the Commonwealth and our fellow members of NATO. It is a sad reflection on modern society that the Bill is needed at all. I reflect on the end of the Second World War, when there was a huge effort to make peace work. The vehicle conceived was the Geneva Convention of 1949 and subsequent additional conventions attached to it. It was a convention that sought to ensure a proper legal framework if war should break out again—the relevant law for armed conflict.
I shall quote the late Sir Desmond de Silva, a former UN-sponsored chief prosecutor for a war crimes tribunal. He said that the European Convention on Human Rights, on which the British Human Rights Act is based, was wholly inappropriate for application in combat and battlefield conditions. The law that should operate in such circumstances is the law of armed conflict, otherwise known as international humanitarian law. This greatly respected man, who is no longer with us, went on to say that
“I am quite satisfied that accountability in war is best dealt with by applying law that is specifically designed for war conditions.”
There we have it.
At the same time, society has been changing. Issues of human rights have been expanding. The European Convention on Human Rights and its territorial applicability grows ever wider. Organisations such as Amnesty International, Freedom from Torture and dozens of others have sprung up—all of them very different from the International Committee of the Red Cross, which we all respect. As those organisations expanded, so did the media. Untrammelled, instant responses with no independent verification were taken to extraordinary lengths by some of our TV companies, such as Channel 4 and its fake films and propaganda in “Sri Lanka’s Killing Fields”. There are other examples affecting Syria and Iraq.
The House knows that the broad thrust of the Bill is there to establish new restrictions on bringing procedures against current and past UK Armed Forces on overseas assignments. I, for one, absolutely support the Bill.
Let me give an example of a challenge in another country. As Members of the upper House, noble Lords will be well aware that I have been deeply involved, in detail, with Sri Lanka. That country had a 30-year insurrection from the Tamil Tigers, a proscribed organisation that killed off all the moderate Tamils. That war came to fruition, starting on 1 January 2009 and finishing on 18 May. I made a Freedom of Information Act inquiry because I was told by the UN that there were 40,000 casualties. I asked the Foreign Office about Colonel Gash’s independent dispatches, which took two years to obtain. They made it clear that no war crimes were carried out in Sri Lanka in that war. Therefore, my request is that maybe we also need to use the Freedom of Information Act to ensure that our Foreign Office releases dispatches from our observers who watch war anywhere around the world.
Lord Judd (Lab) [V]
My Lords, consider the worldwide message, not least for the people of—those subject to the Governments of—Russia, China, Myanmar, Uganda and any other places suffering under manipulative oppressive regimes, that we are even considering this legislation, with all its inherent questioning of what has been the aspiration of the international rule of law. At this time of so much ruthlessness and turmoil in the world, we should, by contrast, be seen to strengthen, not diminish, the ideals that inspired Eleanor Roosevelt and her fellow pioneers in their tireless efforts, in the aftermath of World War II, to enshrine the Universal Declaration of Human Rights as the indispensable cornerstone of peace, stability and social well-being across the world.
We can be proud of the key part consistently played by the UK and its legal profession in carrying this cause forward. This is no time to weaken, especially just as Joe Biden and Kamala Harris take the helm in Washington: they need and deserve our unwavering commitment to human rights. Here, again, I quote the words of Lord Guthrie, former colonel commandant of the Special Air Service and former Chief of the Defence Staff:
“Torture is illegal. It is a crime in both peace and war that no exceptional circumstances can permit ... There can be no exceptions to our laws, and no attempts to bend them. Those who break them should be judged in court.”
Is this Bill evidence-based? Just what is the specific evidence to begin to justify it? Why is there no recognition of all the provisions that exist to meet its supposed concerns—not least in the European Convention on Human Rights itself? The international rule of law is not an end in itself; it embodies the values of civilised consensus, which, recognising the demands of our highly interdependent world, gives it a moral authority that we disrespect at our peril and to our shame. The responsibility for sustaining our commitment must never be allowed to fall solely on those on the front line of conflict, with all its barbaric and cruel provocation; it has to be a culture of responsibility that runs throughout society as a whole, not least in government and the leadership within the armed and security services at all levels.
It is essential to spell out why the provisions of international law, and the provisions it encompasses, are so essential. It is also essential to spell out why we must therefore be second to none in our commitment to them, why any weakening in our resolve plays into the hands of the very people who seek to destroy our society, and why, in effect, this is treasonable. Time limits have no place whatever in this. Adherence to timeless justice must obviously apply to our own personnel, seeking compensation for mental or physical harm during active service.
The Bill is unworthy of the United Kingdom and its people. It endangers a historical recognition of what so many have loyally contributed to the defence of civilisation. It undermines the many service men and women who strive to uphold the values by which we should be judged. Essentially, we must never forget that we are engaged in a historic battle for hearts and minds. As President Biden said today, “Democracy has prevailed”; he also called for hope, not fear, to be the lodestar. We are challenged; let us rise to that challenge.
Lord Brown of Eaton-under-Heywood (CB) [V]
My Lords, I believe the Bill has its heart in the right place, and much of it I support, particularly Part 1. However, occasionally it loses its bearings and it is certainly open to misunderstanding.
I start with two brief matters. First is a declaration of interest, although really it is a proud boast: over 60 years ago, as a national serviceman, I was on active—but happily not too active—service abroad. Secondly, in preparing for today, I have been helped by the Policy Exchange paper by Professor Ekins and the former Attorney-General for Northern Ireland, John Larkin, Queen’s Counsel.
Some appear to regard Part 1 as giving immunity or impunity to our forces after five years. In truth, it does no such thing. That point has been made several times but cannot be overemphasised. What it is designed to achieve is the clear recognition by those responsible for deciding, as the years pass, whether it is in the public interest to prosecute that, generally speaking, the more time that has passed, the less likely it is that prosecution will be appropriate. This is so for obvious good reasons. First, the longer that has passed, the less likely it is that prosecution will produce a true and fair outcome. Recollections fade, witnesses disappear, and the singular challenges faced in battlefield conflict come to be overlooked. Second is the important principle of finality, which becomes particularly compelling when the question arises after earlier investigations—often, as we have heard, a whole series of these—and especially when the person has been told that he is not to be prosecuted. Our brave forces, as the right reverend Prelate said, should not be hung out to dry.
But the five-year provision is subject always to exceptions, and the Bill expressly provides for some in the case of sexual offences: they are excluded from the Bill by Schedule 1. The noble Lord, Lord King, wondered why, and I suggest it is for good reason. First, such offences often do take longer to come to light, and they are altogether less likely to arise in the context of battlefield conflict. Secondly, late prosecutions may well be appropriate where, despite previous investigations, “compelling new evidence” comes to light. This is a concept well known to the law in particular; it allows, as an exception to the double jeopardy rule, the possibility of a second prosecution even where the accused has already been acquitted by a jury.
I acknowledge that late prosecution may well also be appropriate, and this is not currently dealt with in the case of allegations of torture. But even then, the passage of time may well be of relevance, as the whole series of post-Iraqi judicial inquiries established. The noble Baroness, Lady Buscombe, referred to one of these. It is all too possible to fabricate these claims and for false allegations of this sort to be made.
In short, therefore, there is no impunity—if public interest remains in prosecution, the Bill does not preclude it. What it does, importantly, is to dictate the basic policy to be followed: to highlight the particular considerations which the prosecution should have in mind when deciding not only if there is sufficient evidence but whether it is in the public interest to prosecute. Of course, that explains the requirement in Clause 5 for the consent of the Attorney-General in England and a law officer in Northern Ireland. Indeed, one may suggest that provision should be made for a law officer in Scotland too and, perhaps, for law officers’ consent before the five years are even up.
I turn very briefly to Part 2 of the Bill, which is much more problematic. I recognise that there are difficulties arising from the 4/3 majority decision of the Supreme Court in Smith in 2013. I rather share the view of the noble Baroness, Lady Deech, that, instead of time limiting these claims, one should introduce a generous no-fault compensation scheme.
Finally, on the human rights aspect, again in common with the noble Baroness, Lady Deech, I share the doubts of the noble and learned Lord, Lord Hope, on the value of Clause 8. I would prefer to limit the extraterritorial application of the Human Rights Act itself, as Lord Bingham would have done in the Al-Skeini case in the House of Lords in 2007.
Lord Astor of Hever (Con) [V]
My Lords, I join my noble friend the Minister in paying tribute to our Armed Forces and their families. I welcome the intent of the Bill and believe that it will provide greater certainty for service personnel and veterans in respect of vexatious claims concerning the prosecution of historical events that occurred in armed conflict overseas.
I am only too aware that many claims were made without foundation and have subsequently been discredited. This caused unnecessary distress through repeated investigations of members of the Armed Forces. I therefore welcome the Bill’s further safeguards to address the impact of those claims. I also welcome the introduction of measures to consider the impact of the mental health of veterans involved in legal proceedings as a result of overseas operations.
This Bill polarises opinion, so it is important to bring back some objectivity in the scrutiny of this legislation. It is understandable that we can lose objectivity when discussing issues such as torture, war crimes and genocide. However, there is nothing in the Bill that prevents the prosecution of such acts, even outside the period of five years. There is nothing in the Bill that prevents the investigation of such offences, and there is nothing that suggests that those tasked with defending our country are able to act with impunity. If any criminal behaviour is alleged to have taken place, individuals can be prosecuted.
The triple lock will give service personnel and veterans greater certainty that the unique pressures placed on them during overseas operations will be taken into account when prosecution decisions are made concerning alleged historical offences. My reading of the Bill is that there is no lock to prosecutions—only three additional steps in the decision-making process for a prosecution to proceed.
The first step is an exceptionality test, to be applied by an independent prosecutor. Although I cannot say how a prosecutor should apply this test, I would guess that serious breaches of the Geneva conventions, for instance, are not the norm but would be exceptional.
The second step ensures that the context of the overseas operation is rightly considered. Yes, the prosecutor will take such factors into account, but making this a statutory requirement sends a strong signal to our Armed Forces that their unique circumstances will be at the forefront of the decision-making process.
The final step is the consent of the Attorney-General. This consent function is not new; an AG already has responsibility for giving consent to war crimes prosecutions. These three additional steps do not amount to the state being unwilling or unable to prosecute, which means that we would continue to adhere to our international obligations and does not increase our risk of the International Criminal Court seeking to prosecute our Armed Forces personnel.
May I ask my noble friend the Minister: what do veterans think about the measures? Is there general support from our veterans? How have the proposals changed as a result of public consultation?
Finally, several noble Lords have referred to the Northern Ireland Troubles. Having served in the Army there, I look forward to seeing the legislation to address the legacy of Operation Banner being prepared by the Northern Ireland Office. When might we see this?
Baroness Hoey (Non-Afl)
My Lords, I welcome this Bill and look forward to the detailed scrutiny that will be given it by the many experts and ex-senior Armed Forces people who serve in your Lordships’ House. I pay tribute to the Parliamentary Under-Secretary, Johnny Mercer, in the other place, who fought very hard to get this Bill right through Committee unscathed.
Of course, the Long Title excludes the Armed Forces acting within the borders of the United Kingdom, as has been mentioned by other noble Lords today—those involved in the Northern Ireland Troubles, the Operation Banner soldiers. They are not just soldiers but police and members of the security services, civil servants and even politicians. The object of some of the lawfare operations is to get Members of this House, even former Ministers, into court so that history can be rewritten and an equivalence proved between terrorists and the Army.
Operation Banner ran for three decades from 1969 and was the greatest civil conflict in Europe since 1945—that is, until the break-up of Yugoslavia. While our military casualties were never exceeded in the 70 years after the Korean War—neither in Iraq nor Afghanistan—those sacrifices are largely forgotten. The names of the 700 dead soldiers, many of them young teenagers from “red wall” seats, do not even appear on the Commonwealth War Graves Commission website. It is almost as if Governments of all persuasions are embarrassed to mention them.
The repeated promises, from the Prime Minister down, for Northern Ireland veteran equivalence in some future legacy legislation is very welcome, but it must not be delayed or watered down. They need to get on with it, and I believe that it should be separated out from all the other legacy issues in Northern Ireland. The Army and police stopped a civil war from breaking out completely in Northern Ireland, for which they get few thanks, just vexation prosecutions and unending reinvestigations—due in large part to overinterpretation of, ironically, the “right to life” in Article 2 of the European Convention on Human Rights.
They paid a colossal price in blood—some 700 murdered soldiers, including from the Ulster Defence Regiment and some 300 in the Royal Ulster Constabulary. That excludes the very many who died in accidents or suicides, or whose lives were shortened by terrible injuries. The equivalent number of police officers killed on a UK-wide basis would be 10,000. That says it all. Yet it is former RUC officers who are now being arraigned in reinvestigations, reopened inquests or pointless public inquiries, with their reputations trashed and all without the benefit of being able to respond.
I praise the many recently formed veterans groups without whose efforts and organisation this Bill would not have happened. The power of social media has, in this instance, proved invaluable. Their immediate concerns are about new prosecutions. I accept that reopening investigations of old cases will continue if sufficient credible evidence of wrongdoing is provided to justify it, but it must be a high evidential hurdle, as high as the Bill provides in relation to prosecutions, not just for political harassment.
Let us not forget that the only cases now involving veterans are ones pending in Northern Ireland, which concern events of 50 years ago or more. For that reason, we need to get on with a Northern Ireland equivalent law, especially as this Bill usefully carries permission in Clause 1 for prosecutors to consider whether or not any proceedings against a person for a relevant offence should be continued.
In conclusion, much has been made by certain civil liberties groups about Clause 12, which requires the Government, in any significant new overseas conflict, to consider derogating from the European Convention on Human Rights. This is useful, but Clause 12 does not mean more than what it says, and probably no more than what normally happens. The new duty simply requires the Government to consider derogation so the process cannot be discreetly avoided. The convention, as we know, is a living instrument, but enforcement is not necessarily a one-way street—something our representatives in Strasbourg need to bear in mind when responding to pressure from the Irish Government in cases involving so-called Article 2 compliance.
I hope that the Minister will, as she has been asked by many noble Lords today, give us a date for the Bill to repay the debt to all who served in Northern Ireland. They deserve our support and for us to value them just as much as we value those who served overseas.
Baroness Kennedy of The Shaws (Lab) [V]
I start by adding my voice to the tributes that have been paid to our Armed Forces, who put themselves in harm’s way to keep us safe, to uphold our values and protect our society and to do things that are so important, as they are doing now during this pandemic. I also understand completely the concerns of this House that members of the Armed Forces should be protected from unfounded allegations. The idea of a lawyer ambulance-chasing and trawling for clients to launch civil actions against our serving military is repellent; however, the idea that crimes should go unpunished, or that victims of wrong- doing or of injury should not receive justice, is also unworthy —and, of course, that affects our veterans too.
I support all those who have already said it: torture should be excluded from the remit of the Bill, just as rape and sexual violence have been. Veterans should not be protected from investigations into allegations of torture. Like the noble and learned Lord, Lord Hope, I cannot accept the derogation from the European Convention on Human Rights correctly having a place in the Bill. I shall not rehearse his arguments, but I agree with them entirely.
This legislation breaches international human rights law and international humanitarian law, and I shall just mention the ways in which it does that. The absolute prohibition on torture is sacrosanct; it really is. It is not something where there can be equivalence. The idea that we might be creating a statutory presumption against the prosecution of an international crime such as torture is shocking. Secondly, we have a duty in international law to investigate and prosecute crimes against international law, and this Bill undermines that commitment.
The third thing I want us to look at is that this is creating a de facto amnesty. International law prohibits amnesties for grave breaches of the Geneva conventions: for torture and other serious crimes. Yet the Bill effectively prohibits prosecutions except in exceptional circumstances. That amounts to a de facto amnesty. The other concern we should have is about justice for victims, as I mentioned. The right of victims to justice, to truth and to appropriate compensation is fundamental to the rule of law.
Finally, I will raise the business about vexatious prosecutions. There is something of a coalition of the civil and the criminal here, and I speak as a criminal lawyer. Vexatious litigants are usually linked to civil claims. I know that there are concerns about the Ministry of Defence having to make settlements which amount to a lot of money, but let us just think about the area of crime—we should not conflate the civil and the criminal. Concerns about vexatious prosecutions are totally misplaced. There are very few prosecutions, and I would like the Minister to tell us just how many there have been, for example, in the last 10 or 20 years.
I want to tell the House about a letter that was sent to the Prime Minister. It has been circulated a bit, but it is important for this House to hear it. It was sent just before Second Reading in the other place in September. The letter states:
“Dear Prime Minister, we are writing to you in connection with the Overseas Operations (Service Personnel and Veterans) Bill, due to receive its second reading on 23 September. We believe that this Bill has dangerous and harmful implications, for the reputation of the armed forces and for the safety of British troops who risk their lives in overseas operations. This Bill purports to protect soldiers. In reality, it risks making them more vulnerable. The Geneva Conventions form the cornerstone of International Humanitarian Law and exist to protect all parties. Accountability is an essential part of that. Vexatious claims are an important issue, which should be addressed. We find it disturbing, however, that the Government’s approach in Part 1 of this Bill creates a presumption against prosecution of torture and other grave crimes … We believe that the effective application of existing protocols removes the risk of vexatious prosecution. To create de facto impunity for such crimes would be a damaging signal for Britain to send to the world. This Bill would be a stain on the country’s reputation … We urge the Government to reconsider these ill-conceived plans.”
Who wrote that letter? It was written by Field Marshal Lord Guthrie, a former Chief of the Defence Staff. It was signed also by General Sir Nicholas Parker, a former Commander-in-Chief of UK Land Forces. It was signed also by the right honourable Sir Malcolm Rifkind, Queen’s Counsel, a former Foreign Secretary and Defence Secretary. It was signed also by the right honourable Dominic Grieve, QC, a former Attorney-General, and it was signed by a colleague with whom I have often worked who has been a really fine judge and was Director of Service Prosecutions, Bruce Houlder, QC. All of them are calling on us to ensure that this Bill is reconsidered or, at the very least, that we amend it to ensure that it has the confidence of the world and that we remain one of the great protectors of the rule of law.
Viscount Trenchard (Con)
My Lords, I am grateful to my noble friend Lady Goldie for introducing this debate today and for following through on an important manifesto commitment. More than 600 British service men and women lost their lives in the conflicts in Iraq and Afghanistan. It is essential that we protect our Armed Forces from the growing number of vexatious legal claims that undermine the ability of our Armed Forces to achieve their objectives in what may be inhospitable and dangerous territory.
Furthermore, our Armed Forces are rightly renowned as the best in the world because they are well trained and well led, but the growing incursion of human rights legislation, and in particular the European Convention on Human Rights, into the area previously reserved for international humanitarian law has undermined the effectiveness of the military chain of command. This reduces the ability of a serviceman to claim that he was acting under orders and places on him an obligation to question whether an order his superior officer has given him is legal.
Paradoxically, and in spite of what opponents of the Bill argue, the incursion of human rights law into the military arena has increased the risks and dangers facing our service men and women on the battlefield. I was particularly struck by the evidence given to the Public Bill Committee in another place by General Sir Nick Parker, in which he repeatedly stressed the need for the Armed Forces to keep accurate records to ensure that any claim can be quickly and efficiently investigated. The Bill seeks to change the rules on prosecutions but does nothing to improve the efficiency and accuracy of investigations, which would deal with the problem of repeated investigations and vexatious claims.
The noble and learned Lord, Lord Hope of Craighead, is quoted in the frontispiece to the 2013 Policy Exchange paper The Fog of War by Tom Tugendhat and Laura Croft as saying:
“It is of paramount importance that the work that the armed forces do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong.”
The noble and learned Lord did not mention this in his characteristically forensic speech earlier today, but I trust he still holds to his opinion.
Like the noble Lord, Lord Carlile of Berriew, I much look forward to the arrival in your Lordships’ House of Mr Dean Godson of Policy Exchange and to his future contributions.
Hilaire Belloc is quoted as saying in The Pacifist, published in 1938:
“Pale Ebenezer thought it wrong to fight,
But roaring Bill (who killed him) thought it right.”
My right honourable friend Theresa May had recognised in 2016 that we should derogate from the ECHR in future conflicts and said that the Government would put an end to the industry of vexatious claims that had pursued those who served in previous conflicts. Those who think that we should not derogate should acknowledge that the European judiciary looks at the law of armed conflict differently from the way in which our British judges traditionally have done. That is why the armed forces of many European countries are considered to be less reliable partners in conflict situations: their soldiers are not allowed to do anything warlike on the battlefield. As Policy Exchange suggests in its new paper, Clause 12 might usefully be strengthened by requiring the Secretary of State normally to derogate or account to Parliament as to why the Government have decided in any particular case not to derogate.
Both the five-years threshold and the exceptionality test give the impression that the Bill amounts to a statute of limitations, which it is not. Can the Minister explain why the exceptionality rule in Clause 2 is necessary given that other provisions in Part 1 specify the conditions that the prosecutor should consider? Should they not be taken into account at any time before or after five years have elapsed? Does the Minister not share my concern that the Bill may encourage the International Criminal Court wrongly to conclude that the UK is failing to discipline its own forces?
While in general I welcome the Bill and the Government’s resolve to address an undoubted problem, there are many questions which your Lordships will wish to examine in Committee, not least of which is the apparent illogicality of treating sexual offences differently from torture and other war crimes.
Lord Ricketts (CB) [V]
Like many speakers in this debate, I took the original objective of this legislation to be to deal with the issue of vexatious claims. As National Security Adviser, I saw at close quarters the MoD having to devote huge resources of people and money to dealing with the deluge of 3,400 civil claims that it received after the Iraq operation. In the vast majority of them, there turned out to be no case to answer. It was evident to me then that there was a real problem with vexatious civil claims against members of the Armed Forces. That still needs addressing, but, somewhere along the line, this Bill seems to have become much more concerned with criminal prosecution, where, as many noble Lords have said, there is no evidence of vexatious pursuit of military personnel.
It seems that the heart of the problem that the Bill is trying to address is the overlap between the laws of armed conflict as enshrined in the Geneva conventions and human rights law as set out in the European convention. As many noble Lords have said, the Geneva conventions were developed over more than a century, with British jurists playing a very distinguished part, to take account of the fact that war necessarily involves violence and death. They distil the experience of two world wars in a series of principles that recognise the realities of war and aim to protect as far as possible the rights of civilians and other non-belligerents. They are designed to apply in wartime. The ECHR, for all its great merits, was patently not framed to apply to the special circumstances of war. That is why it has Article 15 to provide the right to derogate in such circumstances. The difference of purpose between the two legal frameworks was well captured for me as a lay man by the comments of a British military prosecutor in evidence to the Defence Select Committee in 2014, when he said:
“The need to arrest and detain enemy combatants and insurgents in a conflict zone should not be expected to comply with peace-time standards such as those exercised by a civilian police force in Tunbridge Wells on a Saturday night.”
The issue of overlapping jurisdiction was not a problem during the extended British military operations in Bosnia and Kosovo. It really only came to the fore in Iraq. Why is that? It seems that there is a crucial point here that has not received much attention in our debate: Iraq was not just a peacekeeping operation on the territory of a sovereign power; Britain became an occupying power, with British forces exercising public powers of law and order, including detention, over the civilian population. We have learned in successive military operations that custody and detention present formidable problems for military commanders. They were a cause of controversy again in Afghanistan, although the Operation Northmoor investigation showed no cases to answer by British forces.
As my noble and learned friend Lord Hope and others have underlined, Article 15 of the ECHR sets a very high bar for derogation with its reference to
“an exceptional situation of crisis or emergency that affects the whole population and constitutes a threat to the organised life of the community”.
However, the House of Commons Library briefing prepared for the Bill noted that the High Court, in the Mohammed judgment of 2014, recognised that the extension of the ECHR’s jurisdiction into the area of international military operations, as a result of the Strasbourg judgments, had implications for the interpretation of Article 15. The court found that Article 15 could be construed as referring to a threat to organised life in the country in which British forces were operating, not just in the UK. I realise that I am venturing on to legal territory here, but if I have understood that correctly it seems an important point. In my view, a future British Government would do well to consider derogating from Article 15 if a future overseas operation was likely to involve the UK again exercising occupying powers, although I doubt a Secretary of State would need that to be enshrined in statute to remind him to consider it.
Much more briefly, I also support the strong view of many noble Lords that this Bill needs significant amendment to prevent it having damaging unintended consequences. I hope that the Government will listen to the strength of legal and military opinion expressed in our debate that the Bill should exclude war crimes and other crimes against humanity, including torture, as well as sexual offences from the presumption against prosecution. I hope that the Government will accept that the Bill as drafted could lead members of the UK Armed Forces to face prosecution at the International Criminal Court. That would be the very opposite of the support to our Armed Forces that the Bill is intended to provide, and it would be a disaster for the reputation of this country for upholding international law.
Lord Bhatia (Non-Afl) [V]
My Lords, the conduct of parties during armed conflict has traditionally been regulated by international humanitarian law, and the law of conduct of the UK’s Armed Forces has traditionally been, in armed conflict, UK domestic law. Over the past two decades, a number of rulings have expanded the territorial application of the European Convention on Human Rights. There has also been an increase in the number of legal proceedings brought against the Armed Forces and the Ministry of Defence relating to the conduct of military personnel on operations overseas.
The Government have argued that action needs to be taken to provide greater certainty for service personnel and veterans involving what are described as vexatious claims concerning the prosecution of historical events. Part 1 of the Bill establishes new restrictions to bringing proceedings against current and former members of the Armed Forces, including the presumption against prosecution after five years and the requirement to take into consideration the conditions that members of the Armed Forces are in during overseas operations. Part 2 introduces time limits on some civil claims and claims made under the Human Rights Act.
The Bill has been criticised by the Joint Committee on Human Rights, which has argued that it could undermine the UK’s obligations under international humanitarian law, international human rights law and international criminal law. Several amendments to the Bill were tabled during Committee and on Report by Members of the Opposition and other parties and some Conservative MPs. MPs voted on several of them, but they were all defeated.
Our Armed Forces are considered to be very disciplined. They put their lives in front of enemies who breach international law. Our soldiers have taken split-second decisions. Therefore, the Bill should rightly have cross-party support.
Lord Foulkes of Cumnock (Lab Co-op) [V]
My Lords, I thank the Minister for her usual helpful and comprehensive introduction. Like my colleagues, I have a number of concerns about the Bill, but today I want to concentrate on the power given to Ministers to derogate from the European Convention on Human Rights, which seems like an encouragement to do so. I raise this as one of the delegates from the United Kingdom Parliament to the Parliamentary Assembly of the Council of Europe, which is responsible for the convention. Unlike the noble Viscount, Lord Trenchard, I believe that universal human rights apply under all these circumstances.
This debate gives the House of Lords yet another opportunity, as we have had with so many Bills, to consider in detail the provisions of this Bill, in a way that the Commons did not. I hope we will amend and improve it before we send it back. There are good intentions behind the Bill—in particular, to protect our Armed Forces from vexatious claims—but in its current form it is not fit for purpose as it does not do what the Government claim, as others have said.
May I also take this opportunity to commend my colleagues on the Opposition Front Bench, in both the Commons and the Lords? In dealing with this Bill, they have consulted widely with all the stakeholders, including bodies representing officers and other ranks—the Royal British Legion and the Association of Personal Injury Lawyers, for example. Their aim has been to build a broad consensus. Many of these organisations have sent representations to us, and I have been particularly impressed and moved by those from the Quakers, Freedom from Torture and Survivors Speak OUT.
The Parliamentary Assembly of the Council of Europe, of which, as I said, I am one of the UK delegates, actually elects the judges to the European Court of Human Rights in one of the most impressive democratic processes. Indeed, we will be electing the judges from two countries—Greece and Switzerland—from nominees put forward by their Governments, at the hybrid meeting of the assembly next week. These judges then sit on the court, which considers cases involving breaches of the European Convention of Human Rights referred from any of the 47 member countries of the Council of Europe, including Russia, Turkey and Azerbaijan. It is significant that only Belarus is not a member—and, given its current actions, not qualified to be a member.
If we pass this Bill in its current form, our position in the parliamentary assembly will be undermined, as the Quakers say in their submission to us. The representations from Survivors Speak OUT and Freedom from Torture add:
“The presumption against prosecution is incompatible with obligations under the ECHR.”
So, if the Bill is passed in its current form, British delegates at PACE would find it much more difficult to pursue violations of human rights in other member states, as we have done with the murder of Daphne Caruana Galizia in Malta, the arrests of journalists and opposition leaders such as Alexei Navalny in Russia, corruption in Azerbaijan, and many more. This is just one of many concerns about the Bill as drafted. I hope the Minister will give us an assurance that we will be able to remedy it when we get to Committee and Report.
Lord Campbell of Pittenweem (LD) [V]
My Lords, it is a pleasure to follow all who have spoken in this debate, because it has been of rare quality. Like others, I want to begin by expressing my admiration and affection for the Armed Forces and recognising the particular imposition their families are subject to when they find their loved ones are engaged in extended deployment across the world, often in harm’s way.
As the debate has progressed it has become clear that the Bill enjoys considerable sympathy for its intentions, but it has little support for its substance. This is all the more surprising since there was prior consultation in relation to it. This necessarily creates a dilemma: should the Bill be supported and energy invested in amendments, or should it be rejected?
My noble friend Baroness Northover pointed out early in the debate that, in spite of a wealth of amendments in the other place—many of them similar to the observations and criticisms made today—the Government refused to accept any of them. So, what confidence can we have that amendments made in this House on, for example, the matters of torture or war crimes would not simply be rejected again? If we accept that it is our responsibility to do our best to put this Bill into proper order, we are entitled to expect a change of heart from the Government and certainly no repeat of their apparent unwillingness to accept any amendment or notion which deviates in any way from the exact terms of the Bill.
If the Bill remains in its present form, how can we possibly accept provisions which constitute a breach of international law? This is not new territory, as the noble Lord, Lord Touhig, reminded us at the outset of the debate. He recalled, as others have done, the now enacted United Kingdom Internal Market Bill.
The noble Baroness, Lady Kennedy, made a powerful case regarding our responsibilities according to those elements of international law relevant to our consideration. Would we really be willing to consider a possible breach of the United Nations Convention against Torture? Would we really, in spite of the observations made about the creation of the Geneva conventions, be willing to consider breaching them? If any individual member of our Armed Forces found himself or herself subject to prosecution by the International Criminal Court, would we really be willing to act in a way that constitutes a breach of the Rome statute of that court?
In a very short report, no doubt under the pressure of time, your Lordships’ Constitution Committee raised a number of issues. I wish to return to one raised by the Minister, who opened the debate in, as has already been pointed out, her characteristically frank and helpful fashion. The committee said:
“The House may wish to seek the reasons for including most war crimes and crimes against humanity in the presumption against prosecution.”
The Minister offered some kind of explanation for that. I say to her, with all due deference, that she will have to find something rather better than what she offered today, because up to now I do not accept—and I believe I am not alone—that the Government have found sufficient justification for the way they have framed the presumption. That, in many respects, is the most damaging feature of this Bill. I hope we will have the opportunity to get the Bill into a condition which achieves the Government’s intentions, even though it cannot now necessarily be read as capable of achieving these intentions at all.
Lord Faulks (Non-Afl) [V]
My Lords, the reason for the Bill is clear and was foreshadowed by the Conservative Party manifesto. For some time, there has been a need to do something about vexatious claims against our Armed Forces and repeated investigations into events, often a long time ago. Noble Lords have already heard reference to Policy Exchange, which has for some time done work in this area, most recently in a paper published today about the Bill by Professor Ekins and John Larkin QC. I should declare a personal interest, having introduced a debate in your Lordships’ House on the juridification of war in 2013—inspired significantly by Tom Tugendhat’s paper, The Fog of Law. I am also a practising barrister acting for public authorities, among others, in relation to claims for negligence and under the Human Rights Act.
No one suggests that military operations should be in any way a law-free zone but the exploits of Phil Shiner and others in manufacturing claims have brought lawyers and, of much more importance, the law into disrepute. Such is the incursion of law into warfare that other countries’ armed forces have perceived us as indulging in what is called legal freeloading, by which is meant not that we are reluctant to do our bit in any military enterprise. Rather, the perception is that our vulnerability to legal claims and investigations is such that it is better for others to do the heavy lifting. I find that really dispiriting, given the extraordinary reputation that our Armed Forces quite rightly have.
Part 1 of the Bill is well intentioned but capable of serious misinterpretation, as we have heard, although with great respect to the noble Lord, Lord Robertson, it does not create impunity. It creates a presumption in certain circumstances against prosecution. I also do not accept what the noble Lord, Lord Thomas, and the noble Baroness, Lady Chakrabarti, said: that a law officer deciding whether to prosecute is making a political decision. That seems directly contrary to the law officers’ oath and I regret that it was said.
I am not overenthusiastic about Part 1. The optics are very far from good but I hope it provides veterans with some reassurance. Of course, the real problem is not prosecution but repeated investigation. The noble Lord, Lord Anderson, is quite right that timely and accurate investigations are what we need. Of the various suggestions made by Ekins and Larkin, I am quite attracted to the proposal that once a decision has been made not to prosecute, unless cogent new evidence has arisen—and it should be certified by a senior prosecutor—there should be finality, and our veterans should continue their lives without the fear of being disturbed.
Other areas of the Bill which need attention include the question of extraterritorial application of the Human Rights Act, as referred to by the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Deech. The Strasbourg jurisprudence was wrong, I think, while Lord Bingham and others were right. I hope that Sir Peter Gross and his panel may reconsider this matter.
The changes to the limitation periods are unnecessary. The law is perfectly capable of dealing with stale claims, but I suspect that this is not some sinister conspiracy by the Ministry of Defence to avoid liability. What lies behind this part of the Bill is the protection of individual servicemen against claims, which would of course be indemnified by the Ministry of Defence. In fact, the provisions circumscribe claims by those servicemen, which I think is an unintended consequence.
The Bill does not say anything about combat immunity, which was a key point in the original Fog of Law paper by Policy Exchange. So are judges, with the assistance of what the noble Lord, Lord Robathan, described as smug lawyers, going to have to decide the difficult question of proportionate response in military operations? That is certainly the view of some, following the decision of the Supreme Court in Smith v Ministry of Defence. We need clarity on this, as was pointed out by the noble and gallant Lord, Lord Craig, and the Bill does not provide it.
The Bill is clearly aimed in the right direction but, at the moment, I am afraid it does not quite hit the target. It is not at all an easy target to hit but we must do our very best to improve the Bill.
Baroness Massey of Darwen (Lab) [V]
My Lords, like my noble friend Lord Dubs, I am a member of the Joint Committee on Human Rights, which carried out legislative scrutiny on the Bill and published its report in October last year. We interviewed many distinguished witnesses with expertise in international law and in combat situations. I am not an expert in law or in military matters, unlike many noble Lords who have contributed tonight. However, I have learned much during the progress of the Joint Committee on Human Rights inquiry, from briefings from several organisations and from this excellent debate today.
Our Armed Forces are generally admired for their commitment, high standards and bravery—that has rightly been said many times. There are uncomfortable truths about the Bill, including its incompatibility with the UK’s obligations under multiple international treaties, and its potential for unintended consequences of increasing legal costs while denying injured service personnel, veterans and their bereaved relatives compensation. Some people oppose the Bill on the grounds of human rights violations and the jeopardising of the UK’s role as a global defender of human rights and a leader in the fight for international criminal justice. It would certainly be sad to lose that reputation.
Part of chapter 2 of the Joint Committee on Human Rights report on the Bill is entitled “Inadequacy of Ministry of Defence Investigations”. There are lists of a number of key inquiries, litigation and investigations relating to Iraq and Afghanistan, which have been mentioned already. However, many investigations have been protracted and repeated due to the inadequacy of the MoD’s systems. This has had unfortunate consequences and has not served the best interests of justice.
The Bill has as a stated objective:
“The MoD must, as a priority, establish an independent, skilled and properly funded service for investigations … so that there is no longer any need for repeated or protracted investigations.”
Investigations will still be required, despite this legislation, but that inadequacy will not be addressed by the Bill, and it does nothing to address the issue of repeat investigations. A review has been announced by the Defence Secretary to ensure that
“those complex and serious allegations or wrongdoing against UK forces which occur overseas on operations”,—[Official Report, Commons, 13/10/20; col. 507WS.]
can be addressed. The JCHR looks forward to receiving updates on that review.
It is concerning that the Bill has had repercussions nationally and internationally for the reputation of our Armed Forces. The JCHR report says:
“Some have seen this as a cynical effort to remove accountability. The Judge Advocate General, the most senior judge in the Armed Forces, has said that this Bill is ‘ill-conceived’ and ‘brings the UK armed forces into disrepute’.”
Clause 12, mentioned by many other noble Lords, including the noble and gallant Lord, Lord Craig of Radley, and my noble friend Lord Foulkes, inserts new Section 14A into the Human Rights Act, which provides that the Secretary of State
“must keep under consideration whether it would be appropriate for the United Kingdom to make a derogation under Article 15(1)”
of the ECHR in relation to
“any overseas operations that the Secretary of State considers are or would be significant.”
Of course, no derogation can be made from certain articles of the ECHR, and the JCHR suggests that the Government may wish to consider restricting this provision to only Article 5, on detention, and Article 8, on the right to respect for private and family life. The report also calls for greater clarity about the parliamentary procedure to be followed in advance of any derogation. The JCHR has called on the Government to
“make an undertaking to consult with the Committee in advance of any proposed derogation under the ECHR. They should provide Parliament with sufficient time to consider any proposed derogation in advance of the UK derogating from its international obligations.”
The committee also expects
“to receive from the Secretary of Defence, a detailed Memorandum explaining how the Article 15 ECHR criteria are met in the case of any proposed or actual derogation.”
With our knowledge of the conditions surrounding the Bill, we should challenge, in the name of justice, any weakening of the laws of human rights. We should amend the Bill according to the suggestions made today, and monitor the consequences.
Lord Truscott (Ind Lab) [V]
My Lords, I recognise that the Bill is highly contentious, as today’s excellent debate has indicated, but I generally welcome it. For a long time now, I have been concerned about the number of vexatious complaints about members of our Armed Forces and the effect that this has had on them and their families. The debt that this country owes to its service personnel and veterans, as noble Lords have said, should never be forgotten.
Of course the Minister should ensure that the Bill adheres to the Geneva conventions and our obligations to the International Criminal Court. Her Majesty’s Government, as a number of noble Lords have said, and as the noble Baroness, Lady Massey, just mentioned, should improve the speed and quality of investigations—something lacking in this Bill—and streamline how they are carried out. Veterans should also retain the right to make civil claims against the MoD well after six years. As many noble Lords have argued, in addition to excluding sexual offences from the presumption against prosecution after five years, Her Majesty’s Government should also exclude crimes of torture, war crimes, crimes against humanity and genocide. All these despicable crimes should face the full force of the law, however long ago they were committed.
In the other place, the Minister for Defence People and Veterans stated that Part 1 of the Bill did not constitute a statute of limitations and argued that, because the Bill still allowed criminal prosecutions and to take decisions on whether to prosecute even after five years, it was consistent with the UK’s international obligations, and I believe the Minister in this House confirmed that earlier today.
With regard to other alleged offences, I think the five-year hurdle is about right. Ten years, as some have suggested, is simply too long. If prosecutors cannot put together a criminal case in five years, they are not doing their jobs properly. That is not because I do not believe in human rights or the rights of victims; it is simply because I believe that 10 years is too long for those people who are innocent and facing investigation and accusations to endure without resolution. That goes for potential victims too. We should also remember the human rights of our service personnel and their families and the resulting strain, which can lead to marriage break-up, mental health issues and even suicide.
One of the greatest principles of the civilised world is the presumption of innocence—an international human right under Article 11 of the UN’s Universal Declaration of Human Rights, strangely not mentioned by any of the lawyers today. Sadly, a whole legal industry grew up in this country to pursue vexatious cases against our Armed Forces purely for financial gain and to monetise others’ misery. Service personnel and veterans faced totally unfounded allegations, and many found the presumption of innocence replaced with the presumption of guilt and trial by media. Noble Lords will well remember the example of the late Field Marshall Lord Bramall, tried by both the media and the Metropolitan Police without a shred of evidence. Although for different reasons, many veterans have had similar experiences.
Paul Shiner, the solicitor who was struck off, also mentioned several times today, made a fortune from persecuting innocent Armed Forces personnel, veterans and their families. More than £30 million of public money went through Shiner’s hands, and he passed literally thousands of bogus cases to the Iraq Historic Allegations Team, or IHAT. Shiner made millions out of others’ misery, and he was not the only lawyer. Red Snapper Group, with its 127 staff serving IHAT, cost the taxpayer £4.8 million and failed to secure a single successful prosecution. Red Snapper staff turned up at service personnel’s homes, pretended to be police officers and illegally threatened those being investigated with arrest. IHAT was closed down in 2017 after taking up 3,500 allegations of abuse in Iraq, mostly without any credible evidence whatsoever. Some informants, as has also been mentioned today, had been paid or encouraged to give false evidence against British soldiers. MPs called IHAT an unmitigated disaster. It should never be allowed to happen again.
Our Armed Forces personnel should not fear unwarranted prosecution when putting their lives on the line for our country. Of course, one of the problems at the moment is that the law is constructed in such a way that those seeking bogus cases know that, under the law, they can pursue allegations that can result in the potential prosecution of members of the Armed Forces. That is what puts them and their families under strain. Of course the guilty should be prosecuted, but we should try to protect the innocent too—both members of our Armed Forces and potential victims of abuse.
In short, the Bill should be amended but if it helps to protect our Armed Forces and veterans from vexatious, venal and vile allegations then it should be supported.
Lord Rooker (Lab) [V]
My Lords, I congratulate the Minister and wish her well in handling the Bill as it goes through the Lords.
Having listened to the vast majority of the speeches today, I have to say that it crossed my mind that it might have been a good idea if the business managers had started the Bill in your Lordships’ House, rather than in the other place. In my experience, several major Bills in the past have benefited from starting in the Lords. However, the history is there.
I claim no experience. Indeed, the closest I came was in 1959 when I tried to end my engineering indentured apprenticeship to join the Fleet Air Arm as an artificer apprentice. My apprentice master refused; the rest is history. I pay tribute to all the Armed Forces —the front line and the vital back-up.
I can see how seductive the Bill might appear to some rank-and-file service personnel. My view of how the MoD treats service personnel comes from my 27 years’ service in the other place. It includes direct contact regarding poor-quality service accommodation, a lack of mental health help, post-traumatic stress disorder, veterans on the street, and those affected by nuclear tests in Australia. I never found the MoD, under either party, to be very supportive.
I do not agree with the apparently endless pursuit of members of the Armed Forces, whose lives are being ruined. We fail them if we continue to allow this abuse. Our forces are brave, professional and trained—yes, trained to kill within the rules of war; they are not trained to torture. As many have said, torture is prohibited by law and by the UN convention, the Geneva conventions and other statutes.
I have read all the briefings, but I want simply to rely on the views of two ex-service parliamentary colleagues: Field Marshal Lord Guthrie and Dan Jarvis MP. Dan Jarvis pointed out that the UK has a dark recent past when it comes to torture. As a former major, he powerfully pointed out:
“At a time when we are witnessing an erosion of human rights and leaders turning their backs on international institutions, it is more important than ever before that we uphold our values and standards and not undermine them.”—[Official Report, Commons, 23/9/20; col. 1009.]
In a Commons debate on 3 November last year, he said that torture,
“is never acceptable in any circumstances. … The rules on detention and interrogation are clear. The British Army’s training on detainee handling and tactical questioning is rigorous and leaves no room for doubt.”—[Official Report, Commons, 3/11/20; col. 223.]
I do not see how we can claim that we are professional and the best trained if we seek to give people immunity for no other reason than that they are members of the Armed Forces. The Government appear to have gone soft on this. Lord Guthrie said in what is now quite a famous letter to the Sunday Times in June last year that the Bill
“provides room for a de facto decriminalisation of torture.”
He went on to point out that the Bill’s
“proposals appear to have been dreamt up by those who have seen too little of the world to understand why the rules of war matter.”
Those points have been made by many others today. In this respect, the Bill does great harm to the reputation of the Armed Forces and puts them at risk. As such, it must be amended.
Baroness Smith of Newnham (LD) [V]
My Lords, I start, as did the noble Baroness, Lady Goldie, my noble friend Lord Campbell of Pittenweem and the noble Lord, Lord Touhig, by paying my debt of gratitude to the Armed Forces, to our service personnel and to the veterans and their families. One thing that unites everyone who has spoken in this debate is our commitment to our Armed Forces and the sense that it is vital that they have the support they need.
As the Minister pointed out in her opening remarks, the Government had a manifesto commitment to try to deal with vexatious claims. Although the remarks of my noble friend Lord Thomas of Gresford may have suggested that these Benches would like to throw out this Bill at Second Reading—that seemed to be the understanding of the noble Lord, Lord King—that is not the case. We are certainly not proposing suddenly to demand a vote at Second Reading against the Bill.
I am slightly less sceptical than my noble friend on first reading, but the Bill appears on the face of it to be dealing with a problem which many noble Lords have pointed out is particularly difficult. As the noble Lord, Lord Truscott, said, we want to deal with vexatious, venal and vile cases but, as the right reverend Prelate the Bishop of Portsmouth pointed out, there is a very significant difficulty with this piece of legislation. There is a marked difference between what Her Majesty’s Government say that they wish to do—that the Bill delivers the Conservative manifesto commitment to address vexatious claims, as said on the fact sheet that the Secretary of State’s special adviser sent to speakers in this debate this morning—and what is actually in the Bill.
There are serious concerns about unintended consequences. As my noble friend Lady Northover pointed out, the Bill is very seriously flawed. She suggested that she did not think that she had ever participated on a piece of legislation that was so flawed. It has been pointed out that the legislation passed through the other place unscathed, as the noble Baroness, Lady Deech, put it, and unamended. However, that was not because it was not flawed; it perhaps passed because the Government have an 80-seat majority. Very important amendments were put forward by David Davis and Dan Jarvis, many of which I believe I and my colleagues on the Liberal Democrat Benches and noble Lords across the House will seek to retable in Committee, because there are many problems with this Bill.
Dealing with vexatious claims is important. Nobody wishes members of our Armed Forces to be subject to vexatious claims, nor do repeated investigations serve anybody well. However, there is a very serious question and concern about this Bill, about whether it does anything at all to stop vexatious claims and whether it will stop repeated investigations. The only point that offers some hope that it might deal with vexatious issues is in Clause 3(2)(b), which deals with previous investigations. Beyond that, the Bill does not talk about investigations; it talks about prosecutions.
The noble Baroness, Lady Buscombe, seemed to suggest that the higher threshold for prosecutions was going to deal with the problem of investigations. I could not understand the logic of that point. Could the Minister explain whether she thinks that the points in the legislation about prosecution will do anything at all to deal with the number of investigations, which is what causes the mental stress for so many of our service men and women and veterans? The issue of dealing with vexatious claims may not be helped by this legislation and, as many noble Lords have pointed out, including the noble Viscount, Lord Trenchard, there is a concern that the ICC may take an interest in our service men and women if our legislation is changed in accordance with the Bill. Surely that is an unintended consequence that the Government do not wish to come about.
There are various problems with the Bill. One is the basic presumption against prosecution after five years but, in particular, the concern that many noble Lords talked about: the exclusion of torture from Schedule 1. I do not understand why torture, war crimes and genocide are not there, and that seems to be very much the view across the House. The Minister in her introductory remarks seemed to suggest that sexual offences were part of Schedule 1 because they would never be authorised in war or any other context—they are always illegal. Surely torture is always illegal. When do Her Majesty’s Government ever envisage saying, “Go ahead, please torture”? Surely the exception to the presumption should also be included in Schedule 1. An amendment to that effect is necessary. My right honourable friend Alistair Carmichael MP said in the other place that he wanted to focus on the use of torture because it illustrates well the lack of logic in not including torture in Schedule 1. Where there is evidence of torture, no prosecutor sitting in his or her office should say, “Well, there’s evidence of torture but it is presumed that we would not prosecute it.” What sort of signal does that send?
We can see that the Bill’s architecture is such that torture is clearly designed to belong in Schedule 1, along with sexual offences. That makes perfect sense. It is a matter of logic, not law. The provisions in that schedule cover eventualities whose use is never in any circumstances acceptable. Does the Minister agree that torture is never acceptable? Will she consider taking back to her colleagues in the Ministry of Defence a suggestion that torture needs to be added to Schedule 1? If the Government do not bring forward an amendment, she can rest assured that these Benches and noble Lords across the House will bring forward amendments.
Clause 12 on the derogation from the European Court of Human Rights is also a clause too far. It is an area where the Liberal Democrats will certainly bring forward an amendment.
The Bill might have good intentions but, as the noble Lord, Lord Faulks, suggested, the optics of Part 1 are not good. Indeed, the optics of most of the Bill are not good. We need to think what signals we are sending, both to our allies across the world and to countries that we might think of as our opponents or enemies. As my noble friend Lord Thomas of Gresford asked, how would we feel if other countries adopted the same provisions that the Government are putting forward here, and we were told that cases could not be brought in allegations of torture of our own service men and women or, indeed, anybody else, precisely because there was a presumption against prosecution?
The measures that we are putting forward will have global resonance. Is that the sort of leadership that global Britain wants? Should we not seek to lead by example? On the day in which Joe Biden was inaugurated as President of the United States and said that the US should seek to
“lead not merely by the example of our power, but by the power of our example”,
should the United Kingdom not seek to draw on our long legacy of leading calls for the prohibition of torture and say that we will always stand up against torture and include that in Schedule 1?
The Bill is deeply flawed. For it to pass your Lordships’ House and be appropriate as a piece of legislation for the United Kingdom, it needs significant amendment. At present, it is not acceptable. As the noble Lord, Lord McCrea, said, I hope that together we can bring forward legislation that is worthy of support. I hope that the Minister might provide some amendments in Committee in order that we can indeed take the Bill forward.
Lord Tunnicliffe (Lab) [V]
My Lords, I thank everyone who has contributed to today’s debate. I am struck by the overwhelming support for the Armed Forces on all sides, the desire to stop troops being plagued by vexatious claims, the passion to respect our international obligations, and the need to get this legislation right. I join colleagues in paying tribute to all the men and women who keep our country safe, especially those currently helping with the Covid-19 response. They make us proud to be British.
Labour and the Armed Forces ultimately want the same thing: to protect troops who might be sent overseas. We recognise that there has been a long-running problem of baseless claims arising from Iraq and Afghanistan. We need to overhaul investigations, and set up safeguards that are consistent with our international obligations and that ensure troops have the right to compensation. But the Bill, as it stands, is not the solution.
During today’s debate, I have been struck by the broad coalition of concerns around the Bill—a coalition that spans from the Royal British Legion to Human Rights Watch. On the main oversight—the failure to tackle endless investigations—the former Judge Advocate-General, Jeff Blackett, has said:
“The presumption against prosecution does not stop the investigation”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 127.]
The former Commander Land Forces, General Sir Nick Parker, has said:
“The emphasis appears to be on prosecution. In reality, it should be on what is happening in the investigative process”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 96.]
Why was the Bill drafted to be entirely silent on investigations?
On presumptions against prosecution, Human Rights Watch has said that
“this Bill, unamended, would probably significantly increase the risk of UK service personnel … facing investigations from the International Criminal Court”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 65.]
Does the Minister want to see British troops being dragged to the ICC?
On the failure to exclude other crimes against humanity, Conservative MP David Davis said that the Government were
“right to exclude sexual offences, and the Government should exclude torture on exactly the same grounds.”—[Official Report, Commons, 3/11/20; col. 227.]
Why are torture and genocide not already included in exclusions?
Concerning civil claims against the MoD, the director-general of the Royal British Legion has said that
“the six-year longstop could be a breach of the armed forces covenant”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 83.]
The Association of Personal Injury Lawyers has even said that the longstop means that service personnel will have fewer rights than prisoners. Why do the Government continue to ignore the impartial advice of the Royal British Legion that the Bill risks breaching the Armed Forces covenant? These concerns come from former service personnel, organisations representing our troops, and human rights and legal experts. Their concern—as is Labour’s concern—is for Armed Forces personnel. The Government need to listen.
Ministers also need to recognise that important parts of this Bill are missing. My noble friend Lord Touhig outlined how the Bill does nothing to tackle repeat investigations. But, as well as this, when legal steps are taken, we need to make sure that troops have the support they need. We will be supporting a new MoD duty of care in relation to legal, pastoral and mental health support for personnel involved in investigations or litigations. Legal aid, too, is an essential part, and there needs to be a review of access for service personnel.
We also need to improve the transparency of derogation and decisions taken by the Attorney-General. We will therefore be arguing that derogations from the ECHR should be approved by Parliament and that the Attorney-General should also lay out to Parliament why they granted or refused consent to prosecute. These steps will enhance the accountability of such important decisions.
Britain’s Armed Forces are renowned worldwide for their dedication, professionalism and skill. We owe it to them to get the Bill right, but we cannot do that if the hard-line, and somewhat naive, position the Government took in the other place continues. No Government will get legislation right when it is first presented to Parliament. As legislators we seek improvements; that is our job. I say with admiration for the Defence Minister in our House that I hope she will change tack and engage with all colleagues positively on the Bill. Those of us on this side of the House strongly wish to do so, and to build a constructive consensus for our troops, our international commitments and our reputation, to solve the problem for good.
Baroness Goldie (Con) [V]
My Lords, it has been a privilege to participate in and listen to this debate. I want to express my appreciation for the thoughtful and profound contributions that have been made, as well as for the tributes and gratitude extended from all parts of the Chamber to our Armed Forces, recognising the vital job that they do. They are at the heart of what we are discussing; we must not forget that.
Predictably, a wide variety of views has been expressed about the Bill. On the part of some, there is disagreement with there being a Bill at all; that seemed the approach of the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Northover. While I respect their views, I cannot support them. For me to bridge that gap would obviously be challenging.
I detected a slightly different nuance from the noble Baroness, Lady Smith, but I detected on the part of many other noble Lords a recognition that there is an issue that should be addressed—even if there is a multiplicity of views on how that should be done. The noble Lord, Lord Touhig, accepted that premise, as did the noble and gallant Lord, Lord Stirrup, the noble Lord, Lord Dannatt, and my noble friend Lord Lancaster. Indeed, the right reverend Prelate the Bishop of Portsmouth accepted that principle, although he had significant reservations about other aspects.
The noble Lord, Lord West, was explicit about the need for legislation, although I noted his mark of five out of 10 for the Bill. In this broad context of the questions of whether there is an issue and whether we need legislation, two of the most balanced contributions came from the noble and gallant Lord, Lord Stirrup, and my noble friend Lord Arbuthnot.
Your Lordships have assisted in amending some of the misconceptions about what the Bill does, but I detected a continuing theme of reference to perceived wrongs created by the Bill when, I suggest, some of the more extravagant descriptions are not supported by a clinical dissection of it. My noble friend Lord King of Bridgwater identified that and spoke helpfully about it. I say gently to the noble Lord, Lord Robertson of Port Ellen, for whom I have great respect, that the Bill is not a statute of amnesty. Having said all that, there are sharp divergences of view about the provisions, their legal interpretation and how that relates to international law. This has been an informed and thought-provoking debate. I cannot deal with every contribution in the time available, but let me try to address the principal issues raised.
To start, the issue of investigations was raised by a number of your Lordships, including the noble Baronesses, Lady Liddell, Lady Buscombe and Lady Jones, the noble Lords, Lord Anderson and Lord Browne of Ladyton, and the noble and gallant Lord, Lord Boyce. It is correct that the measures in Part 1 of the Bill do not have a direct impact on repeated investigations. Credible allegations will continue to be investigated. However, over time, prosecutors may be able to advise the police earlier in the process on whether the new statutory requirements in Part 1 would be met in a particular case and whether investigations are likely to be worth continuing. The Government are committed to ensuring that we have the best possible processes for timely and effective investigations into allegations arising from military operations overseas. As I mentioned, the Bill will work in parallel with the recently announced review, led by Judge Henriques, which will focus on the processes of overseas operations investigations and prosecutions.
I say to the noble Lord, Lord Anderson of Ipswich, that the review by Sir Richard Henriques will not revisit past investigations or prosecution decisions. Instead, the focus will be on the future, allowing the consideration of options for strengthening internal processes and skills while ensuring that our Armed Forces continue to uphold the highest standards of conduct when serving on complex and demanding operations around the world.
The presumption will not prevent investigations. These are necessary to provide prosecutors with the information upon which to make their decisions. Allegations of serious offences, including breaches of the Geneva conventions, must, and will, continue to be investigated and, where appropriate, prosecuted.
There were some comments about the quality of investigations. In the early part of operations in Iraq, there were certainly very limited numbers of service police and investigators were competing for scarce resources, such as helicopters to visit scenes and troops to provide force protection. These investigations were taking place in the most complex and hostile of environments. In these circumstances, some investigations took place that were later reviewed and identified as having shortcomings. Where appropriate, these matters were subsequently reinvestigated, but much was learned from these experiences. All branches of our Armed Forces, including the service police have taken the lessons identified and have been seeking to improve how they operate.
A number of noble Lords, particularly the noble Lord, Lord Dubs, and the noble Baroness, Lady Chakrabarti, raised concerns that the prosecution provisions in Part 1 of the Bill amounted to impunity from prosecution. I reassure them that the five-year timeframe for the measures in Part 1 is not a time limit, after which service personnel cannot be prosecuted. The presumption against prosecution is not an amnesty or a statute of limitations and does not amount to an unwillingness to investigate or prosecute alleged offences. It leaves open the possibility of prosecution of all cases, subject to the prosecutor’s decision. Service personnel who break the law can still be held to account and the presumption does avoid interfering with prosecutorial independence. It will still allow for prosecutions to proceed where appropriate. It definitely will not allow personnel to act with impunity. As I indicated earlier, the Bill does not prevent investigations or prosecutions taking place.
The issue of international law compliance was, understandably, a source of both interest and concern for many of your Lordships. A number of noble Lords, including the noble Lords, Lord Thomas of Gresford, Lord Robertson, Lord Anderson of Ipswich and Lord Tunnicliffe, and the noble Baronesses, Lady Northover and Lady Jones, also asked questions about whether the Bill increases the risk that our service personnel would be prosecuted by the International Criminal Court. We are confident that the Bill does not increase the risk of our service personnel or veterans being prosecuted by that court or in any other jurisdiction. While Article 17 of the Rome statute makes provision for the International Criminal Court to step in and investigate or prosecute if it assesses that a state is unwilling or unable to do so, the presumption is not an amnesty or a statute of limitations for service personnel. It therefore does not amount to an unwillingness or inability to investigate or prosecute, and the presumption is consistent with the Rome statute. UK Armed Forces will continue to operate under international law, including, of course, the Geneva conventions, and we will expect others to do likewise. The Bill cannot be used as an excuse for offences committed by others against UK Armed Forces personnel.
A number of your Lordships, including the noble Lords, Lord Touhig and Lord Carlile of Berriew, and the noble Baronesses, Lady Northover and Lady Smith, raised the question of whether the presumption against prosecution breaches the Geneva conventions, the Rome statute, the ECHR and other international agreements, including the United Nations Convention against Torture. I can reassure them that the Bill does not diminish the Government’s commitment to upholding and strengthening the rule of law. Military operations will continue to be governed by international humanitarian law, including the Geneva conventions, taking into account the UK’s obligations under the Rome Statute of the International Criminal Court.
The UK Government unreservedly condemn the use of torture and remain committed to their obligations under international humanitarian and human rights law, including the United Nations Convention against Torture. The UK does not participate in, solicit, encourage or condone the use of torture for any purpose. We believe that preventing torture and tackling impunity for those who do torture are essential components of safeguarding our security and are integral to a fair legal system and the rule of law.
I now turn to Schedule 1 and the inclusions in it. This proved to be an area of considerable concern for many of your Lordships. Indeed, the right reverend Prelate the Bishop of Portsmouth, the noble Baroness, Lady Smith, and other Members of your Lordships’ House raised a number of important concerns on the subject of torture, and it is important that I try to deal with them. The exclusion of sexual offences from the application of the Part 1 measures does not mean that we will not continue to take other offences, such as war crimes and torture, extremely seriously, because they are extremely serious crimes. Indeed, in my opening speech I described them as appalling.
We have not excluded torture offences because this goes right to the heart of the environment of overseas operations: what we call on our personnel to do when they are required to serve in that arena. In the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. These activities can expose service personnel to the possibility that their actions may result in allegations of torture. By contrast, although allegations of sexual offences can still arise, the activities we expect our service personnel to undertake on operations overseas cannot possibly include those of a sexual nature. It is for this reason that we do not believe it appropriate to afford personnel the additional protection of the presumption in relation to the allegations of sexual offences.
In relation to other offences, the presumption against prosecution still allows the prosecutor to continue to take decisions to prosecute, and the severity of the crime and the circumstances in which it was allegedly committed will always be factors in the prosecutor’s consideration.
Many of your Lordships also alluded to the matter of the Attorney-General’s consent. This was raised by the noble Baroness, Lady Northover, the noble Lord, Lord Tunnicliffe, and by other Members of your Lordships’ House. They were concerned that this somehow undermines the independence of the prosecuting authorities, but I suggest that this is absolutely not the case. In deciding whether to grant consent to prosecutions, the Attorney-General will act quasi-judicially and independently of government, applying the well-established prosecution principles of evidential sufficiency and the public interest. This means that the Government will play no role in the decision on consent. The Attorney-General acts as guardian of the public interest in other issues; there are already a number of offences and circumstances for which the Attorney-General’s consent for prosecution is needed, including for war crimes and the prosecution of veterans through the service justice system if they have left service more than six months previously.
My noble and learned friend Lord Garnier also asked why the Lord Advocate for Scotland had not been included. The consent mechanism does not extend to Scotland because there is no requirement for it to do so; all criminal prosecution decisions in Scotland are already taken by or on behalf of the Lord Advocate in the public interest.
I will move on the Part 2 and the civil litigation restrictions. Again, this was a source of fertile debate, with a multiplicity of views being offered. The noble Lord, Lord Thomas, raised the point that not all claims are unmeritorious. I agree: many, though not all, of these claims had merit, but the scale of them and the fact that they were brought years after the events has prompted us to look again at the legal framework to ensure that it is applied consistently and promptly to deliver justice for all concerned.
The noble Baroness, Lady Liddell, asked whether the measures in Part 2 that place an absolute time limit on civil claims breach the Armed Forces covenant. This was also of concern to the noble Lord, Lord Tunnicliffe. The Bill does not breach the Armed Forces covenant: the new factors and limitation longstops apply only to claims in connection with overseas operations, and they will apply to all claimants in the same way.
A number of points were raised by various noble Lords, including the noble Lord, Lord Hendy, the noble and gallant Lord, Lord Boyce, and the noble Baroness, Lady Blower, about the Bill removing the discretion of the court to extend the time for compensation beyond six years. The noble Lord, Lord Touhig, argued that, for the past 15 years, only one in 25 cases was brought by alleged victims against our troops. I do not recognise the figures he referred to, but I would be pleased to hear from him if he can provide me with further information.
It is important to note that the Bill will apply to only a subset of claims made by UK Armed Forces personnel. The vast majority of claims brought by them are not brought in relation to overseas operations and would therefore not be impacted. Among claims brought against the MoD resulting from overseas operations in Iraq, claims from local nationals far exceed those from service personnel. There were over 1,000 claims from local nationals, compared with 552 from service personnel, arising from our operations in Iraq and Afghanistan. An analysis of the available figures indicates that around 94% of these claims brought by current and former service personnel relating to incidents in Iraq and Afghanistan were brought within six years.
As such, the longstops are not designed to prevent meritorious claims being made against the UK Government, whether by our personnel or anyone else. They are included as part of a number of measures to provide a better, clearer framework for dealing with claims arising from historical operations overseas. Indeed, this may arguably encourage claimants to bring claims within a reasonable period, which will certainly benefit them, as memories will be fresher and evidence less likely to have gone stale. It will also help to provide our personnel with greater clarity that they will not be called upon to give evidence about historical events.
Many have suggested that the measures in Part 2 will benefit only the MoD. This is not the case, because the six-year longstops will help to reduce the uncertainty faced by service personnel, who may be called on to give evidence in civil proceedings about often traumatic experiences many years after the events took place. Again, I think the measure would be beneficial to claimants because there is a better likelihood of success if the claims are made as soon as possible after the event or date of knowledge.
The Bill does not change how the time limit is calculated for death and personal injuries claims. That time limit will still be calculated from the date either of the incident or, importantly, of knowledge.
Derogation powers were the other matter that attracted considerable debate. The noble Lord, Lord Dannatt, with many others, asked whether derogating from the ECHR would weaken the UK’s reputation and put soldiers at greater risk on the battlefield. We disagree that considering derogation for significant future operations would put our soldiers at risk. The derogation measure does not undermine the UK’s commitment to human rights and liberties, domestically and internationally; we fully intend to maintain our leading role in the promotion and protection of human rights, democracy and the rule of law. The UK remains committed to the ECHR.
My noble and learned friend Lord Garnier asked how “significant” is defined. The duty to consider derogation arises only in relation to overseas operations that the Secretary of State considers meet a minimum threshold. The operation must be significant; whether it is will depend on its nature. This is intended to avoid imposing a duty in relation to any operations that manifestly would not meet the criteria for derogation set out in Article 15 of the convention.
I am conscious of the time. I have been unable to cover a number of specific technical points, but I will undertake to look at Hansard and write to your Lordships with responses to any substantive issues that I have not managed to address.
In conclusion, I want to deal with the important issue of Northern Ireland. A number of your Lordships —the noble Lords, Lord McCrea and Lord Dodds, my noble friend Lord Caine, the noble Baroness, Lady Ritchie, and others—asked for an update on the Northern Ireland legacy Bill. As elegantly put by my noble friend Lord Caine, veterans who served in Northern Ireland are not covered by the Bill, which focuses on improving the legal framework for overseas military operations. The Government have been clear that they will bring forward separate legislation to address the legacy of the Troubles that focuses on reconciliation, delivers for victims and ends the cycle of investigations. We are committed to making progress on this as quickly as possible. The Government remain committed to making progress on legacy issues and engaging as quickly as possible with the Irish Government, the Northern Ireland parties and civic society, including victims’ groups, on the way forward.
This has been an excellent debate. I have tried to address the main areas of concern, because many technical, legal issues have arisen out of the debate. As I said earlier, I am aware that I have been unequal in covering them, but as I indicated I will look at Hansard and address by letter any points of significance that I have omitted to deal with.
It remains for me to thank all noble Lords who have contributed. The debate has certainly teased out a lot of issues and provided matters that require reflection. I think it was the noble Lord, Lord Tunnicliffe, who said he hoped I was minded to engage. I wish to reassure him: I am very happy to engage with your Lordships, and I give that undertaking. In conclusion, I thank noble Lords very much for their participation. I look forward to reading Hansard and to engaging with your Lordships further.
Overseas Operations (Service Personnel and Veterans) Bill
Tuesday 9th March 2021
(3 years, 1 month ago)
Lords ChamberRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 147-II(Rev) Revised Second marshalled list for Committee - (9 Mar 2021)
Baroness Massey of Darwen
Member’s explanatory statement
This amendment provides that the presumption against prosecution only applies after 10 years (instead of 5 years).
Baroness Massey of Darwen (Lab) [V]
My Lords, I will speak to Amendments 1, 2, 9 and 13 in this group. The thrust of these amendments is to provide that the presumption against prosecution applies only after 10 years instead of five years.
First, I thank the Minister for her explanatory letter, which touches on issues raised by these amendments and, of course on the whole Bill. It was a very clear letter, and I know that she is committed to working collaboratively and will be sensitive to concerns, so I look forward to productive sessions.
My noble friend Lord Dubs and I will speak from the perspective of the Joint Committee on Human Rights, which last year carried out an inquiry on the Bill and produced a report in October. These amendments today address specific issues but it is worth saying that the committee, informed by expert opinion, had many overarching concerns about the Bill and seeks reassurances. We felt that the Bill creates problems for compatibility with the UK’s international legal obligations and simultaneously does not resolve any of the concerns that are supposedly the rationale for the Bill—that is, repeated MoD investigations.
The committee came to the conclusion that Clauses 1 to 7 could lead to impunity, violate the right to a remedy for genuine victims and undermine the UK’s international obligations to prosecute international crimes. These issues are covered in chapter 3 of the JCHR report. Of course, other noble Lords will speak on these clauses shortly. The Government argue that the Bill merely introduces a presumption against prosecution rather than a statute of limitation. However, there may be difficulties in bringing a prosecution after only five years. The prosecutor must only prosecute in exceptional circumstances; the prosecutor then needs to give “particular weight” to the adverse, or likely adverse effect on the person of conditions suffered during the demands of operations overseas. There may be a situation where a person has been previously investigated and there is no new compelling evidence. Another hurdle is that the consent of the Attorney-General is required.
The Law Society in its written evidence to the committee concluded that the presumption against prosecution creates a “quasi-statute of limitation” which is “unprecedented” in the criminal law and presents a “significant barrier to justice”. As the JCHR report points out, the MoD consultation in 2019 proposed a presumption against prosecution after 10 years; in the Bill, that has been halved to five years. That is a very short time in the circumstances of overseas armed conflict. There are many other practical reasons why a prosecution may not be possible in this time due to the protracted nature of the conflict, unlawful detention of the victim or persistent physical or mental distress. The British Red Cross has pointed out that safe access to evidence in such scenarios is difficult to obtain. Paragraph 64 of our report states:
“At a minimum the presumption against prosecution should be amended so that it does not apply to torture, war crimes, crimes against humanity or genocide.”
The Minister discusses many of these concerns in her letter and points out that most claims by service personnel are brought within the six-year date of knowledge timeframe. That does not satisfy the concerns of the JCHR, or indeed those of other organisations such as the UN Commission on Human Rights. Other amendments in this group oppose the question that Clauses 1 to 7 stand part of the Bill. The amendments I present here are less drastic but, taken together, they would ensure that the “presumption against prosecution” does not apply until 10 years instead of five years after the day on which the alleged conduct took place. I beg to move.
Lord Dubs (Lab) [V]
My Lords, it is a pleasure to follow my noble friend Lady Massey, as a fellow member of the Joint Committee on Human Rights. I appreciate that this House has a wealth of military experience. I am humbled by the knowledge that there is such experience in the House, and I fully respect the Members who have served so gallantly and at senior levels. I cannot match that, but I did once pay a very brief visit to Afghanistan, to Camp Bastion and Kandahar, during difficult times there, and saw for myself for just a few days the conditions there during a tense period. It hardly qualifies me to be an expert, but it means that I have some strong visual impressions of what the situation there was like.
My noble friend Lady Massey has already spoken to amendments that would have the effect that the presumption against prosecution would apply after 10 years instead of five. My amendment would remove the presumption against prosecution altogether, as recommended by the recent report of the Joint Committee on Human Rights, although I am bound to say that many of the arguments used in relation to five or 10 years would also apply to removing the presumption altogether.
The Service Prosecuting Authority has been in charge of the prosecution process, and there is no suggestion of excessive or unjustified prosecutions. Indeed, there are already some safeguards. The Service Prosecuting Authority would bring a prosecution only, first, where there was sufficient evidence that the accused committed the offence and, secondly, where the prosecution was in the public interest. These seem to be pretty good safeguards and would prevent vexatious or unfounded prosecutions.
As they stand, Clauses 1 to 7 of the Bill would contravene the United Kingdom’s international obligations under international humanitarian law, specifically the law of armed conflict. They could also contravene the United Nations Convention against Torture. There would be the risk of prosecution of our armed forces under the laws of another state and, above all, the risk of prosecution under the terms of the International Criminal Court. That court has the jurisdiction to investigate and prosecute war crimes, crimes against humanity and genocide perpetrated by UK personnel if the UK is “unwilling or unable” to do so. It would be hazardous in the extreme to pass a Bill with measures in it that would run the risk of our service men and women being prosecuted by the International Criminal Court.
The reputation of our Armed Forces has traditionally been second to none. I am concerned that, all over the world, people are looking at this legislation and wondering whether there is not some constraint on the reputation of our Armed Forces or, indeed, whether that reputation might not suffer through this legislation. I very much hope that, when we come to it, we shall be able to amend the Bill so as to strengthen the position of our Armed Forces, either by getting rid of Clauses 1 to 7 altogether or at least increasing the time period from five to 10 years. I am happy to be a member of the Joint Committee on Human Rights, and our report has set a very good basis for the debate that is to follow.
Lord Mackay of Clashfern (Con) [V]
My Lords, I wish to discuss only the question of whether it should be five or 10 years. It has to be remembered that this is in relation to a prosecution, so the only outcome of this is a criminal sanction. It does not of itself do any good to anyone else but, of course, gives a feeling of justice when the sanction is in accordance with what the people who have complained have suffered. Against this, it has to be remembered that the strain that comes with waiting under a dark shadow of a possible prosecution is quite considerable.
I have two experiences that I remember very well in relation to the feeling of strain associated with the possibility of a prosecution. The first was shortly after I became Lord Chancellor, when there was a huge allegation of fraud in relation to a company group. The number of people in the prosecution was quite large. The learned judge who presided decided that the case was too big to be dealt with by a single jury, and therefore decided that a good part of the case should be postponed until the first part had been tried. I received a considerable number of complaints that the pressure of waiting—it was not five years, but it was quite a long time—was sufficient to make it very difficult for people who were ultimately found innocent. The delay is something that has to be taken into account as an addition to the strain on the people involved.
Lord Thomas of Gresford (LD) [V]
My Lords, it is always a pleasure to follow the noble and learned Lord, Lord Mackay. I hope that his concern about delay will be addressed in Amendment 4, to which I commend him, when we come to it.
I was talking to a cousin of mine at the weekend, a retired Army major, about his evacuation as a boy to Devon in the spring of 1944. The fields were crammed with soldiers, he said, until, on one day, they all vanished. I have my own memories of the Royal Welch Fusiliers exercising in the fields around my home before departing as suddenly, some to lose their lives on the beaches of Normandy. We owe the military an enormous debt. In this House, there will be few who did not lose close family members in the conflicts of the 20th century for the defence of our country and for the freedom of Europe and of Asia.
Today, I think there is great sensitivity for the welfare of our Armed Forces and their families, when we have committed our young men to risk their lives in overseas operations when the lifeblood of our country is not at risk at all—where the overseas operations have been for contestable political reasons and no longer, even as in our dubious past, for conquest and empire.
The military depends on discipline and the obeying of lawful orders within a framework of law. When we come later in the year to debate the new Armed Forces Bill, it may surprise many to discover that it is essentially concerned with discipline and military justice. The reason is that it is discipline and the law which enforces it which bind the Armed Forces into an effective arm of the state.
In my professional career, I never prosecuted at court martial. I was always on the defence side, in one instance for an officer but mainly for ordinary soldiers. The stated policy for this Bill, as set out in the Explanatory Notes, is to protect sailors, soldiers and airmen against historic investigations and prosecutions deriving from them. I do not believe that a presumption against prosecution is a protection; I believe that it weakens the bonds of discipline.
What the progenitors of this policy have failed to recognise are the protections which already exist. A soldier is trained to kill and to maim and given the means of so doing. His protection is that he does not commit a criminal offence in the use of violence if he acts in accordance with lawful orders—the lawful commands of his superiors. If he acts without or against those orders, by raping a woman or by shooting a defenceless civilian or a wounded or captured enemy, it surely must be public policy that, if proved, he is to be punished for it. He is also criminally and personally responsible, even if he is acting in obeying an unlawful order; for example, to torture a prisoner for information. But even in that case there is a system of justice, which we have developed over centuries, which is specifically designed to protect him.
He will know that the decision to prosecute will rest in the hands of an independent Director of Service Prosecutions. All the successive holders of that office will have to have demonstrated—to use the words of the Explanatory Notes—
“proper regard to the challenging context”
and the mitigating factors specified in the Bill. It is the DSP who is charged with considering the service interest and the public interest.
Further, a defendant soldier will not appear before the ordinary civilian jury, far removed from the stresses and strains of the battlefield, but before a panel of responsible and experienced officers and warrant officers who will have personal knowledge of the exigencies of the service and will take those matters into account. The soldiers who were engaged in the torture of Baha Mousa and those detained with him were acting under the unlawful orders of the corporal in charge. He pleaded guilty to a war crime, but they were all acquitted of murder or neglect of duty. A civil jury might have taken a different view.
Of course, the Government say that, if there is evidence of serious criminal acts, the presumption does not prevent a prosecution entirely, nor does the requirement for the consent of the Attorney-General—I shall say more on those topics later in this Committee. So what is the presumption and the seriousness of a crime which will rebut it? Is it a presumption against prosecution for stealing the mess funds in Iraq 10 years ago or, as in the current trial at Bulford, for claiming school fees as legitimate expenses? Of course not. If, as the former Judge Advocate-General, Jeff Blackett, has publicly stated, there have been only eight trials of serious crime in relation to operations in Afghanistan and Iraq, in which of these would this presumption have operated to prevent a prosecution? Would it have been in the case of Sergeant Blackman, who only subsequent to his court marital admitted on appeal having deliberately shot under stress a captured and wounded man? Would it have prevented the prosecution of the eight soldiers and three officers in the Baha Mousa case? If it would, there are a number of consequences.
First, the use of the presumption would be a violation of the spirit of the laws of this country which maintain coherence and discipline in our Armed Forces. There is nothing in the statute law since 1661 or in the Articles of War which followed which talks about a presumption against prosecution. The law and the values it represents protect our military, and those who speak of the dangers of “lawfare” know not of what they speak.
Secondly, it would violate the laws of war which exist internationally to temper the brutality and the devastation which are the inevitable consequences of armed conflict.
Thirdly, it would invite the investigation and punishment of British soldiers by the International Criminal Court. That court has, by treaty, investigatory powers and jurisdiction for criminal offences committed by the British Armed Forces. I suspect that its prosecutors are eager to demonstrate that the values and standards which are the core reason for the court’s existence are not designed simply for Slavic generals or African despots but are universal. Picture Parliament Square if a British squaddie or officer stands trial in The Hague. This Prime Minister would undoubtedly break the treaty.
Fourthly, it inhibits investigations. That is the barely concealed motivation for the triple lock in the Bill. I challenge the Minister to deny it. I shall discuss the difficulties of investigating overseas actions later but, with limited resources, why would an investigator undertake an expensive and time-consuming investigation if his report had to mount the hurdles of a presumption against acting on his report by the prosecutors and the fiat of the Attorney-General?
Fifthly—and we shall discuss this in the context of derogation from the Human Rights Act—it is a signal to an enemy or an insurgent that they need show no restraint in torturing or killing captured British soldiers in precisely the same way. Show me the Minister of Defence who is prepared to dispatch troops who are exposed, by the very legislation that we are considering today, to retaliatory risks such as these.
Lord Stirrup (CB)
My Lords, I have some significant concerns over the Bill, but I confess that I am puzzled by Amendment 1 and those other amendments directly associated with it.
A proposal to extend the timescale for the application of the provisions within Part 1 of the Bill from five years to 10 years must surely be based on some perceived shortcoming associated with the lesser period that would be remedied by the substitution of the longer one, but what is that relative shortcoming? I start by accepting the Government’s assertion that there is no significant legal watershed involved in the proposed limitation. After that period, prosecutors will need to take account of the various considerations set out in the Bill but, as was generally conceded at Second Reading, a competent prosecutor would take account of those considerations even if the case arose before the expiry of the five-year period.
If this be so, arguments that defendants would try to defeat investigations by delaying them beyond the five-year period, or that those who had been rendered physically or mentally unable to begin such proceedings until after the expiry of that period would be denied justice, must surely rest on the presumption that the prosecuting authority is incompetent or biased. In that case, no proceedings would be safe, whenever initiated.
Similarly, the argument that the Attorney-General would act politically—for which I read “improperly”—regarding his or her responsibilities calls into question an important part of our entire legal structure. That would raise serious constitutional issues that went well beyond the scope of this Bill. It has also been suggested that it might be difficult to gather adequate evidence within a five-year period, particularly if the relevant conflict was still ongoing. That may well be true, but it might also be difficult to gather satisfactory evidence after the passage of many years. There is a need for balance here.
All this raises the question of whether there is any substantive benefit to be gained by defining a time period at all. The Government say that there is value in codifying the requirement in the way that they propose. If that is the case, why not codify it so that it applies to all potential prosecutions, no matter what timescale is involved? However, that is not what this amendment seeks to achieve, and it is to this amendment that I speak. Assuming that there must be a timescale, a five-year period is a reasonable span to choose in preference to any other. The Government’s position appears to be that one of the main purposes of the Bill is to reassure serving personnel that they will have a significantly reduced risk of being left exposed to prolonged, repeated, and mischievous accusations. If so, a period of 10 years would go a long way towards defeating that purpose. Although 10 years may not be for ever, it will seem like it to those who undergo such risks. I very much doubt that they would take any real comfort from such a provision.
Amendment 1 may be a way of neutering Part 1 to such an extent as to render it largely meaningless. If so, surely the various questions on clause stand part in the group are a better way of achieving this, although that would be to reject a Bill that has already been passed by the other place. Some might in this instance wish that we could, but they must consider whether we should.
Lord Faulks (Non-Afl) [V]
My Lords, it is a pleasure to follow the noble and gallant Lord, Lord Stirrup. Part 1 of the Bill creates a presumption against prosecution after five years, and factors are spelled out in the Bill which require consideration before any later prosecution. I would have thought that those factors would in any event form part of any decision on whether to prosecute, but I have no difficulty with them being put on the face of the Bill. What is important to stress is that this part of the Bill does not give impunity to our Armed Forces, nor does it explicitly deal with the real problem that has faced them, particularly after operations in Iraq and Afghanistan—namely, investigations and reinvestigations many years after the events.
This group seeks, among other things, to remove Part 1 from the Bill entirely, whereas the amendments in groups 2 and 3 at least attempt to amend and not wreck this part of the Bill. The reasons given for this drastic approach are the effect on our international reputation and, in particular, the risk that the International Criminal Court will or might become involved in circumstances where prosecutions would normally be left to our authorities. I am not at all convinced about the reality of this risk. Is it really suggested that if genocide, crimes against humanity or war crimes, as defined by Articles 6, 7 and 8 of the Rome statute, were discovered five years after the original offences, they would not result in a prosecution? Nothing in this Bill would prevent one.
I hope that noble Lords who seek the removal of this part of the Bill have read the evidence that Major Bob Campbell gave to the Public Bill Committee in the House of Commons. He said of the Bill that the principle of attempting to improve the lot of veterans and service personnel was welcomed, and that
“if the Bill were to be squashed it would send a very depressing message to the veterans community—probably one that has been felt quite harshly by the Northern Ireland veterans—that we are not important enough to get any type of assistance when facing legal assault.”
Major Bob Campbell was investigated and reinvestigated 11 times in relation to the same incident over 17 years. His view was that if the Bill had been enforced, his torment would at least have ended in 2009. Whether or not he is right about that, it is important to pay attention to his answers. When asked about the danger of the ICC becoming involved, he told the Committee that he had been repeatedly informed that if IHAT—which noble Lords will know about—was in anyway interfered with, the International Criminal Court would “swoop in” and
“clamp us in leg irons and we would all be off to the Hague.”
About ICC involvement, Major Campbell said:
“I decided to test that theory, and I wrote to the chief prosecutor of the ICC, Ms Bensouda, asking in exasperation whether I, SO71 and SO72 could surrender ourselves to the ICC rather than go through several more appalling years at the hands of the Ministry of Defence. Ms Bensouda responded that our allegation does not fall within her remit, because her job is not to prosecute individual soldiers; her job is to prosecute commanders and policy makers for the most grave crimes. In her orbit, manslaughter, which is what I was accused of, is not a war crime. It is a domestic crime—a regular crime, as opposed to what she would normally deal with. I reported that rejection to the Ministry of Defence, which continued to repeat that the ICC would fall in.
The second point I would make is what would be so terrible about the ICC being involved? We kept getting told that the ICC has a bit of scrutiny over IHAT and is keeping a very close eye on it. Personally, I do not have a problem with that. Like I said, the ICC was not going to ruin our careers, the ICC was not going to harass our families, and the ICC was not going to go and bully soldiers who had left the Army for a witness statement—not even a suspect’s. The ICC would conduct itself professionally, and it would have no incentive—no financial incentive—to drag things out for years, like Red Snapper, which provided most of the detectives to IHAT, did. Finally, the ICC would probably not use the investigative technique that IHAT used, which was to pay Phil Shiner’s gofer to be the go-between between them and witnesses because IHAT was too scared to go to Iraq.”
He continued:
“So regarding the whole spectre of the ICC, first, I do not find it remotely as scary as people make it out to be and, secondly, it is completely false, because I attempted, with my two soldiers, to surrender ourselves in order to spare us another several years of the MOD fannying about, and the offer was refused. So to answer your question, I do not see that as an issue at all.
What I would say, though, is that I think I understand why the Government would be reluctant for the ICC to be involved, because the scrutiny would not be on Tommy Atkins; the scrutiny would be on General Atkins and Minister Atkins.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; cols. 27-28.]
This part of the Bill is not a panacea. It does not of itself prevent investigations or reinvestigations, but it is something which will be welcomed by our own forces. I respectfully suggest that the spectre of the ICC as a reason for wrecking this part of the Bill is unsound. I invite noble Lords who have quite rightly emphasised their respect for our Armed Forces to look soldiers like Major Bob Campbell in the eye and say to them that these provisions are entirely inappropriate and would damage our international reputation. I strongly oppose all these amendments.
Lord Morris of Aberavon (Lab) [V]
My Lords, I support Amendments 1 and 2. As I did not take part at Second Reading, I must resist the temptation to cover a whole range of subjects in my contribution to this debate.
As an old Defence Minister, and, indeed, an old soldier who served in Germany as an infantry subaltern and was involved in courts martial there, I broadly welcome the aims of the Bill to introduce a measure of protection against unfounded claims against military personnel, some of which go back many years. I deprecate the cottage industry in the growth of claims.
Let me say immediately that when there is wrongdoing, no person is above the law. Torture is a typical example where we should never propose exemption. I have argued before at the annual conferences of the Inter-Parliamentary Union in Cape Town and, more recently, in St Petersburg to persuade all countries to accept the need to ensure that there is no exemption for this offence.
As a law officer, I played a very small part in encouraging the Foreign and Commonwealth Office under Robin Cook to create the International Criminal Court. As John Healey MP said in the other place on Third Reading of the Bill, the risks of
“British troops being dragged before”—[Official Report, Commons, 3/11/20; col. 277.]
the ICC are there. There may be an argument about this, but that is what he said and we should always bear it in mind. Perhaps the Minister could give an assurance on that very point of what—if any—the dangers are of going before the ICC.
The wise words of Professor Michael Clarke, the former director-general of the Royal United Services Institute, on the dangers of an idea gaining
“international traction that the UK operates a ‘quasi-statute of limitations’”,
and hence might be in danger of being indicted before the International Criminal Court, should always be borne in mind. They need rebuttal, and they need clarification.
When the Government launched their consultation on the changes to the legal protection for our Armed Forces serving overseas, the consultation included proposals to create a statutory presumption for alleged criminal offences which occurred more than 10 years ago. I repeat: 10 years was the issue that went out for consultation.
The Bill is a major departure from the norms of our international obligations
“under international humanitarian law … international human rights law and international criminal law.”
These are not my words; they are the words of Parliament’s Joint Committee on Human Rights. They are words that we should bear in mind and rebut if it is possible to do so.
That is the background, and hence it is a basic requirement that any provisions in the Bill need thorough justification. Therefore, I support Amendments 1 and 2 to change the presumption against prosecution from five to 10 years. My question, very simply, is: what is the Government’s justification for the change from 10 years in the consultation document to five years? I would like an answer before the end of this debate.
Baroness Jones of Moulsecoomb (GP)
My Lords, before I start my remarks about the Bill, I would like to say that nothing I say over the next few days in any way impugns the integrity of the Minister. I have every respect for her, but I think that the Bill is a terrible piece of legislation—worse than terrible. It is actually quite shocking. It is the international version of the “spy cops” Bill, which granted broad legal immunity to state agents who commit criminal acts. How can that be right?
It is one of those Bills that I think is so bad that we need to scrap it entirely. That is why I am joining the noble Lord, Lord Dubs, and the noble Baronesses, Lady Massey and Lady Smith of Newnham, to oppose the question that Clauses 1 to 7 stand part of the Bill. If a “delete-all” amendment were in order, I would do that instead. I hope that we can build an alliance to oppose the Bill’s Third Reading.
It struck me listening to noble Lords who have spoken already that the support for the Bill is actually based on fake news. The Office of the Prosecutor of the International Criminal Court has written to our Joint Committee on Human Rights, chaired by Harriet Harman. In a letter, she says that the number of vexatious claims has been “exaggerated”—by our Government, obviously—to justify the proposed legislation. We do not have a whole heap of vexatious, baseless claims, which is what the Government seem to be suggesting.
The Bill clashes with the whole point of our justice system. I know that there are noble Lords in this Chamber who know a lot more about the law than I do, and I am sure they know that that is true. The whole point of our justice system is that the guilty are found guilty and the innocent are found innocent—that is obviously what we have to do. The noble and learned Lord, Lord Mackay, mentioned the strain of all these vexatious claims, but in fact they do not exist, so the argument for the Bill is extremely weak.
I consulted two ex-generals and an ex-admiral of my acquaintance about the Bill, and they all had severe qualms. They all felt that this could backfire quite seriously on our service personnel and that it would make things worse. The noble Lord, Lord Thomas of Gresford, demolished the argument for the Bill, but he said as well that service personnel could be brought to the ICC, which would be much worse than being dealt with here.
Baroness Gardner of Parkes (Con) [V]
My Lords, my father-in-law fought in the desert with the Australian infantry, as part of the Commonwealth forces, during the Second World War. He spoke of some of the horrors he saw, and also of the support that he and his fellow servicemen and their families received on their return home, and over the years, from the Australian charity Legacy, where he himself did a great deal to help widows and orphans of those who had given their lives.
I know that much has changed since the Second World War, I hope for the better, in the treatment of service men and women, with recognition of post-traumatic stress disorder and the examination of alleged crimes and, where appropriate, prosecutions. However, when we ask our service men and women to put their lives on the line on a daily basis for the good of their country, we need to give them certainty as to when they can look forward to the future rather than back at the past.
I speak in favour of retaining the five-year limitation on bringing a prosecution, with the exceptions envisaged by this Bill, rather than the longer 10-year limitation being proposed by these amendments. Over time, memories and recall fade; it is only fair, for the sake of all involved, that any investigation and, if appropriate, prosecution, is brought when these memories are still clear and accurate and evidence is available. We should not forget that, even if an investigation does not result in a prosecution, it can take its toll on the mental health of the people involved and their families. To prolong this for up to 10 years after an event is just too long.
The Minister has previously said that this is not about reducing access to justice. I paraphrase her comments and support them. This is about giving certainty and finality and preventing injustice when, due to the amount of time that had elapsed, adjudicating would otherwise be on unreliable and incomplete evidence. Although my name is on the list, I do not propose to speak again later in this debate.
Baroness Chakrabarti (Lab) [V]
My Lords, I am grateful for the opportunity to address this fundamental part of the debate on Part 1 of the Bill. Before I begin, I want to say that, if I do not impugn the motives of Members of your Lordships’ House, I hope that that will be a reciprocal courtesy. I shall not be asking any noble Lords, let alone Ministers or their noble friends on their Benches, to look any victims of war in the eye. I would happily look Major Bob Campbell, or any other brave serviceperson, in the eye, in trying to address the problems that the Government say they are trying to address through this Bill, and in making the best analysis and argument that I can about this very important legislation. The rule of law is too precious for us to be impugning each other’s motives, patriotism, or support for either service personnel or the victims of war. It is not service personnel who make sometimes ill-judged decisions to go to war, and it is not Ministers and politicians who put themselves in harm’s way. I hope that we can continue with a slightly better-tempered debate than to accuse some of us, by implication, of being somehow unsupportive of ordinary servicemen and women.
This is about the rule of law, which is supposed to apply to everyone—although, granted, some people are dealing with particular difficulties. The difficulty that the Government say they are addressing here is that of servicepeople who have been put into sometimes unlawful and certainly very controversial and difficult conflict situations, and then been subject to repeat, lengthy and shoddy investigations, which have caused great anxiety to them and little resolution for the public or, indeed, alleged victims overseas. If that is the problem to be addressed, surely the solution would be to address shoddy, lengthy and repeated investigations, rather than to create a “triple lock” on prosecutions.
It would be better to address the actual problem being suggested to improve investigations, making them more independent, swifter and more robust, so that everyone has confidence in them. The beauty of attacking the actual problem, as posited by the Government, is that it would serve the rule of law rather than undermine it, which would be completely uncontroversial. No victim of an alleged war crime could complain about swifter, more independent and more robust investigations. Improving the investigation system would also, I have no doubt, give greater comfort to the military. Not to do that and, instead, to do what Part 1 of this Bill does—to create shields, locks and triple locks on prosecutions—would quite obviously be in contravention of the rule of law that our brave service men and women seek to serve, not just domestically but all over the world, and perhaps more so, I fear, in the context of modern warfare. That will often involve covert, secret operations that the wider public might not know about for a long time, and alleged crimes may not come to light for a long time. As has been said by other noble Lords, witnesses or, indeed, victims may well be incarcerated for much longer than the five years, or even the 10 years posited in the draft Bill and in amendments. There are people still in Guantanamo to this day. I am sad to say that we are heading for a very grim anniversary in the autumn, of 20 years since the atrocity of 9/11. Part 1 seems completely the wrong way to address the problem that the Government themselves have posited.
I turn to the observations made by noble and noble and learned Lords that, whether it is five years or 10 years, it is a long period to be worried about the risk of prosecution. That, of course, is true of anyone. If five years is an adequate period to justify the first part of a triple lock on prosecuting grave crimes, we would have a presumptive statute of limitations such as that for domestic crimes, but we do not. We believe that that would be anathema to justice because serious crimes such as unlawful killing and so on should not be subject to a statute of limitations, even a presumptive one. It is not considered good enough for British justice here at home, but it is being suggested that such a statute of limitations is good enough overseas.
Of course this sets a dangerous precedent. I would be grateful to hear the supporters of Part 1 say whether they would honestly be happy with a replica of this legislation, in particular this part, to be enacted in other countries around the world—including in those jurisdictions with which we have been at war or with which we have difficult and potentially hostile relations at the moment. Would we be happy with a replica of this being provided in countries that we are worried about in relation to human rights abuses?
The rule of law is about where we try to set a standard across the world, and our Armed Forces are all about a pride in setting that standard. On the argument that there is nothing to fear from the ICC, it is quite right that there should be nothing or little to fear from it at the moment because of the law in this jurisdiction as it stands and because of the respect in which it is held worldwide. But if we continue to chip away at it by limiting its reach through the creation of a triple lock, I fear that people will be subject to greater ICC interference. It is all very well for noble Lords to say, “Nothing to hide, nothing to fear; let the ICC do its worst,” but I do not believe that that would be the argument in reality if that outcome were to present itself.
I urge noble Lords to think again about Part 1, and urge the Government to consider making investigations swifter and more robust and not to keep chipping away at the law which is supposed to apply to all, with support and respect for the circumstances of police officers, prison personnel, doctors and teachers—all sorts of people find themselves the subject of false allegations through no fault of their own because of the nature of their work. Members of the Armed Forces have a special difficulty, but that should be tackled at the investigations end, where the problem lies, not by creating a presumption against prosecution after what is a very short period in relation to the commission of alleged grave crimes overseas.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti. Like she does, I believe that Part 1 of the Bill should be cancelled because it creates a lock on prosecutions. I therefore support the amendments and the proposals to cancel Clauses 1 to 7.
Coming from Northern Ireland, I have denounced on every occasion the mayhem and the murder of members of the Armed Forces who were killed in the most indiscriminate way. They were human beings and they had families, and the way that they were treated by members of the paramilitary organisations was wrong, unacceptable and totally unwarranted, and did not contribute one iota to a political settlement. I want to set that out very clearly. But, like the Equality and Human Rights Commission does, I believe that the provisions in these clauses as they stand do not fulfil the requirements of honouring human rights requirements.
I honestly believe that none of us should be above the law, so I support the position taken by the noble Baronesses, Lady Massey of Darwen, Lady Smith of Newnham, Lady Jones of Moulsecoomb, and the noble Lord, Lord Dubs, who have given notice of their intention to oppose Clauses 1 to 7 standing part of the Bill. By removing these clauses, we would take away the presumption against prosecution. At the very least, I support Amendments 1 to 9 and 13. They would help redress the balance currently in the Bill, which favours the accused, in order to ensure fairness and equality before the law for both claimants and defendants.
Lord Lancaster of Kimbolton (Con)
My Lords, it is a pleasure to follow the noble Baroness. I start by declaring my interest as a member of the Army Reserve and, indeed, my morning job as the deputy director of joint warfare at UK Strategic Command. Listening to this debate, I have been struck by how clear the point of law seems to be, particularly for noble and learned Lords, from the comfort and security of this Chamber or, perhaps, one’s home. My mind turns to members of the Royal Anglian Regiment who are currently on patrol in Mali, fighting against al-Shabaab and trying to defend what we believe in. I have no doubt that they are equally clear about what is right and wrong.
It always amazes me how members of our Armed Forces, despite the circumstances in which they often find themselves, have applied what is right and wrong under the most difficult circumstances and their judgment is normally sound. However, they will be less interested in the detailed points of law than in knowing that their relationship with Parliament is one of trust and support. As I listened to this debate, I am genuinely concerned that we are beginning not to see the wood for the trees in relation to why we are bringing the Bill forward. It was done partly at the request of our Armed Forces who, in recent years, after a series of vexatious claims, simply want to know that Parliament and the Government have their back.
I have the utmost respect for noble Lords and noble Baronesses who have brought forward these amendments, which in the main come from a genuine concern that the Bill may disrespect international law or organisations such as the ICC. I understand, but I am concerned. Rather like the noble and gallant Lord, Lord Stirrup, I do not understand these early amendments, because they seem to go to the heart of what we are seeking to achieve, and the principles of what the Bill is for, in the triple lock. I find that frustrating, because nothing in the Bill ultimately will prevent, in the case of new evidence, a serviceman being brought to justice. No one is trying to say that members of our Armed Forces should be above the law. That is not the purpose of the Bill.
Some noble Lords simply do not like the Bill and want it gone. To be fair to the noble Baroness, Lady Jones, she was clear in her comments and I absolutely respect her. In many ways, it reminds me of exactly why I joined the military 32 years ago—to ensure that she has the right to stand there and make these points. What I find frustrating, though, is that when some seem to be seeking, effectively, to wreck the Bill through these amendments, in the same breath we hear platitudes about the brave members of our Armed Forces. We should be supporting them.
I, for one, am not saying that the Bill is perfect; it is anything but. I have proposed my own amendment to try to improve the Bill. Later this afternoon, I will be commenting on some amendments that try sensibly to improve the Bill. However, I do not want to lose the purpose of what we are doing, because your Lordships’ House will not do itself any favours with members of our Armed Forces if we seek to undermine the general direction of the Bill and what it aims to do.
I turn in particular to the first set of amendments and the movement from five years to 10 years. I have concerns about that, not least because, in response to the public consultation, there were concerns about a 10-year timeframe. That is a long time and, particularly in the heat of battle, memories can fade and evidence can deteriorate. Given that we are seeking to create certainty and reassurance, a period of five years better achieves that objective. Ultimately, any timeframe will probably be viewed as arbitrary.
Perhaps to reassure myself, I considered how two of the most recent unfortunate cases would be impacted. The trial following the tragic death of Baha Mousa, the Iraqi man who died in British custody in September 2003, was in 2006, just three years later. Equally, I was involved as a Minister in the case of Sergeant Blackman when it came up again two or three years ago. It involved the killing of a Taliban prisoner in 2011 and the trial took place in 2013, well within a relatively short period. In both circumstances, the evidence came out after the event.
Ultimately, nothing changes if new evidence comes to light, which is why the amendment moving the timescale from five to 10 years is unnecessary. Indeed, it goes to the heart of what the Bill is trying to achieve. We should not be treating members of our Armed Forces like fools. They are anything but fools. If we are seeking to put the Bill through Parliament in an effort to support them, let us do just that. Of course there are areas in which the Bill can be improved, but I am not sure that these amendments do that.
Lord Berkeley of Knighton (CB) [V]
My Lords, it is a pleasure to follow the well-made points made by the noble Lord, Lord Lancaster of Kimbolton, and I certainly take them on board. I am going to speak briefly to the opening amendments and the general feel of the Bill. I do so having also taken on board the wise words of my noble and gallant friend Lord Stirrup. I look forward to hearing more about his reservations on the Bill.
I was enormously impressed by what we heard from the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Chakrabarti. Their words are, I contend, in the interests of our armed services, given that clarity on the fairness that these matters require helps to give confidence that proceedings involving service personnel are thorough. We desire them to be thorough and universally admired. If they are, that only helps our service personnel. I look forward to hearing other speakers and the reply of the Minister to those concerns.
I turn to a slightly wider landscape. We hear virtually every week in your Lordships’ House about disturbing events in, for example, Myanmar, Hong Kong and China, as well as, even nearer to home, the recent case of the American woman claiming diplomatic immunity after her tragic road crash. There were the cases of the assassination of Mr Khashoggi, the poisonings in Salisbury, Sergei Magnitsky and the current detention of Mr Navalny. The point that I am making is that in all those cases it takes time for the facts to emerge, even to be dug up. The case of Baha Mousa could easily have taken six years, but I salute the efforts that were made. I am afraid that the facts often take longer than five years to emerge. Still more importantly, I contend that our remonstrations about these cases is all the stronger if the way in which we deal with our own employees is as beyond reproach as possible. That is why I worry that five years is too short and why I have real concerns over the presumptions against prosecutions contained in the Bill.
Finally, I stress that I accept that the terrible things that happen in the heat of battle are quite different from the premeditated use of torture. It is that matter which particularly concerns me and to which I shall return when we reach Amendment 14.
Baroness Smith of Newnham (LD) [V]
My Lords, it is conventional to say what a pleasure it is to speak after whichever noble Lord has preceded one. On this occasion, it genuinely is a pleasure to speak after the noble Lord, Lord Berkeley of Knighton, because I tended to agree with most of what he said. I am winding up on this group of amendments very much from the same place as when I was winding up at the end of Second Reading from the Liberal Democrat Benches.
On this occasion, my name is attached to some of the amendments, but I will none the less restate, for the avoidance of any doubt before I get into their substance, that I am not proposing that we throw out the Bill. The amendments to which my name is attached are intended for debate in Committee. I support the amendment to change the timescale from five to 10 years, but I am not necessarily at the point of suggesting that, when we get to Report and voting, certain clauses should not stand part of the Bill. Nor am I going to support, much to her disappointment, the noble Baroness, Lady Jones of Moulsecoomb, and say that I shall vote against the whole Bill at Third Reading. That, to the best of my knowledge, is not the Liberal Democrat party line. We have not said that we will vote against the whole Bill. Rather, there are aspects of the Bill which we and many other noble Lords right across the Chamber argued at Second Reading were flawed and which need to be addressed in amendments in Committee that presumably will be voted on on Report.
Lord Falconer of Thoroton (Lab) [V]
The debate has been very impressive. I take this opportunity to make special mention of the noble and learned Lord, Lord Morris of Aberavon. I was Solicitor-General when he was the Attorney-General. As he pointed out, he served in the Armed Forces and was an incredibly effective Attorney-General, and he proved to me that as the Attorney-General you can ensure that the law is complied with in circumstances where you have a profound understanding of the pressures on the military.
There are, in effect, two proposals before the House in this group of amendments. One is to extend the period of presumption from five to 10 years. The other is to get rid of the presumption altogether. This part of the Bill deals only with criminal offences. I think that everybody in the House is of a like mind in the following two respects.
First, Members of the House have no desire whatever to authorise in any way members of our Armed Forces committing very serious crimes, such as crimes against the United Nations convention against torture or any other sorts of war crimes, or murder or manslaughter.
Secondly, and separately, everybody in the House understands the oppression of there being what my noble friend Lady Chakrabarti described as shoddy, lengthy and repeat investigations. Nobody wants our Armed Forces to have to go through shoddy, lengthy and repeat investigations. What I think everybody wants is that there should be timely, effective and thorough investigations, and that when the timely, effective and thorough investigation is completed, the soldier or other military personnel can be confident that that is the end of it.
That is not the position at the moment. The proposal for a presumption against prosecution after five or 10 years does not deal with that problem. The best way to deal with the problem is to have effective investigations and, after the investigation is over, for there to be a limitation in some way on any further investigation unless compelling evidence comes to light that justifies reopening an investigation which the military personnel who is the subject of the investigation can otherwise be entitled to assume is at an end.
I have no idea why the Government are going about trying to deliver on what everybody thinks is a laudable aim—namely, to protect military personnel from shoddy, repeat and inadequate investigations—by this presumption. There appears to be agreement among those who would know that the proposal that is being advanced by the Government does not deal with the problem. Johnny Mercer, in Committee in the other place, said:
“I want to reassure Members that the presumption measure is not an attempt to cover up past events as it does not prevent an investigation to credible allegations of wrongdoing in the past, and neither does it prevent the independent prosecutor from determining that a case should go forward to prosecution.”—[Official Report, Commons, 14/10/20; col. 154.]
Judge Blackett, who used to be the Advocate-General—the chief judge in the military justice system—said:
“a presumption against prosecution would not stop the knock on the door and the investigation. That is the whole point. The presumption against prosecution does not stop the investigation; the investigation happens.”
The noble Lord, Lord Lancaster of Kimbolton, said that we should not be too legalistic about this. I think he meant that we have to produce a solution to the problem. I completely agree. Later amendments in the group make it clear that there should be reinvestigation only where there is compelling evidence. Some of the amendments suggest, for example, that a judge would have to authorise further investigations to give the protection that is required and, in the words of the noble and learned Lord, Lord Mackay of Clashfern, to take away the dark shadow of prosecution.
I am very interested in these amendments. I am very keen to deliver on the purpose of the Bill, as is everybody else. I do not believe that the five-year presumption does that, and I would be very interested to hear the noble Baroness, Lady Goldie, respond to the points made by Johnny Mercer and Judge Blackett as to the fact that the Bill does not deliver on its purpose.
Three other points militate against either the five-year presumption or any presumption at all. First, this will create a special category of defence. It will in effect lead to there being a special category of criminal offences for which there is a presumption against prosecution. John Healey in another place put it very well when he said:
“Let us just step back a moment from the technical detail. This is the Government of Great Britain bringing in a legal presumption against prosecution for torture, for war crimes and for crimes against humanity. This is the Government of Great Britain saying sexual crimes are so serious they will be excluded from this presumption, but placing crimes outlawed by the Geneva convention on a less serious level and downgrading our unequivocal commitment to upholding international law that we in Britain ourselves, after the Second World War, helped to establish.”—[Official Report, Commons, 23/9/20; cols. 997-98.]
We should not be doing what John Healey described. We should be doing what the noble Lord, Lord Lancaster, hopes we should be doing. Let us do it in a direct and effective way rather than in this oblique, obscure and ineffective way.
The second reason why the presumption does not work is that it may be illegal. I would very much like to hear what the noble Baroness, Lady Goldie, has to say about the points made in the Joint Committee on Human Rights’ ninth report of this Session, which says that it offends against Articles 2 and 3 of the European Convention on Human Rights, the United Nations Convention against Torture, the Rome Statute, and customary international law. The report is basically saying that, if you could have a presumption against prosecution where there is evidence that would justify a prosecution and the public interest favours it, why is that not contrary to the five commitments that the country has made legally?
The third point is the involvement of the International Criminal Court. We as a country ought to be prosecuting these offences, not the ICC. The noble Baroness, Lady Goldie, will know that the ICC’s chief prosecutor Fatou Bensouda said last week in a letter to the British Government that the presumption against prosecution could
“render such cases admissible before the ICC.”
How have the Government reached such a different conclusion to that of the ICC’s chief prosecutor? Does the noble Baroness, Lady Goldie, believe that the ICC has misunderstood the Bill? Is she confident that the consequence of the Bill will not be to replace one uncertainty with another, namely that our military personnel may well face long investigations and then long prosecutions in the ICC, which nobody wants? I believe it is incredibly important that our justice system and in particular our military justice system produces an answer to the problem that this part of the Bill seeks to address, but I am anxious that it will be ineffective in doing that, it will send out a signal that we are not complying with international law, and it will lead to more prosecutions in the ICC.
The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
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.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I have received two requests to speak after the Minister, from the noble Lords, Lord Naseby and Lord West of Spithead. I will call them in that order, so I now call the noble Lord, Lord Naseby.
Lord Naseby (Con) [V]
My Lords, I spoke at Second Reading, where I said that our Foreign Office should release
“dispatches from our observers who watch war anywhere around the world.”—[Official Report, 20/1/21; col. 1231.]
I realise that Part 1 is absolutely the key issue of the Bill. I ask my noble friend on the Front Bench whether she will confirm that, when the Bill becomes an Act, in whatever form, it will be drawn to the attention of the United Nations, particularly the UNHRC in Geneva and the International Criminal Court, as well as all other relevant official bodies involved with alleged war crimes, wherever they may be?
I ask this because of current evidence that the UNHRC has not been fully briefed by Her Majesty’s Government concerning British military attaché evidence taken in 2009 in relation to the war in Sri Lanka. Therefore, there is a lack of evidence in the report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, dated 12 January 2021. I thank the Minister for listening to this important but rather unusual dimension.
Baroness Goldie (Con)
I thank my noble friend for his contribution. I am not terribly well equipped to deal with the specific aspect of his comment and inquiry in relation to Sri Lanka and the apparent lack of evidence that he argues is the case in relation to the Office of the United Nations High Commissioner for Human Rights. I can certainly undertake to investigate that, and it may be a matter to which my noble friend Lord Ahmad of Wimbledon might wish to respond.
As for drawing the attention of international bodies to the Overseas Operations (Service Personnel and Veterans) Bill when enacted, I think—from the responses that we are aware of—that it has already attracted widespread comment from international organisations. I am sure that, as part of their public affairs monitoring, they all take account of legislation coming out of various countries. However, the noble Lord makes an interesting point, and I shall reflect upon it.
Lord West of Spithead (Lab)
My Lords, taken together, many of the amendments that we have just discussed certainly seem aimed at emasculating and, indeed, wrecking the Bill. I have no doubt whatever that the Bill is necessary: it lances a long-standing boil and fulfils a promise to our military. The issue has proved too difficult to tackle, time and again, and it is about time that it was tackled. The Bill must go forward.
We need the Bill so much, and I think the amendments we have discussed should go. There are a number of amendments that will resolve the wrinkles, but is it not the case that we will touch on some of the things already discussed in later amendments, when there will be a chance to correct them?
Baroness Goldie (Con)
I thank the noble Lord for his very candid assessment of both the situation that we seek to address and how the Bill seeks to do so. In my role as Minister for Defence in this House, I have certainly pledged to engage with your Lordships; it has been my pleasure to engage with a considerable number of you.
In my remarks on Clauses 1 to 7 of the Bill, I indicated that I am aware of the profound concerns of many Members of this House. I say to the noble Lord, Lord West, that it is my desire to continue my engagement. I shall listen very closely to the contributions during the rest of the debate on the groups of amendments that we are scheduled to deal with today. It is not a cosmetic interest; I understand the depth of concern, and, in reflecting on all the contributions, I shall consider whether some avenues are available to me to try to assuage some of these concerns.
Baroness Massey of Darwen (Lab) [V]
My Lords, this has been an extraordinarily rich and challenging beginning to our consideration of the Bill. I thank the Minister, for whom I have the greatest respect—I know that she is concerned about all these issues—for her detailed response. However, there are some things that are still unclear and about which I have doubts, and I shall come on to those in a moment.
We have had a particularly enlightened debate, with huge depths of knowledge from the perspectives of law, military engagement and political practice. I totally respect all of that and listened to it with great interest. The bottom line is that we want to make things better for our Armed Forces, which do have our respect. I do not think that the Bill has all the answers. Many noble Lords—too many to name—have demonstrated that. We have heard about the challenging aspects of investigations, in the risk to the Armed Forces and legal structures, and much has been covered in this one debate. I wonder what else is to come.
I have been waiting for the Minister to answer all the many excellent points made by my noble and learned friend Lord Falconer of Thoroton. The noble Baroness has been very eloquent, but I am left with some queries. I shall read the noble Lord’s questions and the Minister’s answers again carefully, but I am not totally convinced, for example, by her arguments about the proposals for public consultation. I really do not understand the reasoning behind that—and there are other aspects, too. The debate has left us all with much to ponder and decisions to take about future action. In the meantime, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group beginning with Amendment 3. Anyone wishing to press this, or anything else in this group, to a Division must make that clear in debate.
Clause 2: Presumption against prosecution
Amendment 3
Lord Falconer of Thoroton
“Ability to conduct a fair trial
The principle referred to in section 1(1) is that a relevant prosecutor making a decision to which that section applies may determine that proceedings should be brought against the person for the offence, or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”Member’s explanatory statement
This new Clause replaces the presumption against prosecution with a requirement on a prosecutor deciding whether to bring or continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.
Lord Falconer of Thoroton (Lab) [V]
My Lords, in this group I shall address Amendments 3, 5, 6, 17 and 28. This group seeks, in a variety of ways, to deal with a problem that the Minister identified in her helpful concluding remarks on the last group—namely, stopping the endless shoddy reinvestigations, because that is the real problem.
Since the year 2000 there have been 27 prosecutions in relation to Iraq and Afghanistan. The Ministry of Defence gave evidence to the Joint Committee on Human Rights, which led to its ninth report, dealing with this Bill. The Bill team co-ordinator—I think that was his exact title—Mr Damian Parmenter, did not identify as the problem that the wrong decisions had been made in relation to prosecutions. He identified that the problem was with the reinvestigations, as did Mr Mercer in the other place and Judge Blackett. We need to address the issue directly, not indirectly. The question that I had asked and was waiting most keenly to be answered by the Minister was how the Bill dealt with this presumption—and answer came there none from the Minister, I would submit. If the issue is not the decision about prosecution but the endless process of investigation, this Bill does not deal with it.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, I speak to Amendment 6. Its purpose is simple—that the decision that the prosecutor makes takes into account the quality, thoroughness, independence and accountability of the investigation. It may be said—as appears from the Minister’s letter—that these matters are being looked at by Sir Richard Henriques in the review that he is conducting. No doubt the detail of all this can be gone into at that time—for example, how independence is to be safeguarded and accountability achieved. No doubt we will need to look at the position in other states. All that is for the future.
However, this Bill is being brought forward now. One matter that must be addressed now is that prosecutors, in deciding whether to continue, have to take into account the quality of the investigation in the respects I have set out in the amendment. I have put this forward based on my own experience of three cases that came before me when I was a judge. In the military context—and the civilian context is exactly the same—they pointed to the importance of thorough, well-resourced investigations.
The first case related to the deaths of 24 people in what is now Malaysia during the communist insurgency in 1948, which came back to the courts in 2011. That very unhappy series of events came back because the initial investigation was not thorough, a subsequent investigation was stopped before it was completed and, by the time the matter came before the courts, there was clear evidence that the original explanation of what had happened—namely, that these persons killed had been shot trying to escape—had been given by soldiers on instructions and that 24 people were killed in cold blood.
The second illustration relates to invents in Iraq and what happened in numerous cases, the most significant of which is the death of Baha Mousa. That is a paradigm example of how a poor investigation can be so terrible that it sometimes takes a very long time to see what went wrong.
The third and perhaps more surprising example is the conviction of Sergeant Blackman for shooting a member of the Taliban. When it originally came before the court martial, there had not been a sufficiently proper investigation of the circumstances, the stresses he underwent and his perception of the support he got from his command. That came out only afterwards and was one of the matters that, as appears from the judgment of the Court of Appeal, led to his conviction being reduced to manslaughter.
The thoroughness and independence of the investigation are critical in any decision to prosecute. A similar reflection can be obtained from ordinary cases; where things have gone wrong or there is a problem, it is the investigation. It is important that an investigation is fair—that is why it is listed—and thorough. And it should be fair in both senses: to the accused and to those who say a crime has been committed.
Independence is of equal importance. Any detailed consideration of the Malay case to which I referred and of the judgment of the Court of Appeal in the Blackman case shows how independence and accountability are also important. Therefore, what must be taken into account as a matter of principle—not of detail, that is for later—are these matters relating to the investigation. It may be said, “Well, things have got a lot better”. However, we all know that even the most well-organised body can make mistakes in the conduct of an investigation, and accountability and independence need to be of a very high level in certain types of case.
I am putting forward this amendment to show that this nation has regard to the covenant and the support it is necessary to give to our Armed Forces, but also to show that we must be seen to do justice, because the doing of justice is equally important. The quality, thoroughness, independence and accountability of the original investigation, if there has been one, or of the more recent one, should be at the forefront of the prosecutor’s decision.
Baroness Smith of Newnham (LD) [V]
My Lords, as I said in my comments on the first group of amendments, the vagaries of parliamentary procedure mean that in some ways the groups of amendments are being debated in a less than helpful order. I hope that this group of amendments and the suite of proposals will reassure the noble Lords, Lord West of Spithead and Lord Lancaster, and others who had any concerns that perhaps supporters of the first group might be seeking to eviscerate the Bill in its entirety.
This suite of amendments is intended to be constructive. I will speak predominantly to Amendment 17, in the name of my noble friend Lord Thomas of Gresford and myself, and Amendment 28. They are both about investigations. If the purpose of the Bill is to stop unnecessary investigations and investigations being brought many years later, these two amendments in particular seek in clear and specific ways to give substance to the Government’s stated aims.
Amendment 17 gives a very clear outline of what could be done in terms of investigations: how they should be taken forward and, after they are completed, moved to prosecution. We have not heard huge numbers of veterans saying they have been prosecuted many times, but we have heard concerns about people being investigated and never getting closure. Amendment 17 gives a very clear outline of how investigations could be dealt with.
Amendment 28, in the names of the noble Lord, Lord Tunnicliffe, and the noble and gallant Lord, Lord Boyce, puts limitations on reinvestigation. That surely goes to the heart of what the Government say that they wish to do. If the Government really wish to have the best legislation to serve their own stated aims and fulfil the needs and expectations of current service personnel and veterans, could they please consider these amendments?
In your Lordships’ House, the Minister often feels the need to say that, however laudable the goals of the amendments are, they do not quite fit the approach that the Government want to take. If the Minister does not feel able to support the detail of the amendments, might she consider coming back with some government proposals on how investigations and reinvestigations could be dealt with in a way that would enable the Bill to do what it says on the tin?
Lord Lancaster of Kimbolton (Con)
My Lords, it is a pleasure to contribute to this group. I am particularly grateful to the noble and learned Lord, Lord Falconer, for the clarity with which he introduced these amendments.
I turn first to Amendment 3, which effectively seeks to remove Clause 2. That clause, the “presumption against prosecution”, is very powerful. I of course accept that this may not have the legal force it implies to some laymen, not least because of the other measures in the Bill, but it does indicate a very clear change of direction. If one of the aims of this Bill is to offer reassurance to our service personnel and veterans, this is a very powerful clause.
Amendment 3 seeks to delete this clause and effectively replace it with a guarantee of a fair trial. As the noble and learned Lord, Lord Falconer, said, this would happen as a matter of course. I have never met a service man or woman whose concern has been that they will not receive a fair trial in the United Kingdom. So, on the face of it, it does not seem to be a particularly good trade. Removing a presumption against prosecution from Clause 2 and replacing it with a fair trial does not send a particularly powerful message—but I do understand why it is being proposed.
Lord Browne of Ladyton (Lab) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Lancaster of Kimbolton. He brings a valuable perspective to our deliberations. I welcome his contribution and agree with some of it, as will become apparent.
My position on this Bill is essentially that so clearly set out by my noble and learned friend Lord Falconer of Thoroton in his speech on the previous group. I agree with him that this group contains a range of amendments that are aimed at the true source of the problem that the Government have in their sights. I agree with the points that he made, so there will be little point in repeating them. However, to repeat what I said at Second Reading,
“the Bill does not resolve the problem of repeated and prolonged investigations because the Government have chosen to frame the issue as a legal problem, when the truth is that it is a problem about the timeliness and quality of investigations.”—[Official Report, 20/1/21; col. 1207.]
I begin the meat of my contribution with reference to the letter that we received last week from the Minister—for whom I share the regard expressed by others in this debate; I thank her for the letter—seven paragraphs of which sought to persuade us that this Bill would not be improved by specifically addressing investigations and implied that doing so might be counterproductive and unhelpful. The letter even employed the word “danger”; I infer from that that she thought it might be dangerous too. Expecting that the content of her letter will serve as a template for her response to this set of amendments, I want to test its argument.
As we have heard, few criminal prosecutions arising from the wars in Iraq and Afghanistan or from recent overseas operations have in fact been brought against service personnel. None, as far as I am aware, is in the pipeline or anticipated. I encourage the noble Baroness to point to any criminal case that should not have been pursued, if she can identify one, as I suspect she can. Given that context, it is heroic on the Government’s part—to say the least—to attempt to justify the need for legislation against the legal process of prosecution when no history of unjustified prosecutions exists.
This is the more so because, when Ministers are asked what justifies this legislation, their consistent response is to point to a cycle of unjustified investigations into unjustified allegations against soldiers. This Bill will not stop that. In her letter of 26 February, the noble Baroness wisely does not claim that it will. Rather, while expressly accepting the need for continued improvement in investigations—I accept that significant improvements have been made—she sets out an argument for how the Bill might eventually improve them, to encourage those of us who are more inclined to argue for investigation legislation and prosecution legislation. This seems a rather odd argument, so I quote it. She says that
“while the Bill does not contain measures that would have a direct impact on the conduct of investigations … we have included measures in the Bill that may have an indirect impact.”
Surely it is better to legislate for steps that will directly impact the problem than to hope that, indirectly or incidentally, measures in the Bill, while not solving the problem, might in the course of time dilute it.
While I have great respect for the noble Baroness, as I have said, I regret that the paragraphs headed “criminal measures and investigations” in her letter do not provide a justification for this legislation, devoid as it is of any overt attempt to address the real problem. It is no answer to this criticism that, for further improvements to the investigative and prosecutorial process, we should wait for the outcome of the review by Sir Richard Henriques to
“complement this Bill in further reducing the uncertainty for Service personnel about investigations.”
In any case, is there not already a service report from last February, elements of which could have been included here and are not?
Further, it is difficult to be persuaded given what the Minister Johnny Mercer said in a Guardian podcast in 2019. This is not just any Minister—he is responsible for the passage of this Bill. Comprehensively, he set out the problems in that podcast, saying that
“one of the biggest problems … was the military’s inability to investigate itself … and the standard of those investigations … If those investigations were done properly … we probably wouldn’t be here today.”
When the noble Baroness responds, could she address the content of that podcast? At Second Reading I sought to tempt her to do so, but she did not. Can she explain why an explanation of the cause of the problem that was good enough for Johnny Mercer in 2019 should be ignored by your Lordships’ House today, and can she justify those seven paragraphs of her letter?
Also, the failings and imposition of shoddy further investigations on earlier investigations were not brought about in many circumstances by those set out in the letter from the noble Baroness; they were brought about by the arguments put forward in litigation that had its roots in the wars in Iraq and Afghanistan, where it was successfully argued that insufficient inquiries had been made into credible allegations of abuse at the relevant time. Had there been competent criminal inquiries within a reasonable period of time of the allegations, it surely would have been much more likely that the victims would have received justice and those who had been unfairly accused would have been fully exonerated within a reasonable period of the allegations.
This is a view held by many current and former members of the Armed Forces and one of the many reasons, as I understand it, why Judge Advocate-General Jeff Blackett has expressed serious concerns about the Bill. The Director of Service Prosecutions, essentially agreeing with the 2019 version of Johnny Mercer’s analysis, recognised that it is the lack of prompt investigations at the time that lies at the heart of the issue.
If the Government are not going to engage with the real problem when it is obvious and identified by a diverse group of people with expertise and experience in this area, it is the duty of your Lordships’ House to amend the Bill to do just that. That is what these amendments seek to do: they are designed to ensure prompt, independent investigations into criminal allegations. Their absence from the Bill is fatal to its purpose. The acceptance of these amendments is in the interests of victims and of our military. The experience that too many of them have gone through compels us to put in place a system where complaints are investigated properly and dealt with within a reasonable amount of time. That ought to be our priority.
Lord Boyce (CB) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Browne, on this because I agree with the thrust of his comments. The Bill sets out to make statutory provision about legal proceedings for our Armed Forces when they are or have been engaged in overseas operations, which, of course, is a very laudable aim. However, the Bill’s significant emphasis on the presumption against prosecution as a way of relieving some of the stress of legal proceedings is misplaced. It is the investigation and then the reinvestigation process that so wears people down. A prosecution may even be a form of relief when it comes.
Viscount Younger of Leckie (Con)
I am sorry to interrupt the noble and gallant Lord, but we cannot hear him very well. We shall come back to him later in the debate.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
Lord Boyce, we will come back to you later. I now call the noble and learned Lord, Lord Hope of Craighead.
Lord Hope of Craighead (CB) [V]
My Lords, I spent four years at an earlier stage in my career as a prosecutor in Scotland. I was one of the Lord Advocate’s relatively small team of Crown counsel, known as his advocate deputes. For much of that time, the Lord Advocate was the noble and learned Lord, Lord Mackay of Clashfern. It is a real pleasure to see him taking part in our proceedings this afternoon. It was part of my job to take decisions under his authority as to whether or not a prosecution should be brought, and to conduct the prosecution if it was decided that it should proceed. I therefore have some insight into how these decisions are taken.
Of course, there are differences between my job then and what we are contemplating now. I was working in Scotland, under its own system of criminal law, about 40 years ago. While nothing much was actually written down then, there were some well-understood principles to guide us. Much of this was based on the fact that we were acting in the public interest. We had to balance the interests of justice against the accused’s right to a fair trial. Within those broad concepts, there was room for a variety of other factors that we would take into account, guided by common sense and what we had learned by experience.
That having been said, I acknowledge that in today’s world there is the need for a more formalised system of rules. That helps to achieve consistency in decision-making, and it helps to reassure the public that these important decisions are soundly based. In the context of this Bill, I acknowledge that “the public” must include service personnel serving or who have served in operations overseas. After all, reassurance to them is what this Bill is all about.
That brings me to Amendment 3, and afterwards to Amendments 5, 6 and 28. The wording of Amendment 3 does not come as any surprise to me. It relates to the ability to conduct a fair trial, and makes a proposition that hardly needs to be said. As the noble Lord, Lord Lancaster of Kimbolton, said, this principle applies as a matter of course. I cannot imagine that the proposition would have escaped my attention had I been responsible for taking these decisions, but of course the real point of Amendment 3 is to challenge the presumption and replace it with something else which has equivalent force, removing the hard edge of presumption.
On the whole, I am uneasy about a presumption that applies after a particular time limit. Cases vary and the facts differ from case to case; what might be absolutely right in one case could be very unfortunate in another. There is a real difference, however, between the presumption in Clause 3, which uses the word “exceptional”, and the word “materially”, which is the key word in the amendment. It is a much softer alternative. I am uneasy as to whether it really is an adequate replacement for the presumption if the aim is to get rid of the presumption and replace it with something of equal force.
Baroness Chakrabarti (Lab) [V]
My Lords, I will not seek to replicate the eloquence and experience of noble and noble and learned Lords, including noble friends who have spoken before me. Instead, I will take on the challenge of addressing the noble Lord, Lord Lancaster, directly, because he is the person with whom I most disagree. From his comments in the previous group, I think he is particularly concerned about lawyers in this context. Perhaps he shares some of the concerns of his colleagues in the other place about warfare and a lack of warmth and respect for our Armed Forces.
I would like to reply to him in the following way in case it helps us develop some common ground in scrutinising this legislation. For pretty much the whole of my career as a human rights lawyer and campaigner, I have been accused—I would say falsely—of being soft on crime, soft on those suspected of crime and soft on those accused of crime. I would say that I am not soft: I just believe that people should be protected from false accusations and charges by due process, and that a miscarriage of justice—a wrongful conviction —delivers more, not fewer, victims. That has been my view, whether the person accused is in civilian life or in uniform, so I have not given up—nor have other lawyers in this debate or in the country at large—on the jealous protection of due process just because the people who are accused may be members of our military.
The concerns expressed by everyone on this group of amendments, and many on the earlier group, are about this part of the Bill addressing prosecutions—which have not been a problem—instead of investigations. That is why the noble Baroness, Lady Smith, wished that we could have got to the meat—the heart—of the debate sooner, but that is not in the natural order of things. Legislators, as opposed to Governments, are not in a position to do what is really required, which is to redesign and devote investment to a robust investigative system that is suitably independent, swift and resourced. Instead, we have these amendments, which probe what fair and robust investigations would look like to safeguard —I stress, safeguard—military personnel from the concerns that they have expressed over many years from the shadow that hangs over them. That is why the amendments are well put, if only in the first instance as probing.
The noble Lord, Lord Lancaster, said that he did not really see the value of Amendment 3, in the name of my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford—who spoke so ably earlier on—because it would replace Clause 2, which is about prosecutions being “exceptional”, with a new, perhaps more convoluted form of words, which he might think is trees and not wood, about the dangers of being “materially prejudiced” by the passage of time. “Exceptional” is not desperately helpful as a new test when prosecutions have been so truly exceptional up to now. Prosecutions have not been a problem. No one is suggesting that lots of vexatious prosecutions have been a problem but merely that people have been worried about them because of shoddy, lengthy and delayed investigations. The status quo is for prosecutions to be quite exceptional. We are not seeing very much by way of guidance to prosecutors in the current Clause 2, which says that such prosecutions, as part of a triple lock, should be exceptional.
Further, we still have a Human Rights Act, and this legislation has to be predicated on the fact that that will continue—certainly, CHIS legislation was tightly predicated on that proposition. There has been case law during the tenure of the Human Rights Act showing that, if it is necessary to do so to comply with human rights, “exceptional” can be read as something that is much more routine. If, as some of us believe, this legislation, unamended, would give rise to violations of victims’ human rights, “exceptional” in the current Clause 2 would have to be construed by courts as something that is quite possibly less than exceptional and therefore not the position that the noble Lord, Lord Lancaster, would like. Amendment 3 as proposed by my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford, is much more precise about what is sought to be avoided in the interests of the accused, which is a test that they not be materially prejudiced by the time elapsed. We are supposedly here to reassure armed personnel, who we know are very concerned about time elapsing, and their chances of a fair trial being prejudiced by that, because of the shoddy, delayed and repeat investigations that we have seen.
If I were serving in the military, I would take much greater comfort from protections in relation to these investigations in general, but, if we are going to look at provisions of this kind—which I do not support, because I do not support the presumption against prosecution—this concept of being materially prejudiced by the passage of time, through no fault of my own, should give far greater comfort to me as an accused than would the word “exceptional”, which could become devoid of content.
Lord Anderson of Ipswich (CB) [V]
My Lords, when the Minister introduced this Bill at Second Reading, she said that she detected broad sympathy with its objectives. If she meant the objective of protecting our veterans against repeated and delayed reinvestigations for which there is no new or compelling reason, I am quite sure she was right. The noble Lord, Lord Dannatt, mentioned Major Bob Campbell, as has the noble Lord, Lord Faulks, today. Major Campbell was investigated multiple times over 17 years in relation to the death of an Iraqi teenager—eight times according to the noble Lord, Lord Dannatt, and 11 times according to the noble Lord, Lord Faulks—before being finally exonerated last year by an inquiry led by the noble and learned Baroness, Lady Hallett.
That multiplicity of investigations is something that surely no noble Lord would wish to defend, although the fact that the ICC prosecutor looked carefully at the case and decided not to proceed only because there had been a thorough investigation by the state should be a warning against any complacency that we can weaken our standards of investigation while still keeping the ICC at bay.
Amendment 28 seeks to attack the problem of multiple investigations directly by injecting an element of independent quality control into the investigations process. It would require further investigations to be conditional on compelling new evidence emerging and on an allocated judge advocate considering the totality of the evidence to be sufficiently strong. Like the Henriques review, which I welcome, Amendment 28 has the advantage of straightforwardly addressing the issue of repeated inconclusive investigations. I would, however, voice two reservations, with ICC-proofing in mind. First, is a judge advocate a sufficiently independent figure to apply the filter? Secondly, a high bar is set by the requirement of “compelling new evidence”, a bar which one would not normally expect to be surmounted without the conclusion of precisely the further investigation for which this test would be a precondition. Perhaps I might suggest “there is a compelling reason” as more realistic wording for proposed new subsection (2)(a).
Amendment 17 seeks to address slow investigations. Proposed new subsections (3) and (5) would put some time limits into the process. That, again, strikes me as a solution which, whether appropriate or not in all its detail, is at least directed to a real problem. Let us take the case of Baha Mousa, who died in British custody in 2003 after being hooded, deprived of food and water, and beaten, sustaining at least 93 injuries. The first round of prosecutions, to which the noble Lord, Lord Lancaster of Kimbolton, referred earlier, was characterised by a closing of ranks and achieved only a single conviction, in 2007, on a guilty plea by a corporal to a charge of inhumane conduct. There followed a three-year public inquiry, led by Sir William Gage, which in its three-volume report of September 2011 made detailed findings about the circumstances of Baha Mousa’s death and identified 19 soldiers directly involved in his abuse. The Iraq Historical Allegations Team was tasked in May 2012 to review that report with a view to assessing whether more could be done to bring those responsible to justice.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I believe that we are trying to reconnect with the noble Lord, Lord Boyce.
Lord Parkinson of Whitley Bay (Con)
The noble Lord should now continue and we will see how well we can hear him.
Lord Boyce (CB) [V]
My Lords, this Bill sets out to make better provision on legal proceedings for our Armed Forces when they are, or have been, engaged in overseas operations. This is a very laudable aim, but the Bill’s significant emphasis on presumption against prosecution as a way of relieving some of the stress of legal proceedings is misplaced. It is the investigation and reinvestigation process that so wears people down, and prosecution, when it comes, may even be a form of relief. The noble and learned Lord, Lord Mackay, alluded to this matter of waiting in the last group of amendments.
Anyway, we should bear in mind that, even when the presumption is in place, there is no total lifting of the threat of prosecution after five years. As the Minister has told us, this can still happen if the Attorney-General sees fit. Furthermore, there could be the spectre of an even longer investigative process if the case falls into the hands of the ICC. I know that the matter of the ICC has been well covered this afternoon, and that the Minister has sought to reassure us on this point, but I am afraid that I am not convinced. Nor it seems is the ICC, which apparently remains unconvinced by any assurances that the Government may have tried to make in defence of the Bill.
This is by the way, because, as I have mentioned, it is the investigation process that needs primarily to be addressed: to be sharpened up to ensure that it is not a fishing expedition, that there is value in pursuing the matter under consideration, that it is constrained in length, and that reinvestigations are launched only after the most careful judicial oversight. The noble and learned Lord, Lord Falconer, has captured all this rather well, as indeed have other noble Lords. It is for these reasons and others that I support Amendments 5 and 28, to which I have put my name, and, indeed, other amendments in this group. I concur with much of what other noble Lords have eloquently said on the matter of investigations; I will spare your Lordships a repeat of all that has gone before in this group.
Lord Thomas of Gresford (LD) [V]
My Lords, the problem of investigations—as well as of late and inadequate investigations—should be addressed and the process sharpened up. The noble and gallant Lord, Lord Boyce, told us this a moment ago and I thoroughly agree with him. The problems have been very clearly outlined by the noble and learned Lord, Lord Falconer of Thoroton. I echo the noble and learned Lord, Lord Thomas of Cwmgiedd, who emphasised that justice must be done based on thorough and prompt investigation. The noble Lord, Lord Lancaster of Kimbolton, is sure that investigations have improved in recent years; I hope that that is true.
I stress first of all the inherent difficulties of investigations into alleged conduct arising out of overseas operations. The noble Lord, Lord Browne of Ladyton, believes that they should be timely and of quality—of course they should. In the United Kingdom, most crimes are investigated by one or more of the 45 or so police forces within their area of operations. Local police forces can readily pull in extra investigatory resources, including scientific investigations, if they need them.
By contrast, investigations by the military police may occur anywhere in the world. Co-operation by the civilian population or even the civilian police cannot be guaranteed. There are usually significant linguistic and cultural problems in the collection of statements from witnesses. It may be that a complainant—a foreign national—has his own axe to grind. The noble Lord, Lord Anderson, reminded me, with the Baha Mousa case, of another problem, where the judge said in his closing remarks that there had been a closing of ranks; that is a problem with the natural desire of soldiers to support each other.
There can be security problems. When in 2005 it was decided that an inspection of a dusty Iraq village was desirable, a whole company or more of 200 soldiers was deployed to provide protection for the dozen or so sheepish lawyers who attended. I was not one of them: the MoD was not prepared to insure the silks in the case. There is no immediate access to the support that a civilian police force in this country might expect. It follows that delays are inherent and inevitable, but they are not desirable. Yet we can read the whole of this Bill and find nothing which deals with the essential preliminary to any prosecution: a thorough, prompt investigation.
This group of amendments suggests various pathways to ensuring that the length and efficiency of an investigation is controlled. Amendment 17, in my name and that of my noble friend Lady Smith, sets out a practical route for putting the investigation under the control of the Director of Service Prosecutions. An investigator must, within six months of the complaint, provide a preliminary report to the DSP of the progress of his investigation. As may well happen informally in any event, the DSP may give guidance on the lines of inquiry which would be appropriate.
In my amendment, if, on an assessment of all the papers, the DSP sees no future in the investigation, he would have the power to terminate it then and there. If he orders the investigation to continue, there would be regular reporting to him of the progress of the inquiry, again with the possibility of him calling a halt. I have discussed this with the former Judge Advocate-General, Judge Blackett. He is of the view that control of the investigation is highly desirable but that the power to stop an investigation should rest with a designated judge, not with the DSP. A moment ago, the noble Lord, Lord Anderson, suggested that this might not be satisfactory and that a more independent person should be involved in supervising an investigation. I am not really worried about what way one approaches it, but there should be control of an investigation to ensure that it is proceeding at a proper pace and in a proper direction. I think there was a modicum of support for that amendment even from the noble Lord, Lord Lancaster of Kimbolton. Since the DSP has the undoubted power to decide not to prosecute on the conclusion of an investigation, I do not see any problem with the DSP controlling the steps leading up to the final report.
I have also added my name to Amendment 3 on the basis that, at the very least, in deciding whether to prosecute, the DSP should have in the forefront of his mind whether a fair trial has been materially prejudiced by delay or by the quality of the investigation. I have in the past made submissions in court that a fair trial is impossible through delay, pre-trial publicity or matters of that sort, but never with success. The noble and learned Lord, Lord Hope, criticised Amendment 3 as too soft. I do not think so, if it is given a statutory formulation. It would be given weight as an important consideration for the DSP at the time of his decision whether to commence proceedings at all. I submitted earlier this afternoon that a presumption against prosecution is not the way forward. Whether a fair trial is possible should be an important consideration before the prosecution commences.
Baroness Goldie (Con)
My Lords, once again we have all been struck by the quality of the debate, which has penetrated issues that are legitimately at the heart of the Bill. Noble Lords who have raised issues related to the Bill are rightly seeking clarification and reassurance about what different components of the Bill mean, and particularly where the whole issue of investigations lies in relation to it.
I will begin with Amendment 3, moved by the noble and learned Lord, Lord Falconer of Thoroton. The Government’s intention with the measures that we have introduced in Part 1 of the Bill is to provide demonstrable reassurance to our service personnel and veterans. It is not only a worthy aspiration but a necessary one. It is a demonstrable reassurance in relation to the threat of legal proceedings arising from alleged events occurring many years earlier on operations overseas. This has meant balancing the need to introduce protective measures for service personnel and veterans and remaining compliant with our domestic and international obligations.
On the one hand, the measures set a high threshold for a prosecutor to determine that a case should be prosecuted, as well as ensuring that the adverse impact of overseas operations will be given particular weight in favour of the serviceperson or veteran; on the other hand, as I have previously said, the measures do not and cannot act as an amnesty or statute of limitations, do not fetter the prosecutor’s discretion in making a decision to prosecute, and are compliant with international law. I believe that we have achieved this balance, this equilibrium, in the combination of Clause 2, the presumption, and Clause 3, the matters to be given particular weight. We are providing the additional protection that our service personnel and veterans so greatly deserve, while ensuring that in exceptional circumstances individuals can still be prosecuted for alleged offences.
Lord Falconer of Thoroton (Lab) [V]
I am obliged for the detailed and very careful reply that the noble Baroness, Lady Goldie, gave, and I am particularly grateful to her for overriding instructions—that is the wrong word—given to her by the Government Whips. I am also appreciative of the very rich debate we have just had. I will draw attention to three particular interventions. First, my noble friend Lord Browne of Ladyton expressed the view that everybody subsequently expressed, including the Minister, that it is the lengthy investigations that we are trying to deal with here. Secondly, the noble and gallant Lord, Lord Boyce, made the point that the real evil here is investigation and reinvestigation; and, thirdly, my noble friend Lady Chakrabarti said, “Look, this presumption that the Government are relying on about exceptionality will not provide much protection when you see the low numbers of prosecutions that have been given.”
I earnestly ask the noble Baroness, Lady Goldie, to consider carefully the points that have been made in the course of this debate by everybody. I am increasingly concerned about the presumption. It does not do the trick, because it does not provide the reassurance that is required. It raises very problematic questions of international law, it does not deal with very many cases, and it risks bringing in the ICC. So it will not give the reassurance that the noble Baroness, Lady Goldie, and the noble Lord, Lord Lancaster, are looking for. There were signs that the noble Lord, Lord Lancaster, in supporting Amendment 28, might be beginning to support some of the proposals that we are making.
So I earnestly ask the noble Baroness to think again about this, because we are united in what we are trying to achieve, and the presumption in Clause 2 does not do it. Of course I beg leave to withdraw my amendment, but we will certainly return to these issues on Report, because this is the heart of the Bill.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
We come to the group beginning with Amendment 4. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 3: Matters to be given particular weight
Amendment 4
Baroness Massey of Darwen
Member’s explanatory statement
This amendment and the other amendments to Clause 3 in the name of Baroness Massey would delete the requirement to give “particular weight” in any prosecution decision after 5 years to a person having an impaired ability to exercise self-control or to exercise sound judgement whilst being deployed on operations overseas.
Baroness Massey of Darwen (Lab) [V]
My Lords, again I am speaking as a member of the Joint Committee on Human Rights, and the amendments are again based on the views of expert witnesses who contributed to its report. I shall speak to Amendments 4, 7 and 8. They relate to Clause 3 and would delete the requirement to give “particular weight” in any prosecution decision after five years to a person having an impaired ability to exercise self-control or to exercise sound judgment while being deployed on operations overseas. The amendments would omit Clause 3(2)(a), (3) and (4). Their concern is similar to concerns in Clause 11 in relation to limitations on bringing proceedings under the Human Rights Act.
The Joint Committee on Human Rights report on the Bill explains in chapter 3 that:
“In domestic law the prosecution would take into account a person’s mental health as part of the decision as to whether a prosecution is in the public interest—and this is a factor that would currently already apply to prosecutions of members of the Armed Forces. Moreover, a person who is not fit to plead at the time of trial would not be assessed for the … mental element … of an offence. A defendant could raise a plea of insanity as a defence if at the time of the offence their mental condition was so impaired that they were unable to understand the act they were doing or that it was wrong.”
Paragraph 77 of the report states:
“The MoD should not be sending Armed Forces personnel on deployment who are unable to make ‘sound judgements’, who cannot ‘exercise self-control’ or whose mental health is so severely affected that the MoD does not consider that they should be responsible for their criminal actions. Moreover, if a member of the Armed Forces becomes unable to make ‘sound judgements’, can no longer ‘exercise self-control’ or where there are significant concerns about their mental health, then there should be adequate systems in place to relieve that person of their operational duties, remove them from the conflict situation (where appropriate) and give them the support that they need.”
The Joint Committee on Human Rights expressed concern at paragraph 76 that,
“the Bill does not provide any incentives for the military hierarchy to ensure that members of the Armed Forces who are mentally unfit to be deployed get removed from operational duties and given the support that they need. Instead it includes an impediment to prosecuting a person whose judgement may be impaired, who lacks adequate self-control or whose mental health may have been affected”.
Service personnel are trained to deal with complex situations, and there are undoubtedly high-stress situations in combat. Due account must be taken of these complexities as part of any decision on whether to bring a prosecution. However, it should not be part of a statutory barrier to bringing prosecutions when they are in the public interest.
The Joint Committee on Human Rights does not consider that there is any solid basis for including additional requirements that could risk granting de facto impunity to those who have committed crimes on the grounds that the perpetrator lacked sound judgment or could not exercise self-control beyond the threshold already established in criminal law. For that reason, the committee recommends deleting Clause 3(2)(a), (3) and (4). I beg to move.
Lord Mackay of Clashfern (Con) [V]
My Lords, the question is when this condition intervenes. It would be one thing to send a person over to a foreign assignment with that condition at that time, but there must be a risk that the impetus of foreign work in certain conditions would bring about these conditions in the person in question. There is therefore a real question as to whether or not the matter of the investigation discloses that the person in question became subject to that condition as a result of his being in the operation abroad. It does not necessarily mean that a person is sent into the work with that kind of condition. I would have thought that that distinction was quite important since the idea of the clause seems to be that they look to see whether or not the conditions under which the military man or woman has been working have produced these results, so far as their mental health is concerned.
Baroness Chakrabarti (Lab) [V]
My Lords, in principle I am quite concerned about overprescribing matters to be taken into account, because I would want all prosecutors in relation to all suspects to have a very broad discretion to take into account all sorts of adverse factors in fairness to a potential accused. None the less the Minister, who is the most gifted and reasonable advocate, says that part of the purpose of the Bill is reassurance—presumably even if that is a psychological comfort rather than an actual legal one, because I am sure that all relevant factors are currently available.
The Minister also talks about balance and equilibrium. In that spirit I am concerned, given that it is said that prosecution after five years is now going to be wholly exceptional, that no factors are listed in the Bill that militate towards that exceptional prosecution. Why not? Surely that would be the balanced thing to do in the spirit of equilibrium. Why is there no mention here of issues such as covert operations, witnesses and indeed victims of war crimes potentially having been incarcerated, or the crime being particularly undetectable because of collusion by people within an operational cohort or even at a higher level? It seems strange as a matter of good law to have put in the factors that militate against prosecution, which we are told is to be exceptional, as two parts of the triple lock, but to have given no guidance at all as to the exceptional circumstances. With that in mind, I can only agree with the Joint Committee on Human Rights, which is such an important committee for both Houses in performing their role in relation to human rights, and with the remarks of my noble friend Lady Massey.
Lord Lancaster of Kimbolton (Con)
I am pleased to follow the noble Baroness. I am grateful to her for, dare I say, reaching out during the last group of amendments and attempting to reach some common ground. I think we are seeking to achieve similar things, albeit coming from very different perspectives, since I was a practitioner, as it were, in the past. I looked very carefully at the amendment and, for fear of being damned with faint praise by the noble Lord, Lord Thomas, there are aspects that I absolutely understand.
As ever, though, the problem has just been hit on the head by my noble and learned friend Lord Mackay, and that is the application. It is one thing to say that people who are suffering should not be put into a war zone, and that is absolutely right. However, the application matters when you are already in a war zone—a distant FOB—and within a small group with no ability to blow a whistle and stop the war in order to be withdrawn from the situation, along with the gradual deterioration of the condition over a period of time. This will not necessarily be seen by those around you because they are suffering similar things. It is not quite as easy to put into practical application during operations, which is why we need to be careful.
When I was training to become a bomb disposal officer, I knew absolutely what I was letting myself in for. Having served on operations in Bosnia, Kosovo and Afghanistan, most recently in Afghanistan while I was a Member of Parliament, it is not always possible to see these deteriorations. It is important to realise that a medical or psychiatric condition may or may not be recognised at the time. Prosecutors are already required to have regard to any significant mental or physical ill-health or disability as in some circumstances this may mean that it is less likely that a prosecution is required. Clause 3 simply seeks to ensure that such considerations are put on to a statutory footing within the unique context of an overseas operation.
I recognise that I come at this from a different angle and I can see the precise way in which noble and noble and learned Lords are looking at the Bill, but I will go back to the comments I made earlier. This is also about sending a message. By putting this on to a statutory footing in the Bill, it will send a clear message to members of our Armed Forces that the Government and Parliament understand that we are asking them to do extraordinary things in extraordinary circumstances. This would be a recognition of that.
Lord Dubs (Lab) [V]
My Lords, I also speak as a member of the Joint Committee on Human Rights which produced the report on this Bill, and it is what is in that report which will influence the brief comments that I shall make. I support what my noble friend Lady Massey has said.
I accept fully that it is most unlikely that the Armed Forces would send someone abroad who was not capable of making sound judgments. The issue, as evidenced by the comments of the noble Lord, Lord Lancaster, just now and the noble and learned Lord, Lord Mackay, is whether people in a war zone, in very difficult and dangerous circumstances, might develop a condition where their judgment was not as sound as when they were sent there. However, my understanding is that soundness of judgment is something that underlies all prosecutorial decisions in the criminal law of this country anyway, so I am not clear as to why we should treat soldiers differently from the way that the law normally works.
I can do no better than to quote from paragraph 79 of the JCHR report:
“The mental health of a defendant is already borne in mind as part of the prosecutorial decision as to whether it is in the public interest to bring a prosecution. We do not consider that there is any solid basis for including an additional requirement that could risk granting de facto impunity to those who have committed crimes on the grounds that the perpetrator lacked sound judgement, or could not exercise self-control, beyond the threshold already established in criminal law. For this reason, we would recommend deleting clause 3(2)(a), 3(3) and 3(4).”
The key words in this are
“beyond the threshold already established in criminal law.”
If we believe that the threshold in our criminal law is adequate, we do not need this extra provision. That is the basis on which I will support what my noble friend Lady Massey said at the beginning of this debate.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
The noble Baroness, Lady Smith of Newnham, has withdrawn, so I call the next speaker.
Lord Tunnicliffe (Lab) [V]
My Lords, we stand foursquare behind our troops and we want to work with the Government to build the broadest consensus possible on the Bill—tailored to supporting our Armed Forces members and safeguarding human rights. The amendments in this group aim to probe an understanding of what particular weight a prosecutor must give when considering a prosecutorial decision related to alleged conduct during overseas operations. As we have heard, Amendment 4 would remove the requirement on a prosecutor to consider the adverse effect on the person of the conditions they were exposed to. Amendment 7 would remove the requirement on the prosecutor to consider any exceptional demands and stresses, while Amendment 8 would remove the definition of any adverse effects, including making sound judgments or considering mental health.
The amendments are based on concerns raised by the Joint Committee on Human Rights which stated:
“We do not consider that there is any solid basis for including additional requirements that could risk granting de facto impunity.”
If mental health is already considered by prosecutors, as indicated by the Joint Committee on Human Rights, why do the Government believe it necessary to include it in this Bill? As the Minister will see, these requirements have not been considered by prosecutors before. Also, as my noble and learned friend Lord Falconer asked in the previous group, why have the Government not included a requirement for prosecutors to give weight to the quality and duration of relevant investigations? The Armed Forces Judge Advocate, General Jeff Blackett, has said:
“Clause 3 is engaged after five years. It seems bizarre to me that in deciding whether to prosecute, you have a post-five-year test, but not a pre-five-year test.”
Why have the Government drafted Clause 3 in this way? What independent legal advice was given in relation to the drafting of the clause? Vexatious claims are a serious problem, but we fear that the focus on a presumption against prosecution misses the point: it is the current cycle of investigations. We can see that from how the Government have failed to give particular weight to the quality and duration of the investigations in this clause.
Baroness Goldie (Con)
My Lords, once again, I thank the noble Baroness, Lady Massey, and all other contributors to the debate for a fertile discussion. At the risk of sounding repetitive, I shall probably repeat some of the themes to which I have already referred.
In relation to these amendments, I would comment that we ask a huge amount of our service personnel. We send them to undertake high-threat, high-risk operations in defence of our country and its people. They do their duty in the clear knowledge that they may be injured, maimed or even killed. That is the unique nature of their job and is what sets them apart from the rest of us. The Government believe therefore that it is absolutely right and reasonable to require that in return we ensure that a prosecutor, when coming to a decision to prosecute, must give particular weight to the unique circumstances of overseas operations and the adverse impact that these may have on a service person’s capacity to make sound judgments and on their mental health at the time of an alleged offence. This will be in addition to considering the existing evidential sufficiency and public interest test.
Let me make it clear that this is intended not to excuse bad behaviour by service personnel but to ensure that prosecutors give full recognition to the significant difference in the circumstances surrounding an alleged offence committed on operations overseas as compared, for example, with situations where the alleged criminal conduct occurs in a domestic, civilian setting.
Although differing views to the attitude of the Government have perhaps been expressed in the debate, as far as I could ascertain, contributors acknowledged that the conditions referred to in the Bill could indeed be personal impairments that might attach to Armed Forces personnel in the course of their operations overseas. That is why the prosecutor must consider the presumption against prosecution in Clause 2 and determine whether the case meets the exceptional threshold. The prosecutor must also, as required by Clause 3, give particular weight to matters that may effectively tip the balance in favour of not prosecuting.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I have received no requests to speak after the Minister, so I call the mover, the noble Baroness, Lady Massey of Darwen.
Baroness Massey of Darwen (Lab)
My Lords, again I thank the Minister for her concern and detailed response. Many wise comments and questions have been made. I appreciate what the noble and learned Lord, Lord Mackay of Clashfern, is saying about lack of sound judgment developing under stress in adverse conditions in conflict situations. The point that I wanted to make was that I agreed that that would happen, but part of what I was saying was that people needed support to come to terms with that, which could take a very long time.
My noble friends Lord Dubs and Lord Tunnicliffe gave a response. The question that my noble friend Lady Chakrabarti asked on why Clause 3 has been drafted in this way is important. In response to the Minister’s final comments, I should like to read what she said. It is difficult to be persuaded that prosecutors would find it difficult to understand the condition and environment in which service personnel are working. It is fairly obvious to most people that those circumstances are difficult. However, I should like to read what she said, and read the full debate, and discuss with colleagues what action we want to take next. In the meantime, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group beginning with Amendment 10. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 10
Lord Falconer of Thoroton
“(3A) Where the consent of the Attorney General is sought under subsection (2) or (3), the Attorney General must prepare a report containing his or her reasons for granting or withholding consent, as the case may be, with reference to sections 1 to 3 of this Act, and must lay a copy of this report before each House of Parliament.”Member’s explanatory statement
This amendment requires the Attorney General to lay out their evidence and assessment as to why they granted or refused consent to prosecute.
Lord Falconer of Thoroton (Lab) [V]
There are three amendments in this group, Amendments 10, 11 and 12, which deal with the question of the need for the consent of the Attorney-General before a prosecution covered by the presumption goes ahead. This is an important but quite short series of issues; in effect, the Bill is adding in the consent of the Attorney-General as the third part of the triple lock, before prosecution is brought against military personnel in respect of overseas operations. Therefore, the consent will be required only when a prosecutor has decided that a case where over five years have gone by is exceptional, and the Attorney-General’s consent, or lack of it, will be of real significance only when he or she does not give it.
The consequences of the Attorney-General not giving consent are, in my view, threefold. First, it may well give rise to suggestions that the issue has been politicised. Secondly, the Attorney-General is very frequently involved in making or overriding decisions made in relation to operations overseas. For example, the Attorney-General will often give instruction and advice in relation to conditions of detention. It is worth reading the evidence given by Nicholas Mercer to the Joint Committee on Human Rights, where he described the involvement of the Attorney General’s Office in decisions that he had been involved in as a lawyer when, in foreign theatres of war, the use of force was involved. As such, my second point is that the Attorney-General may well have been involved in decisions that affect that theatre of war. From my own experience as Solicitor-General, I can tell you that that was indeed the case.
My third point is that, if the Attorney-General is going to override the prosecutor’s view that a prosecution should be brought, he will inevitably be increasing the risk that the matter is referred to or taken up by the ICC—because it will see a case where the prosecutor thinks that the prosecution has an over-50% chance of success and the public interest allows it, yet the Attorney-General has not allowed it to go ahead. Fourthly, if the Attorney-General is overriding the view of the prosecutor, which is the only time when this would be significant, questions will arise as to whether that puts the United Kingdom in breach of a whole range of international obligations—the Geneva convention, the United Nations Convention against Torture, Articles 2 and 3 of the human rights convention and the Rome convention, which is the International Criminal Court statute, in effect.
As such, our amendments first require the Attorney-General to give “reasons” as to whether he is giving or withholding consent, and laying them before Parliament. Secondly, Amendment 11 proposes that he must consider whether refusing consent will
“increase the likelihood of the International Criminal Court exercising its own competence”.
Thirdly, Amendment 12 proposes that he must consider whether his refusing consent would constitute a “breach of international law”. These amendments are laid by way of probing. We have real concerns about this provision and that it will not provide added protection but will instead give rise to very significant legal risks. I beg to move.
Lord Faulks (Non-Afl) [V]
My Lords, these amendments seek to make the Attorney-General and the Advocate-General for Northern Ireland more accountable in relation to what we might call “late prosecutions”, and in particular more accountable to Parliament. The obligation in Amendment 10 provides for a report to Parliament in the event of either the granting or withholding of consent for such a prosecution. I accept what the noble and learned Lord, Lord Falconer, said—that there may be more interest in circumstances where the Attorney-General does not consent to a prosecution.
Amendment 11 provides that the Attorney-General should give consent if there is an increased likelihood of ICC involvement. In Amendment 12 he or she must give consent if not doing so would lead to a breach of international law. Normally, advice from law officers to the Government is not disclosed to Parliament—nor even is the fact that advice has been sought—so to some extent these amendments are a bit of a novelty.
I have considered a number of lawyers’ views about whether the courts, as opposed to Parliament, could be involved in reviewing a decision by the Attorney-General either to consent to a prosecution or not to consent. The balance of view seems to be a cautious yes, although the courts would be expected to exercise a so-called “light-touch review”. In other words, it is unlikely that the courts would quash a decision of this sort.
I was most interested to hear what the noble and learned Lord said about these amendments because, on reading them, I was not quite sure what would be in the report proposed for receipt by Parliament. What would the law officer have to say? Would he or she simply cite public interest, gravity of offences and reasonable prospect of conviction in the event of a decision to prosecute, and presumably the opposite in the event of a decision not to prosecute? I suppose there might be some reference to the length of time between the acts concerned and the decision to prosecute. Of course, he or she would not be expected to give detailed reasons on the strengths of a particular witness or worries about one aspect of the evidence, or something of that sort. I am not sure what Parliament is going to do with that information, but I accept that accountability to Parliament is generally desirable.
As to the obligation under Amendment 11 in relation to the ICC, my understanding of the ICC—and I have attended one of its conferences in Rome—is that it is a court devoted to the macro rather than the micro, as I said when referring to the evidence of Major Campbell. It is also concerned mostly with offences at a high level.
Such prosecutions are often quasi-political—and I do not mean that in a pejorative sense. I recall that the perceived political element of the court was such that a number of countries walked out of the conference in Rome in the first few minutes as a protest at the alleged political element. Of course, the Rome statute is one to which the United States of America is not a signatory.
In one sense, the failure to prosecute or a decision not to prosecute by the Attorney-General must mean that there is an increased likelihood of ICC involvement, although I am not sure how that can be assessed. I entirely support our involvement with the ICC, but there are often complex reasons, including the availability of resources, which determine whether or not there are prosecutions. Our general support for the ICC as an institution should not be diluted in any way, but I am not sure that fear of ICC involvement should mean that the Attorney-General cannot come to the conclusion he or she thinks appropriate in these circumstances.
Similarly, the question of a putative breach of international law seems to me to be rather superfluous. There is an obligation, as I understand it, on the part of the law officers, as Ministers, to comply with the Ministerial Code. That obligation includes an obligation to obey the law, including international law. I do not want to revisit the difficult territory covered by the internal market Bill, but my understanding of the Ministerial Code, and I am on record as saying as much in your Lordships’ House, is that the obligation includes international as well as domestic law—although sometimes international law may not be as easily ascertainable—so I am not currently aware of the need for this extra obligation.
I acknowledge that these amendments are essentially probing, so that Parliament can understand better the process by which the Attorney-General would be involved in so-called late prosecutions. I share the interest of the noble and learned Lord in how the process might work generally, but I am not for the moment persuaded that any of these amendments is either appropriate or necessary.
Finally, I am uneasy about the alleged political component of the Attorney-General’s involvement. I think the role of the Attorney-General in this sort of circumstance is pre-eminently not a political one, but it is ironic that the involvement of Parliament in some way that is envisaged by these amendments could, in fact, run the risk of some important boundaries being crossed.
The Deputy Chairman of Committee (Lord Russell of Liverpool) (CB)
The noble and learned Lord, Lord Morris of Aberavon, has withdrawn from this group, so I call the noble Baroness, Lady Jones of Moulsecoomb.
Baroness Jones of Moulsecoomb (GP)
My Lords, that was quite interesting, actually, because of course these amendments are trying to create some sort of accountability for the Attorney-General. I thought the noble Lord, Lord Faulks, was going to say something about the Attorney-General being rather more political than in the past, because of course the office of Attorney-General has been sadly undermined in recent years, particularly last year with the Attorney-General’s quick defence of Dominic Cummings’ unlawful behaviour. That was, I fear, just one example, and the fact that she then so quickly rowed back from her position to a position of it being only her political decision and not a legal opinion shows how easy it is for an Attorney-General to step over that increasingly faint line. In that, I think that she mistakenly excused illegality in the name of political expediency. We, of course, cannot become complicit in that, so I was extremely pleased to sign the shadow Attorney-General’s Amendments 10, 11 and 12.
I am concerned that this triple lock in the Bill can actually lock justice out. Even if the power of justice is strong enough to overcome the first two locks, we have to trust the Attorney-General to make the right decision on the third lock, which of course would be very difficult. The Attorney-General therefore has to publish their reasons when making decisions, because these decisions should be made according to normal standards of administrative propriety and should rightly be subject to judicial review. Where the reasons for the decisions are irrational, unlawful or irrelevant, they should be able to be overturned. Where the decision is purely politically motivated and has no foundation in facts, the law or the interests of justice, equally it should be overturned. These amendments are essential to ensure that this is the case.
Such important decisions as those envisaged in the Bill must never be made on a whim or be purely political. Justice has to be done and be seen to be done. I would just like to add that various noble Lords have suggested that some things are impossible to understand if you have not experienced warfare or action of that kind. Of course, that is absolutely true, but we are not talking about a lack of sympathy for service personnel; we are talking about criminal acts. That is the basis of what this law is about; it is not to do with whether we have sympathy or not, it is about criminal acts, and it is important to remember that.
Baroness Chakrabarti (Lab) [V]
My Lords, I am grateful to my noble and learned friend Lord Falconer and to the noble Baronesses, Lady D’Souza and Lady Jones, from whom we have just heard, for tabling these amendments. They have cemented in my mind concerns that I expressed at Second Reading about the role of the Attorney-General as the third lock in the architecture of this Bill.
In response to comments made by the noble and gallant Lord, Lord Stirrup, about how, if it is such a problem, we have a problem with the role of the Attorney-General in the constitution per se, I would say not quite. We know that the Attorney-General wears different hats—sometimes legal adviser to the Government and sometimes to Parliament—and sometimes acts in a separate role in relation to the public interest. Those hats are capable of being worn at different times. No doubt it takes a bit of skill to get the balance right, but in normal, civilian prosecutions, I suggest that an Attorney-General is very unlikely to have been giving legal advice on, for example, the investigative process; they would be very unlikely to have given advice directly to the police on the search that gave rise to the prosecution.
This is not the case in war and conflict, where the Attorney-General, as legal adviser to the Government, has undoubtedly been involved in the rules of engagement; they have quite possibly given very detailed advice on those rules and, as my noble and learned friend said, on matters concerning detention and so on. To make potentially the same person who advised on the legality of an operation the third lock on whether alleged criminality should be prosecuted seems to me unlikely to give confidence—the word “reassurance” has been used a lot—to anybody, whether that be civilian members of the public or military personnel. After all, this could be an Attorney-General who advised on the operation or one from a party that was very much opposed to the operation before it came into government. I have real concerns about the politicising of these prosecutions. One has only to think about the controversies in recent conflicts around the world to see that potential damage to public confidence, including among members of the Armed Forces on the front line and their families.
If the noble Lord, Lord Faulks, will forgive me a quick word, there was a little having of cake and eating it in his remarks. He referred—I do not think as a criticism—to the ICC as quasi-political. Given these various hats, someone might well say that of the senior law officer involved in these matters who sits in or comes to Cabinet, including war Cabinets. In terms of accountability, to give this role to the Attorney-General is to give it to a political person who is appointed directly by the Prime Minister—quite possibly, as I say, the Prime Minister who authorised an operation—and for that all to be in the shadows. The Attorney-General’s original advice on the legality of the conflict and perhaps specific operations is currently in the shadows and now the Attorney-General’s veto of the independent prosecutor’s decision will quite possibly be in the shadows as well. That is highly problematic.
I am grateful for these amendments, which I think are probing. In any event, I think the Attorney-General should not be involved in this way at all. It seriously risks politicising already very delicate matters.
Lord Lancaster of Kimbolton (Con)
It is a great pleasure to follow the noble Baroness. I am particularly interested in her point about the Attorney-General not only offering advice on the potential conflict but being put in this position as well.
These amendments firmly caught my eye. The noble and learned Lord, Lord Falconer, outlined in his opening comments some of the challenges of overseas operations in a military context and politicisation—although in my mind all conflicts are political in one form or another. I immediately looked to see what historical examples there were of advice being published by the Attorney-General. There are not many. If we were to continue the theme of overseas operations and look back to probably the most controversial one of recent years—from 2003—the Attorney-General’s advice was certainly not published for that. Nor, I understand—though I am happy to be corrected—was it even given to Cabinet at the time. It is worth remembering how times change. There now seems to be an eagerness to publish the advice of the Attorney-General that was not there in 2003.
My instinct is that giving reasons goes against the grain of the constitutional principle regarding law officers’ advice: law officers do not confirm the facts or publish their legal advice or principles. I think that that is an important principle that enables frank advice to be given. If we accept that, an exception would create a slippery slope that could extend to other areas. There is also the reality that the sorts of information that the reasoning would be based on could have security implications, so should not be disclosed and would largely have to be omitted anyway. Lastly—I am no expert and this is a genuine question for noble and learned Lords in the House—I think that a judicial review, based on ordinary public law grounds, would surely be a sufficient check on decisions such as these.
Lord Thomas of Gresford (LD) [V]
My Lords, the role of the Attorney-General in giving consent to a prosecution has been much discussed in the past. Following on from the remarks of the noble Lord, Lord Lancaster, I note that the Law Commission reported in 1998, and the noble and learned Baroness, Lady Scotland, when she was Attorney-General, conducted a consultation following the controversy over the legality of the Iraq war. The precise result of that consultation is not clear. I am interested in the suggestion made by the noble Baroness, Lady Chakrabarti, that the role requires a fresh review; I agree with that.
In the context of this Bill, it is a simple question: in what circumstances is it appropriate for the Attorney-General to second-guess the decision of either the Director of Public Prosecutions or, in this proposal, the Director of Service Prosecutions? The noble Baroness, Lady Chakrabarti, also made an important point by referring to the conflict of interest that would arise if the Attorney-General has advised on the conduct or legality of an operation, or on the treatment of prisoners, and the issue is, for example, the way in which prisoners have been treated.
I remember that Lieutenant-Colonel Nick Mercer, when he was the senior legal adviser to the group in Iraq, advised that the way in which prisoners who had been taken were being treated—they were made to kneel with a sack over their head and their hands bound behind their back—was a breach of the European convention. He was howled down by the Ministry of Defence for voicing such an outrageous view—one that was subsequently upheld in the European Court of Human Rights.
If the presumption against prosecution survives, the DSP starts with a curb on his discretion, as we have discussed. If he thinks that the circumstances of a case oblige him to ignore the presumption against prosecution, his decision will be based on his judgment, first, whether there is sufficient evidence on a balance of probabilities to result in a conviction and, secondly, whether it is in the public or service interest to prosecute. If Amendment 3 were to be successful in any form, he would also have to take an overall decision on whether the possibility of a fair trial had been compromised by delay.
Baroness Goldie (Con)
My Lords, this has been perhaps a narrower debate in relation to interesting legal issues but none the less, once again, productive and fertile. I realise that these amendments are the product of the noble and learned Lord, Lord Thoroton, who has applied his considerable legal gifts to their drafting.
As has been explained, Amendments 10, 11 and 12 to Clause 5 seek to place a requirement on the Attorney-General to report to Parliament with the reasons for granting or withholding consent. The requirement in Clause 5 is that the consent of the Attorney-General for England and Wales, or the Advocate-General for Northern Ireland, has to be given before a case of an alleged offence committed by a serviceperson more than five years earlier on an overseas operation can proceed to prosecution. The noble Lord, Lord Thomas of Gresford, asked what the Attorney-General was doing in this Bill. We have introduced the consent function because it is important for service personnel and veterans to be confident that their case will be considered with care at the highest levels of our justice system.
The Attorney-General is left to discharge that obligation independently. As the Committee is aware, requiring the consent of the Attorney-General for a prosecution is not unusual. She already has numerous other consent functions, including for the institution of all prosecutions for war crimes offences under the International Criminal Court Act 2001—nor does it mean that the Government have any role to play in a decision on consent. It is a constitutional principle that, when taking a decision on whether to consent to a prosecution, the Attorney-General acts quasi-judicially and independently of government, applying the well-established prosecution principles of evidential sufficiency and public interest. I seem to remember that on Second Reading my noble friend Lord Faulks articulated that position very eloquently, and I think that it is generally understood.
We feel that it is not appropriate for the Attorney-General to comment on any individual or ongoing investigation or prosecution. I am aware of no statutory requirement anywhere else for the Attorney-General to report in relation to individual casework decisions. We do not believe, therefore, that it would be appropriate to introduce such a requirement in the Bill. As I have said elsewhere, preserving the independence and discretion of the prosecutor is vital to the Part 1 measures. Without this, we cannot ensure that cases are treated fairly, nor can we prevent the ICC from stepping in. Adding a measure to the Bill that would require the Attorney-General to make a public statement before Parliament about specific prosecutions would quite simply interfere with that discretion. That would be an unusual and, I suggest, unwise innovation. Interestingly, critics of the Bill have expressed concern that giving the Attorney-General a role in Part 1 risks introducing politics into what should be a criminal justice process. Indeed, the noble Baronesses, Lady Jones of Moulsecoomb and Lady Chakrabarti, voiced these concerns. We do not agree that this is true for the Bill as drafted, but I pose the question: surely these amendments risk that precise outcome. Certainly my noble friend Lord Faulks confirmed that apprehension.
Amendments 11 and 12 would require the Attorney-General to make a prediction about whether the International Criminal Court will exercise its competence in a particular case, make a judgment about whether a prosecution would
“lead to a breach of international law”,
and then compel her to act in a certain way. I think that even the noble and learned Lord, Lord Falconer of Thoroton, would agree that both these amendments would be an unprecedented extension of the normal consent function that the Attorney-General has in relation to the prosecution of offences. The International Criminal Court is an independent body, and it would be inappropriate for the Attorney-General to speculate about or pre-empt decisions that the International Criminal Court might make. Again, my noble friend Lord Faulks commented on that. The phrase “international law” is included in Amendment 12 but is undefined. It is not clear which international laws the amendment is attempting to incorporate into the Bill.
In my opinion, we should allow the evidence that has been produced to the prosecutor, and the public interest, to speak for itself in each individual case, considered by an independent prosecutor, using their discretion. We should not force the Attorney-General to potentially compromise his or her independence in a particular case by adjudicating on these other matters. For that reason, I ask the noble and learned Lord to withdraw his amendment.
Lord Falconer of Thoroton (Lab) [V]
I am obliged to everyone who participated in the debate and to the noble Baroness, Lady Goldie, for the care with which she answered the questions raised.
As the debate went on, I became increasingly concerned about the involvement of the Attorney-General. I am a very strong believer in the necessity for a Minister in the Government who has functions to protect the rule of law in the way in which the Attorney-General does in the Government of the United Kingdom and the Lord Advocate does in the Government of Scotland. In relation to the criminal justice system, including for the military, it is critical that the Attorney-General is, and is seen to be, politically independent of the Government in a way in which the current Attorney-General, Suella Braverman, did not seem to be in relation to the Dominic Cummings question. There are also questions over the Lord Advocate in Scotland in relation to the redaction of Mr Salmond’s evidence to the constitutional committee.
What is being proposed here is, in effect, a circumstance in which the Attorney-General will override the view of a prosecutor. If the Attorney-General agrees with the prosecutor on bringing a prosecution, and the decision will only come to the Attorney-General once a decision has been made to prosecute, he or she will be overriding that decision. If the provision is to remain in the Bill, only if the Attorney-General or the Advocate-General explains why he or she is doing that will there be a sense that politics has not intervened. Only if he or she gives reasons that stand up to scrutiny will a sense of political involvement be removed.
I completely accept that my proposal is novel and would not constitute formal advice, and I accept the point made by a number of noble Lords that it would break with precedent. However, it is so important to preserve the evident independence of the Attorney-General. I agree with what the noble Baroness, Lady Goldie, said to the Joint Committee on Human Rights that in performing this function, the Attorney-General would be acting entirely independently of government. If he or she says no to a prosecution that a professional prosecutor has said should go ahead, they should explain.
I will of course think carefully about what noble Lords have said in this debate but, for now, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group beginning with Amendment 14. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 6: “Relevant offence”
Amendment 14
“( ) An offence is not a relevant offence if it amounts to—(a) torture, within the meaning of section 134 of the Criminal Justice Act 1988 (torture); or(b) genocide, a crime against humanity or a war crime as defined in section 50 of the International Criminal Court Act 2001 (meaning of “genocide”, “crime against humanity” and “war crime”).”Member’s explanatory statement
This amendment provides that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide or torture.
Lord Robertson of Port Ellen (Lab) [V]
My Lords, the amendment stands in my name and those of the noble Lords, Lord Alton and Lord Campbell of Pittenweem, and my noble friend Lord West. It provides that the presumption against prosecution does not apply to war crimes, crimes against humanity or torture.
I am an instinctive supporter of our Armed Forces and the civilians who support them. I always was, but as Secretary of State for Defence and then Secretary-General of NATO, and with the heavy responsibilities that both posts impose, my regard and admiration grew and was magnified. In those posts, it is a huge responsibility to bear in the duty of care, not only to the staff who work for and to oneself but in carrying responsibility for the safety and security of those who we and they seek to protect. In the light of those factors and the fact that I have had personally to make the decision to deploy forces into danger overseas, I was almost automatically in favour of legislation that would have prevented vexatious investigations and prosecutions that make life a misery for so many of those we send to defend the country’s interest.
Lord Hope of Craighead (CB) [V]
My Lords, I support Amendment 14 for all the reasons that the noble Lord, Lord Robertson of Port Ellen, has given. But I also wish to speak to Amendment 36 in my name, which would add torture to the list of statutory offences in Schedule 1, and to Amendments 37 to 45 in the name of the noble Lord, Lord Tunnicliffe, which broaden the list of exceptions to include genocide and crimes in breach of the Geneva conventions.
In effect, what we are seeking to do is to provide the Government with an alternative to the approach taken by Amendment 14, which would place these exclusions in the body of the Bill—and in that way be more secure—and not in the schedule. For what it is worth, I should explain that I got in first with my Amendment 36, but I certainly do not claim primacy for my approach. I was seeking to fit in with the structure of the Bill, and it did not occur to me to deal with these issues in the rather more skilful way proposed by the noble Lord, Lord Robertson.
My particular interest, for the reasons mentioned at Second Reading, is to ensure that torture is not a relevant offence for the purposes of the Bill. It is all very well—if I may say so with great respect—for the Minister to say that the Government take that offence very seriously. But the case for excluding it is compelling—as indeed it is for the other offences on this list. The risk, if this is not done, of our armed personnel being prosecuted in the ICC has been addressed by others, including the noble Lord, Lord Robertson. However, I wish to emphasise the nature and strength of our international obligations and the importance of adhering to them and of our being seen to do so.
The torture convention stands out as an instrument which places torture carried out by public officials or others acting in an official capacity, such as those in our armed services, at the very top of crimes abhorred by the international community. Of course, the same could be said of genocide, although the rather primitive genocide convention lacks the teeth that the torture convention provides. Lord Bingham of Cornhill, as the senior Law Lord presiding over the Appellate Committee of this House, said in one of his judgments that the nature of the prohibition of torture requires the states that are parties to the convention, as we are,
“to do more than just eschew the practice of torture.”
Condemnation carries with it the obligation to punish acts of torture wherever and whenever the perpetrator is found within our territory. There is no time limit on this obligation. As the noble and learned Lord, Lord Morris of Aberavon, said earlier today, there is no exemption for this offence.
The idea that there should be a presumption against prosecution, making it exceptional for proceedings to be brought, as Clause 2 provides, simply cannot be reconciled with our obligations under Articles 4 and 5 of the convention to establish jurisdiction over and punish the torturer. These obligations are not qualified. They are not in any way reduced or softened by the passage of time. The plain and simple breach of the convention, which that provision amounts to unless torture is excluded from its reach, would be very regrettable, to say the least. It is certainly not the example we should be setting for other signatories of the convention which may be less concerned to uphold it than we are or have legal systems less strong than ours. We should uphold the convention, not undermine it, as the Bill seeks to do. I am sorry to put it that way, but, quite frankly, that is what is happening here.
There is another point, mentioned by the noble Lord, Lord Dubs. One of the innovations in the torture convention was the concept of universal jurisdiction. All states that signed that convention have a duty to establish jurisdiction over an offender. We recognised our obligation to do this in the case of Senator Pinochet. We will be doing members of our armed services a great disservice if, by declining to prosecute them here by applying this presumption, we expose them to the risk of being prosecuted by other contracting states anywhere in the world that are more alert to their obligations under the convention than we would be. Let us avoid that risk, as the amendment of the noble Lord, Lord Robertson, seeks to do.
Lord Campbell of Pittenweem (LD)
My Lords, I support this amendment, to which I have added my name. It is always a pleasure to follow the noble and learned Lord, Lord Hope of Craighead, not least as, like him, I had the privilege of serving as an advocate depute, as Crown counsel, under the authority of the noble and learned Lord, Lord Mackay of Clashfern.
As others have done, I begin by saying that the Armed Forces have my unequivocal support and admiration, not least because they often put themselves at risk of their lives in the interests of this country. More particularly, in recent months they have demonstrated precisely the flexibility and capability that have enabled us to deal with the problems caused by the coronavirus.
I can be brief because I shall speak only to Amendment 14. In doing so, I accept and adopt the speech of the noble Lord, Lord Robertson of Port Ellen, authoritative as it was because of his previous responsibilities as Secretary of State for Defence and Secretary-General of NATO. It is clear that the purpose of this amendment is simple: to remove the presumption against prosecution for war crimes, crimes against humanity, genocide and torture. I accept that the Bill does not prevent prosecution, but I believe that a presumption against it is misconceived.
In support of that, I pray in aid the executive summary of the Bill produced by the authoritative Bingham Centre for the Rule of Law on 19 January 2021. I begin with a direct quote. It says that
“murder, torture and other grave war crimes face substantial legal barriers before there can be a prosecution. ... The Bill undermines our obligations under the Geneva Conventions and the United Nations Convention Against Torture.”
Further, it says that the Bill weakens the United Kingdom’s reputation for decisive action against war crimes and increases the likelihood that British soldiers may be prosecuted in the International Criminal Court. We heard, in the introduction by the noble Lord, Lord Robertson, of this amendment, the particular interest that the Chief Prosecutor of the International Criminal Court is taking in this legislation.
I have great difficulty in understanding the Government’s position on this matter. I have tried. I listened to and, indeed, read again the speech of the noble Baroness at Second Reading. She was kind enough to extend the opportunity to me and others to discuss particular issues connected with the Bill. I have read, too, the letter that the Government produced.
Respectfully, one difficulty is the fact that there is opposition such as I have described. I have no recollection, in the proceedings on the Bill so far, of any noble Lord speaking enthusiastically in support of the provisions that we seek to remove. That opposition consists, for example, of the Joint Committee on Human Rights—as the noble Lord, Lord Robertson, has just told us—General Sir Nick Parker, Elizabeth Wilmshurst and the noble and gallant Lord, Lord Guthrie of Craigiebank. I would add to that panoply the noble and learned Lord, Lord Falconer of Thoroton, because, in the latter part of his speech on the first group that we discussed today, quoting the perceptive remarks of Mr John Healey, Member of Parliament, in the other place, he made the case against the Government’s provisions as eloquently as I have heard. If this were a piece of civil litigation, it would be easy to argue that all the authorities favour the amendment. I favour the amendment for this reason: it is necessary for both reputation and regulation, and I shall vote for it.
The Lord Bishop of Leeds [V]
My Lords, I understand the stated rationale for this Bill and I state at the outset that I have enormous respect for the noble Baroness the Minister, but I am struggling. I am not a lawyer, but I would like to focus on a couple of specific questions. I understand the difficulty with vexatious and untimely litigation, which is a curse, but legitimate litigation, however inconvenient, is surely the blessing of a free and civilised society that honours international law and a rules-based system in more than words.
The basic reason why I speak in support of Amendment 14 is that I fear the law of predictable or conscious consequences more than the law of unintended consequences. I ask the Minister to explain clearly this anomaly, which I cannot get my head around: this Bill, as currently drafted, will make it possible for an incident of torture or murder not to be prosecuted while a sexual offence committed in the same incident would be subject to prosecution. That suggests to me either that the reference to sexual offences is arbitrary or that torture and crimes against humanity and so on should also be admitted in the same category.
I understand the assertion that the Bill does not prevent prosecution, but we are dealing with law, not just with assertions of what may or may not be possible—it is what is written in the body of the Bill. I have said that I am not a lawyer, but I support the Armed Forces—my first career was at GCHQ in Cheltenham, providing direct support to our forces, not least during the Falklands conflict—and, despite not being a lawyer, I know that torture is absolutely forbidden in both domestic and international law and that no bars to prosecution are possible.
As Field Marshall Lord Guthrie pointed out more than once, these restrictions in the Bill cannot stand unchallenged. He said:
“By introducing a statutory presumption against prosecution and statutes of limitations, this bill undermines the absolute and non-derogable nature of the prohibition of torture and violates human rights law as well as international criminal and humanitarian law.”
Making torture an excluded offence under the Bill would, I think, have the double benefit of first, avoiding what Lord Guthrie rightly called the “de facto criminalisation” of the offence and, secondly, keeping the UK in line with the rules-based international order that we claim to uphold.
Genocide, crimes against humanity and war crimes are similarly forbidden in law. Amending the law as proposed in the triple lock would make the UK the only country in the world to have deliberately legislated to restrict the Geneva conventions. Where does this place us in a world to which we claim to be an example of law and civility? Most oddly to my mind, however, as a signatory to the 1998 Rome statute, which enables the International Criminal Court to prosecute genocide, crimes against humanity and war crimes when a Government are unable or unwilling to do so, the Bill will make it possible for British soldiers to be prosecuted in the Hague—that is, before a foreign court. Really?
I strongly support the amendment not just because of the legal questions, but because there is a strong moral case for it. I recognise that the last time I made a moral argument in this House during the internal market Bill, it was dismissed by another Minister with the words, “We will not be listening to moral strictures,” but there is a moral case here. The church that I represent stands with victims of torture, and I think that our nation has done hitherto and should continue to do so. Our reputation as a country that is committed to the rules-based international order matters more than I think we sometimes realise. This amendment would further incentivise the UK to maintain the highest standards on the battlefield. It is this that differentiates the civilised from the uncivilised in combat.
If the Government will not accept the amendment, I would be grateful if they could explain rationally, legally and consistently, and perhaps even morally, why these anomalies are acceptable.
Lord West of Spithead (Lab)
My Lords, it is a pleasure to follow a West Country SIGINTer. I will speak to Amendment 14 in support of my noble friend Lord Robertson and the noble Lords, Lord Alton of Liverpool and Lord Campbell of Pittenweem. It is extraordinary that the presumption against prosecution applies to war crimes, crimes against humanity, genocide and torture. These crimes have a special place in the rubric of human rights unacceptability. In its current form, this legislation would seem to decriminalise such crimes by members of the Armed Forces if they are reported after five years. This cannot be the intention and serves the interests of no one. Indeed, in their attempt to protect the military, the Government will in fact damage our Armed Forces and cause our international standing serious harm, as has been said by all of the previous speakers.
If the Government say that the threat is more apparent than real because this will not happen, that will not wash, as the very strong perception remains, and that in itself can be damaging. As has been said before, there are a number of things about this Bill where the perception is almost more important than the fact. There should be no doubt in people’s minds about the commitment of the UK Armed Forces to adherence to international law in relation to war crimes. If their enemies believe they are not, they will feel that they have a right to be unconstrained in their behaviour against our people.
The Government initially seemed to understand that it is in the interests of all for allegations of torture to be investigated fully whenever they might arise. I have to say that I do not understand why they have changed their position. If war crimes are excluded from this, as has been said by a number of speakers, there is also an increased likelihood of UK service personnel being brought before the ICC. In debate on the International Criminal Court of 2001, it was made very clear that accusations of crimes mentioned would be tried by British courts, and we put huge effort into making sure that would be the case. It would be a disgrace if inadvertently, by reducing the scope for prosecutions in this country, we were to increase the scope for prosecutions in the Hague and possibly, as has been said, elsewhere in the world. That does not help our servicemen and women. I believe strongly that this amendment would ensure that that will not happen and I will vote for it.
Lord Craig of Radley (CB) [V]
My Lords, like the noble Lord, Lord West, I speak to Amendment 14. I strongly support this amendment. Torture, genocide and other crimes identified in the laws of conflict should never be subject to doubt that they are not fundamental to the way in which our Armed Forces are expected to operate, no matter how stressful or dangerous the situation they are exposed to on operations overseas. A dangerous ICC charge of not upholding such international law could arise.
Government reasoning for not including torture and war crimes, as is done for sexual crimes, seems to be that there might be some discernible range of tortures or crimes in the Geneva conventions which could be taken into account by the prosecuting authority—bearing in mind the stresses of active overseas operations—before reaching a decision to prosecute. If that is the case, surely it could be applied to consideration of a discernible range of sexual crimes, which the Bill seeks to eliminate from any consideration. Whether it is sexual crimes or torture, degrees of criminality surely can arise. If so, that should not be some explanation, reason or excuse for not prosecuting; neither should be singled out for different treatment. Torture and war crimes should be grouped with those of sex and treated as crimes always to be prosecuted.
Lord Browne of Ladyton (Lab) [V]
My Lords, I support Amendment 14 and have considerable sympathy for the other amendments in this group, so I will speak generally about these issues. Like all the previous speakers on this group, I believe that this Bill, as presently drafted, undermines our obligations under the Geneva conventions and the UN Convention against Torture, which explicitly require that serious international crimes, such as torture, genocide and crimes against humanity, are investigated and prosecuted. I am deeply concerned about this Bill because it promotes the growing, dangerous idea that the UK can simply set aside international obligations in law. Its entry into force will be yet more evidence of what Theresa May called the abandonment of the UK’s moral leadership on the world stage, and will add to the risk of more prolonged investigations of our Armed Forces, not fewer.
The Government have excluded a number of sexual offences listed in Schedule 1 from the scope of the Bill. During the Bill’s passage through the other place, the Government were asked on several occasions to explain why crimes such as torture and genocide remain within scope of the Bill, while offences of a sexual nature are excluded. In response, the Secretary of State and the Minister for Defence People and Veterans argued that violent and lethal acts are sometimes justified during combat, and these activities can expose service personnel to allegations of torture or other war crimes, whereas sexual violence can never be justified. The Minister repeated that explanation and expanded upon it at Second Reading.
I struggle to understand this explanation or to grasp why this distinction has been made. The best I can do is to summarise it in this way: the argument seems to be that the very nature of war or conflict justifies special rules to protect those engaged in conflict from allegations that they have breached the laws designed, sometimes solely but at least in part, to prevent just war and conflict from being used as an excuse for the perpetration of the most egregious crimes. This argument simply cannot be allowed to prevail.
The use of torture, like sexual offences, can never be justified. The legal definition of torture describes it in terms of the “intentional” or “deliberate” infliction of severe pain or suffering. In short, these acts are clearly distinct from legitimate use of force during combat. It is surely our duty to ensure that no British service personnel will be engaged in a situation which would put them at risk of credibly being accused of conduct meeting any of the relevant definitions of torture, genocide, crimes against humanity or war crimes.
In the event of a rare, credible allegation of such behaviour being levelled at British service personnel, they should be effectively investigated and, where there is sufficient reliable and credible evidence, prosecuted. That is my understanding of our obligations and what we should be seeking to support with no conditionality.
Ministers who deny that the triple lock will weaken our stance on such crimes dismiss these arguments with the rhetorical equivalent of a wave of the hand, even though a large and diverse coalition of military, legal and other experts have sustained their view that it will do exactly that. As your Lordships’ House has heard from every previous speaker, they can explain comprehensively why that is the case.
I have one final point and I make no apology that it is a point which has already been made by every one of the preceding speakers. What is effectively a de facto statute of limitations on the prosecution of crimes makes it much more likely that British soldiers will be prosecuted by the International Criminal Court, which acts only where countries are unwilling to prosecute their own citizens. The noble and learned Lord, Lord Hope of Craighead, explained very clearly at Second Reading and repeated today that this not only makes investigation and possible prosecution by the ICC more likely, but also subjects them to the possibility of such investigations and prosecutions by any number of other jurisdictions.
There are three very specific public warnings of the risks of investigation and possible prosecution by the ICC. In addition to the letter to Ben Wallace, which has been referred to on a number of occasions, the Office of the Prosecutor of the International Criminal Court warned that if a proposed presumption against prosecution were introduced, it
“would need to consider its potential impact on the ability of the UK authorities to investigate and/or prosecute crimes allegedly committed by members of the British armed forces … against the standards of inactivity and genuineness set out in article 17 of the Statute.”
The Office of the Prosecutor also stated in the final report Situation in Iraq/UK published in December 2020, that it will continue to monitor the development of the Overseas Operations Bill and its impact, and may revisit its decision not to take action against the UK for war crimes committed in Iraq in the light of new facts or evidence. The increased risk of investigation or prosecution by the ICC also applies in respect of other past and future overseas operations.
We should all, Government and Parliament, remember that we have a solemn commitment to our Armed Forces given on ratification of the Rome statute of the International Criminal Court, that no member would ever be at risk of appearing in The Hague. If this Bill in its present form becomes an Act of Parliament, it will be a deliberate breach of this commitment and the ultimate irony is that it will expose our armed forces in the future to long and possibly repeated investigations.
Lord Berkeley of Knighton (CB) [V]
My Lords, the Minister, who has dealt with our concerns so graciously all afternoon, will probably realise that we now come to the winter of our discontent. It is here that I hope—if I may say so, with great respect—that she will consider even more carefully what is being said.
I support Amendments 14 and 36 in the name of my noble and learned friend Lord Hope of Craighead. He made the point—we hear it quite often in your Lordships’ House—that an undertaking from the Government to take seriously—to say that it is the intention of the Government—is not in itself a sufficient replacement for statute where something as vitally important as this is concerned.
Torture does not work—you hear what you want to hear—but it is also abhorrent, and, as the right reverend Prelate just said, it is immoral and uncivilised. We need for that reason to set an example which will protect our service men and women from possible torture if captured. I hope the noble Lord, Lord West, will forgive me if I quote a little further from what he has written:
“What is quite clear, and it was inculcated in us from day one of warfare training, is that ‘there are no circumstances in which torture, cruel, inhuman or degrading treatment can ever be justified’; it’s a principle that all members of our military must, and do, abide. We must be wary of creating a perception and certainly not a reality that this is not the case.”
Baroness Chakrabarti (Lab) [V]
My Lords, I do not know whether I am proud to speak in support of my noble friend Lord Robertson of Port Ellen and all the other moving speeches that I have heard or devastated that I feel that I need to. The arguments are clear and compelling and have been made from across your Lordships’ House. I need not repeat them save to remind the Minister that the warning from the chief ICC prosecutor is a very serious matter indeed and not something that any of us can be proud of. I therefore note in particular the speeches of my noble friends Lord Robertson and Lord Browne of Ladyton, former Defence Secretaries and one is a former Secretary-General of NATO. I have not always agreed with them on every matter of human rights disputes but the Minister and all your Lordships will know that their comments would not have been made lightly.
It was also important that the noble and learned Lord, Lord Hope of Craighead, reminded us of the universal jurisdiction over torture. I must therefore support not just Amendment 14 from my noble friend Lord Robertson but all noble Lords who are attempting to limit the reach of the Bill and prevent the presumption applying to war crimes, genocide, torture and crimes against humanity.
I say without hesitation to noble Lords who are not speaking in this group and who perhaps spoke in the past about what members of our Armed Forces would expect and whether we should feel comfortable looking them in the eye, that I have never met a member of Her Majesty’s Armed Forces who has attempted to justify any of those grave offences—quite the opposite. So much of their honour and their vocation is about believing in the rule of law and human rights internationally and putting their lives on the line so that grave offences of that kind are defeated elsewhere in the world and ruled out.
I return to the point made by the right reverend Prelate the Bishop of Leeds about sexual abuse. The Minister said very clearly on an earlier group that sexual offences had been singled out in the Bill because, in her words, the Government wanted to be clear that that kind of behaviour is never acceptable. Clearly, as a matter of domestic and international law, the offences touched on in this group—war crimes, genocide, torture and crimes against humanity—are never acceptable either. So there is a complete illogic about including sexual offences but not these other very grave matters.
The Minister will say that this is not a statute of limitation, it is just presumptive. I am afraid that that will not wash with large numbers of the public nor, crucially, elsewhere in the world, including, it would seem, with the chief prosecutor of the ICC. Furthermore, even if it were impossible for these offences ever to be perpetrated by Her Majesty’s forces in future, we have been told repeatedly that this is as much about reassurance and the signals that we send as it is about the letter of the law. Well, reassurance is a two-way street. It is of course about protection for our Armed Forces, but it is also about sending signals, not just to our Armed Forces but to our allies and friends—and to our enemies, including enemies who, I am sorry to say, might at some point in future have members of Her Majesty’s forces in their custody. That is perhaps the moment when these grave crimes become a matter of even closer concern than they are the rest of the time.
I say to the Minister, for whom I have a great deal of respect—I think she is a very gifted advocate but also a reasonable person, and one of the most decent members of the Government—and to the noble and learned Lord, Lord Stewart of Dirleton, as a law officer, who I think may be in his place, that this group of amendments, perhaps more than any other, should be responded to at the close of this evening’s debate with at least an offer to consider them. It would be unconscionable for something like this group not to be reflected in the legislation when it passes. And the legislation will pass, because of the Government’s mandate and majority. The Minister will remind us at various stages that the Bill was a manifesto commitment, but it was not ever a manifesto commitment to open the door, send a signal or give reassurance in relation to war crimes, genocide, torture and crimes against humanity.
People deserve advocates—even alleged wrongdoings deserve the most gifted and fearless advocates, and everyone should be so lucky as to have such a gifted advocate as the Minister—but we do not deserve the rotten law that is about to be made, exposing our Armed Forces, and humans all over the world, to lines that should never be crossed.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, the debate on Amendment 14 will now resume. I call the next speaker, the noble Lord, Lord Thomas of Gresford.
Lord Thomas of Gresford (LD) [V]
My Lords, the noble Lords, Lord Robertson and Lord Browne of Ladyton, and my noble friend Lord Campbell of Pittenweem have made powerful speeches with which I totally agree. I will confine myself to looking more closely at the nature of the offences we are discussing.
The United Nations convention on genocide of December 1948 came about as the result of campaigning by Raphael Lemkin, who coined the term in 1943 after witnessing the horrors of the Holocaust, in which every member of his family except his brother was killed.
Article II of the convention defines genocide as an act
“committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
The acts include
“Killing … Imposing measures intended to prevent births within the group … Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.
No one in this country has ever been accused of genocide.
It is different with war crimes. I watched a corporal in the British Army plead guilty to a war crime in the Baha Mousa case, namely torture. He was acquitted of murder and received a sentence of 12 months’ imprisonment.
War crimes are defined as grave breaches of the Geneva conventions—
“acts against persons or property protected under the provisions”
of those conventions. They include wilful killing, torture, wilfully causing great suffering, unlawful deportation, the taking of hostages and other acts. To suggest that, where there is evidence sufficient to found a conviction on any of these matters, a prosecution could be avoided by a presumption against prosecution, is grotesque: “rotten law”, the noble Baroness, Lady Chakrabarti, said a moment ago, and I totally agree with her.
The thought that, if the DSP had decided there was sufficient evidence that a prosecution was in the public and the service interest, the Attorney-General could nevertheless block a prosecution, holding their hands up and saying that it was not a political decision, is equally demeaning. As the noble Lord, Lord West of Spithead, put it, it is a disgrace that it should be included in a Bill to be passed by Her Majesty in Parliament.
The picture is that there is somebody in government who has decided as a matter of policy that he or she could not block the prosecution of sexual offences with a presumption of prosecution. Why? What is the justification for selecting that category of offences when we have the types of offences not excluded? It is an arbitrary choice, as the right reverend Prelate the Bishop of Leeds put it. Why is there this anomaly? I look forward to the Minister’s reply. It is a mistake, is it not? I certainly hope so.
Lord Anderson of Ipswich (CB) [V]
My Lords, the purpose of these amendments is familiar by now: to ensure that our service personnel are protected from the risk of prosecution in the International Criminal Court. To anyone who believes that this risk is illusory or negligible, I recommend not only the legal opinions variously expressed by my noble and learned friend Lord Hope, by former Judge Advocate Blackett and by the Joint Committee on Human rights, but the 184-page final report of the outgoing prosecutor of the ICC, dated 9 December 2020 and entitled Situation in Iraq/UK.
The noble Lord, Lord Browne of Ladyton, has already mentioned this report, so I will refer to only two things in it: the conclusion that there was a reasonable basis to believe that war crimes including torture were perpetrated by British forces in Iraq between 2003 and 2009, and the last words of its final page, an ominous warning that the prosecutor’s office would in the future consider
“the impact of any new legislation on the ability of the competent domestic authorities to consider new allegations arising from the conduct of UK armed forces in Iraq”.
The prosecutor’s words are reinforced by the recent letter referred to by the noble Lord, Lord Robertson, and echo the Australian Brereton report of November 2020—which I mentioned at Second Reading—which pointedly observed of this Bill:
“There is a large question as to whether such a law would meet the requirements of Article 17 of the Treaty of Rome.”
Of the approaches we are offered in this group, I prefer Amendment 14, on two grounds: first, as my noble and learned friend Lord Hope has pointed out, because of its less vulnerable position in the body of the Bill; and, secondly, because Article 14, if I am not mistaken, maps more precisely on to the jurisdiction of the ICC. It applies to war crimes as broadly defined in Section 50 of the ICC Act 2001 and Articles 5 and 8.2 of the Rome statute.
Amendment 39, by contrast, would exclude from the presumption against prosecution only war crimes falling within Article 8.2(a) of the Rome statute: grave breaches of the Geneva conventions. That would leave within the scope of the presumption against prosecution the 26 categories of war crimes in international armed conflict that are listed in Article 8.2(b). Therefore, under Amendment 39 there would appear to be at least some risk of ICC intervention in any case that could be brought within those categories.
That was the dry contribution of just another lawyer to a debate that has seen the case for these amendments advanced with astonishing force on the very highest military, legal and political authority. The contrary case seems to be made only weakly in the Minister’s letter of the other day. Like other noble Lords, I admire the Minister greatly, and for that very reason permit myself to wonder whether the Government will really persist in opposing these amendments.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is very unusual for a Green to be among the majority. I will take great delight in that.
I cannot compete with the erudition and rationale of noble Lords who have spoken already, but I will draw attention to the fact that the Government are trying to create this triple lock against prosecution as a safe harbour for military criminals—regardless of how serious their crime—and then, out of nowhere, the Bill says, “Ah, well, these protections apply to any crime, but not sexual offences.” I am fascinated to find out the real reason for excluding sexual offences in this way. Five years after their offence, a murderer, a torturer and a thief all get protected, but an accused sexual offender gets prosecuted regardless. Even if the murderer, torturer or thief actually did it, they can get off, but an innocent person accused vexatiously of sexual offences would be prosecuted. It really does not make sense to make this exception of one category of offences.
It is not just rape; the list in Schedule 1 includes things such as
“possession of extreme pornographic images”,
“outraging public decency” and any offence under the Sexual Offences Act 2003, such as Section 71, which criminalises sexual activity in a public lavatory. A soldier could have consensual sex in a public toilet, kill their partner and face the outrageous prospect under this Bill of being prosecuted only for having sex in the toilet—they might be protected from the murder charge.
Likewise, the Bill singles out slavery, but only slavery for sexual exploitation—take as many slaves as you like, after five years you will probably get away with it, but you might get prosecuted for any slaves who are sexually exploited.
It staggers me that the Government have chosen this specific exemption to their messy triple lock. Of course I support it, but we must have those other exemptions as well. I ask those noble Lords who have spoken so strongly on this issue: where were they during the spy-cops Bill, when we heard criminals—police spies and police agents—being given immunity from all these crimes? In any case, it all loops back to the obvious conclusion that this Bill is ridiculous. It creates obvious and unacceptable injustice and needs to be scrapped entirely.
Lord Hannay of Chiswick (CB) [V]
My Lords, I will speak in support of Amendment 14 in the names of the noble Lords, Lord Robertson, Lord Alton, Lord West and Lord Campbell, and Amendment 36 in the name of my noble and learned friend Lord Hope of Craighead. In doing so, I apologise for not having spoken on Second Reading, due to an inadvertent mistake over timing.
I back the amendments not out of any objection to the Bill as a whole. The Bill’s objectives are laudable ones of giving protection to our service personnel against vexatious inquiries and prosecutions. However, the Bill as drafted actually increases those risks rather than reduces them. I oppose these defects, which the amendments seek to remedy on the grounds of both practicality and principle. The practical problem is a very obvious one. While the Bill places limitations in time in our domestic law on the pursuit of inquiries and prosecutions, it does not and cannot impose such limitations with respect to our international obligations under the Rome statute, which established the International Criminal Court and which Parliament ratified and gave effect to before its entry into force. The Rome statute, in whose negotiation we participated fully—I was myself involved to a modest extent when I was the UK’s Permanent Representative to the UN in 1995—contains no such limitations with respect to the crimes identified in the statute. The risk is therefore, as many other noble Lords have said, that our service personnel could be prosecuted in the International Criminal Court even though we had declined, under the provisions of this Bill, to take any action.
That is no theoretical risk. Quite recently, the prosecutor of the International Criminal Court decided not to pursue cases against our personnel on the explicit grounds that we had domestic legislation to deal with the alleged offences and had demonstrated our willingness to use it. This could therefore be a case, I fear, of being out of the frying pan and into the fire if we do not take steps to remove from the scope of the Bill the extraordinarily serious offences set out in the Rome statute.
The argument of principle in favour of these amendments leads on from the practical argument. The International Criminal Court is an important part of that rules-based international system which the Government have argued, quite correctly in my view, that it is in our national interest to sustain. In recent years, the Government have done a good job in doing precisely that against the intemperate onslaughts of the Trump Administration against the International Criminal Court. Here, however, we are being asked to legislate in a way that could put us in contradiction with our obligations under the Rome statute. That clearly is not a sensible or principled thing to do. At worst, it could lead to British service personnel being prosecuted unnecessarily in the ICC, which would inevitably lead to an outcry in this country, possibly challenging the basis of our membership. Less dramatically, it will be seen by the critics and opponents of the International Criminal Court around the world—in places like Russia and China, and the US in some parts of the body politic—as a weakening of our support of the court and as undermining its authority. For both the reasons of practicality and principle, I hope that the Government will, before we get to Report, reconsider these flawed aspects of the Bill and remedy them.
Baroness Blower (Lab) [V]
My Lords, it is a great pleasure to listen and to speak, however briefly, on Amendment 14, which is clearly the vehicle for correcting one of the significant flaws of the Bill. I acknowledge that I have no military experience and but limited knowledge of the law in comparison to many noble Lords in this House.
As other Members of the Committee have said, this amendment is necessary as it provides that the presumption against prosecution will not apply to war crimes, crimes against humanity, genocide or torture. As others have said in this debate, it would restore our obligations under the Geneva conventions, the UN Convention against Torture and the Rome statute to investigate and prosecute grave breaches of humanitarian law.
I am indebted to the Bingham Centre for the Rule of Law, on whose material I have drawn to make these few remarks. It says that,
“although rare, abuses by the military do happen”,
and that
“The UK has a long and proud reputation of decisive action against war crimes … We do not protect British troops … by hiding from the truth or acting with impunity.”
On Second Reading I quoted Martin Luther King Jr, who famously said that
“the arc of the moral universe is long, but it bends toward justice”.
Sally Yates, the US Deputy Attorney-General appointed by President Barack Obama in 2015, added a caveat to this quote, saying that it does not get there on its own. That is why we have international and humanitarian law.
This amendment would correct what is clearly a flaw in this Bill as originally drafted. I cannot possibly rise to the erudition of the noble Lord, Lord Thomas of Gresford, or my noble friend Lady Chakrabarti. But I insist that it must be seen in the Bill that there can be no presumption against war crimes, crimes against humanity, genocide or torture in terms of prosecution. For this reason, I fully support this amendment.
I ask the Minister, who is clearly much admired in your Lordships’ House, to outline once more why she feels that such a presumption is appropriate and why it does not send a very bad signal that undermines the trusted nature of our legal system and our international reputation. As has been said by so many Members of the Committee, it has the potential to open our military personnel up to proceedings in the International Criminal Court—which is absolutely not where we wish to be.
Baroness Smith of Newnham (LD) [V]
My Lords, unlike the first group of amendments, this group—particularly Amendment 14—has very broad support across your Lordships’ House. That is scarcely surprising because one of the very clear omissions from the Bill was precisely the group of crimes so eloquently outlined in the opening remarks by the noble Lord, Lord Robertson of Port Ellen.
It is clearly right that one of the exemptions from the presumption is sexual violence—that is fine—but it is a glaring omission to leave other war crimes, crimes against humanity, torture and genocide off the face of the Bill. Indeed, it has been raised at every stage of the Bill. It was raised on Second Reading in the other place and many times on Second Reading in your Lordships’ House. I have only one question to ask the Minister: how can she and the Government justify this omission?
As Members across the Committee have said, it is so important for the reputation of our country that we abide by the rule of law and the conventions which we have signed up to and have so often led. As a country, we pride ourselves on supporting certain values, including opposing torture, genocide, war crimes and crimes against humanity. It is inconceivable that we should say that this is anything that the Armed Forces or we as a country should condone.
My only sense from the Minister, in private meetings and her response to the debate at Second Reading regarding having sexual offences going against presumption but not other war crimes, was that there would never be a case on the battlefield when use of sexual violence was sanctioned. That seems to suggest that genocide, torture or other war crimes could be sanctioned. Surely that is not what the Minister meant or what the Government mean. Were there ever to be a case of torture or genocide—God forbid—surely we should be leading the way in ensuring that it is investigated and prosecuted. The reason it is so important to have this in the Bill is precisely to demonstrate our commitment to upholding human rights and not falling down any cracks.
I am absolutely sure that nobody would willingly commit any of these crimes, and I do not think that very many cases would ever even be investigated, but the amendments need to be in the Bill to ensure that we are not resiling from the conventions that we have signed up to. The noble Lord, Lord Lancaster, who I do not think has participated on this group of amendments, earlier prayed in aid Major Bob Campbell, who had said that he would not be taken to the ICC, and it might have been better to be in front of the ICC than subject to protracted and repeated investigations. The reason that service men and women and veterans from the United Kingdom have not been taken to the ICC is precisely because of our respect for international law.
Why are the Government creating a piece of legislation that leaves such a large hole and potentially damages our reputation? It would be much better to amend the Bill, to have it include war crimes, crimes against humanity, genocide and torture, and ensure that if anyone were accused of such a crime, it would be investigated and prosecuted if necessary and there would not then be a stain. A great problem is the sense that there is a shadow hanging over somebody and the feeling of “If only it hadn’t been for that presumption” or “Because of that presumption, we are now being taken to the Hague”. Surely that is not a position the Government want to leave anybody in.
Lord Falconer of Thoroton (Lab) [V]
My Lords, this has been an incredibly instructive debate. Every single speaker has spoken in favour of Amendment 14 in a debate that has lasted an hour, and they could not have been more diverse in their experience: lawyers, military people, senior politicians. We have had the whole range, and they have all spoken in favour of Amendment 14.
Baroness Goldie (Con)
My Lords, predictably this debate surrounding Clause 6 and Schedule 1 has given rise to the passionate, informed and powerful advance of arguments, which I was expecting. I have listened to the sentiment and emotion that have accompanied the articulation of the arguments and I would have to be completely mute not to hear the force of those emotions. As the noble Lord, Lord Berkeley of Knighton, indicated, the Minister has come to her winter of discontent—an apt description because the debate around this part of the Bill has encapsulated the major areas of anxiety and concern.
As I set out earlier, Clause 6 details those offences that are excluded from the measures in Part 1 of the Bill. Those are set out in Schedule 1, including offences committed against a member of the regular or reserve forces. All the excluded offences listed in the schedule are sexual offences. I shall come to that in a moment; a number of questions have been posed about it but it reflects the Government’s strong stated belief that the use of sexual violence or sexual exploitation during overseas operations is never acceptable in any circumstance.
The exclusion of sexual offences from Part 1 does not mean that we will not continue to take other offences such as war crimes and torture extremely seriously. I realise that some may dismiss these as mere words and feel unconvinced. I should say that the presumption against prosecution still allows the prosecutor to continue to take decisions to prosecute those offences, and the severity of the crime and the circumstances in which it was allegedly committed will always be factors in their considerations.
The noble Lord, Lord Thomas of Gresford, asked why we have not excluded torture offences from Part 1 measures and why we have excluded sexual offences. In the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. They fight, they use force, they may use lethality, and they may detain. All these activities are predictable in an overseas operation. What is not predictable, and has no place in an overseas operation, is committing a sexual offence. However, the other activities to which I referred can expose service personnel to the possibility that their actions may result in allegations of, for example, torture. If the prosecutor, having received the results of an investigation, considers that there is no case, he will not prosecute, but if he considers that there is a stateable case, Part 1 of the Bill will not prevent prosecution of torture. That is why we have made the distinction between the two different characters of crime: one that you would never expect to find in an overseas operation, and one that could arise because of action that may have been taken in good faith by Armed Forces personnel believing that it was legitimate and proportionate.
In response to the noble Lord, Lord Robertson, on the strong emotions which this part of the Bill has elicited, I am aware that certain interpretations have arisen, with the suggestion that the continuing commitment to upholding international humanitarian and human rights law, including the United Nations convention against torture, is somehow undermined by the Bill. I submit that this is a misconception, which I am happy to address and correct.
The UK does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law. It is worth remembering that, whenever a prosecutor currently makes a decision to prosecute an offence, including offences under the International Criminal Court Act, they must consider the public interest factors in the prosecutor’s full code test, in addition to making a judgment about the strength of the available evidence.
The public interest factors include the severity of the offence, the level of culpability of the suspect, the circumstances of and the harm caused to the victim, and the suspect’s age and maturity at the time of the offence. There is no suggestion when exercising this existing discretion that our prosecutors are not acting in compliance with international law, and we consider that the same is true when they will, in future, be required to take into account the measures in Part 1 of the Bill.
The noble Lord, Lord Robertson, and other noble Lords raised the matter of the International Criminal Court and the recent letter, which I have read in detail. It is interesting that the letter postulates that where the effect of applying a statutory presumption be to impede further investigations—the Bill does not do this—or to impede prosecution of crimes, because such allegations would not overcome the statutory presumption, the ICC would want to monitor what was happening. This is a perfectly legitimate position for the ICC to adopt. Given that this was raised by the noble Lords, Lord Robertson, Lord Campbell of Pittenweem, Lord West and Lord Browne of Ladyton, and the noble and learned Lord, Lord Hope of Craighead, it might be helpful to note here the relationship between the UK and the International Criminal Court. Some of your Lordships may be unaware of what the current relationship is, which suggests to me that something arising out of the blue would, frankly, be beyond credibility.
In accordance with International Criminal Court procedures, a preliminary examination would first need to be initiated by the Office of the Prosecutor to decide whether to take that step. In practice, in the event that the OTP was to raise issues with us about a possible investigation, that would trigger a long and very detailed preliminary examination of the situation, within which we would be consulted at each step of the way, for the OTP to determine whether it was necessary to open any investigation. That means that we would have many opportunities to prevent UK service personnel from being prosecuted at the ICC. We would be able to show that the UK national system was both willing and able to conduct investigations and prosecutions, thus rendering unnecessary the ICC’s jurisdiction over UK service personnel. I offer that additional information in the hope that it will provide some reassurance that these activities are not all operating in silos. There is a co-operative and positive relationship with the ICC.
Amendment 14, proposed by the noble Lord, Lord Robertson, seeks to add wording to Clause 6(3) to explicitly exclude further offences from being a “relevant offence” under Part 1. These are torture, under the Criminal Justice Act 1988, and genocide, a crime against humanity or a war crime under the International Criminal Court Act 2001.
The noble and learned Lord, Lord Hope of Craighead, made a very powerful submission in support of Amendments 36 to 45, which in combination would have a similar effect by ensuring that torture offences contained in Section 134 of the Criminal Justice Act 1988, under the law of England and Wales, and the offences of genocide, crimes against humanity and grave breaches of the Geneva convention contained within the International Criminal Court Act 2001 as it applies in England and Wales, Northern Ireland and Scotland, were listed as excluded offences in Schedule 1. These amendments would amount to a comprehensive list of very serious offences to be excluded from the application of the measures in Part 1. The noble and learned Lord advanced his case cogently and with purpose, as one would expect, and others did likewise in their support of the amendments.
I am fully aware of the deep concerns that have been expressed that the Bill does not exclude these offences, and I have already set out the Government’s reasoning for excluding only sexual offences from the coverage of Part 1. I believe the perception has arisen that the absence of crimes from Schedule 1 has been equated with the non-prosecution of such serious crimes because it is assumed that the Bill will bar such prosecutions. However, I reiterate that the severity of an alleged offence will continue to be an extremely important factor for a prosecutor in determining whether or not to prosecute.
I realise that my response may be regarded by your Lordships as inadequate, so I will endeavour to provide some concluding thoughts. I have argued that the measures in Part 1 will require a prosecutor to give additional consideration to some specific matters—most importantly, the unique context of overseas operations. However, quite rightly, these measures will not prevent the prosecutor determining, having considered all the circumstances of the case, that it is appropriate to prosecute. The presumption in Clause 2 may be rebutted where it is appropriate for the prosecutor to do so.
The Bill as drafted ensures that the Part 1 measures will apply to a wide range of offences. That is to provide reassurance to our service personnel that the operational context will be taken into account, so far as it reduces a person’s culpability in the circumstances of allegations of criminal offences on historical overseas operations. I believe that we can take this approach in the knowledge that the prosecutor retains their discretion to make the appropriate decision on a case-by-case basis, including in respect of the most serious offences.
The Government have felt that, with the exception of sexual offences, all other crimes should be covered by the measures in Part 1. However, I am in no doubt as to the strength of feeling expressed by the Committee, which was neatly encapsulated by the noble and learned Lord, Lord Falconer, because I did not find too many supporters speaking up for my side of the argument. I undertake to consider with care the arguments that have been advanced and to explore if there is any way by which we can assuage your Lordships’ concerns. I hope that, in these circumstances, that will persuade the noble Lord, Lord Robertson, to withdraw his amendment and the noble and learned Lord, Lord Hope of Craighead, not to move his.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
I have received requests to speak after the Minister from the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord West of Spithead. I will call them in turn: first, the noble Baroness, Lady Chakrabarti.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
Excuse me, Lady Chakrabarti, the Minister has not completed her speech.
Baroness Goldie (Con)
I apologise for the confusion.
There was a further amendment: Amendment 15. It deals with Clause 6(6), which is the delegated power provision. That provision is there to ensure that the Government are able to respond to new developments and fresh concerns that may emerge in relation to potential offences in future overseas operations without the need to seek primary legislation every time a change is required.
Legislation that confers such a power to amend the list in the schedule to an Act is not unusual. Schedule 1 lists the offences excluded from the requirements set out in Clauses 2, 3 and 5, and the power is limited to amending this list of offences, so it has a very narrow scope. It is also not unusual that any exercise of the power to amend the schedule to an Act be subject to the affirmative procedure before any regulations can be made.
The noble and learned Lord, Lord Falconer, and the noble Lords, Lord Thomas of Gresford and Lord Tunnicliffe, have been supportive of this amendment. Its aim seems to be to further narrow the scope of the power in response to the concerns raised by the Delegated Powers and Regulatory Reform Committee.
I believe, however, that the concern over the power contained in Clause 6(6) has possibly arisen from the wider concerns regarding the requirements set out in Clauses 2, 3 and 5. I have tried to allay these concerns, and I have detected a growing acceptance that the Bill does not represent an absolute bar to future prosecutions of serious crimes. The delegated power will allow future Governments to adapt Part 1 of the Bill according to the lessons they may learn from overseas operations in future. To limit the scope so that offences can only be added to Schedule 1, as the amendment would wish, could have an impact on the Government’s ability to implement the lessons learned and adapt to what is likely to be an evolving operational landscape.
The power already has a very narrow scope and its use will still require the express approval of both Houses of Parliament. In these circumstances, I urge noble Lords to not move this amendment.
Baroness Chakrabarti (Lab) [V]
My Lords, I am grateful to the Minister for what I can call only a predictably clear and gracious response. Because the Minister has agreed to reflect on this evening’s debate and consult her colleagues thereafter, I will just press her for a moment longer on the distinction between sexual offences and torture in particular, not with a view to further back and forth this evening but in the hope that it might influence her discussions with her colleagues.
The last 20 years have taught us that when torture is practised as a weapon of war, sexual torture is often one facet of that torture. It is not a nice thing to discuss. The other side of the coin is that of false allegations and clouds hanging over innocent and brave members of Her Majesty’s forces. Our Armed Forces, when overseas, can be as easily subject to false allegations of sexual offences as to false allegations of torture or any of the other offences that are not barred from the presumption against prosecution in the Bill.
If this is not about false allegations, there must be, as I understand the rationale, some kind of thinking, perhaps at the Ministry of Defence or elsewhere, that because our Armed Forces are engaged in violence, there is some kind of fine line, or borderline, between the violence in which we understand they are engaged and torture. If that is the case, I find it very troubling indeed. Are we back in the Bush White House? Are we back with the legal advice that it is not torture when it is enhanced interrogation, for example?
It seems to me that international law and our own ethical and legal norms are very clear on the distinction between the kind of violence that is sadly necessary in war situations and genocide, crimes against humanity and torture. There is not a borderline against torture, and that tacit acceptance of a grey area is just the kind of thinking that got people into such difficulties on both sides of the Atlantic over the last 20 years. So I humbly ask the Minister, in the spirit of genuinely trying to improve this, to examine that distinction between sex and torture, and sexual torture and other forms of torture, in particular, when she goes back to her colleagues in the department and elsewhere.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
Does the Minister wish to respond?
Baroness Goldie (Con)
Yes. I listened very carefully to what the noble Baroness said, and I undertake to look at her contribution in detail.
Lord West of Spithead (Lab)
My Lords, I thank the Minister for a very clear exposition of how one can get around some of these difficulties. I am delighted that she is going take this back and look at it, but I ask her to ask her officials: what are the benefits for the UK of excluding these from the list? What are we gaining by that? I used to find quite often, when I was standing at the Dispatch Box for three years, that when I prodded in that way, I would find that there were no benefits, but that they were defending their position wonderfully. I am not asking for an answer now, but can she prod that to see what benefits we actually get by not having those listed?
Baroness Goldie (Con)
Again, I undertake to look carefully at the noble Lord’s remarks.
Lord Robertson of Port Ellen (Lab) [V]
My Lords, I too thank the Minister for her gracious reply and for her willingness to take this matter away and reflect on this and other debates. I am glad that she recognises that, among the 800-odd Members of the House of Lords, the Government could not mobilise one single Member of the House to come and defend the position on this amendment. I am not surprised, and I can see the difficulty that she has in putting forward the argument.
I listened to see whether I could be persuaded by what she said—after all, some of the officials who used to work for me may still be there and producing the rationale for her this evening. However, to say simply that there is no bar to prosecution for war crimes, torture and crimes against humanity is to state only the technical argument. The fact is that the Bill gives a presumption against prosecution for war crimes, crimes against humanity and torture, and that is what is going to be noticed, not the technical argument that there is no actual bar. There are barriers or, as the chief prosecutor of the ICC said, conditions laid down which will be well noticed.
Perhaps I may also say that when the Minister goes back to the Ministry of Defence and faces those who want to take a stand here, it might be worth avoiding the mistake that we make all too often in foreign relations, which is mirror imaging—looking at an issue through our eyes. In this case, if those who want to take a hard line would look at this issue through the eyes of the torturers, the war criminals and those who would perpetrate torture and crimes against humanity and see what sort of signal they are getting from the United Kingdom and its legal system, that would paint a different picture from the rather Panglossian view that just been put forward.
I feel strongly about this, more strongly than I have felt about many other things, because I feel for my country. I feel for its reputation and the credibility of our standing in the world and our reputation for adhering to agreements that we have come to. So all of us hope that the Minister will go away, think and expect others in the department and the Government to think again. On that basis, I am willing to withdraw the amendment, but I have no doubt that we will come back to the issue at later stages of the Bill.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
We come now to the group beginning with Amendment 16. Anyone wishing to press this amendment or anything else in the group to a Division must make that clear in the debate.
Amendment 16
“Compliance with the Belfast Agreement 1998
Nothing in this Part is to be construed in any manner that is non-compliant with the Belfast Agreement 1998.”Member’s explanatory statement
This amendment, and the amendments to page 8, line 12 and page 26, line 16 in the name of Baroness Ritchie of Downpatrick, ensure that the bill cannot be interpreted in a way that undermines the Belfast Agreement 1998’s requirement for the Government to complete incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts, and remedies for breach of the Convention.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, in moving Amendment 16 I will speak also to Amendments 25, 33 and 69 in my name and those of the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Hain. The purpose of these amendments is to ensure adherence to the Good Friday agreement, as there is a fear among human rights organisations that this legislation could undermine the very essence of the agreement, which is central to the ongoing peace process in Northern Ireland and relations within the island of Ireland and between Ireland and Britain. The major fear centres on the fact that the overseas operations Bill would limit direct access to the Northern Ireland courts and remedies for breaches of the European Court of Human Rights in relation to proceedings in connection with overseas operations. I have been contacted by the Committee on the Administration of Justice in Northern Ireland and Rights and Security International. They feel strongly about these issues.
Amendments 16, 25 and 33 have been tabled to ensure that the Bill cannot be interpreted in a way that undermines the requirement in the 1998 Belfast agreement for the Government to complete incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts and remedies for breach of the convention. On a similar basis, Amendment 69 has been interpreted in a way that underlines the requirement in the 1998 Belfast agreement that, again, the Government should complete the incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts and remedies for breach of the convention. It is important to emphasise that the Belfast/Good Friday agreement provided that—I shall quote directly:
“The British Government shall complete incorporation into Northern Ireland law of the European Convention on Human Rights with direct access to the courts and remedies for breach of the Convention.”
There is a fear that, as currently drafted, the Bill risks undermining the provision in a number of ways, hence the necessity for these amendments. I hope that the Minister will see their benefit and will consider accepting them tonight.
Baroness Chakrabarti (Lab) [V]
My Lords, I am pleased, as always, to speak after the noble Baroness, Lady Ritchie of Downpatrick, in support of her amendment, supported by the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lord Hain, who is of course a former Northern Ireland Secretary.
I need not repeat the point about the importance of the Belfast agreement—it is well known to everyone in your Lordships’ House—or explain the matters that the noble Baroness in self-deprecating fashion referred to as “technical”. These are not of course just technical matters, because the Belfast agreement is an international treaty. However, I will pre-empt any doubts that some sceptics may have about the importance of these rather neat amendments.
The Belfast agreement is not just about what happens in Northern Ireland but about the law and the values in relation to all communities in Northern Ireland and indeed on the island of Ireland. That is why it is so important that, even though the Bill is about overseas operations—not about operations in Northern Ireland itself—it is about the law and the values as they apply to people who may seek redress in the Northern Ireland courts, even if it is in relation to overseas operations in which they served or potentially argued they were otherwise victims.
I urge noble Lords to take these amendments extremely seriously, not least in the context of the group we have just heard about. The Minister and I may disagree about such things as whether I am right or wrong in my plain view that many aspects of the Bill violate the ECHR, but at least these amendments would allow where possible any wriggle room to be used for interpretation so that we do not fall foul of that precious agreement that has been so vital to maintaining relative peace for such a long time.
Lord Mackay of Clashfern (Con) [V]
My Lords, these amendments are designed on the assumption that provisions in the Bill might be contrary to the human rights convention and, of course, the Human Rights Act. I regard it as 110% essential that the Belfast agreement is fully respected and implemented. I have therefore supported this amendment on the view that, since a question has been raised about it, it is right that it should be thoroughly checked and that, if necessary, these amendments should be inserted to make sure. I have my doubts as to whether it is necessary but I am all in favour of it being checked in detail by those who drafted the Bill, to make sure that, whatever happens, the Belfast agreement is not damaged in any way by the provisions in the Bill.
Baroness Suttie (LD) [V]
This has been an interesting and important short debate. It has previously been made clear that the Bill does not deal with matters relating to Northern Ireland, but I trust that in her concluding remarks the Minister will none the less give full responses to the many important issues raised by the noble Baroness, Lady Ritchie, this evening. I believe that it is equally important that the Minister acknowledges that these amendments stem from several very real fears and anxieties.
The first of these fears is that, in their actions and behaviour over recent months, the Government have given cause for concern that they are seeking to water down or reinterpret the Belfast/Good Friday agreement. In her response to these amendments, I hope that the Minister can give some firm reassurances this evening that this is not the case. The second anxiety at the heart of these amendments is that it is somewhat unclear that the Government remain fully committed to the balanced and well-considered approach to legacy issues as set out in the Stormont House agreement. Given that it is now well over a year since New Decade, New Approach was published, can the Minister update the Committee this evening on the Government’s approach to legacy issues in Northern Ireland?
Given that the Minister is not from the Northern Ireland Office, I suspect that she may not be able to give a full response to my question on legacy, so I would be extremely grateful if it would be possible to receive a letter setting down in detail the answer to that question and arrange a meeting to discuss these matters on legacy in more detail.
Lord Tunnicliffe (Lab) [V]
My Lords, the Good Friday agreement is central to the ongoing peace process in Northern Ireland. We all have a vital role to play in safeguarding the Good Friday agreement and building on its promise, and we must ensure that this Bill, or any other Bill, protects it. However, the Government have demonstrated a reckless approach to the Good Friday agreement. We need only to consider their actions with the internal market Act, which threatened the agreement and resulted in resounding international criticism, including from the new President of the United States.
The Good Friday agreement is one of Labour’s proudest achievements in office. The courage of the people and communities in Northern Ireland made peace happen and has allowed an entire generation to grow up free from conflict. We must build on it, not weaken its foundations. The amendments in this group aim to ensure that the Bill cannot be interpreted in a way that undermines the Good Friday agreement’s requirements for the Government to complete incorporation of the European Convention on Human Rights into Northern Ireland law.
Rights and Security International has said that the Bill risks undermining the agreement as the presumption against prosecution
“extends to criminal offences which are also considered violations of the ECHR, such as torture … Under the ECHR, there is a procedural obligation to … prosecute and punish”
these acts, and the Good Friday agreement
“requires that this procedural obligation be incorporated in the law of Northern Ireland.”
Does the Bill make it harder for breaches of the ECHR to be prosecuted? Rights and Security International has also said that the six-year longstop impacts on
“the Good Friday Agreement’s requirement that the UK ensure direct access to the courts”.
Have the Government received independent legal advice on the impact of the Bill on the Good Friday agreement or carried out their own impact assessment of the Bill on the agreement?
When considering Northern Ireland, we must also remember that the Bill does not cover operations in Northern Ireland as originally promised. Last month, the Leader of the House in the other place said that
“the Government will introduce separate legislation to address the legacy of the past in Northern Ireland in the coming months in a way that focuses on reconciliation, delivers for victims and ends the cycle of reinvestigations into the troubles in Northern Ireland”.—[Official Report, Commons, 11/2/21; col. 496.]
However, it is now exactly a year since the Northern Ireland Secretary made a statement promising the same. What is causing the delay? When will it be published? The Good Friday agreement must endure, must be strengthened and must continue to guarantee peace. Whether it is in this Bill or any other, the aims must be supported, not undermined.
Baroness Goldie (Con)
My Lords, I thank the noble Baronesses, Lady Ritchie of Downpatrick, Lady Suttie and Lady Chakrabarti, and the noble Lord, Lord Tunnicliffe, for their contributions. These amendments seek to ensure that the Bill cannot be interpreted in a way that undermines the Belfast agreement. As they all indicated, the Belfast agreement was, of course, an incredible achievement, and the Government remain fully committed to the agreement and the constitutional principles it upholds, including the institutions it established and the rights it protects. The agreement has been the foundation for political progress, peace and stability in Northern Ireland over the last 22 years, and it will be protected going forward.
I listened with interest and care to my noble and learned friend Lord Mackay of Clashfern, and I reassure him that nothing in the Bill could be interpreted as undermining the commitments contained in the Belfast agreement, and nothing that would diminish the essence of the protections that the Human Rights Act currently offers to the people of Northern Ireland. My noble and learned friend may be aware that the UK has already fulfilled the commitment under the agreement to incorporation by enacting the Human Rights Act 1998, which provides for direct access to the domestic courts to vindicate convention rights, and the Northern Ireland Act 1998, which provides that the Northern Ireland Assembly can legislate only in a way that is compatible with convention rights and that Northern Ireland Ministers must act compatibly with the convention rights. I would say that the measures in this Bill are considered to be compatible with the convention rights.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I thank all who participated in this short but timely and important debate: the noble Baronesses, Lady Chakrabarti and Lady Suttie, the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Tunnicliffe, and the Minister.
The noble Baroness, Lady Chakrabarti, underlined the importance of an international treaty, the importance of the Belfast agreement in terms of the laws and values relating to communities in Northern Ireland, and the need for the courts in relation to overseas operations. The noble and learned Lord, Lord Mackay of Clashfern, wanted to make sure that the Belfast agreement was respected in the Bill, and the Minister seemed to indicate that that was the case, although I have certain doubts and I want to reflect further on this.
The noble Baroness, Lady Suttie, raised important issues about the need for a balanced approach to the agreement. The fact that the Belfast/Good Friday agreement was balanced allowed people in Northern Ireland to enjoy relative peace, which needs to be built on, and provided for those political institutions, which are thankfully working. She and the noble Lord, Lord Tunnicliffe, raised very important issues to do with legacy matters.
The Secretary of State in the other place made a Statement on 18 March 2020 that basically said that the Government were abandoning the Stormont House agreement in favour of other issues. We have never seen that legislation, but I urge the Minister and her colleagues in the Northern Ireland Office to adhere to the Stormont House agreement because it gives the best resolution for legacy issues in Northern Ireland.
In her very gracious comments, the Minister said that the Government were fully committed to the Belfast agreement. Like the noble Lord, Lord Tunnicliffe, I question that because we saw attempts to unravel it through the passage of the UK internal markets Act and we have seen further attempts to unravel the Northern Ireland protocol and undermine the agreement by others in the Government. I simply ask at this stage that those issues be properly dealt with through the UK-EU mechanisms already available and not through unilateral approaches. I take the basis from the Good Friday agreement itself; the principles of consent and agreement are vital for everything.
The Minister said that nothing in the Bill would diminish human rights in relation to overseas operations. Quite frankly, I would like to go away and reflect on that before considering whether to bring back amendments on Report. I remind the Committee that the commitment to incorporate the European Convention on Human Rights is not qualified by events in Northern Ireland, hence the need for these amendments. Again, I emphasise that it is important that the Bill as drafted would limit direct access to the Northern Ireland courts and remedies for breaches of the European Convention on Human Rights in relation to proceedings in connection with overseas operations.
In view of that and of the fact that the Minister in her albeit gracious comments has not adequately addressed the issue, while I beg leave to withdraw Amendment 16 this evening, I will further reflect on bringing my amendments back on Report.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, we now come to Amendment 18. Anyone wishing to press this amendment to a Division must make that clear in debate.
Amendment 18
Lord Falconer of Thoroton
“Time limit for commencing proceedings for minor offences
After section 60 of the Armed Forces Act 2006 insert—“60A Time limit for minor offences(1) A person may not be charged in respect of a minor offence carried out in the course of overseas operations after the end of six months beginning with the day on which the offence is alleged to have been committed. (2) In this section—“minor offence” means—(a) any offence committed by a member of a regular or reserve force which would be in the jurisdiction of the Service Civilian Court if committed by a civilian; (b) any offence capable of being dealt with at a summary hearing under section 53 or 54;“overseas operations” has the meaning given in section 1(6) of the Overseas Operations (Service Personnel and Veterans) Act 2021.””
Lord Falconer of Thoroton (Lab) [V]
My Lords, this is a self-contained point rather outside the mainstream of the other issues that we have been dealing with, but an important amendment trying to provide a degree of certainty to military personnel engaged in overseas operations. The amendment seeks to provide that, where a minor offence is committed that would be triable within the Armed Forces criminal justice system, there should be a six-month time limit from the date the offence is committed for bringing proceedings. So, after six months have elapsed from the date of the offence, if no proceedings have been brought it cannot be prosecuted. This provision mirrors Section 127 of the Magistrates’ Courts Act 1980 and reflects the sensible proposition that, in relation to minor offences, you should know where you stand.
I am not sure whether the drafting has precisely achieved this; I would be interested in the Minister’s views on whether we need to make any changes. However, I am absolutely sure that the principle is sound: in relation to minor offences, there should be a shortish time limit of six months, so that the system is not cluttered up with old offences of a certain lack of severity. I beg to move.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, the noble Baroness, Lady Chakrabarti, whose name is next on the list, has withdrawn so I call the next speaker, the noble Lord, Lord Thomas of Gresford.
Lord Thomas of Gresford (LD) [V]
My Lords, I have little to say in respect of this amendment. I believe that summary offences should be dealt with summarily, and that is what this amendment seeks to achieve.
Baroness Goldie (Con)
My Lords, it is interesting that we conclude our consideration of Part 1 of the Bill with a genuinely interesting proposition from the noble and learned Lord, Lord Falconer of Thoroton, so neatly encapsulated by the noble Lord, Lord Thomas of Gresford.
The amendment seeks to introduce, via a new section to be inserted in the Armed Forces Act 2006, a six-month limitation period between an offence being committed or discovered and any proceedings being brought, where certain conditions are satisfied. As I understand the proposal, the amendment would create a six-month limitation period for all offences capable of being dealt with at a summary hearing under Section 53 of the Armed Forces Act 2006. It is worth observing that this category of offence includes a large number of matters that are specific to a military context.
Section 53 covers, for example, the offence of being absent without leave, under Section 9 of the Armed Forces Act 2006; the offence of disobedience to lawful commands, under Section 12; the offence of contravention of standing orders, under Section 13; and the offence of disclosure of information useful to an enemy, under Section 17. These, and many more offences like them, are vital to maintaining discipline and operational effectiveness in the Armed Forces. The amendment proposes that none of these should be capable of leading to punishment after six months. With the greatest respect to the noble and learned Lord, I think that that is unwise.
During any investigation, it is not always clear at the outset what the charge will be, but this is made harder for investigations on overseas operations, particularly where the injured person or witness is a local national. As I have already set out in response to other investigation-related amendments, investigations on overseas operations are subject to greater complexity than those conducted back in the UK, and delays can occur. However, placing what is actually quite a short time limit on investigations is unhelpful. In my view, we should not be seeking to do anything that would fetter the investigative decision-making of the service police. A time limit in these circumstances would do just that.
Even the most minor offences take on a greater significance in an operational environment and, if we reflect on some of the offences to which I have just referred, I think your Lordships would understand the import of that. A minor offence is not necessarily a simple matter that can be dealt with quickly by a commanding officer, and minor offences committed against local nationals can have a disproportionate effect in an operational setting.
I think that this amendment is modelled upon the provisions that exist in relation to summary-only matters in the Magistrates’ Courts Act 1980, which is why I find it problematic. The Magistrates’ Courts Act codifies the procedures applicable in the magistrates’ courts of England and Wales. This legislation is not written to accommodate the extraordinary demands made of a system operating in an operational context where, as I have already said, delays can sometimes occur as a result. Applying civilian timescales to an operational context is therefore not appropriate.
I appreciate that the amendment has been offered in good spirit by the noble and learned Lord. I thank him for the breadth of thought in investigating that aspect, but I urge him to withdraw the amendment.
Lord Falconer of Thoroton (Lab) [V]
I am grateful to the Minister for her very careful reply. I understood her to make two particular points: first, that six months may be too short, particularly in an overseas operational environment and, secondly, that it may not be appropriate in dealing with certain sorts of military offences, for example, disobedience to orders, particularly in an overseas context.
I hear what the noble Baroness has said and I will think very carefully about two things. First, does one need a longer period and, secondly, should one exclude certain specifically military offences? However, if it were possible, I would be keen to find a way forward on this because although the points she makes have some degree of validity, I also think that for comparatively minor offences it is disproportionate for military personnel still to be investigated for some months or even years after the comparatively minor offence has been allegedly committed. Of course I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, we now come to the group beginning with Amendment 19. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 8: Restrictions on time limits to bring actions: England and Wales
Amendment 19
Lord Falconer of Thoroton
Member’s explanatory statement
This amendment ensures that a court can disapply the civil longstop if the same equipment or cause of negligence results in injury or death in overseas operations as in the UK.
Lord Falconer of Thoroton (Lab) [V]
We move on to a different part of the Bill, which seeks to impose more rigorous time limits for bringing civil actions, whether in accordance with the ordinary law of tort or contract, or under the Human Rights Act. Although I am slightly oversimplifying, the Bill essentially seeks to impose a six-year unextendable deadline for bringing civil claims in respect of the conduct of the military, except where knowledge occurs after the six years, in which case there is a further 12-month extension. This is in contradistinction to the normal position whereby a claim would be brought not arising out of overseas operations where the court would have an ability to extend the time for bringing a claim if it were equitable to do so.
In these amendments, we focus on two particular circumstances. First, where a claim is being brought by someone within the military against, in effect, the Government for a breach of human rights or a tortious claim, we take the view that we should not be providing additional limitation hurdles in respect of military personnel bringing claims against the MoD—for example, for the negligent provision of defective equipment. I should be interested to hear why the Government think that there should be such a limitation. As a subgroup, primarily dealing with military personnel but able to deal with others also, if, in relation to an identical claim that had occurred in the UK, somebody could bring a claim and have the limitation period extended if it were equitable to do so, we cannot see any reason why in identical circumstances such a claim could not also be brought, even though the circumstances or damage arose in the course of overseas operations.
For example, if the Ministry of Defence provided defective equipment to a soldier and, as a result, the soldier suffered serious injury in an exercise on Salisbury Plain, why should a soldier who suffers precisely the same injury while on an overseas operation because of the negligent provision of defective equipment by the Ministry of Defence have a shorter and harsher limitation period than the soldier who was injured in precisely the same circumstances for precisely the same reasons in an exercise on Salisbury Plain? For example, they were both injured not necessarily because of the activities of enemy insurgents against them but because all the forms of transport provided were defective in a way that was the fault of the Ministry of Defence. The injury would have occurred whether one was driving along a road in Wiltshire or a road in Iraq or Afghanistan. It is unfair that there should be different limitations for precisely the same sorts of injury.
Two questions arise on this group of amendments. First, why should there be different limitation periods for the military bringing claims against the Ministry of Defence? Secondly and separately, even if there is a reason for that, why should there be a different limitation period for precisely the same injury, the only difference being that it was caused in the course of overseas operations rather than at home, for example? We are aware of the problems that have arisen in relation to many claims being brought—and many failing—arising out of overseas operations. We are all aware of those circumstances, but we are very concerned that, in trying to deal with that multiplicity of claims, the Government are unfairly depriving military personnel of their legitimate right to protect their rights against the Ministry of Defence.
It is very important that the limitation period be fair for claims by military personnel because, for a whole variety of reasons that those engaged in the military will be aware of, there may be very good reasons why a member of the military takes a long time to discover either that they could bring a claim or that they are in an emotional or mental position to bring a claim because of their experiences. We think these provisions are very detrimental and unfair to military personnel and require amendment. I beg to move.
Baroness Smith of Newnham (LD) [V]
My Lords, at this time of the evening it would be very easy simply to agree with everything the noble and learned Lord, Lord Falconer of Thoroton, has just said and be happy to move on, but that would do a disservice to our service men and women and veterans, because the points these amendments speak to and the words the noble and learned Lord has just uttered are extremely important. It is surely appropriate that we treat our service personnel and veterans with respect, and that they should not be disadvantaged because they have been service men and women.
Clearly, incidents and dangers can happen in the field of battle that will not be legislated for in a conventional civilian sense, but there might be other issues—hearing loss, for example—associated with having been in the Armed Forces which become clear only later. It seems very strange, as the noble and learned Lord has pointed out, that people should have different rights according to whether the problems arose while based in the UK or on overseas operations. Can the noble and learned Lord, Lord Stewart, who appears to have taken over from the noble Baroness, Lady Goldie, say what work the Government have done in looking at the potential ramifications of this limitation?
This Bill has been put forward by the Government as something supposed to help our service men and women, but this limitation seems to limit their rights. I know the Minister will have been told that it is very important that cases are brought swiftly and issues are dealt with promptly, that it is in everybody’s interest to do so and that delaying things is in no one’s. But neither is curtailing people’s rights.
The Royal British Legion sent a briefing picking up in particular on the Armed Forces covenant, quoting the point:
“Those who serve in the Armed Forces, whether Regular or Reserve, those who have served in the past and their families, should face no disadvantage compared to other citizens in the provision of public and commercial services … In accessing services, former members of the Armed Forces should expect the same level of support as any other citizen in society.”
Assuming that Her Majesty’s Government still support the Armed Forces covenant, can the Minister explain how the proposals in Part 2 of the Bill live up to its commitments? Can he tell us what additional thoughts the Government might be willing to have on looking again at this limitation?
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, the noble Lord, Lord Lancaster of Kimbolton, has withdrawn from the debate, so I call the noble Lord, Lord West of Spithead.
Lord West of Spithead (Lab)
My Lords, I shall speak to Amendment 29 in support of my noble friend Lord Tunnicliffe and the noble and gallant Lords, Lord Boyce and Lord Stirrup. The de facto six-year time limit for claims being brought against Ministers and the MoD arising from active service abroad seems at first sight far from protecting our people, but rather reducing the rights of individual service personnel. Those injured as a result of negligence during overseas operations, unlike in the UK, will have less protection under the law. Veterans and service charities, as was mentioned by the noble Baroness, Lady Smith of Newnham, are very worried and have been taking quite a lot of notice of this. The British Legion and other charities are very concerned.
To keep this short, it seems that the Bill seeks to protect the MoD from claims by our servicemen, rather than trying to look after them. Again, I am absolutely sure that that is not the intention, and this amendment tries to rectify that problem.
Lord Craig of Radley (CB) [V]
My Lords, I shall speak to Amendment 29 and I support this important safeguard for service personnel. As has been mentioned, not all disabilities are immediately self-evident. Medical advances and associating clinical problems with mental or slowly developing illnesses are helping to explain and track the trigger to events not just in the recent past, but over periods measured in years, not months. Should a claim be considered, it should not be dismissed on some arbitrary timeline. Justice for service personnel, both serving and veterans, demands that their interests should be protected.
The changes made in the past decade, replacing the tried and tested Pensions Appeal Tribunal, which had its origins in 1919, with new arrangements, have been the cause of much anxiety at times. Indeed, I put down an annulment Motion to a major tribunal revamp in 2008 that sought to disband the Pensions Appeal Tribunal of England and Wales and move all its military pension and disability work into a civilian social entitlement chamber. This was widely condemned by those with experience of this type of work, by the Royal British Legion and other charities which help with the preparation and submission of such claims. My Motion was debated and, happily, the Government then agreed that the Pensions Appeal Tribunal work should be given its own separate chamber in the restructured tribunals.
So it is not only that claims by service personnel and veterans should not be arbitrarily time-limited: as important is that the tribunal arrangement in place to deal with claims is respected and trusted, as was the former Pensions Appeal Tribunal, with its long experience and proven track record in this field. I hope the Government will acknowledge the importance of that, as well as Amendment 29.
Lord Faulks (Non-Afl) [V]
My Lords, the scheme of this part of the legislation creates a long stop of six years, subject to date of knowledge provisions which provide for an additional one year. It also specifies certain additional factors to be taken into account under the provisions of Section 33 of the Limitation Act 1980.
Lord Boyce (CB) [V]
My Lords, I speak to Amendment 29 and the subject of a six-year time limit being imposed by the Bill on those who have been engaged on overseas operations in their ability to bring any grievance against the MoD. This would have the perverse effect of limiting individual service personnel’s rights by restricting their access to legal remedies for harms caused by their employers, while it would not apply to their counterparts not engaged on overseas arrangements. Surely it must be beyond argument that such a situation should not be allowed, and I thus support Amendment 29.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, the noble Baroness, Lady Chakrabarti, who is next on the list, has withdrawn, so I call the noble and gallant Lord, Lord Stirrup.
Lord Stirrup (CB)
My Lords, I will speak to Amendment 29, to which I have attached my name. Its purpose is to ensure that service personnel are not debarred by time from pursuing claims against the Government for harm suffered on overseas operations. Of course, the purpose of the Bill is to provide reassurance to those very personnel that they will be to some degree protected against malicious proceedings, so it seems rather perverse that the Bill should also seek to prevent them gaining redress for harm that they themselves suffered. The Government have asserted that such an outcome is not their intention, and of course I accept that. However, the question is not the present Government’s intention but the potential consequences of the Bill as worded. It seems that one consequence might well be to deprive a number of serving personnel or veterans of their right to pursue a claim against the Government.
Part of the Government’s response to this concern is to stress the small numbers involved. They say that some 94% of service personnel and veterans who brought claims relating to events in Iraq and Afghanistan did so within six years. Are we then to assume that, had the proposed timescale been applied to them, the Government believe that it would have been acceptable for the other 6% to lose the opportunity to pursue their cases? The Government also say that the vast majority of cases relate to events in the UK, not to overseas operations. That may be so, but to argue that only a small number of service personnel would suffer injustice does not seem a respectable position for a Government to take at any time, let alone in a Bill that is supposed to provide support and reassurance to those people.
This timescale is very different from the one proposed in Part 1. The latter, as I observed earlier, does not introduce a significant legal watershed. Complaints can still be brought to prosecution, subject to certain tests that ought to be applied with or without the Bill. The time limit placed upon complaints brought by service personnel or veterans is of a very different character. It is not a high bar—it is an impassable wall. In support of this absolute limit the Government have prayed in aid statements from the courts about the need for limitation periods in civil litigation to ensure legal certainty and finality and to avoid the need to adjudicate on events so far past that memories and evidence become too unreliable. Of course I see the sense in that, but why six years? Upon what empirical data is such a time period based?
I listened very carefully to the remarks of the noble Lord, Lord Faulks, but since the expiry of the proposed time limit would have such dramatic legal consequences, there seems to be a powerful argument for a much longer period in this case. That which is proposed in the current Bill is too short, too disadvantageous to serving personnel and veterans, and should be reconsidered.
Lord Thomas of Gresford (LD) [V]
My Lords, like my noble friend Lady Smith and others, I am concerned that there should not be a different principle of limitation for service personnel for injuries received as the result of overseas operations as opposed to those injured while they are serving in the United Kingdom. However, I want to also speak up for the civilians in the country where the overseas operations took place.
I am not naive about this. I very much recall a court martial in Colchester, in 2005, for which a lady was brought from Iraq with a complaint that a British soldier had stripped her naked in the street and had caused her huge embarrassment. She went into the witness box, took the oath on the Koran and then turned to the judge and said, “Now I have taken the oath on the Koran, I have to tell the truth. I made it all up.” There were many complaints that were made up at that time.
At the time of the Baha Mousa trial, Mr Phil Shiner was wandering around trying to infiltrate our discussions, and he always had someone taking a note of the evidence as it emerged, which he subsequently misapplied. I am very glad that he was struck off by the Law Society.
That, however, should not prevent, in an appropriate case, a claim for damages going forward if it is equitable to do so. The noble Lord, Lord Faulks, expressed with considerable authority the complexity of this area of law and the difficulties that exist in any event—never mind in overseas operations.
There are valid claims. I put in a Written Question on 2 June last year. The Answer told me that, since 2003, there have been
“1,330 claims for damages relating to alleged misconduct … The claims … focus predominately on alleged unlawful detention but many incorporate allegations of mistreatment”.
The Ministry of Defence has paid out £32 million in respect of these allegations, and says that it does not pay out without consideration and finding the claim valid. It meets the bill, which does not fall on the soldier in question.
The practice of the court is not to extend to extend limitation periods easily, and that is a particular concern where valid claims are coming forward. When the court considers whether to extend the limitation period, it investigates all the circumstances. It is very difficult for a poor person in a foreign country to bring a case, and as the noble Lord, Lord Faulks, pointed out, it is not easy to extend the limitation period. Date of knowledge is frequently an issue. Sometimes it almost seems as if when a court hears an application for an extended limitation period it will be granted on the nod. But that is not the case: it is a difficult thing to argue. I am, therefore, in favour of these amendments, and I look forward to seeing how they appear on Report.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, I begin by addressing Amendment 29, which seeks to carve out claims from service personnel and veterans from the limitation longstops in the Bill. I have to be clear from the outset: such a carve-out would amount to an unjustifiable difference in treatment between different categories of claimants and would therefore be likely to be incompatible with the United Kingdom’s obligations under the European Convention on Human Rights.
A carve-out would also have very limited practical impact. The noble and gallant Lord, Lord Stirrup, anticipated the statistic that I am about to quote. Analysis of previous claims has indicated that the vast majority of claims—around 94% of relevant claims brought by service personnel or veterans in connection with overseas operations—have been brought within six years, which is the period of the longstop.
In answer to the noble and gallant Lord, it must be the case that many of the remaining 6% will come under the state of knowledge provisions, whereby the period of limitation will commence at the point at which the individual has become aware of their condition. The noble Baroness, Lady Smith of Newnham, adverted to this in her submission when she spoke about hearing loss, a condition that might well become manifest outwith the period of six years from the point at which it had been incurred or commenced. The same might equally be said for post-traumatic stress disorder.
Lord Falconer of Thoroton (Lab) [V]
I am very grateful to the noble Baroness, Lady Smith, my noble friend Lord West of Spithead, the noble and gallant Lords, Lord Craig of Radley, Lord Stirrup and Lord Boyce, and the noble Lord, Lord Thomas of Gresford, all of whom supported this amendment. I am also struck by the fact that I am supported much more by the military than I am by the lawyers on this amendment, which suggests that it must be right.
I also thank the noble and learned Lord, Lord Stewart of Dirleton, for his detailed reply. In relation to carving out the military claims against the Ministry of Defence, as proposed in Amendment 29, I understood his answer to be that it is discriminatory. I find that hard to believe because the effect of the Bill is to treat soldiers on overseas operations as different from other soldiers. Therefore, it is simply a question of judgment as to which sub-category is acceptable and which is not. He then said that the other reason for resisting it was because it would not affect very many people. That is not much of an answer—do the right thing; do not deprive people of a claim that they would otherwise have.
Ultimately—and this is no criticism of the Minister—his answers were unconvincing because the purpose of this part of the Bill is not to stop military personnel bringing claims; it is to stop claims, of the sort identified by the noble Lord, Lord Thomas of Gresford, brought by non-military personnel. Whether one thinks that that is right or wrong, it is clear that the Government did not intend this effect on military personnel. They should be consistent in the way they deal with it and reassure military personnel by getting rid of this distinction.
Amendment 19 and the ones associated with it would provide that if the same thing were to happen on Salisbury Plain, soldiers should have a claim, whether it was brought in relation to overseas operations or not. There is absolutely no reason that that should not be given effect to. The alleged suggestion that it might be difficult to work out, with no examples given, was—with respect—rather unconvincing. Of course I will withdraw my amendment, but I think I will return to this on Report.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, finally, we come to Amendment 20. Anyone wishing to press this to a Division must make that clear in the debate.
Clause 11: Court’s discretion to extend time in certain Human Rights Act proceedings
Amendment 20
Lord Falconer of Thoroton
Lord Falconer of Thoroton (Lab) [V]
This amendment deals with the factors that the court must have regard to when it considers whether or not to extend a limitation period under the Human Rights Act. The new Clause 7A(2) that the Bill would insert into the Human Rights Act states:
“The court or tribunal must have particular regard to ... the effect of the delay in bringing proceedings on the cogency of evidence adduced or likely to be adduced by the parties”.
More detail is then given before it says that the court or tribunal must also have regard to
“the likely impact of the proceedings on the mental health of any witness or potential witness who is ... a member of Her Majesty’s forces.”
Those factors would, no doubt, be considered in the ordinary course of the exercise of the discretion, irrespective of whether they were put into the Bill.
The wording in the Bill is “particular regard to”. Is it intended that these particular factors should be the main ones that the court has regard to, or is it intended to change the law in any way, in relation to the exercise of the discretion? I do not dispute that the factors that are set out would be relevant, but I think the drafting is unfortunate, and I would be interested to hear the Minister’s explanation of how he thinks it is intended that the exercise of the discretion will work.
Lord Faulks (Non-Afl) [V]
My Lords, I will be brief. I am conscious that the noble and learned Lord, Lord Falconer, does not have much regard to what lawyers say on this Bill, so I will bear that in mind as well. I understand the amendment, but there is a query in my mind as to whether he would prefer a “must not have regard”, or the omission of “particular” so that the clause simply has “the court or tribunal must have regard to”.
I have some sympathy for “must have regard to” rather than “particular regard”, because I accept from the noble and learned Lord that there is a possible suggestion that this would be the trump card rather than one of the factors. But it is appropriate that those matters should be specifically drawn to the attention of a court by the Bill, given its overall philosophy. It is probable that those matters would be taken into account. The law of limitation in relation to the Human Rights Act is still developing. It is rather unclear, but this seems to me to be consistent with the philosophy of the Bill, so I do not agree with the total removal of these provisions as the amendment suggests.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
The noble Baroness, Lady Chakrabarti, has withdrawn, so I call the noble Baroness, Lady Smith of Newnham.
Baroness Smith of Newnham (LD) [V]
My Lords, not being a lawyer, I shall take the approach taken by the lawyers and be very brief in my comments. I have the same question as the noble and learned Lord, Lord Falconer: what is the purpose of “particular regard” in this respect? There is a time limitation already. Is the “particular regard” intended to truncate the ability to bring proceedings even further, so that if there is a suggestion that somebody’s memory has been impeded by overseas action, it makes it even less likely that proceedings can be brought?
Lord Stewart of Dirleton (Con)
My Lords, I am again grateful to those noble Lords who have contributed to this short debate. The Bill introduces three factors that the courts must consider and pay particular regard to when deciding whether to allow Human Rights Act claims connected with overseas operations to proceed after the one-year primary limitation period has expired. We feel that these factors are an important part of the Bill, because they ensure that the unique operational context in which the relevant events occurred is taken into account by the courts when considering limitation arguments in claims connected with overseas operations.
As the noble and learned Lord, Lord Falconer of Thoroton, pointed out very early in his submission, the courts will do this already; the courts will have regard to these things. Part of their consideration of whether to allow a claim to proceed beyond the primary limitation period includes assessing whether the claim is, in the language of statute,
“equitable having regard to all the circumstances”.
But our position is that putting these three factors on the face of the Bill will provide a guarantee for service personnel and veterans that appropriate consideration will always be given by the courts—whether that is for Human Rights Act claims or for personal injury and death claims—to these significant points, which are different from those which would apply in peacetime.
We believe that in situations where claims are connected with overseas operations, the courts should pay particular regard to the reality of these operations: the fact that opportunities to make detailed records at the time may have been limited; that increased reliance may have to be placed on the memories of the service personnel involved; and that, as some personnel may suffer from mental ill-health as a result of their service, there is a human cost to them in so contributing.
This is what the additional factors that the Bill introduces seek to do. They consider the extent to which an assessment of the claim will depend on the memories of service personnel and veterans; the impact of the operational context on their ability to recall the specific incident; and the likely impact of the proceedings on their mental health. We believe that it is right that the operational context is at the forefront of the mind of the court when considering whether to allow claims beyond the primary limitation period. Noble Lords will know that we are also introducing these factors for personal injury and death claims, and we must ensure that Human Rights Act claims connected with overseas operations are treated in the same manner.
Particular emphasis was placed on the word “particular” in the course of this short debate. I undertake, in light of the submissions made in the time available, to consider the terms of the drafting and to weigh the suggestions made by noble Lords in relation to that particular adjective in the context of the provision. I will look at any connotations that might flow from it and might be adverse to the intention of the Bill. At this stage, however, I urge that the amendment be withdrawn.
Lord Falconer of Thoroton (Lab) [V]
My Lords, I am obliged to the noble Lord, Lord Faulks, and the noble Baroness, Lady Smith, for taking part in the debate. May I specifically exclude the noble Lord, Lord Faulks, from the lawyers to whom I do not pay regard. The House pays great regard to what the noble Lord, Lord Faulks, has to say on every topic. I express my gratitude to the Minister for answering, as ever, with great care and regard to the questions that were asked.
What was in my mind in advancing this amendment was having some indication as to the extent to which the Government intend to change the approach that would otherwise be applied by the court. In particular, would these factors referred to in proposed new subsection (2) be intended, as the noble Lord, Lord Faulks, said, to trump other factors? I will very carefully study what the noble and learned Lord, Lord Stewart, said, but I do not think that he quite answered that. It may be that the way forward in relation to this is to have a further discussion with the noble and learned Lord to see whether he can give further assurance, either in correspondence placed in the Library of the House, or maybe on Report, if we cannot reach agreement on this. I am grateful to him for the answer that he gave. I beg leave to withdraw the amendment.
Overseas Operations (Service Personnel and Veterans) Bill
Thursday 11th March 2021
(3 years, 1 month ago)
Lords ChamberRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 147-II(Rev) Revised Second marshalled list for Committee - (9 Mar 2021)
Lord Thomas of Gresford
“(c) the importance of the proceedings in securing the rights of the claimant.”Member’s explanatory statement
This amendment adds a further consideration to which UK courts must have particular regard when determining whether to disapply the standard HRA limitation period of one year so as to ensure that the claimant’s interest in having their claim proceed is not subordinated.
Lord Thomas of Gresford (LD) [V]
My Lords, I will start with a quote on how the court approaches the extinction of the limitation period in any category of case:
“It is for the court to examine in the circumstances of each case all the relevant factors and then decide whether it is equitable to provide for a longer period. It may be necessary in the circumstances of a particular case to look at objective and subjective factors; proportionality will generally be taken into account. It is not in my view appropriate to say that one particular factor has as a matter of general approach a greater weight than others. The court should look at the matter broadly and attach such weight as is appropriate in each given case.”
I am quoting from the judgment of the noble and learned Lord, Lord Thomas of Cwmgiedd, in the case of Dunn v Parole Board in 2008.
The standard limitation period is three years for tortious claims for personal injury and wrongful death, and one year for claims under the Human Rights Act. The limitation periods can be extended by an application to the court on the principles I have quoted.
This Bill introduces factors in Clause 8(1)(b) and in paragraph 1(4) of Schedule 1 and—in relation to Human Rights Act claims—in Clause 11(2), which inserts new Section 7A into the Human Rights Act. The purpose of introducing these additional factors that a court must take into account in claims arising from overseas operations is to introduce a degree of bias into the equation. The Bill requires that the court pay “particular regard” to the impact of the operational context on the ability of members of HM Forces to fully or accurately recall events and the degree of
“dependence on the memory of such individuals”
for the cogency of the evidence, as well as the impact on the mental health of Her Majesty’s Forces witnesses caused by the proceedings.
Over the past 20 years, in the field of criminal law and procedure, the victim has been put at the forefront. I think it was the noble and learned Baroness, Lady Scotland, who emphasised that, in particular when she was Attorney-General. Everything has been done to try to make it easy for victims in criminal courts to complain in the first place—not least in cases involving sexual offences. Special measures have been introduced to that end.
In dealing with civil claims by victims, the thrust of this Bill is entirely to reverse that position. The concentration is now on fairness to the alleged perpetrators of the acts from which the victims suffered and which are the foundation of their claims. Special weight must be given to a declaration by a serving soldier or veteran of the possibility that his memory will be affected and his comfort zone invaded by the stresses and strains of giving evidence about things he would prefer to forget. This is so even if the victim happens to be a fellow service man or woman. It is not even as if this hurdle is placed on people because they are foreigners whose country we have invaded in order to save them from the particular regime under which they are suffering. It would of course be disgraceful if such a distinction were ever made between service victims and foreign victims. So what is the rationale for these provisions which introduce factors to alter the balance of which the noble and learned Lord, Lord Thomas, spoke, and weigh down in favour of the MoD?
On Tuesday, I spoke about vexatious claims. I pointed out that I witnessed an Iraqi woman withdrawing her claims of sexual assault and admitting in court that they were false. There were vexatious claims, stirred up by English lawyers for their own gain. Our legal system is robust and it dealt with the claims by striking them out and by disciplinary actions against the lawyers concerned which effectively removed them from circulation.
But not every claim brought by a victim is vexatious. We have to face the fact that some are legitimate. As I said on Tuesday, my Written Questions to the Minister on 2 June 2020 revealed that, since 2003, 1,330 claims arising from the treatment of foreign victims by British personnel had been accepted and £32 million paid in compensation. The Answer to my Questions also revealed that not a single serviceman, however responsible he might have been for the victim’s claim, has had to pay damages or compensation out of his own resources. The MoD has covered them all—and it claims that it does not settle claims which it does not believe to be meritorious.
If we look elsewhere for confirmation, in its final report published on 9 December 2020 entitled Situation in Iraq/UK, the prosecutor for the International Criminal Court concluded that the information available provides
“a reasonable basis to believe that … members of UK armed forces in Iraq committed the war crime of wilful killing/murder … at a minimum, against seven persons in their custody. The information available provides a reasonable basis to believe that … members of UK armed forces committed the war crime of torture and inhuman/cruel treatment … and the war crime of outrages upon personal dignity …against at least 54 persons in their custody.”
The prosecutor also found that there was a reasonable basis to believe that there were seven victims of sexual violence. It is impossible, regrettable as it may be, to dismiss the claims brought by victims as being vexatious. As a civilised country, we must face up to that fact and ensure as far as we can that the disciplines are in place which prevent these things happening.
Baroness Chakrabarti (Lab) [V]
My Lords, I cannot hope to improve on the powerful and compelling forensic critique of Part 2 that has just been offered by the noble Lord, Lord Thomas of Gresford, but perhaps I may lend my support to his general approach and that of his noble friend Lady Smith of Newnham in these amendments. They probe and highlight the problems with interfering with judicial discretion in the manner proposed in Part 2.
A lot has been said about the Bill in general being about providing reassurance to our veterans. Reassurance can be important, particularly where it is a practical improvement on problematic law. But when reassurance is more political and is provided against a false problem that has been raised in political rhetoric, we all need to be far more concerned about interfering with judicial discretion. In the other place—although not so much in this place the last time we met—there has sometimes been the language of claims being used in relation to Part 1 and Part 2. Part 1 is about prosecution which, understandably, veterans will fear in certain difficult contexts. However, this is about civil claims, where the presumption of innocence that must and should apply in criminal proceedings does not apply. This ought to be as fair a contest as possible between two civil parties.
Invariably in the context of these claims, as the noble Lord, Lord Thomas, has set out so clearly, we are talking about the MoD, a great and well-resourced department of state which is the defendant. Sometimes claimants will claim to be the victims of war crimes, but there will also be no small number of veterans themselves. That has been lost in parts of the public discourse and certainly in the debate in the other place. I am therefore grateful to the noble Lord, Lord Thomas, for bringing this forward.
The false war between veterans on the one hand and lawyers on the other is particularly pernicious in the context of Part 2 when veterans’ groups and the lawyers who represent them are in concert in their concerns about the way that Part 2 protects the MoD not from false claims, against which the department is well protected, but from genuine claims where, sometimes because of the problems of overseas conflict and the difficulties that veterans themselves have faced in those dangerous situations, six years is too short a time. Some open and well-applied judicial discretion is what is required.
Without further ado, I shall make way for my noble friend Lord Hendy, who I understand has direct experience of representing at least one veteran’s mother.
Lord Hendy (Lab) [V]
My Lords, I cannot improve on the powerful contributions made by the noble Lord, Lord Thomas of Gresford, and my noble friend Lady Chakrabarti. However, perhaps I may add one point of legal detail which might assist. If I make the point now, I will not need to do it in my later contributions.
Section 7(5)(b) of the Human Rights Act 1998 to which these amendments relate provides a one-year time limit or
“such longer period as the court … considers equitable having regard to all the circumstances”.
As regards any application to extend that time period, Clause 11 of this Bill seeks to require the court to have regard to the ability of witnesses in Her Majesty’s forces to remember or to have recorded events and to the impact of the litigation on the mental health of any HM forces witness.
Amendment 21 merely seeks to redress the balance by reference also to the interests of the claimant. It is a modest amendment. The movers might have gone a lot further and brought limitation under the Human Rights Act into line with the parallel provisions of the Limitation Act 1980 in civil cases. I will remind the House briefly of those provisions. They impose a limit of six years for claims in tort or contract, but in Section 3 this is reduced to three years for personal injury claims; that is, three years from the date of the accrual of the cause of action or from the date of knowledge if later. There is much jurisprudence on the date of knowledge, as the noble Lord, Lord Faulks, alluded to on Tuesday. However, the period can be extended. This is an area of law that is very familiar to anyone who has practised in the field of personal injuries.
Section 33(1) of the Limitation Act 1980 permits a court to allow an action to proceed out of time, if it
“appears … that it would be equitable”,
having regard to the prejudice if it were to do so to the defendant and to the claimant. In addition, Section 33(3) specifies that the court, in making a determination,
“shall have regard to all the circumstances of the case”.
In particular, it must have regard to certain specified factors:
“(a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time”
limits set out in the Act;
“(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action … (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew”
he might have a claim; and, finally,
“(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice”.
If the Minister is not minded to concede the modest amendments sought, I commend to him altering the Bill to incorporate these familiar provisions of the Limitation Act, which has worked well in all manner of cases over the last 40 years. No justification appears for imposing harsher limitation provisions for actions in respect of personal injuries or death that relate to overseas operations of the Armed Forces.
This provision in the Bill may save the MoD a few bob, but it will give no reassurance to military personnel who are claimants or to members of their families, such as the lady for whom I acted some years ago, as I explained at Second Reading. Her son had been killed by a shell fired at his tank by another British tank outside Basra. The claim was based on the MoD’s failure to fit the tanks with adequate and available identification kit and to adequately train tank commanders. The case was ultimately settled by the MoD, after many years.
The noble Baroness, Lady Goldie, kindly wrote to me after Second Reading to explain the time limits proposed in the Bill for cases such as this, but I regret to say that, in spite of her clarity in elucidating the Bill, I was not reassured. Military personnel on overseas operations need to know that they—and, if they die, their mums, dads and children—can make a claim against the MoD, if it turns out to be at fault. They should not be subject to hurdles to which other claimants are not subject. The Government need not fear vexatious claims. Anyone who has practised law in this field from bench or bar knows that the courts are astute enough not to permit vexatious claims. The Bill, unamended, will time-bar some vexatious claims, but it will equally time-bar meritorious claims. That is not forgivable. It is no answer to say that there will be few of them; there should be none.
A final point arises from an argument advanced by the Minister in response to Amendment 29, moved by my noble and learned friend Lord Falconer, late on Tuesday night. The Minister suggested that the amendment would result in an unjustifiable difference in treatment between different categories of claimants and that this, therefore, would offend against the European convention. Presumably he had Article 14 in mind, which prohibits discrimination on grounds including “other status”.
Yet these provisions in the Bill impose a difference in treatment between those making a claim for personal injuries or death that relate to overseas operations of the Armed Forces and those who make such a claim that does not relate to overseas operations of the Armed Forces. I and, it appears, many Members of your Lordships’ House regard that as unjustifiable. I would be interested to hear how the Minister justifies that difference in treatment under Article 14 or, indeed, Article 2, which protects life by law.
Lord Faulks (Non-Afl) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Hendy, not least because he has helpfully set out the provisions in the Limitation Act to which I would have made reference. He also made reference to Section 7(5)(a) of the Human Rights Act, which deals with the limitation period for human rights claims.
The purpose of limitation periods is to provide that it is public policy that there should be an end to litigation, but some people have perfectly good reasons to delay bringing cases. It is important that any limitation period strikes an appropriate balance between those who bring claims and those who are the recipient of or witnesses to claims. There is plainly an interest in bringing an end to cases.
The noble Lord, Lord Thomas, suggests that there is a degree of bias as a result of the amendments to the limitation periods provided for by the Bill. I hope that that is not the case, because it is clearly not desirable. The additional provisions that are written into limitation periods specifically for our Armed Forces are questionable. The existing limitation periods under the Limitation Act and Human Rights Act are perfectly adequate to deal with the considerations that are specifically averted to in the Bill.
For example, Section 33 of the Limitation Act, to which the noble Lord, Lord Hendy, referred, recites various matters that should be taken into consideration. He helpfully drew the House’s attention to them. The relevant subsection begins,
“the court shall have regard to all the circumstances of the case and in particular to—”
and then the various factors are listed. There is a slight difference between having regard to all the circumstances, which is a general discretion, and identifying particular factors. The Bill superimposes factors, as it says that the courts must have “particular regard”. There is a difference between “particular regard” and “regard in particular”. I do not think that that is merely a lawyer’s point because, as I said during the debate late on Tuesday, it is important that, although these factors may reasonably be taken into consideration, there should not be any form of trump.
My view is that these additional provisions do not provide a bias, but it is important to allay even the risk of them seeming to provide a bias. With respect, I do not agree with the noble Lord, Lord Hendy, about amending the Human Rights Act on discretion. In fact, in the London Borough of Hackney v Williams in 2017, the Supreme Court said that the court should not rewrite the statute. The words of the statute, in both the Human Rights Act and the Limitation Act, give the court a broad discretion. That will inevitably include these matters—the importance of securing a claim, from the claimant’s point of view, being one of them. All the others set out in both the Limitation Act and the additions provided by the Bill should also be taken into consideration. It is not a trump card, but I understand the noble Lord’s concerns.
Baroness Smith of Newnham (LD) [V]
My Lords, I enter this set of amendments as a lead signatory but as somewhat of an interloper, being the only speaker in this set of amendments and the subsequent two who is not a lawyer and does not have legal training. I will defer to my noble friend Lord Thomas of Gresford and his excellent opening remarks, but I want to add a couple of points and reasons why this set of amendments is so important.
As the noble Lord, Lord Hendy, pointed out, this is a minor amendment—essentially, the four amendments are doing the same thing in the various parts of the United Kingdom—but I believe that it is a necessary amendment. That is precisely because Her Majesty’s Government have spent a lot of time telling us that this Bill is about the interests of service men and women and veterans, and yet, if one looks at the briefing, which I suspect other noble Lords have received, from the Royal British Legion, there is particular concern about Part 2 of the Bill. There is a whole set of representations that has been sent to me, and I assume to other noble Lords who are participating—for example, from the Association of Personal Injury Lawyers, which is urging Peers to accept the amendments in my name and that of my noble friend to Clause 11 and Schedules 12 and 13.
Also, this is very much in line with the evidence received by an inquiry undertaken by the All-Party Parliamentary Group on the Rule of Law and the All-Party Parliamentary Group on Drones. I declare a prospective future interest in that my name has been put forward to become a vice-chair of the APPG on Drones. I took no part in the work that it has been doing, but it has produced an excellent briefing. It is important to reiterate from that evidence that, as the noble Baroness, Lady Chakrabarti, pointed out, in Part 2 we are talking about claims brought against the MoD. This looks as if it is a protection for the MoD rather than supporting claimants. I believe very strongly that, if our concern is to support our Armed Forces and veterans, then we should be looking to protect them and not the MoD. That point was also made by Emma Norton, the director of the Centre for Military Justice, in her briefing:
“In terms of impact on soldiers which the MOD states it wants to minimise, it is worth remembering that all of these civil claims – whether brought by a civilian or a soldier - are brought against the MOD as defendant, not individual soldiers, though of course soldiers may have to give evidence.”
Our modest amendment is very much about securing the rights of claimants, and as the noble Lord, Lord Hendy, pointed out, there should be no cases where service men and women and veterans are being disadvantaged, and yet as the Royal British Legion pointed out, even in the Government’s own impact assessment of the Bill, a minimum of 19 injured and bereaved members of the Armed Forces communities would have had their claims blocked if the limit being proposed had been in place. And that is just for operations in Iraq and Afghanistan. Therefore I would like the Minister in his response to consider whether it would not be appropriate to balance the two subsections already proposed for “particular regard” for our amendment to be added as paragraph (c).
Lord Falconer of Thoroton (Lab) [V]
This has been a very significant debate, and one should not lose sight of the important changes that will take place in the ability of people to sue the MoD in respect of human rights claims, tort claims and contract claims arising out of overseas operations. The underlying problem, which the noble Lord, Lord Thomas, identified in his very clear and effective opening remarks, is that you do not want a situation where, when a court is considering whether to extend the limitation period beyond the primary limitation period, there is a bias in favour of the defendant, the Ministry of Defence.
What the noble Lord is saying, in effect, is that it should be approached in the way that these cases are approached in every other piece of civil litigation where there is an application to extend a period of limitation beyond the primary limitation period: the judge comes to a conclusion as to what he or she thinks—this is not quite the line in the statute—is just and equitable in all the circumstances. One of the really important things that one is looking at is the fact that the claimant will have a claim, and the claimant may be losing what would otherwise be a just claim because of the passage of time—and it may well be in particular that the passage of time beyond the primary limitation period could not properly be described as the fault of the claimant.
Over the years, the courts have become quite expert at exercising a discretion in relation to this, both under the Limitation Act 1980 and under the Human Rights Act 1998. My noble friend Lord Hendy, in his very helpful and compelling remarks about how the limitation period works, and the noble Lord, Lord Faulks, were basically in the same place. They were both saying that we should strike the balance in an even-handed way. I hope that it is not the case that there is going to be a bias in favour of the MoD, because, as the noble Lord, Lord Faulks, said, that is not desirable. My noble friend Lord Hendy said that there should not be bias. I completely agree with that. The purpose of this first group of amendments advanced by the noble Baroness, Lady Smith, and the noble Lord, Lord Thomas, is to make sure that there is not such a bias. I agree with my noble friend Lord Hendy and the noble Lord, Lord Faulks, that it has to be clear that there is not going to be a bias.
I believe, therefore, that amendments to the Bill are required. Whether or not the proposals of the noble Baroness, Lady Smith, and the noble Lord, Lord Thomas, are the best way to do it in group 1—there might be another way of doing it—the sentiment that underlies these amendments and the fact that they have been supported by both my noble friend Lord Hendy and the noble Lord, Lord Faulks, is significant. I very much hope that the noble and learned Lord, Lord Stewart of Dirleton, will have listened and may perhaps reassure us that he will come back with some amendments to make sure that there is not that undesirable bias.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, I have listened with care to the remarks advanced by noble Lords in relation to this proposed amendment. At the outset, may I note and associate myself with remarks made by noble Lords as to the tenor of the speech introducing this part of the debate by the noble Lord, Lord Thomas of Gresford. This seems to me, drawing on my short experience in your Lordships’ House, to be of a kind with contributions which we hear from that source, from the noble Lord, Lord Thomas of Gresford, concerned as it was that the principles which underpin the legal systems in the jurisdictions of our United Kingdom should apply universally, irrespective of whether claimants are British subjects or not—underpinned also by that confidence in the ability of our courts and our system to do justice among all forms and manners of people.
In considering this amendment, I note that we have already discussed first of all the three factors that this Bill is introducing which the courts must consider and to which they must have particular regard when deciding whether to allow claims connected with overseas operations to proceed after the primary limitation periods have expired. I will not rehearse the arguments that I have already made as to why we are introducing these new factors, though I will necessarily, in answering your Lordships’ points, touch upon them.
However, the additional factor that these amendments propose to add is not, I submit, necessary. That is not because it is not right for the courts to consider the importance of proceedings in securing the rights of the claimant—of course it is—but because this is already something that the courts will take into account when they consider whether it is equitable in all the circumstances to allow a claim to proceed. The court would inevitably be assessing the right of the claimant in determining whether or not an extension to the time limit should be granted. The additional factor in terms of the amendment proposed does not enhance the policy aim of the Bill, which is to help provide service personnel with greater certainty. It would however, I submit, increase legal complexity in a way that is unnecessary.
Lord Thomas of Gresford (LD) [V]
My Lords, I am most grateful to the Minister for his response. This is one of those unusual situations where I can thank every single Lord, including him, who has spoken in this debate. The noble Lord, Lord Faulks, in particular, gave very interesting support in spirit to what we seek to do. We just do not want these additional factors to be given statutory force. It undoubtedly gives the impression of bias to pay “particular regard” to matters in favour of only one party, the Ministry of Defence. I do not want to see those there, and if they are not there, there is no need for the amendment I am putting forward in an attempt to balance the biased effect of what is in the Bill.
It is extremely important that we should not pay “particular regard” to matters in the interests of one party. If we think about an application to extend the limitation period brought to the court, the claimant would be represented and would argue the reasons for delay. As I said on Tuesday, it is not a foregone conclusion that their argument will be accepted but, on the other hand, the Ministry would be entitled to put forward: “Well, it’s been such a long time, nobody can remember anything.” That might be right in a particular case, but it is not right as a matter of principle that should appear as a factor to which particular regard must be given in this statute. An important point of principle is involved in this and I shall certainly return to the issue on Report. For the moment, I beg leave to withdraw.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
We now come to the group beginning with Amendment 22. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
Amendment 22
Lord Thomas of Gresford
Member’s explanatory statement
This amendment is one of a series that change the relevant date from which the six-year longstop starts to run so as to account for legitimate and explicable delays commonly experienced by persons bringing claims under the HRA arising out of overseas operations.
Lord Thomas of Gresford (LD) [V]
[Inaudible]—that date will be either the date on which the act complained of took place or, alternatively, the date of knowledge of the cause of the action; for example, where a person is unaware of his right to sue or of the negligence which caused his injuries. Clause 11 introduces the concept of a cut-off date, whereby the judge loses any power to extend and the cause of action is extinguished for good.
This will be unique in the British system of justice, as we have discussed. A new category of claims arising out of overseas operations will be created. The rule set out in the Bill is that proceedings must be brought before the later of
“the end of a period of six years beginning on the date on which the act complained of took place”
or
“the end of the period of 12 months beginning with the date of knowledge”.
Whatever the cause of delay in starting proceedings may be, such as brain injury received by an injured serviceman, or the inherent problems that would face a victim living in some dusty village in Iraq or Afghanistan, about which I spoke at length on Tuesday and will not repeat, the rule is to apply not only in the courts of England and Wales, but in Scotland and in Northern Ireland.
Remember that the judge has power to strike out vexatious claims and that we are talking about claims against the Ministry of Defence, not the individual serviceman, who will never be called upon, whatever he has done, to pay the damages awarded. The worst that can happen to him is that, in the event of non-settlement of the case—I believe that over 90% of claims regarded as valid are settled—he might have to give evidence in the witness box and recall what he has done.
Amendment 24 refers to the definition of the date of knowledge. The Bill says that
“the ‘date of knowledge’ means the date on which the person bringing the proceedings first knew, or first ought to have known, both … of the act complained of, and … that it was an act of the Ministry of Defence or the Secretary of State for Defence”.
Our amendment adds further definitions of the date of knowledge—first, the date of
“the manifestation of the harm resulting from that act”,
and secondly, the knowledge that the claimant was eligible to bring a claim under the Human Rights Act in the courts of the United Kingdom.
Amendment 47 and the other amendments in this group are consequential or extend that principle to Scotland and Northern Ireland. I beg to move.
Lord Morris of Aberavon (Lab) [V]
My Lords, I have little to add to the brief but very pertinent analysis in the most persuasive speech by the noble Lord, Lord Thomas of Gresford. I support Amendment 22 in particular as one of a series of amendments that change the relevant date from which the longstop starts to run to account for explicable delays commonly experienced by bringing claims under the HRA arising out of overseas operations.
I shall be brief. My experience of overseas operations in the Cold War was limited. As an infantry subaltern, my tour of duty in Germany was very brief, taking part in exercises over German planes and Gatow airport in Berlin and being in charge of the overnight train from Hanover to Berlin to emphasise our rights to go through the Russian zone to the British sector in Berlin.
Given my very limited experience, which I emphasise, I can quite see the circumstances for delay when advice and witness are not readily available. When active service is involved, in very different and hazardous conditions overseas, the timing of knowledge that is the basis of this amendment goes to the heart of the matter. The mover of Amendment 22, the noble Lord, Lord Thomas, seeks to put into the Bill some statutory flexibility around the date of knowledge. There is nothing that I can usefully add, but I support with great pleasure this amendment, because knowledge is vital.
Baroness Chakrabarti (Lab) [V]
It is always a pleasure to follow my noble and learned friend Lord Morris of Aberavon, who is ever youthful and eloquent, but of course it is the noble Lord, Lord Thomas, who is on a particular roll with these amendments, one that I do not want to impede for too long—save to say that Amendment 22 in particular reveals and reflects what a terrible disservice Part 2 does to veterans in the context of difficult and complex overseas operations. In particular, it highlights that it is not just the date of the harm that is an issue but the date of knowledge of causation, which can be so complex in the course of overseas operations. In the practical reality of a legal aid landscape, where most people including, tragically, veterans, have no ready access to advice and representation, it could be a very long time before a troubled veteran even knows that they had the right to bring a claim. That is a problem for everyone in a legal aid landscape that has been virtually decimated, but it is particularly shameful for any Government to be making it harder for their own veterans to claim redress against the MoD where appropriate and put an absolute bar up at six years.
The point about causation is so important; the noble Lord, Lord Thomas, describes it as
“the manifestation of the harm resulting from that act which is the subject of the claim”.
A veteran may well know that they are injured and know that they have, for example, experienced a number of different traumatic and potentially harming events in a complex situation of warfare, but causation can be a very difficult thing to discover. This will be even more problematic in the context of psychological harm and, possibly, other physical harms—to hearing, for example. It may be very difficult to learn, let alone to prove, that it was friendly fire and not enemy fire, or that it was negligence in provision of equipment that caused the harm.
The absolute six-year bar put up in relation to veterans against their former employer would be shocking enough in the context of factory workers domestically. Given the Minister’s remarks on the previous groups, that we should be particularly sensitive to the difference between what he described as domestic litigation and the special issues around overseas operations, it seems to me that the noble Lord, Lord Thomas of Gresford, has really hit the nail on the head in this group and some of those that follow.
Lord Hendy (Lab) [V]
My Lords, I have practically nothing to add to the contributions of the noble Lord, Lord Thomas of Gresford, and my noble friend Lady Chakrabarti. Their arguments are powerful and appear irresistible.
I just add one small point. I mentioned a case in which I was involved for the mother of a serviceman killed in a tank because of friendly fire. That case in fact took more than 12 years from his death until the payment of an award by way of settlement by the Ministry of Defence. There was no delay on any side; there was litigation in the meanwhile, and the test case went to the Supreme Court, and so on. But there were inordinate difficulties in pursuing that claim—in finding out what had happened, what the MoD record was on the fitting of identification kit, what the training programmes were and whether they were defective, obtaining expert evidence on these points, and so on—to know whether the case was meritorious, as it turned out to be.
These cases are not easy. As I say, the logic of the proposal from the noble Lord, Lord Thomas, is irresistible.
Lord Faulks (Non-Afl) [V]
My Lords, once again, it is a pleasure to follow the noble Lord, Lord Hendy. In considering all these amendments, we should bear in mind that not all the claims that this legislation is concerned with—in fact, only a small proportion—are actually brought by veterans. The majority of the claims that have given rise to this litigation are brought by those who allege that they have been the victims of wrongs done to them by the military. One advantage of trying to put an end finally to litigation is that those members of the military who might be involved in this litigation, potentially as witnesses for the defendant or, indeed, for the claimant, can put an end to the matter in their minds. Nobody would be concealing anything deliberately but, once you have left theatre—overseas operations come to an end—it is a considerable burden to be troubled by some incident, about which there may be little corroboration or evidence, and to have to go to court, if necessary, to deal with allegations more than six years after the event.
These amendments are, of course, concerned with date of knowledge, and the legislation provides for an extension from the six-year long-stop period for date of knowledge. Incidentally, long-stop periods are not only in this Bill; they exist in other fields of law—for example, in the Latent Damage Act. As I said previously, and as the noble Lord, Lord Hendy, acknowledged, the date of knowledge is a difficult matter for courts, but they have shown themselves—helped by provisions in Sections 11 and 14 of the Limitation Act—able to find a proper response to difficulties that individuals may have in being aware that they have a cause of action.
The real issue is when the clock starts ticking. In the normal event, it starts ticking when the incident that gives rise to the claim occurs; in these cases, the possibility for litigation will end after six years, unless there is an extension of one year because of an extended date of knowledge. The provisions in the Limitation Act dealing with personal injury claims do not actually provide for a six-year period from the date of knowledge, as these amendments do; they provide at the maximum for three years. In other words, the clock starts ticking for three years after the incident occurs, in the normal case, and three years if there is a postponed date of knowledge. So this six-year extension is in fact wider than exists in conventional limitation periods for negligence cases. There is no equivalent of a date-of-knowledge provision in Human Rights Act cases; it is all dealt with under the provisions of Section 7 of the Human Rights Act.
One must be careful not to make too close a comparison between claims in negligence and claims under the Human Rights Act. As Lord Bingham said in a famous case, the Human Rights Act is not a tort statute. For the most part, these claims for personal injuries are much better brought in negligence. In fact, the claims under the Human Rights Act were usually advanced on the basis of an investigative duty that tends to be attached to these claims, which is one of the reasons why they were relied upon.
I respectfully suggest, although I understand what lies behind them, that these amendments go into territory that they should not go into and extend the period longer than it is desirable that anybody concerned in these types of cases should have to endure.
Baroness Smith of Newnham (LD) [V]
My Lords, in this suite of amendments we are focusing on a relatively narrow area. On this occasion, I should be slightly relived that the noble Lord, Lord Faulks, does not entirely agree with the movers of the amendment, because at least it gives me some additional points to respond to.
I take the point that there might be a shorter period within civil law and domestically, but there is a very clear difference between overseas operations and the civilians and military who might have to bring claims, and what might happen in a civilian context in the United Kingdom. As Emma Norton pointed out in her evidence to the All- Party Groups on Drones and on the Rule of Law, if something happened
“within the UK more than 6 years ago, courts would remain able to extend time limits”,
but if something happened overseas the courts would not have that right. As my noble friend Lord Thomas of Gresford pointed out, what is being proposed is unique in the British justice system—a new category of claims arising from overseas operations in respect of which the courts would have no right to give an extension.
It is clearly right that claims should be brought expeditiously and dealt with expeditiously, but sometimes it will not be possible for cases to be brought within the time limits the Government are suggesting. It is surely right to look for ways to ensure that claimants who may have not been in a position to bring a claim within a year of date of knowledge can bring the claim, and further discretion can be brought.
As with amendments in the previous and subsequent groups, if the Minister does not feel able to accept the language of our amendments, perhaps he might suggest how claimants who have cases arising from overseas operations will not be disadvantaged by Part 2 of the Bill.
Lord Falconer of Thoroton (Lab) [V]
I will first pick up on a point made by my noble friend Lord Hendy in the last group, which in fact relates to a group debated on Tuesday. It concerns the validity or otherwise of the point advanced by the Government: that they cannot make special exceptions for military personnel only suing the Ministry of Defence—in other words, treat them as if they are governed by the normal limitation periods—because there would be discriminatory concerns under Article 14 of the European Convention on Human Rights.
As I indicated on Tuesday, I disagree with that proposition, as does my noble friend Lord Hendy. It is significant for this group of amendments because real concern is being expressed by practically all of your Lordships—I say practically because the noble Lord, Lord Faulks, is not—about members of the military not being able to bring claims in accordance with what I describe as the “normal law”. I do not ask the noble and learned Lord, Lord Stewart of Dirleton, to respond to the legal point now, but I ask him to write to us indicating the legal basis for the proposition that you cannot have a provision stating that military personnel suing the Ministry of Defence will be governed by the ordinary rules of limitation.
The amendments in this group do two important things. First, the current proposal in the Bill is that the limitation period on civil claims should be
“the later of … the end of the period of 6 years beginning with the date on which the act complained of took place”,
or
“the end of the period of 12 months beginning with the date of knowledge”.
The position is that the claimant who discovers that they have a claim only at the end of six years has only 12 months to make that claim. The first amendment in this group from the noble Lord, Lord Thomas of Gresford, says that it should not be 12 months from the date of knowledge, but six years. I am sympathetic to that idea and I would like to know why a period of 12 months was chosen in relation to service personnel. I would be interested to know why, having regard to the circumstances that arise on overseas operations, the Government thought it appropriate to have what might be seen as a very short period.
The second significant amendment from the noble Lord, Lord Thomas, would add certain additional elements to what is meant by the “date of knowledge”. At the moment, the Bill treats you as knowing if you knew of the act complained of and that it was an act of the Ministry of Defence. The noble Lord, Lord Thomas, proposes amending Clause 11, so that you also have to know of the harm you suffered as a result of the act complained of. If, for example, the harm was mental illness, you might not know for some considerable time. In addition, the amendment says that you do not have to know only that it was an act of the Ministry of Defence, but that you might have a legal right to bring a claim too.
Taking the example given by my noble friend Lord Hendy, if you knew that your son was killed because of an act of the Ministry of Defence—friendly fire—but you did not know there was negligence and that you had a right to bring a claim, then knowing of the act complained of and that it was an act of the Ministry of Defence does not do you much good. These additional factors seem legitimate ones to take into account when considering what is meant by “date of knowledge”. These are important amendments and I am interested to hear the Minister’s answer.
Lord Stewart of Dirleton (Con)
These amendments relate to the date of knowledge provisions in Part 2 of the Bill. Before I address the substance of the amendments, I wish to issue a clarification regarding a statement I made in the previous sitting on Tuesday evening. I said that, while 94% of service personnel already bring their claims within the relevant time,
“it must be the case that many of the remaining 6% will come under the state of knowledge provisions”—[Official Report, 9/3/21; col. 1596.]
Your Lordships may recollect that that issue came up in the course of submissions by the noble and gallant Lord, Lord Stirrup. In fact, we assessed that the 94% figure relates to claims brought by service personnel and veterans within six years of either the date of incident or the date of knowledge. We will endeavour to educate service personnel and veterans about these new provisions to ensure that more, if not all, claims are made within the new time limits in future.
I now move to the amendments in this group, which would increase the time period which runs from the date of knowledge for Human Rights Act claims from 12 months to six years. They would also change how limitation time periods are calculated by allowing claims to run only from the date of knowledge and not also from the date of the act or incident.
The date of knowledge provisions in Part 2 are an important aspect of the Bill. Because we are introducing hard time limits for certain claims, it is right that the longstop period can start from the date of knowledge. Of course, the Limitation Act 1980 already includes a date of knowledge provision which works, and we should not be amending that in this instance. However, the Human Rights Act does not have such a provision. We are therefore seeking to mitigate any unfairness that might arise from the imposition of a hard time limit by allowing claims to be brought late if the date of knowledge is later than the date of the incident.
Lord Thomas of Gresford (LD) [V]
My Lords, I am most grateful to all noble Lords who have contributed to this interesting and important debate. I cannot help taking myself back to RAF Gatow, to which the noble and learned Lord, Lord Morris of Aberavon, referred, because I once stayed there on a rugby tour and subsequently played rugby for the combined clubs of Berlin. I need not go into the circumstances, but it was in the 1938 Olympic stadium. I thank him for reminding me of that.
Finality is an important principle, but it is not a principle that should work in the interests of only one party; I am yet to see it discussed or suggested, in relation to this Bill, that finality is for anyone other than the Ministry of Defence. Of course, references are made to the stress of giving evidence and so on, but I have already commented on that and will not repeat my comments. I do not think the principle of finality in favour of one party does anything more than increase the feeling of bias in favour of the Ministry of Defence which runs through this Bill, and that is what makes it so very objectionable. I heard the Minister refer to the fact the Human Rights Act is not affected but would not be involved in one of my amendments. These are not intended to be cumulative but to be considered separately; the date of knowledge can vary depending upon the circumstances of the case.
I simply adopt the words of the noble Lord, Lord Hendy, for whose speech I am grateful, when he said these amendments are “irresistible.” I agree, and I shall pursue them on Report. For now, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
We now come to the group beginning with Amendment 23. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 23
Lord Thomas of Gresford
“(4A) The court may disapply the rule in subsection (1)(b) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—(a) the nature of the injuries,(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or(c) any other reasons outside the control of the person bringing the claim.”Member’s explanatory statement
This amendment introduces a discretion for UK courts to allow a HRA claim arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Lord Thomas of Gresford (LD) [V]
My Lords, this group is concerned with the total cut-off of the right to bring proceedings, as contained in the Bill. As I have said, this is unique in the British justice system and limited to claims arising from overseas operations. You could call it the cliff edge, the blank wall, or hitting the buffers. We are dealing not with vexatious claims but all claims brought against the Ministry of Defence, whether by members of Her Majesty’s Forces, by victims whose claims arise by breaches of the Human Rights Act, such as torture, or by families whose claims arise because someone has been killed or injured. What is the policy behind this blank wall?
It is noticeable that this Bill does not cover Northern Ireland. I should be very interested and surprised if, when a Bill involving Northern Ireland appears, there was such a cut-off—such a blank wall—in relation to claims arising out of those deployments. I imagine that there might be considerable controversy. If it would not apply in Northern Ireland, why should a soldier suffering from long-term trauma as a result of service there be able to apply to extend the limitation period, in an appropriate case, but a soldier deployed to Iraq should not? What difference could be drawn between innocent victims of brutality in Northern Ireland or in Iraq? Their ethnicity? Is this not where Article 14 of the Human Rights Convention would bite?
I cannot believe that this is a policy to save the MoD money. What Liberal Democrat would ever make the bold statement of the noble Lord, Lord Hendy, that it is to save “a few bob”? What worries me is whether it is fuelled by a concern to prevent reputational damage. British forces have an admirable reputation worldwide for fairness and exemplary behaviour. Allegations of brutal conduct aired in the courts would not help, but it is essential to our reputation that, where there is wrongdoing, it is confronted and punished. There should be no suggestion that we sweep things under the carpet. I hope that that is not what lies behind this blank wall preventing claims after six years.
There is certainly a public interest in finality, but there is also a public interest in justice. These amendments are brought forward to get rid of the blank wall and to put claims from overseas operations on the same footing as all other claims brought before the British courts and tribunals. I ask again: what is the policy behind these unique, blank-wall provisions? I beg to move.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
The noble Lord, Lord Hendy, has withdrawn from this debate, so I call the noble Baroness, Lady Chakrabarti.
Baroness Chakrabarti (Lab) [V]
My Lords, once more I can only speak in complete support and admiration for the noble Lord, Lord Thomas of Gresford, and what he is trying to express in these amendments. The Minister pointed out that there is considerable consensus in this debate on the value of limitation periods and of finality. That is right, but he went on to say that the only difference between us is where the limitation lines should be drawn. That is, of course, not quite right. There is also an important difference of principle between us about whether there should be any residual discretion at all for the courts, in the interests of justice and to avoid terrible injustice, particularly in relation to these dangerous, complex, messy overseas operations.
Other noble and noble and learned Lords eloquently set out all the reasons why sometimes an absolute bar of six years, or even longer, would just not be enough. This is not necessarily because of the act itself, but because of causation, or because the condition means that someone has not been able to think about advice or damages, or, in the current landscape, they have not been able to get access to advice.
In the debate on the previous group, the noble Lord, Lord Faulks, I think, said that we should not worry too much because there must be finality, that we are really trying to bar these overseas victims and that a much smaller number of veterans would be barred. The first answer to the noble Lord is that there is no finality for someone suffering terrible and life-changing injuries or bereavement, who has had no access to justice because of what the noble Lord, Lord Thomas, described as “a blank wall” or an absolute time bar. For someone suffering in that way, be they a victim of torture or a brave veteran put in harm’s way by the very Ministers and department that now bar their access to justice, there will be no finality, just a great deal of continued pain and suffering.
The second point that I make to the noble Lord, Lord Faulks, is from the perspective of Article 14 and of human decency. It is particularly pernicious for a Government to send veterans to war and then to bar them from compensation after a particular, absolute point with no judicial discretion. In the case of terrible abuses of power, it is also wrong to have an absolute bar with no discretion for victims of torture or other abuses that sometimes take place in periods of conflict. Absolute rules without discretion, especially when they are imposed by Governments to protect government departments, are particularly unjust. Let us not continue with the canard that this is just about protecting veterans from the anxieties of giving evidence. It is not just about that. This is barring, in absolute terms, claims against the MoD from people who will, inevitably, include some veterans or people such as my noble friend Lord Hendy’s client, the bereaved mother of a veteran.
Lord Faulks (Non-Afl) [V]
My Lords, I make it clear that I do not take the view, as the noble Baroness, Lady Chakrabarti, seemed to suggest, that we should not worry too much about limitation periods because this would impact more on victims who were not in the military. That is not my view at all and I do not think that I expressed it. I do not believe that there should be any distinction between categories of claimants on what the limitation period should be.
The question is whether, as a matter of public policy, whoever is the claimant, there is a public interest in litigation coming to an end. That is what underlies all limitation periods in all sorts of circumstances. Six years, which at the moment is the longstop, has been taken as reasonable, having regard to all the difficulties that may exist in bringing claims. However, the particular challenges of overseas operations, for whoever the claimant is, are such that that is a fairly lengthy period.
I do not believe that many of the claims that have been brought would in any way fall foul of either the primary period in negligence of three years or even the one-year period under the Human Rights Act. Six years is quite a long period. In my experience of personal injury actions in other fields, it is very unusual for a court, in its discretion under Section 33, to disapply limitation for such a long period, except in very unusual circumstances. Those circumstances tend to be in cases that are, in any event, covered by date- of-knowledge provisions—for example, latent disease or something of that sort. I am absolutely not concerned to bias anyone, but simply ask whether there is a public interest in there being an end to litigation.
The noble Lord, Lord Thomas, raised a good question about Northern Ireland. As I understand it, there is likely to be a separate piece of legislation dealing with Northern Ireland in due course and I wait with interest to see what that is. My feeling about the provisions on limitation remains the same. I am not entirely sure that they are necessary, because the existing limitation periods are sufficiently sensitive to deal with some of the injustices that could arise from late claims. This is part of the agenda that the Government have to reassure veterans. The idea that it is entirely designed to protect the MoD is a somewhat cynical response. Reassurance for the veterans is a not unworthy aim but not, I entirely accept, if it runs the risk of causing injustice. For the moment, I am not convinced that it does.
Baroness Smith of Newnham (LD) [V]
My Lords, I am glad to hear that the noble Lord, Lord Faulks, does not want to bias anyone; I am sure that is absolutely right and we are all on the same page on that. However, he talked of a public interest in having a period of limitation. Clearly, there is a public interest here, but there is also a private, individual one. The amendments in my name and that of my noble friend Lord Thomas of Gresford, try to get that balance right. The noble Baroness, Lady Chakrabarti, put the point very well by saying that we should not be talking about taking the role of the courts out of this entirely: there needs to be some discretion. Amendment 23 begins to rebalance this.
The noble Lord, Lord Faulks, is right that, clearly, there is a period in which people can bring cases but, if our previous set of amendments, which would extend the point from one to six years after the date of knowledge, were not accepted, we would need some mechanism that allowed a bit of discretion because, at the moment, there would be none for the courts. As such, Amendment 23 is desirable in its own right, but it is even more important if other amendments are not accepted, either now or when they are put forward by the Government, or when they are moved on Report.
Could the Minister give a further response on the date of knowledge? In opening his remarks on the previous set of amendments, clarifying a point he made on Tuesday, he said that the 94% of cases that were brought within—or what would be within—time were within six years not just of the incident but of the date of knowledge. If that is the case, does that not make it even more incumbent on the Government to look again at the date of knowledge as a relevant time point to have in the Bill—and not one but six years?
Lord Falconer of Thoroton (Lab) [V]
In effect, these amendments once again reintroduce the normal approach to limitation, which is that if you do not bring your claim within 12 months under the Human Rights Act or, if it is a personal injuries claim, within three years—based on tort or a breach of an implied contract—then the court can extend indefinitely, in effect, if it is just and equitable to do so. The courts have applied sensible approaches to those issues, and the longer you are away from the primary limitation period expiring, the better the reason you must have for extending the time.
The noble Lord, Lord Thomas of Gresford, made a very powerful point, asking why there should be special rules for the Ministry of Defence in relation to overseas operations. The answer that the Ministry of Defence gives is that military personnel involved in overseas operations should know—indirectly, because they will not normally be sued personally—that no litigation will arise from their conduct after a specified period, which is six years or one year from the date of knowledge, whichever is later.
That approach does not seem to me or veterans’ organisations to be legitimate in relation to claims being brought by soldiers or veterans in respect of negligence or breaches of human rights by the Ministry of Defence. Military veterans or existing soldiers should be subject to the same rules in relation to limitation as apply in any other claims. There is no evidence that the reassurance that individual members of the military are looking for—in relation to ongoing litigation out of overseas operations—is coming from fear of claims being brought by veterans against the Ministry of Defence for personal injuries caused normally by negligence on its part.
As such, in so far as the new rule about limitation in respect of overseas operations applies to prevent claims being brought by veterans or existing soldiers, I am against it. The proposal made by the noble Lord, Lord Thomas of Gresford, which, in effect, applies the normal rules, should be applied to veterans and existing soldiers who want to bring claims arising out of negligence or breaches of human rights in an overseas operation, just as much as if they bring a claim with the normal rules applying if the injury had occurred to them in the UK. The soldier injured by the provision of a negligent piece of equipment—body armour or a vehicle—can bring a claim with the normal rules applying if it happened on Salisbury Plain, but he or she cannot if the same act of negligence had occurred in an overseas operation. That is profoundly wrong.
Lord Stewart of Dirleton (Con)
My Lords, the limitation longstops provide service personnel with a greater level of certainty that they will not be called on to give evidence in court many years after an event. The uncertainty that the Bill proposes to address can have a significant effect on service personnel and veterans. It prevents them from drawing a line under certain traumatic experiences, always knowing that there is a possibility that the events of the past may be dug up again. This is why it is important to have finality and why the limitation longstops need to have a clear end.
In moving the amendment, the noble Lord, Lord Thomas of Gresford, asks for the policy that underlies this measure; that is the policy. For the reasons that I have discussed, it is important that limitation longstops have a clear end, one that cannot be overcome. Were it to be overcome by the existence of some residual discretion, such as the noble Baroness, Lady Chakrabarti, would seek to have imposed, that would negate the benefits to service personnel of greater certainty that they will not be called on to give evidence many years after the event. Let us remember that, in claims such as can be anticipated, it will most likely not be Ministers standing in the witness box and accounting for decisions taken; it is likely to be the very comrades of service personnel themselves.
Six years provides enough time to bring a claim: to echo the words of the noble Lord, Lord Faulks, it is a fairly lengthy period. The vast majority of service personnel and veterans already bring relevant claims within six years of the date either of the incident or of knowledge. As I say, giving discretion to the courts to allow claims after the expiry of the longstops will negate the benefits, and we want to provide service personnel and veterans with those benefits which flow from greater certainty.
The noble Lords, Lord Thomas of Gresford and Lord Faulks, adverted to a contrast with the situation that may arise in relation to Northern Ireland. That is indeed a special context, and, echoing the words of the noble Lord, Lord Faulks, this is a matter to be dealt with in separate legislation.
The longstops apply to all Human Rights Act and death and personal injury claims connected with overseas operations. We believe that six years is a sufficient period to commence proceedings, regardless of who is bringing the claim. Where claims cannot be brought within the relevant timeframe because the claimant was not aware that their injuries were caused by the actions of UK Armed Forces, the date-of-knowledge provisions help to mitigate any unfairness that might otherwise be caused.
Lord Thomas of Gresford (LD) [V]
My Lords, I am most grateful to the Minister for his definition of the policy behind these provisions in the Bill. He said that we have a blank wall in the Bill because of concern for witnesses. Let us just pause for a moment and think about that. The prime witness is the person who perpetrated the act that is the cause of the claim. I refer to the reversal of the victim and perpetrator situation that I mentioned earlier this afternoon. The perpetrator must be protected from having to relive the violence that he inflicted on the claimant. What about witnesses—his “comrades”, the noble and learned Lord described them as? I am in a rugby mood at the moment, and I cannot help thinking of the out of order principle on the rugby field. A degree of violence is accepted, but when you see a member of the team stamping on the face of a person in the opposition, yards away from the ball, the out of order principle comes into effect. So the policy behind these provisions is so that the comrade, who may very well think that it was all out of order—that is why he is giving evidence—must be protected in case he suffers stress. It is a topsy-turvy world, it is not? Surely it is the victim’s interest that is the most important thing.
I am very grateful to the noble and learned Lord, Lord Falconer, for his contribution. He is a former Minister of State in the Ministry of Justice and he said, in terms, “I don’t really see the purpose of these provisions”. I agree with him. All the provisions relating to limitation are unnecessary, and the Limitation Act, with all those particular matters to which the noble Lord, Lord Hendy, referred in reminding us of its contents, is quite sufficient to deal with all the problems. What is not acceptable is the blank wall which prevents, in this single category, the continuation of proceedings if the six-year limitation period is attained. As the noble Baroness, Lady Chakrabarti, said, war is dangerous, complex and messy, as are the situations around it. What we should not have, in particular where it is complex and messy, are barriers to justice, and that is what these provisions do. Why? To prevent people going into the witness box. The whole concept of justice is turned topsy-turvy.
I hope I will return to this, with the support of other noble Lords—I welcome that of the noble and learned Lord, Lord Falconer, in particular—on Report. I beg leave to withdraw the amendment for the moment.
Lord Falconer of Thoroton
“(1A) No order may be made by the Secretary of State under section 14 following consideration under this section unless a draft of the order has been laid before, and approved by, each House of Parliament.”Member’s explanatory statement
This amendment would require significant derogations regarding overseas operations proposed by the Government from the European Convention on Human Rights to be approved by Parliament before being made.
Lord Falconer of Thoroton (Lab) [V]
My Lords, this introduces a new topic, namely the purpose of Clause 12. Its effect is to impose, in relation to
“any overseas operations that the Secretary of State considers are or would be significant”,
that
“the Secretary of State must keep under consideration whether it would be appropriate for the United Kingdom to make a derogation under Article 15(1)”
of the European Convention on Human Rights. Why has that been introduced? Is it worthwhile? As noble Lords will know, when states sign up to the human rights convention they agree not to violate or take any steps in breach of it. States are entitled to derogate from the human rights convention:
“In time of war or other public emergency threatening the life of the nation”.
That is Article 15.1. No state has derogated from the convention due to war with another state. Most derogations have been in response to internal conflicts and terrorism. In these cases, states relying on the power to derogate have tended to rely on a
“public emergency threatening the life of the nation”.
The courts will give states a wide margin of appreciation when it comes to deciding whether there is a public emergency. The UK derogated from the human rights convention in 1970 following terrorist attacks relating to Northern Ireland, and in 2001 after 9/11.
As noble Lords will know, there are very considerable limits on derogating measures. First, states can take measures derogating from the human rights convention only
“to the extent strictly required by the exigencies of the situation”.
That is in the article itself. Secondly, states can never derogate from non-derogable rights; that is in Article 15.2. That means they can never derogate from Article 2 or Article 3, from the articles that prohibit slavery, or from the right not to be convicted of a criminal offence for acts which were not criminalised at the time, and nor can they subject people to greater penalties for a criminal act than existed at the time the offence was committed. What is more, derogations must be consistent with the state’s other obligations under international law. In the context of overseas operations, that means that we in the United Kingdom could never derogate from international humanitarian law.
To some people, new Section 14A might seem a recipe for the state to get away, in relation to overseas operations, from human rights obligations that have been unpopular in some quarters—absolutely not. In effect, all that the right to derogate does is to allow the state—in certain, very unusual circumstances—in practice to detain people without what would otherwise be regarded as a due process, because of the public emergency. Although there are other rights that could be derogated from, in practice that is the only one that would ever genuinely be in consideration in relation to the sort of situation we are dealing with in this Bill.
My concern is that Clause 12, which would add Section 14A to the Human Rights Act, is a totally phoney piece of human rights bashing by the Government, put in only to try to say that we are really “taking on the Human Rights Act” in relation to overseas operations. The only effect of this clause is that consideration would have to be given to the question of whether there should be detentions without trial. I cannot imagine circumstances in which a Government, if that was a possibility, would not consider it without the need for this clause.
I hope that the Minister will be able to reassure me that this is not a completely phoney and empty provision made for bad reasons. On any basis, if a derogation is considered and given effect to because of this clause, an explanation should be given immediately to Parliament, and it should be given effect to only with the approval of Parliament. That is why I put my name to the first of the amendments in this group. I beg to move.
Lord Faulks (Non-Afl) [V]
My Lords, the then Human Rights Bill came to Parliament without a Green Paper or a White Paper or any consultation paper preceding it. It did so shortly after the Labour Government came to power in 1997. Although there were no detailed debates in Parliament about the extraterritorial reach of the then Human Rights Bill, a number of concerns were expressed at the time about whether the convention —the ECHR—was really appropriate in the case of armed conflict abroad. There were those who took the view that there should be an express carveout in those circumstances, but that is not what happened. There was, however, a power in the HRA 1998—as it became—which permitted the Government to derogate from the European convention. It is important to note that the power was not used in Iraq or Afghanistan.
The inclusion in this Bill of an obligation to consider derogation might be regarded as rather unnecessary, since the power exists anyway. I suppose it might be considered to be part of the reassurance agenda vis-à-vis our Armed Forces. In any event, I respectfully ask the Minister about the Government’s interpretation of Article 15. I find it hard to disagree with much of what the noble and learned Lord, Lord Falconer, said about the right to derogate, and I ask her to clarify for the Committee the relevance of this obligation vis-à-vis overseas operations. My Amendment 27, which is supported by the noble and learned Lord, Lord Garnier, is an attempt to grasp a nettle. He would have liked to address the Committee but unfortunately is unable to do so.
Lord Hope of Craighead (CB) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Faulks. Before I say a word or two in the light of what he just said, I should explain that I put my name to Amendment 26 and support what the noble and learned Lord, Lord Falconer of Thoroton, said about it, but I also have my name to the Motion to oppose Clause 12—in other words, to propose that it should not stand part of the Bill.
I add just a word to what the noble Lord, Lord Faulks, said about the al-Skeini decision. As he will appreciate, if the decision of the Appellate Committee over which Lord Bingham presided had remained without further recourse to Strasbourg, we would not be discussing Clause 12 at all. I did not sit on al-Skeini, but I sat on a later case called Smith, which I know the noble Lord is aware of, where we had to consider a decision by the Strasbourg court in effect to reverse Lord Bingham’s decision. Indeed, the noble Lord referred to it. It was a very difficult decision for us because we had to analyse exactly what the Strasbourg court was talking about. One thing that emerged from our study of that decision was that it did not really believe that the whole of the convention rights could apply in a situation such as arose in Iraq. There were rights there that simply have no point whatever. It talked about it being a slightly tailored approach to the convention for the particular situation in which our Armed Forces were placed.
We considered the matter very carefully, and one of the features of Smith is that, although we were divided on the issue as to the application of the Human Rights Act invoked by relatives of deceased servicemen, we were unanimous in the view that we could not escape the decision of the Strasbourg court. The current state of play, which the noble Lord, Lord Faulks, very rightly calls in question, is that, for the moment, there is a decision by the Supreme Court that we must follow the al-Skeini decision in Strasbourg and the Human Rights Act—the convention rights, in effect—so far as relevant, applies in the case of operations offshore.
I cannot escape from the fact that in the other part of the Smith decision, we, by a majority, declined to strike out the claims of the servicemen, one of which was referred to earlier this afternoon by the noble Lord, Lord Hendy, and, eventually, those claims were settled. Had we struck them out, we probably would not be as troubled by Clause 12 as we are now, but Clause 12 is there, so we must address it.
That brings me to my real point. I find it hard to know what to make of Clause 12. At first sight it is simply unnecessary. As has been mentioned, the power to derogate from our obligations under the European convention by means of a derogation order under Section 14(1) and (6) of the Human Rights Act 1998 already exists. It has been exercised from time to time, notably in 2001, by an order which would have allowed the indefinite detention of non-national suspected terrorists who could not be deported.
I use the words “would have allowed” because that order was set aside on an appeal to this House. That was because it unjustifiably discriminated against non-nationals on nationality grounds in comparison with UK nationals who were suspected of terrorism. We did not think it right in any way to interfere with the Secretary of State’s decision that the overall test of a state of an emergency affecting the life of the nation was set aside, but we did think that it was a disproportionate exercise of the power.
Lord Thomas of Gresford (LD) [V]
My Lords, it is always a pleasure to listen to the analysis of the noble and learned Lord who has just spoken. I am very impressed by his view, and I agree with him. I have written extensively and admiringly about the first Earl of Minto—a significant but forgotten governor-general of India in Napoleonic times. He oversaw overseas operations in 1811, he drove the French out of the Indian Ocean at Martinique and Reunion and captured Java from the Dutch at the Battle of Cornelis. He could boast to Spencer Perceval, the Prime Minister, that the French and their allies had been banished all the way from the Cape of Good Hope eastwards to Cape Horn. He abolished slavery wherever he found it, and cast instruments of torture into the sea.
The radical MP and pamphleteer William Cobbett was not enthusiastic. Writing from prison, where he spent more time than he did in the House of Commons, he warned that the conquest of Java was of no value. It was a country of the same extent as Britain but with 30 million people—nearly twice the population of this country at the time. He said that it placed upon the British
“the trouble of governing, especially in those two important particulars, the administration of justice and the collection and disposal of the revenues; that is to say, the absolute power over men’s lives and purses.”
So it was in Basra and in Helmand Province. It was precisely those considerations—power over men’s lives—that caused the Grand Chamber of the European Court of Human Rights unanimously to conclude that one of the exceptional circumstances in which the European Convention on Human Rights would apply extraterritorially was when a state bound by the ECHR exercised public powers on the territory of another state. In Iraq the UK had assumed the powers normally to be exercised by a sovereign Government—in particular, responsibility for the maintenance of security in south-east Iraq.
In a later case, in 2011, the European Court of Human Rights held that the UK’s power to detain prisoners in Iraq gave jurisdiction to a finding that the UK had violated Article 5 of the ECHR, the right to liberty and security. In July 2013 the Supreme Court here upheld a claim on behalf of British service personnel who were killed as a result of friendly fire—the case to which the noble Lord, Lord Hendy, referred. The claim was founded on both a violation of human rights and civil liability for negligence in the provision of training and equipment.
The Supreme Court held that a soldier had the protection of Article 2 of the ECHR, the right to life. The Equality and Human Rights Commission commented that the ruling of the Supreme Court had provided
“a reasonable balance between the operational needs of our armed forces and the rights of those serving in our armed forces to be protected in the same way as we expect them to protect the rights of civilians abroad”.
This upset Conservative elements in the coalition Government, but they could do nothing with their Liberal Democrat colleagues at their side. However, in March 2016, when the Liberal Democrats had gone, the noble Lord, Lord Faulks, then Minister of State for Justice, said that the Defence and Justice Secretaries were preparing a legislative package to “redress the balance”.
Indeed, in the 2016 Conservative Party general election campaign, a strident call was put out to scrap the Human Rights Act. That had been watered down by the 2019 election manifesto into a call for a committee —chaired, I thought, by the noble Lord, Lord Faulks, but perhaps there is another chairman now. We await the committee’s deliberations breathlessly.
I was, therefore, rather surprised to observe the cautious nature of Clause 12. It imposes statutory duties on the Secretary of State to “consider” whether to derogate under Article 15. One would expect him to consider that when deploying forces in overseas operations. The problem is that Article 15 gives power to derogate only
“in time of war or other public emergency threatening the life of the nation.”
The power to derogate may be exercised only where strictly required by the exigencies of the situation. As noble Lords have said, it is not possible to derogate from Article 2—the right to life,
“except in respect of deaths resulting from lawful acts of war.”
It is also not possible to derogate from Article 3, on the prohibition of torture; Article 4, on the prohibition of servitude or forced labour; or Article 7, on no punishment without law. I realise that I am repeating what has already been said.
The UK gave notice of derogation in relation to the situation in Northern Ireland in the 1970s, so that it could take powers of arrest, detention and internment without trial. In 2001, following 9/11, we issued a notice of derogation concerning the power to detain foreign nationals without trial. France similarly exercised the power to derogate following the terrorist attacks in Paris in 2015. Other countries, such as Ukraine, have also done so when the life of the nation was threatened.
On investigating Clause 12 of the Bill, however, one sees that the circumstances in which the Secretary of State must consider derogation are not at all those as set out in Article 15. The clause provides for a scenario for operations
“outside the British Islands in the course of which members of those forces may come under attack or face the threat of attack or violent resistance”.
Of course, those circumstances do not, of themselves, give rise to a power to derogate. Can the Minister please explain why the preconditions in Article 15(1) do not appear in the Bill as the trigger for the Minister’s consideration of whether to derogate?
One academic lawyer described the cry in the 2016 Conservative manifesto to scrap the Human Rights Act as clickbait. That is all this clause amounts to. If your Lordships require confirmation, they have only to turn to the amendment in the name of the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Garnier. For them, the trumpet sounds with an uncertain note in the Bill as promoted. In their amendment we see the red meat. “Do not bother about derogating from the ECHR, just say ‘No claim can be brought under the Human Rights Act, derogation or no derogation’—that’s it.” I can only assume that the clarion call of Mrs May to scrap the Human Rights Act is about to emerge from the independent commission, chaired by the noble Lord, Lord Faulks.
If the two leading lawyers on the Conservative Benches think this is a useless provision, perhaps they will join the rest of us in throwing it out.
Baroness Chakrabarti (Lab) [V]
My Lords, once more I have the daunting privilege of following the noble Lord, Lord Thomas of Gresford. I will avoid repetition and begin by dealing briefly with the amendment in the name of the noble Lord, Lord Faulks.
First, I will deal with my own moral position in relation to human rights in overseas operations. I am quite clear that, in a wartime situation, in the heat of conflict, there will and must be a very tailored and limited application of rights and freedoms as we normally understand them domestically, in peacetime. However, the Bill covers all overseas operations, such as peacekeeping, covert operations and the policing and rule of law-establishing operations of an occupying force.
Baroness D'Souza (CB) [V]
My Lords, I am pleased to speak on this Bill for the first time in Committee. The Bill seems so far to have divided the House into at least two camps: those who oppose the Bill altogether and those who seek to amend it radically. I am of the latter camp. Amendment 26, to which I have attached my name, introduces yet another safeguard, one that upholds and supports the UK’s human rights obligations under the two main conventions on human rights. Briefly, as has been said time and again, the Government should not be further enabled to derogate significantly from these conventions in the absence of parliamentary approval.
The emptiness of this clause has already been addressed by the noble and learned Lord, Lord Hope. I would support the removal of the clause altogether. In case that does not happen, however, Amendment 26 serves as an important safeguard and should prevail. The question of derogation in this context, as we heard from the noble and learned Lord, Lord Hope, is somewhat contradictory. We all know that torture is a grave breach of the Geneva conventions, with corresponding obligations and sanctions, and, as we have learned, commission of the act of torture in any shape or form is a non-derogable offence.
By including this clause, the Government are acknowledging the extraterritorial application of the European Convention on Human Rights, something that they have hitherto declined to acknowledge. If the clause is included, there will be those who will welcome it precisely due to its support of the extraterritorial application of the European Convention on Human Rights. That said, its inclusion in its current form appears to go against the absolute prohibition on torture and is therefore a dangerous hostage to fortune and should not be in the Bill.
Baroness Whitaker (Lab) [V]
My Lords, I speak in support of Amendment 26 and against Clause 12 stand part. My noble and learned friend Lord Falconer of Thoroton and all who have spoken have set out the case exactly with force and clarity, so I will just add that clearing with Parliament any proposal to derogate from the European Convention on Human Rights makes proper acknowledgment of the role of Parliament in such a serious decision, although it is not always honoured in the same way by this Government. In any case, the idea of derogation in the circumstances posited by the Bill is not only misconceived and ineffectual, as noble and noble and learned Lords have said, it undermines the basis of our standing in the world as advocates and practitioners of an international order.
The international rule of law is not the same creature as the national one. Enforcement comes up against sovereignty and is not strong. This is reflected in the part played by the veto, so it depends even more on consent, and it is that consent which is sabotaged by the multiple breaches of international law on torture, genocide, war crimes and crimes against humanity in a set of national legislative proposals as unfocused as this provision. The Bill’s aim of clarity, fairness, certainty and speed of judicial action for our Armed Forces is admirable; the blunderbuss means of ineffective and probably unachievable derogation from the ECHR is not. It betrays our long and distinguished role as one of the founders in creating the instruments for the international rule of law.
Baroness Smith of Newnham (LD) [V]
My Lords, the noble Baroness, Lady D’Souza, suggested that this Bill divides your Lordships’ House into two parts: those who wish to see the Bill disappear in its entirety and those who wish to amend it substantially. I think that the situation might be a little more nuanced than that, but like the noble Baroness, I would place myself in the camp who believe that the Bill should probably go through, but heavily amended.
On this occasion, I want to associate myself with the suggestion that Clause 12 should not stand part. Obviously, my noble friend Lord Thomas of Gresford has signed that he will suggest that it should not stand part, alongside the noble and learned Lord, Lord Hope of Craighead. On Tuesday, the noble Baroness, Lady Jones, rather hoped to kill the Bill. I think that removing this clause is important. It is neither necessary nor desirable, as almost all noble and noble and learned Lords who have spoken already have pointed out.
Some severe issues are raised by this clause, in part about what message we are sending internationally. The United Kingdom left the European Union last year. We have said that, as a country, we still respect human rights and the rule of law and that we wish to play a global role. We are still an active player in NATO and in the United Nations, but what message are we sending if we say, “We might want to derogate from the European Convention on Human Rights”? Do we really want to derogate from human rights laws? Is this not a siren call? Is there not a danger that this is trying to speak to a domestic audience? I know that the Minister does not like the concept of lawfare and that she does not care for the term. However, in some ways, the clause as it stands and the amendment tabled by the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Faulks, seem to suggest that this is about speaking to an audience that wants to say, “We should not be too worried about human rights. Let us strike down some of these rules.” Surely our role in the international arena should be precisely that of supporting human rights. We will not do that by derogating from the European Convention on Human Rights.
As various noble and noble and learned Lords have already pointed out, in particular the noble and learned Lords, Lord Falconer of Thoroton and Lord Hope of Craighead, this clause is unnecessary because it is already possible to derogate. Can the Minister explain why she feels that it is necessary? If there is no good reason, the Liberal Democrat Benches will certainly not support the clause.
However, there is always a danger that, however much we might want to remove a clause, it cannot be done and amendment to it might be more appropriate or feasible. To that end, it is clear that Amendment 26 tabled by the noble and learned Lords, Lord Falconer and Lord Hope, my noble friend Lord Thomas and the noble Baroness, Lady D’Souza, is important. If derogations were to be proposed, it is clear that the appropriate people to make that decision are parliamentarians. It is hugely important that the Government should remember the appropriate relations between the institutions of the Executive, the legislature and the judiciary. At times over recent months and years, it has appeared that Her Majesty’s Government seem to think that only the Government should make decisions. If any derogations were to take place, they should be brought forward for a decision on an affirmative vote by both Houses of Parliament. I strongly support Amendment 26.
The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for the informed proposal in his amendment and other noble Lords for their genuinely thought-provoking contributions. I will try to address them in detail, although I realise that to the perception of some I may do so inadequately.
Amendment 26 would require designated derogation orders proposed by the Government in relation to overseas operations to be approved by Parliament before being made. It is important to begin by repeating the fact that, as some noble Lords have noted, the Government already have the power to derogate some aspects of the ECHR without reference to this Bill, and the Bill will not change that. The noble and learned Lord, Lord Falconer, is correct that the bar is set high to justify derogation, but it can still be done. It is important to remind noble Lords that Parliament already has a crucial role in approving any derogation decision. It is not the intention of this Bill to change the existing robust processes which the Government and Parliament follow if and when a decision to derogate has been made.
The noble and learned Lord, Lord Falconer, and my noble friend Lord Faulks asked why we have Clause 12. The clause merely ensures that all future Governments will be compelled to consider derogating from the ECHR for the purpose of a specific military operation. There is no sinister or malign agenda here, as was implied by the noble Baroness, Lady Chakrabarti. This does not create new law in relation to the ECHR or the procedures for designating a derogation order. In effect, it puts the intent of the 2016 Written Ministerial Statement on to a statutory footing and it will ensure that operational effectiveness can be maintained, for example, by enabling detention where appropriate for imperative reasons of security in a time of war or other public emergency threatening the life of the nations.
It is worth reflecting on the procedure that attends a derogation from the ECHR. If such a decision is ever made, the Human Rights Act requires that the Secretary of State must make an order designating any derogation by the UK from an article or a protocol of the ECHR. The Secretary of State must also make an order amending Schedule 3 to the Human Rights Act to reflect the designation order or any amendment to, replacement of or withdrawal from that order. Crucially, for those concerned that Parliament does not have a say in the process, I would remind noble Lords of the procedures that are already in place. A designation order to derogate ceases to have effect—it evaporates effectively—if a resolution approving the order is not passed by each House of Parliament within 40 days of the order being made. This means that both Houses will always be able to approve or reject any derogation order within 40 days of a decision. That is the process and these are the procedures.
In addition to the requirements laid out in the Human Rights Act 1998, the Government must also communicate a decision to derogate to the Secretary-General of the Council of Europe. This should include details of the measures taken and the reasons for taking them. The Secretary-General should also be informed when derogations have ceased. These existing measures provide for the appropriate level of parliamentary debate and approval of a decision to derogate. To the best of my knowledge, successive Governments have not sought to change that. I am sure that the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Thomas of Gresford, will correct me if I am mistaken.
However, requiring a parliamentary debate on a decision to derogate ahead of time, instead of after it is made, as Amendment 26 proposes, could undermine the operational effectiveness of MoD activity or compromise covert activity that we would not wish hostile operators to be aware of. It is generally accepted, without reference to derogation powers, that military action must at times be taken without gaining the prior consent of Parliament—for example, in situations where the Government’s ability to protect the security interests of the UK must be maintained, and in instances when prior debate and disclosure of information could compromise the effectiveness of our operations and the safety of British service personnel. I submit that the same principles apply here: requiring a debate before an order is made could, similarly, have a detrimental impact upon operational effectiveness. It would effectively shackle the MoD, preventing it from doing what it needs to do, when it needs to do it. It would defeat the purpose of derogation in relation to overseas military operations, which should enhance operational effectiveness. I cannot believe that the noble and learned Lord, Lord Falconer of Thoroton, would wish to impose that stricture. I therefore urge him to withdraw his amendment.
Although I have argued against the proposal from the noble and learned Lord, Lord Hope of Craighead, that Clause 12 should not stand part of the Bill, it has more logic than Amendment 26. I wonder if it is a mischievous stratagem to make the Government look at Clause 12 again. I listened to the noble and learned Lord with great care and I will look at his arguments again. When they are advanced with the lucidity with which he is rightly associated, they have an allure.
Amendment 27, in the name of my noble friend Lord Faulks, is intended to prevent claims connected with overseas operations being brought in England and Wales under the Human Rights Act, whether from service personnel, local nationals or any other claimant. I thank my noble friend for an incisive analysis of the ECHR and the Human Rights Act. He rightly identified the need to bring clarity to an issue that has been dogged by uncertainty and the divided opinion of senior legal personnel. His analysis and conclusions richly inform the debate around the ECHR and the Human Rights Act, but I will comment on his amendment, which I thought was unfairly characterised by the noble Lord, Lord Thomas of Gresford. The noble Baroness, Lady Smith, was a little more charitable. I detect that she is warming to the Bill, albeit with reservations.
In relation to Amendment 27, the Human Rights Act’s extraterritorial application mirrors the scope of extraterritorial jurisdiction under the European Convention on Human Rights. Therefore, it is important to note that, whatever the position under domestic legislation, as a signatory to the ECHR, to which the UK remains committed, we would still be under an obligation to ensure compatibility with the convention. My noble friend acknowledged that. We would still need to provide an effective route for people to bring claims in the United Kingdom in relation to any alleged breach of their convention rights. This was recognised by Professor Ekins during the House of Commons committee’s evidence-gathering session for this Bill.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I have received two requests to speak after the Minister, one from the noble and gallant Lord, Lord Craig of Radley, and the other from the noble Baroness, Lady Chakrabarti. I will call them in that order.
Lord Craig of Radley (CB) [V]
My Lords, the Minister has reminded us that, when Defence Secretary, Michael Fallon said:
“before embarking on significant future military operations, this government intends derogating from the European Convention on Human Rights, where this is appropriate in the precise circumstances of the operation in question.”
In her letter of 26 February, the Minister indicated that Clause 12 was included to reflect this undertaking. Significantly, Clause 12 does not give the same weight to a decision to derogate as was indicated by Mr Fallon. If that is what is intended, should it not say so in words that reflect the commitment explained by Mr Fallon? What is the Government’s intention? Is it to seek to have in place an effective form of combat immunity for active operations overseas? That would be welcome but, at present, as many noble Lords have said, Clause 12 seems worthless and should not form part of the Bill.
Baroness Goldie (Con)
The Bill has been drafted to reflect the overall policy intentions to try to reassure our service personnel that, before overseas operations are committed to, careful thought is given to them. As the noble and gallant Lord understands, because of the deliberate way that the Bill is drafted, the impact of Clause 12 is merely to consider, not to compel, derogation. I simply repeat my undertaking to the noble and learned Lord, Lord Hope of Craighead: I will look very carefully at these arguments.
Baroness Chakrabarti (Lab) [V]
My Lords, I apologise to the Minister for not putting this short question clearly enough in my earlier remarks. Do the Government agree that the new duty in Clause 12, which would become the new Section 14A of the Human Rights Act, on the Secretary of State to consider derogation a judicially reviewable duty? Will it be, as I suspect it will, open to challenge in relation to the Secretary of State’s considerations, so that litigants will be able to judicially review the adequacy of the considerations, whether or not the operations were significant, and the Secretary of State’s decision not to derogate—or, indeed, to derogate—in relation to every single potential overseas operation?
Baroness Goldie (Con)
The way in which I anticipate Clause 12 operating is that it is simply an ex facie reminder on the face of the Bill that a Secretary of State, if he were contemplating an overseas operation, should consider derogation. I suggest to the noble Baroness that thereafter, the existing law would govern whatever subsequent activity took place and whether or not the designated derogation order was deployed. The law is there and it is clear as to what is to be done. I think the acceptance of ministerial power to make these decisions is understood. As I have said before, that is with reference to parliamentary scrutiny, which has a very public capacity to call Ministers to account. I therefore merely ascribe to Clause 12 a reassurance that a Minister will give thought to this, but is not obliged to derogate.
Lord Falconer of Thoroton (Lab) [V]
[Inaudible.] The noble Baroness, Lady Chakrabarti, asked an incredibly clear question and I think the House is entitled to an answer. Would an exercise of the power to derogate in accordance with this new section of the Human Rights Act be judicially reviewable? Although the Minister gave a long answer, she did not answer the question directly. I can understand why she feels uneasy about answering it without a clear steer from officials, but I think it would be appropriate if she wrote to the noble Baroness, Lady Chakrabarti, and the rest of us with the answer to that very important question.
I thank the noble Lord, Lord Thomas of Gresford, the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Hope, and the noble Baronesses, Lady Whitaker and Lady Smith of Newnham, for their support for Amendment 26 or for the clause not standing part. I also note that the Minister said on behalf of the Government that they would consider the allure of the argument of the noble and learned Lord, Lord Hope, that this clause should not be part of the Bill at all. I am grateful for that and I think the House will be interested to hear her conclusions.
The speech of the noble Lord, Lord Faulks, was interesting but broadly irrelevant to Amendment 26 and whether the clause should stand part. I understood him to say that actually, the problems that have arisen in relation to overseas operations will never be addressed in any real form by any sort of possible derogation under the Human Rights Act, and that he could not therefore see what derogation has to do with the problems the overseas operations Bill is addressing. He then went on, in an interesting speech which I profoundly disagree with, to say that the problem is not whether or not derogation is possible but whether or not the Human Rights Act should extend to overseas operations generally.
The noble and gallant Lord, Lord Craig of Radley, absolutely put his finger on it when he asked the Minister, if derogations are not intended—if derogations cannot give combat immunity—what is the point of them? As the noble and gallant Lord pointed out, it is plain from what the Government are accepting has been said in this debate that combat immunity is not on offer from derogation. I strongly urge the Minister to drop this clause, because it is a pretend clause. It pretends that derogations can help with the problem this Bill seeks to address, when they plainly cannot.
I beg leave to withdraw Amendment 26.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
Before we do that, does the Minister wish to respond?
Baroness Goldie (Con)
I am grateful for the opportunity to comment. When I responded to the noble Baroness, Lady Chakrabarti, I did not have before me specific information relating to her question. I am now informed by my officials that if there were a derogation under Clause 12—or, presumably, a decline to derogate—this could be subject to a judicial review. I thought it preferable to share that with the House at this stage. That is without prejudice to my previous remarks that I undertake to consider everything that has been said in the debate, perhaps most significantly by the noble and learned Lord, Lord Hope of Craighead.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group beginning with Amendment 30. Anyone wishing to press this amendment to a Division must make that clear in the debate.
Amendment 30
Lord Tunnicliffe
“Access to legal aid for service personnel in criminal proceedings
Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation of access to legal aid for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (members of British overseas territories' forces serving with UK forces) applies, in relation to criminal legal proceedings in connection with operations of the armed forces outside the British Islands, and lay a copy of the evaluation report before each House of Parliament.”Member’s explanatory statement
This new Clause would require the Government to commission and publish an independent evaluation of service personnel’s access to legal aid in relation to the criminal proceedings covered by the provisions in the Bill.
Lord Tunnicliffe (Lab) [V]
My Lords, Amendment 30 in my name asks the Government to commission an independent evaluation of access to legal aid for members and former members of the Regular Forces and Reserve Forces and lay a report before Parliament. This important amendment is a result of the evidence given in Committee in the other place, which repeatedly demonstrated the lack of proper support and advice personnel have received when seeking justice.
This evidence was not only from outside contributors. Johnny Mercer himself said that the MoD has a policy whereby,
“where a service person or veteran faces criminal allegations in relation to incidents arising from his or her duty, they may receive full public funding for legal support.”
However, also he said:
“That was not the case when I first came here”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 22/10/20; col.351.]
We are a country of fairness, with a legal justice system founded on the right to a fair trial. But I wonder how many men and women have struggled to get the justice they deserve. There have been serious cracks in the system, and people have not got the right support and guidance in accessing the right to due process and a fair hearing.
Major Campbell raised the importance of having access to legal aid and advice and the importance of wider pastoral support, both for dealing with things when they happen and to ensure that cases such as his never happen again. When asked if the MoD had offered him any support when he was facing the eight criminal investigations that he was subjected to, Major Campbell said:
“No, there was none…in the early investigations under the Royal Military Police we were told just not to think about it and to get on with stuff. No concession was given to us in our day-to-day duties.”
Baroness Chakrabarti (Lab) [V]
I am speaking in support of my noble friend Lord Tunnicliffe and his amendment. Of course, it would be open to the Minister not just to embrace this amendment but to go further; and not to wait for 12 months, but assure your Lordships that the Government will provide legal advice and support and, if necessary, representation to any member of Her Majesty’s Armed Forces who has need of it as a result of an overseas operation—whether they are an anxious suspect, an anxious defendant, an anxious witness to civil proceedings or, indeed, whether they are suing the MoD. It seems an absolute no-brainer, given speech after speech in both Houses about the anxiety that the interaction between law and war is causing our personnel. Why would the Government bring forward a Bill that causes such controversy and restricts the reach of the law without first giving the assurance that we would all like to hear from the Minister? Can the Government do this? Can the Government honour our existing service personnel and veterans with an automatic right to advice and representation, whenever they have need of it, as a result—from whatever perspectives I have described—of serving the Crown?
Lord Thomas of Gresford (LD) [V]
My Lords, this is a very important amendment and I support it thoroughly. I should declare to your Lordships that I am still chairman of the Association of Military Court Advocates. Although I am not in receipt of legal aid in respect of any case at the moment, I have received legal aid on many occasions in the past. In my experience, the legal aid authority was excellent, probably ahead of its civil counterparts in supporting counsel and solicitors who were defending servicemen, whether in this country or abroad.
There are particular circumstances that apply in this field which do not apply in ordinary civil practice. First, there are a limited number of military court advocates, mostly people who have some experience of the service. Secondly, the courts are at a distance. Catterick and Bulford—or occasionally Colchester—are at opposite ends of the country. There is also a very experienced military lawyer in Northern Ireland who deals with issues that derive there. In addition to court appearances, it is necessary to give protection to soldiers facing charges and to Air Force and Navy personnel. It is necessary to be in at the beginning, which requires driving long miles to various bases to be present at interviews, to be present when a person is charged and to give advice. There are particular exigencies in this type of practice. Full support from legal aid, which in my experience has been given in the past, is essential for the system to work well. As in every part of the justice system where people are properly represented, a fair result is likely to be arrived at.
Baroness Goldie (Con)
My Lords, again I thank the noble Lord, Lord Tunnicliffe, for raising this issue. I have looked at his proposed new clause in Amendment 30, which would indeed require the Government to commission and publish an independent evaluation of legal aid for service personnel and veterans in relation to the criminal legal proceedings covered by the Bill. I repeat the assertion to which the noble Lord himself referred: the MoD has a long-standing policy that, where a serviceperson or veteran faces criminal allegations in relation to incidents arising from his or her duty on operations, the MoD may fund their legal support and provide pastoral support for as long as necessary. We offer this because it is right that we look after our Armed Forces, both in the battlefield, where they face the traditional risk of death or injury, as well as in the courts, particularly if they face the risk of a conviction and a possible prison sentence. Because of the risks our service personnel and veterans face, our legal support offer is very thorough. I will set out some of its provisions.
The legal aid provided by the Armed Forces legal aid scheme provides publicly funded financial assistance for some or all of the costs of legal representation for defendants and appellants who, first, appeal against findings and/or punishment following summary hearings at unit level, including applications for extensions of the appeal period by the Summary Appeal Court, for leave to appeal out of time. Secondly, it covers those who have a case referred to the Director of Service Prosecutions for a decision on whether the charges will result in a prosecution. This includes offences under Schedule 2 to the Armed Forces Act 2006 referred directly to the Director of Service Prosecutions by the service police, as well as matters referred to the Director of Service Prosecutions by the commanding officer. Thirdly, it covers those who are to be tried in the court martial of the Service Civilian Court; fourthly, those who wish to appeal in the court martial against the finding and/or sentence after trial in the Service Civilian Court; and, fifthly, those to be tried in a criminal court outside the UK.
If I have not responded to all the questions asked by the noble Lord, I apologise, and I shall look at Hansard and attempt to respond further. I will explain that the legal aid scheme applies equally to all members of the Armed Forces, including the Reserve Forces when they are subject to service law, as well as to civilians who are or were subject to service discipline at the time of an alleged incident. Importantly, this system is based upon the same basic principles as the civilian criminal legal aid scheme in England and Wales. The Armed Forces scheme is designed to mirror the civilian scheme while making necessary adjustments to take into account the specific circumstances and needs of defendants and appellants in the service justice system.
As a result of that system, I am confident we already ensure service personnel and veterans are properly supported when they are affected by criminal legal proceedings. A review of legal aid, as proposed by the amendment, is unnecessary, given how comprehensive our legal support package is. In these circumstances, I urge the noble Lord, Lord Tunnicliffe, to withdraw his amendment.
Lord Tunnicliffe (Lab) [V]
My Lords, I thank my noble friend Lady Chakrabarti and the noble Lord, Lord Thomas of Gresford, for their support in this area. Turning to the speech by the noble Baroness, Lady Goldie, which I shall read with care, it seems we are not grasping the circumstances of this Bill. The situation is about overseas operations and the problems of defending oneself against criminal action in some overseas theatre—vastly more difficult than in the parallel civilian situation in the UK. I note she said the support “may” be provided. The Minister may mean “always”, but for servicemen that word sounds like “perhaps,” like some or all of the necessary support only “may” be provided.
We should think back to who we are talking about. Service personnel are different from ordinary citizens. I was involved, when Labour was in power, with drawing up the first statutes to cover slavery. When we had got over the shock that we had to try and define slavery, we suddenly realised that we had to have some exceptions. One of them was the Armed Forces, because we expect absolute loyalty from our Armed Forces, including to the point of dying. That is a very special loyalty. Surely, when they are caught up in difficult situations, there should be almost absolute support in defence of them to make sure, in all the subsequent legal action and the necessary support—which will be coming in the next group—that they lack for nothing, ensuring both that they are pastorally supported and that there is sufficient legal support for there to be a genuine equality of arms.
I will look at the noble Baroness’s response with care and listen to her response to the next group. In the meantime, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
We now come to the group consisting of Amendment 31. Anyone wishing to press this amendment to a Division must make that clear in debate.
Amendment 31
Lord Dannatt
“Duty of care to service personnel
(1) The Secretary of State must establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.(2) The Secretary of State must lay a copy of this standard before Parliament within six months of the date on which this Act is passed.(3) The Secretary of State must thereafter in each calendar year—(a) prepare a duty of care report, and(b) lay a copy of the report before Parliament.(4) The duty of care report is a report about the continuous process of review and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;(c) judicial reviews and inquiries into allegations of misconduct by service personnel;(d) such other related fields as the Secretary of State may determine.(5) In preparing a duty of care report the Secretary of State must have regard to, and publish relevant data in relation to (in respect of overseas operations)—(a) the adequacy of legal, welfare and mental health support services provided to service personnel who are accused of crimes;(b) complaints made by service personnel or their legal representation when in the process of bringing or attempting to bring civil claims against the Ministry of Defence for negligence and personal injury; (c) complaints made by service personnel or their legal representation when in the process of investigation or litigation for an accusation of misconduct;(d) meeting national standards of care and safeguarding for families of service personnel, where relevant.(6) In subsection (1) “service personnel” means—(a) members of the regular forces and the reserve forces;(b) members of British overseas territory forces who are subject to service law;(c) former members of any of Her Majesty's forces who are ordinarily resident in the United Kingdom; and(d) where relevant, family members of any person meeting the definition within paragraph (a), (b) or (c).(7) In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.(8) None of the provisions of this section may be used to alter the principle of combat immunity.”Member’s explanatory statement
This new Clause will require the Ministry of Defence to identify a new duty of care to create a new standard for policy, services and training in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigations arising from overseas operations, and to report annually on their application of this standard.
Lord Dannatt (CB) [V]
My Lords, in seeking to move Amendment 31, I pay tribute to the tireless and detailed way in which the Minister and the noble and learned Lord, Lord Stewart of Dirleton, have been responding to the extensive and detailed sequence of amendments to this Bill in the last two days in Committee.
That the list of proposed amendments is so lengthy indicates a considerable degree of concern about the Bill as drafted, but my concern does not extend as far as the concerns of those who would wish to see this Bill thrown out completely. Many noble Lords, myself among them, have been arguing for some years to have a Bill introduced that would provide better protection for serving and veteran soldiers, sailors, airmen and marines from vexatious, extensive and recurrent investigations arising from their actions in past operations. This Bill seeks to meet that aim, so I do not want to see it fail, but I do want to see it meet that honourable objective more effectively.
Lord Thomas of Gresford (LD) [V]
My Lords, it is a real privilege to follow the noble and gallant Lord, Lord Dannatt, whom I greatly respect. He has raised some of the issues that we have been discussing over the last two days. I have made my views well known on those aspects, and I do not propose to challenge what he has just said. He is absolutely right in requiring there to be a duty of care set out in statute—a touchstone whereby the ways in which service personnel are dealt with can be tested.
In our own way, those who have practised in courts martial have seen the sort of improvements to which the noble and gallant Lord referred. I recall that, at the first court martial that I went to, there was a lot of swishing of swords—swords pointed at the guilty man when the decision was announced, and so on. Also, I think I played some part in the abolition of the process whereby an accused in a Navy court martial was marched into the court with a cutlass at his back. I put down a Question questioning that particular practice and, when I got up to hear the Answer from the noble Lord, Lord Bach, he announced that the practice had been abolished. But that is only symbolic of the very considerable changes that have taken place in the court martial system, which I believe have brought greater fairness and fewer problems of what one might call “shock and awe”—of a soldier going in to stand trial before a court martial of senior officers. In that way, we have sought I think to modernise the old court martial system, and we have been successful in that. If that sort of movement could be applied generally and not just in the very narrow area to which I have referred, it would be a very good thing. I wholly support the noble and gallant Lord in his amendment.
Lord Stirrup (CB)
My Lords, I speak in support of this amendment, to which I have attached my name. In doing so, I convey the apologies of my noble and gallant friend Lord Boyce, whose name is also on the amendment but who is prevented by a medical issue from speaking this afternoon.
To explain why my noble and gallant friend and I support the amendment, it is necessary for me to go back to the very purpose of the Bill. It is in the Minister’s own words to reassure service personnel and veterans that the Government have their back and that they will be offered a degree of protection from the pressures and strains of malicious prosecutions. But the Government know that prosecutions are not the issue; that much has been widely acknowledged during debates on the Bill to this point. It is the seemingly endless cycle of accusations and investigations that is casting such a shadow over our service personnel and veterans, not the prospect of being brought to trial.
It is a principle of our legal system that an accused person is innocent until proved guilty—but this is true only in a narrow legal sense. It simply means that the burden of proof lies with the accuser, not the defender; it does not mean that an accused person is treated as innocent. For example, they may be held in detention. They are certainly subject to the wondering if not outright suspicion of observers, and they certainly suffer the agonies of uncertainty and the mortification of being suspected of and, in the minds of some, guilty of a criminal offence. The strain on them and their families is immense. Can anyone doubt the anguish that assailed those accused as a result of Operation Midland, despite the fact that not only were there no prosecutions but their accuser was shown to be lying? Can anyone deny that they suffered acutely—and in some cases still do?
Accusations must certainly be investigated, but such investigations will bring pain to guilty and innocent alike. How much more is this the case when the investigations are repeated and protracted? That is the evil that this Bill should address. The Government’s view seems to be that it is not possible to legislate on investigations since that would almost certainly increase the risk of UK service personnel and veterans coming under the scrutiny of the International Criminal Court. They have therefore taken an indirect approach to the problem, in the hope that codifying the factors that must be considered by a prosecutor will discourage speculative and malicious accusations. Of course, this is a wholly untested thesis; it may work to an extent, but equally it may have little impact.
For my part, I believe that the Government have by their own lights set themselves an impossible task in this Bill. They have recognised that they cannot address the real problem directly, so has come at it obliquely with a proposition that will have dubious benefits and poses real presentational risks—risks that could harm the reputation of our Armed Forces. Meanwhile, the underlying issue remains: the pressure of investigations. If that cannot be addressed legislatively, it is surely incumbent on the Government to ensure that those accused are supported appropriately during their ordeal—hence this amendment.
If we cannot entirely prevent the suffering, at least let us do all that we can to ameliorate it. The Government may say that they do so already, and there is no need to legislate on the matter, but I would find such a view puzzling. The Government have accepted that prosecutors already take into account the considerations set out in the Bill, but they regard their codification in law as necessary for the reassurance of our military personnel. If they take that view on something that they admit is not the real problem, how can they take a contrary view on something that is? That would seem to me to be an extraordinary contradiction.
The many amendments proposed to this Bill so far have sought largely to ameliorate the harmful effects that it might have. This amendment, on the other hand, seeks to tackle as far as possible the root of the problem that the Bill is intended to address, and I commend it to the Government.
Baroness Chakrabarti (Lab) [V]
My Lords, what a privilege to have heard, let alone to follow, the speech of the noble and gallant Lord, Lord Stirrup, so much of which I completely agreed with. One thing I would say is that, while legislators are limited in what they can do in this regard—and he and his noble friends have had a very good go at using a probing amendment to try to get the Government to stand by veterans and service personnel in real terms—the Government can actually do more.
They could do more even now to address the problem of investigations. Of course, they could not do so by legislation alone, but they could throw resources at it and redesign the nature of investigations, and they could include the noble and gallant Lord and his colleagues, among others, in creating a new investigation system that would inspire the confidence of the public at large, of wretched human rights lawyers like me and, crucially, of veterans and personnel. They could do what we have said in recent days is essential, which is to ensure that investigations are robust, independent and speedy, and not repeated. That could do a great deal to avoid the kind of anxiety that we have heard so much about in consideration of this Bill.
That is not something that any mere legislators can do, so we have to probe in this way and table amendments, such as the previous one from my noble friend Lord Tunnicliffe about laying reports, and this more extensive one from the noble Lord, Lord Dannatt, the noble and gallant Lords, Lord Stirrup and Lord Boyce, and my noble friend. These amendments are, of course, necessarily limited by the scope of the Bill. I therefore understand why, for example, the noble Lord could not include in the duty of care to service personnel chronic issues of housing and of mental health problems beyond just those caused by litigation.
Lord Burnett (LD) [V]
My Lords, I draw attention to my entries in the register of interests. I had the honour to serve in the Royal Marines, during which time I served on overseas operations. I support the thrust of this proposed new clause and congratulate and thank the noble Lord, Lord Dannatt, and others for tabling it.
The new clause would provide for the establishment of
“a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations”.
It also provides for an annual report on the duty of care to be laid before Parliament. This is a satisfactory solution to some of the matters I raised at Second Reading, when I stated that
“when charges such as these are contemplated, no expense should be spared in mentoring and assisting a defendant, who will need an experienced individual to guide him through the maze of criminal law and procedure. The defendant should have access to the very best legal team available and be able to access medical assistance to engage with the effect of the stress of operations, including being in mortal danger most of the time, and often in searing heat. This should all be at public expense.”
As soon as an individual comes under investigation, it appears that his colleagues are forbidden to contact him and he starts to feel isolated and abandoned. The defendant should have someone of experience from his own corps, regiment or service as a supporter he can rely upon. That supporter should be properly trained, independent and have access to the defendant at all times. As I said at Second Reading, the defendant will need the best legal team available. The Bar Council and the Law Society should be asked to co-operate with the Ministry of Defence in providing a list of suitably qualified and experienced barristers and solicitors, with their curricula vitae, to assist the defendant in his decision on who is going to represent him. The Ministry of Defence should liaise with the appropriate professional body to provide a list of experienced mental health professionals. These are just some of the steps that should be taken; others have been outlined by the noble Lord, Lord Dannatt, and other speakers. There will be more.
The Committee should bear in mind that these matters of culpability and responsibility are riven with difficulty. Soldiers engage in warfare not only for their country but for their comrades. They fight for their comrades and their comrades fight for them, often in the most appalling and hazardous conditions. Matters such as provocation should be gone into in great detail. We rightly respect, and have to comply with, the laws and conventions of war. Regrettably, some of our enemies do not. It would serve no useful purpose for me to give examples of some of the terrible atrocities that our troops have had to suffer. Suffice to say that the bonds between comrades forged by and in war are immensely strong.
Provocation is not the only factor to be borne in mind when determining culpability and responsibility. An individual’s state of mind will change when he is deployed on operation. He will have to be alert at all conscious times. He is in mortal danger most of the time and sleep is light and constantly disturbed. Sleep deprivation is one of the most mentally and physically debilitating conditions. The individual knows that he must keep going at all costs—he owes it to his comrades, and they owe it to him. The foregoing is the reason why I stated, at Second Reading, that I believed that
“there should be a duty on the Judge Advocate-General to bring the possibility of battle fatigue and diminished responsibility to the attention of the panel.” —[Official Report, 20/1/21; col. 1191.]
I look forward to hearing from the Minister in response to this debate, and in relation to matters I raised at Second Reading when I outlined changes that should be made to the system of courts martial. I appreciate that, on the latter matter, I will have to wait for a letter.
Lord Dodds of Duncairn (DUP) [V]
My Lords, I am very grateful for the opportunity to take part in this important debate. I thank the noble Lord, Lord Dannatt, and others for bringing forward Amendment 31 which would require the Government to
“establish a duty of care standard in relation to … support provided to service personnel”.
I believe that one of the most important duties of the state is to ensure that we do everything in our power to provide for the welfare and well-being of those who serve us all in the military and those who have served us in the past. That obligation also extends, of course, to their families. The recent move to give much greater statutory standing to the Armed Forces covenant, across the whole of the United Kingdom, is very welcome in that respect.
The amendment would create specific duties on the Government in relation to service personnel caught up in investigations and litigation on overseas operations. I have had the opportunity in recent times, in my capacity as a Member of Parliament, to meet with some of the ex-service men and women who have been involved in this type of case. Some of them spoke to me in the context of Operation Banner in Northern Ireland. This Bill clearly does not extend to that operation or to Northern Ireland and some of the issues relating to that were explored at Second Reading. We obviously listened carefully to the Minister’s comments during the passage of the Bill through this House and the other place and we look forward to legislation covering Northern Ireland very soon. I hope that the Minister can confirm that again today.
The experiences and feelings of the veterans that I spoke to in the context of Northern Ireland will mirror in many respects the concerns and anxieties of those who will be subject to investigation and litigation in respect of theatres overseas. It is the long process of investigation which causes most problems—a point that has been made by other noble Lords. Very often, those being investigated are elderly. The knock on the door, or the fear of the knock on the door, after many years out of service can be extremely upsetting and difficult to cope with. One spoke to me about his feelings of being very much alone, abandoned to his fate with no one to turn to, no one to whom he could really express his feelings or from whom he could seek sound advice. Those being investigated are suddenly plunged into a legal nightmare, with the potential for years of long, drawn out legal process.
I very much welcome the fact that the amendment talks about the duty of care standard in relation to legal as well as pastoral and mental health support. This is an extremely important aspect given the complexity of these cases and the passage of time. I also welcome the fact that the amendment covers civil as well as criminal claims and, for that matter, proceedings to do with judicial review. It is important that all these aspects are covered. There is a feeling that things are being looked at now with the benefit of hindsight and with the application of standards which were not applicable at the time.
There are often big financial implications. One person I spoke to cited a total lack of resources or capacity, compounded by ill-health, exacerbating the enormous stress and strain that had been inflicted on them and their family. One man who was undergoing very serious medical treatment was finding the financial as well as the medical implications very hard to bear. People feel extremely frustrated. There is understandable anger at the fact that they are being picked out or targeted in some way while, certainly in the case of Northern Ireland, many of those political voices championing prosecutions and investigations were themselves some of the biggest supporters of the abuse of human rights by terrorists and do not want any investigation into their nefarious activities.
Finally, the fact that the amendment covers the family of ex-servicemen and women and serving members of the military is also important. The families are vital and often feel the same level of stress and strain when such investigations are launched. I wish the amendment well and it has my full support.
Lord Faulks (Non-Afl) [V]
My Lords, I have considerable sympathy with what lies behind the amendment moved by the noble Lord, Lord Dannatt, and supported by the noble and gallant Lord, Lord Stirrup. I cannot help thinking that it is a great pity that it was felt necessary to table the amendment at all. The reason for it, however, is the way in which we as parliamentarians and the law generally have let the military down; that is, after all, what this legislation as a whole is about. For there to be an obligation to state a duty of care standard of the sort envisaged by the amendment is a woeful acknowledgement of that. I do not think there is any equivalent in relation to our duty towards the fire brigade, the police or the NHS. Things have come to a pretty poor pass where we as a House can find so much to sympathise with in this amendment.
However, a statement to the House about the duty of care and how the standard of that duty should be reflected can do no more than state what the law is. As the noble Lord, Lord Dodds, just pointed out, there are specific provisions to deal with litigation and investigation, civil as well as criminal, and judicial reviews. But all a statement would do was say what the state of the law was. Depending on the passage of this Bill, there may be some, little or no change to the existing state of the law. What has repeatedly come through our debates is what lies behind so much of the understandable discontent: these repeated and late investigations.
Baroness Smith of Newnham (LD) [V]
My Lords, like other noble Lords—and noble and gallant Lords—across the Chamber, I welcome the amendment, even if, like the noble Lord, Lord Faulks, I regret that it is necessary. As the noble and gallant Lord, Lord Stirrup, pointed out, it is in many ways necessary to try to deliver what the Minister said the Bill was intended to do, which is to demonstrate to all our service men and women, and veterans, that the MoD and the Government have their backs. The amendment seems to be delivering on the stated aims of the Bill in a way that much of the content of the Bill does not quite seem to do.
Perhaps I have misread the amendment and the noble Lord, Lord Faulks, has read it perfectly, but my reading of it is a little different from his. The first point is:
“The Secretary of State must establish a duty of care standard”.
It does not say, “The only purpose of this amendment is to write a report”; the report comes later. The really crucial thing is that the Secretary of State is to establish the “duty of care”; the annual reports are then supposed to look at certain things, but it is the duty of care itself that matters.
So the amendment does not say, “There’s got to be a report every year”—which, I agree, might look a bit like window-dressing. This really gives the opportunity for the Secretary of State—hopefully with advice from the leading members of the military and taking into consideration the evidence from the many organisations that have been lobbying the Government and Parliament over this Bill—to begin to ensure that we have an appropriate duty of care and that support is given to service men and women under investigation. As my noble friend Lord Burnett said in his powerful speech, there is a whole set of issues that might affect people acting overseas on operations that would not necessarily be the case when people are in normal circumstances.
So this is an important amendment. I very much hope that the Minister will be able, for once, to consider supporting an amendment. If she cannot, I hope that she can look for ways of delivering in the Bill the sort of support for our service men and women that is the intention of this amendment.
Lord Tunnicliffe (Lab) [V]
My Lords, we stand four-square behind our troops and, therefore, four-square behind Amendment 31. We want to work with government and colleagues from across the House to get this legislation right. Our country owes a huge debt to our service personnel, yet many have not got the pastoral, mental and well-being support that they require when it is most needed.
Troops and their families who have been through the trauma of these long-running investigations have too often felt cut adrift from their chain of command and the Ministry of Defence. As the noble Lord, Lord Dannatt, said, this gap was clearly identified by multiple people in Committee in the other place, but it has not been identified in the Bill.
When asked if the MoD had offered any support when he was facing eight criminal charges, Major Campbell said: “No, there was none”. General Sir Nick Parker said that
“one of the key things that we have to do is to produce mechanisms that establish a really effective duty of care for those who are placed under the spotlight by malicious claims.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 96.]
He stated that, as drafted, the Bill does not do this.
When asked if the MoD does enough to provide a duty of care to those service personnel who go through investigations and litigations, BAFF executive council member Douglas Young said:
“In our opinion, the answer is no ... we are simply appalled by the experiences of some people who have absolutely been through the wringer for many years.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 5.]
Lieutenant Colonel Chris Parker said that there was certainly a need for
“a broad duty of care with some resourcing for the impact on families and the individuals themselves … It is something that the MoD would have to bring in.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 108.]
The MoD has let down too many personnel with a lack of pastoral, mental health and legal support when they face investigations and pursue rightful compensation. For every member of the Armed Forces who does not receive the proper support and advice during an investigation or litigation, it is not only sad but a failure of the MoD’s responsibility to its employees. We cannot deny that the MoD has lost trust among our brave service personnel, and a statutory duty of care, with regular reporting to Parliament, is a key step in rebuilding that trust. Only then will personnel have the confidence that the MoD will be on their side and support them through the difficulties and stress of an investigation or litigation.
We owe it to our excellent Armed Forces to do better. The MoD owes it to them to provide a statutory duty of care standard for legal, pastoral and mental health support, and that is why we strongly support this amendment.
Baroness Goldie (Con)
My Lords, this has been an important debate, and I want to thank the noble Lord, Lord Dannatt, for his careful presentation of his amendment, which covers a very important issue. I also thank him for his supportive commentary on the Bill.
Amendment 31 proposes that the Ministry of Defence should establish a “duty of care standard” for current and former service personnel and, where appropriate, their families, and that the Secretary of State should be required to report on this annually. I have looked at the specific components of the amendment, and I hope that I may be able to provide some reassurance to the noble Lord and those other noble Lords who raised genuine concerns.
I start by saying that we take extremely seriously our duty of care; the noble Baroness, Lady Smith of Newnham, rightly identified that important component of how the MoD deals with its personnel. We do take it extremely seriously; we have a duty of care to our personnel, and pastoral and practical support will always be available to them. In particular, veterans of events that happened a long time ago may have particular support requirements and concerns, in which case we can put in place special arrangements for them.
The noble and gallant Lord, Lord Stirrup, spoke eloquently about the effect on personnel of repeated investigations and accusations, as did the noble Lord, Lord Dodds of Duncairn, my noble friend Lord Faulks and, just recently, the noble Lord, Lord Tunnicliffe. We have a responsibility to take reasonable care to ensure the safety and well-being of our personnel.
I covered the comprehensive legal support that we already provide to service personnel and veterans in relation to legal proceedings during our previous debate, so I will not repeat them here. I noted that the noble Lord, Lord Burnett, was rightly concerned about such provision, but I trust that, if he looks at the remarks that I made in the earlier debate, he may feel reassured.
In terms of mental health, welfare and pastoral care, a range of organisations are involved in fulfilling the needs of personnel, which will vary according to individual need and circumstance. The potential impact of operations on a serviceperson’s mental health is well recognised; the noble Lord, Lord Burnett, spoke powerfully about that. There are policies and procedures in place to help manage and mitigate these impacts as far as possible.
Despite the clear processes for categorising personnel as medically suitable for deployment, it is recognised that an operational deployment can result in the development of a medical or psychiatric condition. Therefore, specific policy and mandated processes exist for the management of mental health and well-being before, during and after deployment. These provide overarching direction on the provision of deployment-related mental health and well-being, with briefings designed to provide enough information about deployment-related mental ill-health to allow individuals, peers and family members to take steps to avoid such an outcome, to recognise the early signs of mental ill-health and to facilitate help-seeking from the right source at the right time.
We also regularly seek opinions from Armed Forces personnel and their families about the level of support. It is important to refer to that, because the MoD is not operating in some kind of vacuum; we actually have very good communication strands with our Armed Forces personnel, and I will cover a number of them. The Armed Forces continuous attitude survey—AFCAS—is an annual survey of a random sample of service personnel. The 2021 survey was conducted from September 2020 to February of this year, and the results are due to be published in May. There are no specific questions relating to legal proceedings, but questions related to welfare support are asked.
Within the welfare section of the survey, questions are asked on satisfaction with the welfare support provided by the service for both the serviceperson and their family, as well as the support that the serviceperson’s spouse or partner receives while the serviceperson is absent. Questions are also asked about operational deployment welfare package for service personnel.
Questions on satisfaction levels with the variety of welfare support systems in place are also asked, with the list unique to each service—for example, families federations, welfare teams, officers, community support teams, et cetera. Further questions within the deployment section ask for satisfaction levels with welfare support received by both service personnel and their families when the serviceperson returns from their last operational deployment. We also have the annual families continuous attitudes survey—FAMCAS—for the spouses and civil partners of service personnel. It is in field from January to April and the 2021 report is scheduled for release in July. Again, there are no specific questions on legal support.
Lord Dannatt (CB) [V]
My Lords, I thank all noble Lords and noble and gallant Lords who have taken part in this debate for their helpful contributions. At the heart of Amendment 31 is a simple issue: to get back to the original purpose of the overseas operations Bill, which is to better protect our servicepeople against a recurrent, extensive and vexatious series of investigations. The intent behind the amendment to ask the Secretary of State to lay down a duty of care is to answer some of the questions that I put in my opening speech. How many times is it reasonable for someone to be investigated and over what period? What should the attitude of the chain of command be?
I am grateful to the noble Baroness, Lady Goldie, for her response to the debate but, with the greatest respect to her, its principal part was to list the wider welfare provision for the Armed Forces provided by the Ministry of Defence and service charities. I know all that; I was head of my service through difficult times. With Bryn Parry, I co-founded Help for Heroes. I know what we are trying to do but, with the greatest respect, that part of the speech of the noble Baroness, whom I admire enormously, misses the point behind this amendment, which is simply to lay down a duty of care to bring to an end these recurrent, vexatious and almost unending—in Major Campbell’s case, there were eight—investigations.
I am grateful for the support that has been voiced for this amendment by the noble and gallant Lord, Lord Stirrup, and on behalf of the noble and gallant Lord, Lord Boyce. Both are former Chiefs of the Defence Staff and each is a former head of the Royal Navy or the Royal Air Force. Bear in mind that I am a former head of the Army. I am grateful for the support that has come from Members of all political parties in this House, but I am deeply disappointed that the Minister does not see the opportunity that this amendment poses. It gives the Ministry of Defence an opportunity to say, in simple and plain terms, how it can solve the problem of incessant vexatious investigations.
I regret that I decided not to press this amendment to a Division at this stage. I note that the Minister did not invite me to have further conversations with her, with her officials or with Johnny Mercer, the Minister for Defence People and Veterans. If she wishes to extend that invitation, I will gladly accept it. But I am quite certain that, with the support of the representatives of the armed services who have spoken and from all political parties, we will return to this on Report. If I do not feel that we have reached satisfaction in getting to the nub of the purpose of the Bill, which I have repeated several times, we will press this to a Division on Report. In advance of that, I beg leave to withdraw this amendment at this stage.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group consisting of Amendment 32. Anyone wishing to press this amendment to a Division must make that clear in debate.
Amendment 32
Lord Browne of Ladyton
“Liability for using novel technologies: review
(1) Within 3 months of this Act being passed, the Secretary of State must commission a review of the implications of increasing autonomy associated with the use of artificial intelligence and machine learning, including in weapons systems, for legal proceedings against armed forces personnel that arise from overseas operations, and produce recommendations for favourable legal environments for UK armed forces operating overseas, including instilling domestic processes and engaging in the shaping of international agreements and institutions.(2) The review must consider—(a) what protection and guidance armed forces personnel need to minimise the risk of legal proceedings being brought against them which relate to overseas operations in response to novel technologies,(b) how international and domestic legal frameworks governing overseas operations need to be updated in response to novel technologies, and(c) what novel technologies could emerge from the Ministry of Defence and the United Kingdom's allies, and from the private sector, which could be used in overseas operations.(3) Within the period of one year beginning on the day on which the review is commissioned, the Secretary of State must lay a report before Parliament of its findings and recommendations.”
Lord Browne of Ladyton (Lab) [V]
My Lords, Amendment 32 stands in my name and in the names of the noble and gallant Lord, Lord Houghton of Richmond, and the noble Lord, Lord Clement-Jones. It raises a very different matter from those with which we have been dealing until now in Committee. At first sight, the amendment may appear out of place in this Bill. I hope, however, to persuade your Lordships that, far from being irrelevant, it is directly relevant to many personnel who are, or will be, engaged in overseas operations, and that the numbers of those to whom it is relevant will only increase.
The amendment focuses on the protection and guidance that Armed Forces personnel need to ensure that they comply with the law, including international humanitarian law; the best way of minimising the risk of legal proceedings being brought against them; and explaining how international and domestic legal frameworks need to be updated. These are all as a consequence of the use of novel technologies which could emerge from or be deployed by the Ministry of Defence, UK allies or the private sector. In this day and age, the private sector is often deployed with our Armed Forces in overseas operations as part of a multinational force.
The amendment imposes an obligation on the Secretary of State, within three months of the passing of this Act, to commission a review of the relevant issues; sets out what that review must consider; and obliges the Secretary of State, within a year of the date from which it is commissioned, to lay a report before Parliament of its findings and recommendations.
It is remarkable that almost all the debate in Committee so far—both on the first day and today—has been about deployment of military force and the risk to which it exposes our forces, based on past experience. Little or no mention has been made of the changing face of war. I may have missed it, but I cannot recollect any mention being made of that element.
We often criticise armies who train “to fight the last war”. The real problem, however, is that training is based on mistaken notions of what the next war will be like. We have a fair idea of what a future conflict will be like, so we should not be a victim to that mistaken notion. I can easily think of a relatively straightforward current example of modern warfare which encapsulates the challenges that will be generated for our military.
The provisions of Clause 1(3) set out that the presumption against prosecution applies only in respect of alleged conduct which took place outside the British Isles and when the accused was deployed in overseas operations. If a UAV operator works from a control room here in the UK, in support of troops on the ground in a country beyond the British Isles, are they deployed on overseas operations for the purposes of this legislation? Is their conduct taking place beyond the British Isles? Consequently, are the protections afforded by this legislation offered to them? How can this legislation for overseas operations be kept up to date with the blurring of lines between what is and is not the battlefield, without provisions of this nature being made in the Bill?
On the face of it, these may appear simple questions, but I expect the answers are complex. At some time in the future, it is at least possible that a court will disagree with an answer given by a Minister today.
Next week, the integrated review will finally be published. This is the third defence and security review since 2010. It promises to be forward facing, recognising both current and future threats against the UK and describing the capabilities that will need to be developed to deter or engage them.
When the Prime Minister made his Statement on the review last November, he said that
“now is the right time to press ahead”—
with a modernisation of the Armed Forces, because of
“emerging technologies, visible on the horizon.”—[Official Report, Commons, 19/11/20; col. 488.]
The CGS, General Sir Mark Carleton-Smith, recently said that he foresees the army of the future as an integration of “boots and bots”. The Prime Minister has said that the UK will invest another £1.5 billion in military research and development designed to master the new technologies of warfare, and establish a new centre dedicated to AI. He rightly stated that these technologies would revolutionise warfare, but the Government have not yet explained how legal frameworks and support for personnel engaged in operations will also change—because change they must.
Lord Clement-Jones (LD) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Browne of Ladyton, in supporting his Amendment 32, which he introduced so persuasively and expertly. A few years ago, I chaired the House of Lords Select Committee on AI, which considered the economic, ethical and social implications of advances in artificial intelligence. In our report published in April 2018, entitled AI in the UK: Ready, Willing and Able?, we addressed the issue of military use of AI and stated:
“Perhaps the most emotive and high-stakes area of AI development today is its use for military purposes”,
recommending that this area merited a “full inquiry” on its own. As the noble Lord, Lord Browne of Ladyton, made plain, regrettably, it seems not yet to have attracted such an inquiry or even any serious examination. I am therefore extremely grateful to the noble Lord for creating the opportunity to follow up on some of the issues we raised in connection with the deployment of AI and some of the challenges we outlined. It is also a privilege to be a co-signatory with the noble and gallant Lord, Lord Houghton, who too has thought so carefully about issues involving the human interface with technology.
The broad context, as the noble Lord, Lord Browne, has said, is the unknowns and uncertainties in policy, legal and regulatory terms that new technology in military use can generate. His concerns about complications and the personal liabilities to which it exposes deployed forces are widely shared by those who understand the capabilities of new technology. That is all the more so in a multilateral context where other countries may be using technologies that we would either not deploy or the use of which could create potential vulnerabilities for our troops.
Looking back to our report, one of the things that concerned us more than anything else was the grey area surrounding the definition of lethal autonomous weapon systems—LAWS. As the noble Lord, Lord Browne, set out, when the committee explored the issue, we discovered that the UK’s then definition, which included the phrase
“An autonomous system is capable of understanding higher-level intent and direction”,
was clearly out of step with the definitions used by most other Governments and imposed a much higher threshold on what might be considered autonomous. This allowed the Government to say:
“the UK does not possess fully autonomous weapon systems and has no intention of developing them. Such systems are not yet in existence and are not likely to be for many years, if at all.”
Our committee concluded that, in practice,
“this lack of semantic clarity could lead the UK towards an ill-considered drift into increasingly autonomous weaponry.”
This was particularly in light of the fact that, at the UN Convention on Certain Conventional Weapons group of governmental experts in 2017, the UK opposed the proposed international ban on the development and use of autonomous weapons. We therefore recommended that the UK’s definition of autonomous weapons should be realigned to be the same or similar with that being used by the rest of the world. The Government, in their response to the report of the committee in June 2018, replied that:
“The Ministry of Defence has no plans to change the definition of an autonomous system.”
They did say, however,
“The UK will continue to actively participate in future GGE meetings, trying to reach agreement at the earliest possible stage.”
Later, thanks to the Liaison Committee, we were able on two occasions last year to follow up on progress in this area. On the first occasion, in reply to the Liaison Committee letter of last January which asked,
“What discussions have the Government had with international partners about the definition of an autonomous weapons system, and what representations have they received about the issues presented with their current definition?”
The Government replied:
“There is no international agreement on the definition or characteristics of autonomous weapons systems. Her Majesty’s Government has received some representations on this subject from Parliamentarians”.
They went on to say:
“The GGE is yet to achieve consensus on an internationally accepted definition and there is therefore no common standard against which to align. As such, the UK does not intend to change its definition.”
So, no change there until later in the year in December 2020, when the Prime Minister announced the creation of the autonomy development centre to,
“accelerate the research, development, testing, integration and deployment of world-leading AI,”
and the development of autonomous systems.
In our follow-up report, AI in the UK: No Room for Complacency, which was published in the same month, we concluded:
“We believe that the work of the Autonomy Development Centre will be inhibited by the failure to align the UK’s definition of autonomous weapons with international partners: doing so must be a first priority for the Centre once established.”
The response to this last month was a complete about-turn by the Government, who said:
“We agree that the UK must be able to participate in international debates on autonomous weapons, taking an active role as moral and ethical leader on the global stage, and we further agree the importance of ensuring that official definitions do not undermine our arguments or diverge from our allies.”
They go on to say:
“the MOD has subscribed to a number of definitions of autonomous systems, principally to distinguish them from unmanned or automated systems, and not specifically as the foundation for an ethical framework. On this aspect, we are aligned with our key allies. Most recently, the UK accepted NATO’s latest definitions of ‘autonomous’ and ‘autonomy’, which are now in working use within the Alliance. The Committee should note that these definitions refer to broad categories of autonomous systems, and not specifically to LAWS. To assist the Committee we have provided a table setting out UK and some international definitions of key terms.”
Baroness Chakrabarti (Lab) [V]
My Lords, I can only commend my noble friend Lord Browne of Ladyton and the noble Lord, Lord Clement-Jones, on two of the most powerful, if terrifying, contributions to this Bill’s proceedings so far. In particular, I shall be having nightmares about their projections for the potential dissonance between varying international approaches to the definition of autonomous weapons and the way in which their deployment and development matches, or does not match, traditional approaches to humanitarian law.
Regarding the Bill, my noble friend has a very good point. He makes a specific observation about the fact that a drone operator in the UK will suffer many of the traumas and risks of a traditional soldier in the field but, on the face of it, that is not covered by this legislation at all. I look forward to the Minister’s response to that in particular, but also to the broader questions of risk—not just legal risk in a defensive way to our personnel but ethical and moral risk to all of us. In this area of life, like every other, the technology moves apace, but the law, politics, transparency, public discourse and even ethics seem to be a few paces behind.
Lord Houghton of Richmond (CB) [V]
My Lords, I am delighted to follow on from the noble Baroness, Lady Chakrabarti, who always seems to be a great source of common sense on complex moral issues. I am similarly delighted to support the amendment in the name of my one-time boss, the noble Lord, Lord Browne of Ladyton. I will not seek to repeat his arguments as to why this amendment is important, but rather to complement his very strong justification with my own specific thoughts and nuances.
I will start with some general comments on the Bill, as this is my only contribution at this stage. At Second Reading I made my own views on this Bill quite clear. I felt that it missed the main issues regarding the challenges of Lawfare. Specifically, I felt that the better route to reducing the problem of vexatious claims was not through resort to legal exceptionalism, but rather rested on a series of more practical measures relating to such things as investigative capacity, quality and speed; better training; improved operational record keeping; more focused leadership, especially in the critical area of command oversight; and a greater duty of care by the chain of command. On this latter, I wholly support the amendment of my noble friend Lord Dannatt.
Having listened to the arguments deployed in Committee, I am struck by the seeming inability of even this sophisticated Chamber to reach a common view as to whether the many provisions of this Bill offer enhanced protections or increased perils for our servicemen and women. This causes me grave concern. How much more likely is it that our servicemen and women—those whose primary desire is to operate within the law—will be confused; and how much more likely is it that are our enemies—those who want to exploit the law for mischief—will be encouraged?
I hold to the view that the law, in any formulation, cannot be fashioned into a weapon of decisive advantage in our bid to rid our people of vexatious claims. Rather, the law will increasingly be exploited by our enemies as a vector of attack, both to frustrate our ability to use appropriate force and to find novel ways of accusing our servicemen and women of committing illegal acts. The solution to this problem is a mixture of functional palliatives and better legal preparedness. This amendment addresses one element of this preparedness.
As we have already heard, one area of new legal challenge will undoubtedly be in the realm of novel technologies, particularly those which employ both artificial intelligence and machine learning to give bounded autonomy to unmanned platforms, which in turn have the ability to employ lethal force. We are currently awaiting the imminent outcome of the integrated review, and we understand that a defence command paper will herald a new era of technological investment and advancement: one that will enable a significant reduction in manned platforms as technology permits elements of conflict to be subordinated to intelligent drones and armed autonomous platforms.
However—and this is the basic argument for this amendment—the personal liability for action in conflict to be legal will not cease, although it may become considerably more opaque. We must therefore ask whether we have yet assessed the moral, legal, ethical and alliance framework and protocols within which these new systems will operate. Have we yet considered and agreed the command and control relationships, authorities and delegations on which will rest the legal accountability for much new operational activity?
Personally, I have a separate and deep-seated concern that a fascination with what is technically feasible is being deployed by the Government, consciously or unconsciously, primarily as the latest alchemy by which defence can be made affordable. It is being deployed without properly understanding whether its true utility will survive the moral and legal context in which it will have to operate. I therefore offer my full support to this amendment, in the hope that it will assist us in getting ahead of the problem. The alternative is suddenly waking up to the fact that we have created Armed Forces that are both exquisite and unusable in equal measure.
Lord Tunnicliffe (Lab) [V]
My Lords, I thank my noble friend Lord Browne, the noble Lord, Lord Clement-Jones, and the noble and gallant Lord, Lord Houghton, for bringing forward this important amendment and debate. I understand my noble friend Lord Browne’s concerns about the mismatch between the future-focused integrated review, which has had long delays but will be hopefully published next week, and the legislation we have in front of us.
Technology is not only changing the kinds of threats we face but changing warfare and overseas operations in general. In Committee in the other place, Clive Baldwin of Human Rights Watch neatly summed this up by suggesting that
“we are seeing a breakdown in what is the beginning and the end of an armed conflict, what is the battlefield and what decisions are made in which country … The artificial distinction of an overseas operation with a clear beginning, a clear theatre and a clear end is one that is very much breaking down.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 67.]
How is this reflected in the Bill?
When the Prime Minister gave his speech on the integrated review last year, he rightly said that “technologies …will revolutionise warfare” and announced a new centre dedicated to AI and an RAF fighter system that will harness AI and drone technology. This sounds impressive but, as my noble friend Lord Browne said, as military equipment gets upgraded, we do not know how the Government plan to upgrade legal frameworks for warfare and what this means in terms of legal protection for our troops.
We must absolutely tackle vexatious claims and stop the cycle of reinvestigations, but how will claims against drone operators or personnel operating new technology be handled? Do those service personnel who operate UAVs not deserve to be protected? And how will legal jeopardy for our troops be avoided?
As new technology develops, so too must our domestic and international frameworks. The final report of the US National Security Commission on Artificial Intelligence stated that the US commitment to international humanitarian law
“is longstanding, and AI-enabled and autonomous weapon systems will not change this commitment.”
Do the Government believe the same?
I would also like to highlight the serious impact on troops who might not be overseas, but who are operating drones abroad. A former drone pilot told the Daily Mirror:
“The days are long and hard and can be mentally exhausting. And although UAV pilots are detached from the real battle, it can still be traumatic, especially if you are conducting after-action surveillance.”
The RUSI research fellow Justin Bronk also said that, as drone operators switched daily between potentially lethal operations and family life, this could be extremely draining and psychologically taxing. What mental health and pastoral support is given to these troops currently? Drone operators may not be physically overseas, but they are very much taking part in overseas operations. With unmanned warfare more common in future conflicts, I would argue that failing to include those operations in the Bill may cause service personnel issues down the line.
I would like to hear from the Minister how this legislation will keep up to date with how overseas operations operate, and whether she is supportive of a review along the lines of Amendment 32—and, if not, why not?
Baroness Goldie (Con)
My Lords, first, I thank the noble Lord, Lord Browne of Ladyton, for tabling this amendment, which is fascinating and raises substantial issues. One only had to listen to the informed but very different contributions from the noble Lord himself, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Chakrabarti, then to a different perspective from the noble and gallant Lord, Lord Houghton of Richmond, and, finally, the noble Lord, Lord Tunnicliffe, to get a flavour of both the depth and the technical complexity of these issues.
There is no doubt that the increasing adoption of new and innovative technologies on the battlefield is changing how military operations are conducted. Gone are the three domains; we are now in the five domains. Military effects can now be delivered in cyberspace, and precision weapons systems can now be operated remotely from the UK and from third countries. I appreciate that the noble Lord, Lord Browne of Ladyton, is motivated by a genuine interest in these new technologies, how they influence military operations and the implications for our Armed Forces personnel involved in overseas operations—and that is an important question to ask.
Lord Browne of Ladyton (Lab) [V]
My Lords, I thank the Minister, for whom I have as much respect and regard as anyone else in this debate. She has been showered with this compliment throughout the whole course of this Committee—quite rightly, in my view. I welcome her invitation to a meeting as much as I welcome the undertaking she has given to write to answer the many questions that have been posed to her. I look forward to all of that information.
I say at the outset that whether it is appropriate for this Bill to contain a provision of this nature should be tested against the proxy question I asked, which is whether a UAV operator in this country controlling a UAV or a drone over another country in an overseas operation is covered by the provisions of this Bill. If that cannot be answered in the affirmative, it is appropriate to do exactly what has been proposed in Amendment 32, if not in this fashion then somehow before this Bill becomes law, because we are asking and will continue to ask people to operate machinery in that way and we should not expose them to risks that others are not exposed to. This amendment seeks to future-proof this Bill. It expects the Government not to have all the answers now but to carry out a review of the implications of the increasing autonomy associated with AI and machine learning for legal proceedings against Armed Forces personnel arising from overseas operations.
I thank all noble Lords and noble and gallant Lords who spoke in this debate. I thank the noble Lord, Lord Clement-Jones, who has an enviable reputation, well deserved, for understanding one of the most difficult issues that face our country for the future, and in the security and military environment in particular; that is, artificial intelligence and autonomous weapon systems of machine learning. His contribution was full of rich information about the nature of the challenges we face, and I thank him for his support for this amendment.
I thank my noble friend Lady Chakrabarti for her support, and I am grateful that she suggested, or perhaps implied, that my interpretation of the Bill as it stands is probably correct. I am reinforced in my desire to see this through because of her support. The noble and gallant Lord, Lord Houghton of Richmond, in his own characteristic way, made a clear argument for engagement with these issues. He has a record of service to our country, an experience which has informed his advice to your Lordships’ House. I would be interested to explore further with him his conclusion that we may end up with forces that are exquisite and unusable in equal measure.
My noble friend Lord Tunnicliffe clearly understands this issue and shared with the Committee on a human level why this matter is important. In a sense, the test that he set for the Minister is a test that she has set herself: that this legislation must deliver on the Government’s policy intention to reassure service personnel in the event they are deployed. It will not do so unless these issues are dealt with properly and openly, so that those whom we send on these operations and engage with understand our appreciation of the legal implications.
I will seek leave to withdraw this amendment, but I warn the Minister that it may come back again—maybe in a slightly different form—at the later stages of this Bill. I also warn her this is but a preface to an issue that will come back before the Government in this form and other forms—that is, debates in this House—because this is going to be the reality of our security and military operations of the future. I say as a caution to her that the committee report that both I and the noble Lord, Lord Clement-Jones, referred to is almost 800 pages long. This is a complicated and difficult subject. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
We now come to the group beginning with Amendment 34. Anyone wishing to press this, or anything else in this group, to a Division must make that clear in debate.
Clause 13: Power to make consequential provision
Amendment 34
Lord Craig of Radley
“( ) In particular, regulations may amend the Armed Forces Act 2006 for the purpose of consolidating the provisions of Part 1 and this section in that Act.”
Lord Craig of Radley (CB) [V]
My Lords, I will speak to Amendment 34. The noble and gallant Lord, Lord Boyce, is a co-signatory and supporter of this amendment, but he had a clinical appointment that could not be changed.
What is immediately striking about the Bill is that it is an amending Bill to others for limitations and for the Human Rights Act, but it does not attempt to amend the overarching Armed Forces Act, though I believe that with a little ingenuity in drafting it could be done. In my amendment, I have suggested a post-enactment approach, because it would have been complicated to attempt to rewrite the first part of the Bill in a series of amendments. The reason for my approach is, of course, to bring all legislative matters of direct import for, and impact on, Her Majesty’s Armed Forces under the cover of the Armed Forces Act.
I have been advocating this approach for many years, going back to the problems that have arisen of conflicting legislation for the Armed Forces in their Acts and the Human Rights Act 1998. When that was being debated, I urged, without success, that human rights matters that the Armed Forces must follow were spelled out in their own legislation. Subsequently, I ensured that the Armed Forces covenant received its own part in the Armed Forces Act. Other legislation of direct impact on the Armed Forces and their discipline has been incorporated, in addition to the melding together of the three single-service discipline Acts into the current Armed Forces Act 2006.
As the services get smaller and are liable to be engaged in operations, their legislation under the umbrella of one Act not only makes for tidier legislation but enables those who have to live under and operate the laws that govern the Armed Forces, and to produce manuals of service law to guide individual commanders, to have a much easier task. Certainly for the particular topic of overseas operations, there is a cast-iron case for the relevant content of this Bill to be part of the Armed Forces Act 2006, just as the clauses on limitations and human rights are transcribed to the appropriate Acts.
This a probing amendment, but I am hoping for an acknowledgment of the benefit that this would bring. I beg to move.
Lord Lancaster of Kimbolton (Con)
My Lords, I remind the Committee of course of my interests and say what a pleasure it is to follow the noble and gallant Lord, Lord Craig of Radley. He makes a very important point, which is tied to some of the points I am making, about how there has been, at times, an inconsistency in the way that we have dealt with defence matters through a series of different Acts. He made the powerful point that potentially it would help if we were to bring them together into a single Act.
I will speak to the very simple amendment in my name, which seeks to extend the territorial application of the Bill to include the Crown dependencies and overseas territories. In much the same vein as the amendment in the name of the noble and gallant Lord, Lord Craig, this would align the Bill with the Armed Forces Act, which this Bill references throughout. The Bill currently applies to a member of the regular or reserve forces, or a member of a British Overseas Territory force, as defined by Section 369(2) of the Armed Forces Act 2006, but it does not extend to the territories themselves. This creates ambiguity in its application and my amendment seeks to remove this. I am grateful to my noble friend the Minister for writing to me since I tabled this amendment. Her letter, a copy of which she has placed in the Library, addresses some, but not all, of my concerns.
I will take a moment to explain why this inconsistency concerns me. It stems, frankly, from a mistake I made as the Minister responsible for taking the last update of the Armed Forces Act through Parliament in 2016. At the time, I questioned why the territorial extent of the Bill applied to all overseas territories and Crown dependencies with the exception of Gibraltar. I was told that Gibraltar wanted to pass its own mirroring legislation and that officials did not anticipate a problem.
Baroness Chakrabarti (Lab) [V]
Noble Lords will forgive me for not having discovered the letter to which the noble Lord, Lord Lancaster of Kimbolton, just referred. My only brief observation on his concerns is my own concern that the Bill relates to access to justice in the courts of the jurisdictions to which it extends. I ask only that perhaps the Minister might, in her reply, indicate the extent to which the jurisdictions to which the amendment refers—the overseas territories, the Channel Islands and the Isle of Man—have been consulted about their wishes with regard to these significant changes to the rule of law extending to their legal systems as well. As this is, I believe and hope, the last group today, I want to record my thanks to all noble Lords but to the Minister in particular for her patience and forbearance in the lengthy but important consideration of all these amendments.
Baroness Smith of Newnham (LD) [V]
My Lords, both these amendments are important but quite different. They come together as a final hurrah for the Committee stage of the Bill. Amendment 34, in the names of the noble and gallant Lords, Lord Craig of Radley and Lord Boyce, makes perfect sense as a tidying-up measure. As I understand it, we are expecting the next Armed Forces Bill after Prorogation, which would become the 2021 Armed Forces Act. I wonder whether the Minister could indicate whether that would be the time to bring together all relevant legislation on the Armed Forces. Assuming that the Bill that we are debating at the moment is passed—I hope, in a seriously amended form—it may be appropriate to put it within the purview of the 2021 Armed Forces Act.
Beyond that, I had initially thought that the British Overseas Territories, the Isle of Man and other places seemed slightly tangential. The noble Lord, Lord Lancaster, made it absolutely clear why that amendment is so important. On Monday evening, I was speaking to officer cadets at Sandhurst about the challenges of leadership in civilian life. I cited, from my time in local government, the dangers of being a new executive officeholder—equivalent to being a Minister—listening to what officials say. Saying “We consider this situation very unlikely to arise” is not something that a Minister or elected politician should necessarily listen to. I hope that the Minister listens to the noble Lord, Lord Lancaster, and considers this amendment carefully.
As the noble Baroness, Lady Chakrabarti, pointed out, this appears to be the last group of amendments in Committee. Like her, I thank the Minister, her noble and learned colleague on the Front Bench and other noble Lords for participating. I look forward to the next stages of the Bill.
Lord Tunnicliffe (Lab) [V]
My Lords, I do not know whether it was a sense of exhaustion but, until the noble and gallant Lord, Lord Craig, and the noble Lord, Lord Lancaster, set out what their amendments meant, I did not fully understand them. I understand them a little better now, and we will give them consideration. The noble Baroness, Lady Smith of Newnham, said that they may find a better home in the 2021 Armed Forces Act. The Minister may give an indication of whether that is sensible.
As this is the last group, I will use it to ask this of the Minister. She has committed to writing a positive library of letters; it would help if she could copy them electronically to all noble Lords who have taken part in Committee so that we can all share her wisdom. With that, I thank her and her colleagues, and all noble Lords, for making this a civilised and thoughtful debate over the last two days.
Baroness Goldie (Con)
I thank your Lordships for your kind comments and the noble Lord, Lord Tunnicliffe, for his helpful and kind observation. Yes, I will undertake to distribute electronically any letters that have been copied to the Library. I am sorry if that was overlooked and it would have helped him and the noble Baroness, Lady Smith, to be aware of the correspondence that I have entered into.
The amendment of the noble and gallant Lord, Lord Craig of Radley, seeks to consolidate the provisions found in Part 1 of the Bill into the Armed Forces Act 2006. I quite accept that, while consolidation can have real and practical benefits for those who work with the law by making the statute book more accessible, there are many significant factors to consider before drawing together different legislation into a single Act.
One of the principle considerations has to be whether the law concerned is suitable for consolidation into a particular Act. The Armed Forces Act 2006 established a single system of service law that applies to the personnel of all three services, wherever in the world they are operating. It covers matters such as offences, the powers of the service police and the jurisdiction and powers of commanding officers and the service courts, particularly the courts martial.
In contrast to the Armed Forces Act 2006, Part 1 of the Overseas Operations (Service Personnel and Veterans) Bill covers matters relating to the wider civilian criminal justice system and is about decisions made by territorial prosecutors. As we are all now aware, the intent of the Bill is to bring in measures to help reduce the uncertainty faced by our service personnel and veterans in relation to historic allegations and claims arising from overseas operations. For that reason, it is more appropriate to have it as a standalone Act; I feel that that makes clearer the issues to which it is directed and that it seeks to address.
I also observe that, as we are aware, the procedure for the Armed Forces Act is one of regular renewal: a quinquennial renewal by Parliament and, in the interim years, a renewal by a statutory instrument. A consolidation of Bills could make that renewal much more complex, and we have to be cognisant of the implications of that because the last thing that any of us wants is to obstruct or make more obtuse, in any sense, legislation that we believe in—I know that there is universal support for the Armed Forces Act, and I have always enjoyed the renewal debates. We want to make sure that we are keeping our issues clearly distinct and encompassed within appropriate statutes, so that there is a clear identification of what it is that these individual Acts are trying to do.
The noble and gallant Lord, Lord Craig of Radley, has been committed to this objective, and he has been very determined in bringing the matter before your Lordships’ House. I hope that, by my explaining the genuine difficulties and challenges that I anticipate would accompany such consolidation, he will understand that there is more to this than meets the eye. In these circumstances, I trust that he would be prepared to withdraw his amendment.
I will move on to Amendment 35, in the name of my noble friend Lord Lancaster of Kimbolton. It seeks to extend the territorial extent of the Bill to the Isle of Man, the Channel Islands and overseas territories, thereby mirroring the territorial extent of the Armed Forces Act 2006. I know that this is a matter of some importance to my noble friend, and, as he indicated, I have written to him to respond to his concerns about the territorial extent of the Bill. However, I am grateful that he has tabled this amendment because it gives me the opportunity to address this issue with your Lordships.
I say to my noble friend and, in turn, reassure the noble Baronesses, Lady Chakrabarti and Lady Smith—whom I thank for their very kind comments; at this stage in the day, the Minister gets weary and such encouragement is very much appreciated—and all noble Lords that careful consideration has been given to the ways in which the Bill will impact on the British Overseas Territory forces. Some legal background might assist with this.
Lord Craig of Radley (CB) [V]
My Lords, I thank the noble Lord, Lord Lancaster, the noble Baroness, Lady Smith of Newnham, and the noble Lord, Lord Tunnicliffe, for their support for my probing amendment. At the close of two heavy days in Committee, this is not of prime importance in the spread of amendments, but the Bill does offer an opportunity to press for this as a default approach to legislation for the Armed Forces.
I also thank the Minister and will look very closely at what she said in defence of the current arrangements. She raised one point which could be argued both ways when she referred to the fact that the Armed Forces Act has a quinquennial review. It seems to me that these overseas operations would very much benefit from some form of review. Several amendments in the course of the last two days have suggested a review process for this Bill, however it eventually turns into legislation.
I conclude by thanking the Minister again for her considered approach, which I will study very closely. In the meantime, I beg leave to withdraw the amendment.
Overseas Operations (Service Personnel and Veterans) Bill
Tuesday 13th April 2021
(3 years ago)
Lords ChamberRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 147-R-I Marshalled list for Report - (8 Apr 2021)
16:30 - Division conducted remotely on Amendment 3 - Ayes: 333 / Noes: 228 - Amendment 3 agreed.
16:46 - Division conducted remotely on Amendment 6 - Ayes: 308 / Noes: 249 - Amendment 6 agreed.
18:35 - Division conducted remotely on Amendment 13 - Ayes: 300 / Noes: 225 - Amendment 13 agreed.
19:49 - Division conducted remotely on Amendment 14 - Ayes: 303 / Noes: 223 - Amendment 14 agreed.
Lord Tunnicliffe
“Ability to conduct a fair trial
The principle referred to in section 1(1) is that a relevant prosecutor making a decision to which that section applies may determine that proceedings should be brought against the person for the offence, or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”Member’s explanatory statement
This new Clause replaces the presumption against prosecution with a requirement on a prosecutor deciding whether to bring or continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.
Lord Tunnicliffe (Lab) [V]
My Lords, as we open the debate for the Report stage of the overseas operations Bill, I want to remind colleagues that, like many across this House, we remain determined to protect our troops from vexatious claims and shoddy investigations. We want it to be done in a way which directly tackles the problems head on, and which is in line with our international obligations. As I move Amendment 1 and speak to Amendment 6, it is with these aims clearly in mind.
I am sure that the Government will try to portray Amendment 1 as a wrecking amendment, but nothing is further from the truth. It aims to protect troops directly by removing the presumption and ensuring that prosecutors have regard to whether there can be a fair trial given the time allowed.
As drafted, the Bill is silent on the cycle of reinvestigations, and we cannot wait for the outcome of yet another MoD review before we deal with it directly. That is why we also fully support Amendment 6, which states, importantly, that there must be compelling evidence to justify a new investigation. It would place an effective framework around investigations, still allowing them to pursue new leads or witnesses when appropriate. This approach is complemented by Amendment 1, but we accept that Amendment 6 might be seen as the priority.
Ministers have identified problems with vexatious claims and shoddy investigations but are pursuing an indirect approach, and many colleagues do not understand why. We have the Bill in front of us now, so let us amend it now to solve the problems for good. I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, I thought it would be interesting to look back at the Conservative Party’s manifesto for the 2019 election. It said that
“we will introduce new legislation to tackle the vexatious legal claims that undermine our Armed Forces and further incorporate the Armed Forces Covenant into law.”
You will note that nothing is said there about a presumption against prosecution or anything about the criminal law, so the proposals in this Bill have been dreamed up without consultation. Certainly, there was no consultation with the former Judge Advocate-General, Jeff Blackett, who is internationally respected for his expertise in this field. As far as I can ascertain, there was no consultation either with the Director of Service Prosecutions or any of his highly respected predecessors. How, incidentally, in the light of the manifesto commitment can the Government resist the amendment that we shall later discuss in the name of the noble Lord, Lord Dannatt, on the Armed Forces covenant?
The hole in this Bill is that it does not directly address the scandal of delayed investigations and reinvestigations of service personnel. Amendment 6 would fill that gap with a code of investigation procedures. Investigations are fraught with difficulty in overseas operations. They operate in an insecure environment; potential witnesses may be reluctant to speak; there are language and cultural difficulties; and forensic services of the quality to be found in the UK may be unavailable for pathological examinations, DNA sampling, fingerprints and so on. I recall a case from Iraq in which the body of an alleged victim had been buried on the same day, in accordance with Muslim custom, in a cemetery in Najaf which covers 1,500 acres. No Iraqi witness could pinpoint the exact place and, accordingly, there could be no pathological investigation of the cause of death—indeed, in that case, it was an issue as to whether anybody had been killed at all.
It is obvious, therefore, that investigations may be protracted. It is equally obvious that the possibility of prosecution cannot be held over a service man or woman indefinitely. There has to come a point where a decision is made: should this case proceed, or should it stop? Amendment 6 proposes a workable and practicable code in which the service police or other investigator is supervised and monitored by the Service Prosecuting Authority under the direction of the independent Director of Service Prosecutions. Within six months of the report of allegations to the service police, an investigator has to be satisfied that there is sufficient evidence of criminal conduct to refer the investigation to the SPA. Once he is so satisfied, he must make that report within 21 days, submitting his case papers to date for consideration.
Under the proposed subsection (4), the SPA has power to
“order the investigation to cease if it considers it unlikely that charges will be brought.”
Alternatively, the SPA will advise and direct the investigator on the issues he needs to clarify and the direction in which his inquiry should proceed. If the investigation proceeds, the code in Amendment 6 requires that it be reviewed by the SPA every three months, when a fresh decision will be made on whether to cease or proceed with the investigation. On its conclusion, the investigator must send his final report, with accompanying case papers, to the SPA.
The case cannot be reopened at the whim of the investigators. The consent of the Director of Service Prosecutions would have to be sought and granted only on the grounds that there is new and compelling evidence or information that might materially affect the previous decision to close the investigation and might lead to a charge being made. A decision to reopen would, of course, be challengeable by judicial review. As a final back-up, the Judge Advocate-General is given power to give practice directions for these procedures.
So there we have it: a code tailored for the particular circumstances and difficult environment of overseas operations. I shall be moving Amendment 6 in due course. But I also add my support to Amendment 1. The position of the DSP has evolved. Amendment 1 emphasises an important part of his role—considering the public and the service interest in deciding to prosecute and, namely, whether a fair trial might be prejudiced by delay.
The answer to the problem of delay is not to introduce the concept, novel to serious offences in the criminal law of this country, of presumption against prosecution after an arbitrary period of five years has elapsed. Let us take a likely scenario: an ex-soldier confesses to shooting a wounded prisoner, but no evidence emerges for 10 years because the “wall of silence” of his comrades —a phrase used by the trial judge in the case of Baha Musa—has protected him.
Blanket walls of silence appear in other contexts. I once prosecuted a prisoner and extracted a confession from a fellow prisoner of the abduction and murder of a little girl four years before. The first prisoner said nothing of the man’s confession for five years. But then he became an evangelical Christian and finally reported it to the prison governor. The Government say that for such a heinous crime as shooting a wounded prisoner, the presumption would probably be waived, but by whom? Who would decide whether the threshold of heinousness had been passed? If the presumption would be waived routinely so that every murder in theatre should be prosecuted, then murder as a crime should appear in the schedule to this Bill. But if that is resisted—if there are to be degrees of murder so that the presumption would be waived in one instance but not another—what are the criteria?
I turned to the Bill to see what factors are referred to. First, it is immaterial
“whether or not there is sufficient evidence to justify prosecution”
according to Clause 1(2). Secondly, the status of the person killed is not a factor for consideration. As to whether the victim is a combatant or a civilian, captured or wounded, man, woman or child, no factors relating to the murdered person are mentioned in Clauses 1 to 3.
What the prosecutor must consider, however, is the adverse effect of operations on the perpetrator, the conditions he was exposed to and the strains and stresses of combat. But here is the most surprising thing: it is not the effect on the individual under suspicion that is considered—how he personally was affected by the exigencies of service, how he suffered from “shellshock”, to use the First World War phrase. It is not like the case of Sergeant Blackman, who remembered, after he had been convicted but in time for his appeal, that he had personally been suffering from stress, and his responsibility was thereby diminished. No; Clause 2(3) provides that
“the prosecutor must have regard to the exceptional demands and stresses to which members of Her Majesty’s forces are likely to be subject while deployed on overseas operations, regardless of their length of service, rank or personal resilience.”
The test is objective. The presumption against prosecution applies even if the personal resilience of the soldier who commits murder or a war crime is such that he is unaffected by the stresses of combat. It is a charter for the callous, psychopathic killer hiding in a military uniform.
Lord Boyce (CB) [V]
My Lords, I shall speak to Amendment 6. The Bill sets out to make better provision about legal proceedings for our Armed Forces when they are or have been engaged on overseas operations. The Bill’s significant emphasis on presumption against prosecution as a way of relieving some of the stress of legal proceedings implies that that solves the problem. However, it is the investigation and reinvestigation process that is so debilitating and wears people down. Prosecution may even come as a form of relief. It is important to bear in mind that even when the presumption is in place, there is no total lifting of the threat of prosecution after five years. This can still happen if the Attorney-General sees fit.
However, that is all by the way. As I have mentioned, the investigation process needs to be addressed to ensure that it remains relevant, that a watchful, supervisory eye is kept on the process so that it does not drift, that there are timelines with which investigators have to comply and that reinvestigations are launched only after the most careful judicial oversight. Amendment 6 sets out to cover all these points, as was so well articulated by the noble Lord, Lord Thomas of Gresford. For that reason, it has my support.
Lord Mackay of Clashfern (Con) [V]
My Lords, I shall say something about Amendments 1 and 6. Before I do, I draw attention to a ministerial Statement that has been put in the Library about overseas operations in which the MoD indicates its support for service personnel in these situations. The Statement—I hope your Lordships have access to a copy of it—says that the Overseas Operations Bill was introduced
“to provide greater legal protections to Armed Forces personnel and veterans serving on military operations overseas. The Bill would provide a better … 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.
As part of the debate on this Bill, there has rightly been a focus on the support which MoD provides to those personnel who may find themselves subject to investigations and prosecutions. We are grateful to right honourable and honourable Members of both Houses for the interest they have taken in this issue and their commitment to ensuring that service personnel and veterans who are impacted by historical allegations are properly supported.
As a matter of MoD policy, service personnel are entitled to legal guidance at public expense when they face criminal allegations that relate to actions taken during their service and where they were performing their duties. This principle is at the heart of the MOD’s approach to supporting our people and is enshrined in the relevant Defence Instruction Notices. It is a responsibility that the MOD takes extremely seriously, and we keep our policies under review to ensure that they are appropriate and tailored.
Since the early days of Iraq and Afghanistan, the Armed Forces have learned lessons on better resourcing and professionalising support to those involved in inquiries or investigations arising from operations, and the mechanisms for providing this support have been transformed in recent years. The way this is delivered and by whom will depend on the specific circumstances of the case, the point which has been reached in the proceedings and, most importantly, the needs of the individual concerned.
Any individual who is investigated by the Service Police is entitled to legal representation as well as the support of an Assisting Officer who can offer advice on the process and procedure and signpost welfare resources. The individual’s Commanding Officer and Chain of Command have overall responsibility for the person’s welfare and for ensuring access to the requisite support.
Individuals who are interviewed as suspects under caution will be entitled to free and independent legal advice for this stage of the investigation. Subsequently, legal funding for service personnel and veterans facing criminal allegations can either be provided through the Armed Forces Legal Aid Scheme (AFLAS) or through the Chain of Command.
Where the Chain of Command accepts funding responsibility this is means-test exempt and therefore no personal contribution will be required. The Armed Forces Criminal Legal Aid Authority (AFCLAA) will act as a conduit for the provision of publicly funded legal representation on behalf of the chain of command, including all aspects of financial and case management. However, if available evidence suggests the individual was doing something clearly outside the scope of their duty, then it would not be appropriate for that person to receive this Chain of Command funding.
All other serving personnel and veterans facing criminal proceedings prosecuted through the service justice system, and who are not covered by the Chain of Command funding, may apply for legal aid through the AFCLAA and may be required to make a personal contribution, determined by means testing, if funded through the Armed Forces Legal Aid Scheme. This is in line with civilian legal aid scheme.
There is an important exemption from the means testing requirement, which has been waived in criminal cases arising from our Iraq or Afghanistan operations heard in the Service Court. Separately, legal advice and support is also available whenever people are required to give evidence at inquests and inquiries and in litigation and this is co-ordinated by MOD.
We also recognise that for service personnel and veterans who are involved in these processes, legal guidance by itself is not enough. This is why we have developed a comprehensive package of welfare support to ensure we deliver on our commitment to offer ongoing support to veterans.
As part of delivering on this commitment, the Army Operational Legacy Branch (AOLB) was established in 2020 in order to coordinate the Army’s support to those involved in legacy cases. Fundamental to this is ensuring that welfare and legal support is provided to all service personnel and veterans involved in operational legacy processes. The AOLB provides a central point of contact and optimises the welfare network already in place through the Arms and Service Directorates and the network of Regimental Headquarters and Regimental Associations. Veterans UK are also closely engaged in providing support to veterans and, when required, the Veterans Welfare Service will allocate a welfare manager to support individual veterans. Although the AOLB has been established to provide an Army focus to legacy issues, the support it provides is extended to the other services.
This is provided in addition to the range of welfare and mental health support that is routinely offered to all our people. The potential impact of operations on a service person’s mental health is well recognised and there are policy and procedures in place to help manage and mitigate these impacts as far as possible. The MOD recognises that any operational deployment can result in the development of a medical or psychiatric condition and that service personnel may require help before, during and after deployment. All Armed Forces personnel are supported by dedicated and comprehensive mental health resources. Defence Mental Health Services are configured to provide community-based mental health care in line with national best practice.
In terms of support for those who have left the forces, veterans are able to access all NHS provided mental health services wherever they live in the country. As health is devolved and services have been developed according to local populations’ needs, service specification varies. This can mean bespoke veteran pathways or ensuring an awareness of veterans’ needs. All veterans will be seen on clinical need. What is important is that best practice is shared between the home nations and there are several forums in place to provide this.
The Office for Veterans’ Affairs works closely with the MOD and departments across government, the devolved Administrations, charities and academia to ensure the needs of veterans are met.”
I am sorry that that was a rather long but, I think, very comprehensive statement of what is required. Of course, it is not only applicable to operational situations overseas but is also important in reference to all the Armed Forces. It would therefore seem right that this kind of thing should be legislated for in the Armed Forces Bill when it comes along.
I turn briefly to Amendments 1 and 6 in light of that provision. In my submission, Amendment 1 departs from a very clear statement of the situation in which particular prosecutions should not start or be continued, towards a very vague one where the decision is put on the shoulders of the prosecutor, who must decide whether a fair trial is likely to be damaged by the delay.
Baroness Chakrabarti (Lab) [V]
My Lords, I wish to offer whole-hearted support to Amendments 1 and 6 which were tabled by the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Falconer of Thoroton. The noble and learned Lord, Lord Hope of Craighead, also put his name to Amendment 1, and the noble and gallant Lords, Lord Boyce and Lord Dannatt, put their names to Amendment 6.
First, I wish to say something about the statement to which the noble and learned Lord, Lord Mackay of Clashfern, has referred. I was going to comment on it later in the context of the new duty of care in Amendment 14, tabled by the noble Lord, Lord Dannatt, but as the noble and learned Lord, Lord Mackay, has taken the trouble to read the statement in full, and it is therefore no doubt fresh in the minds of noble Lords, perhaps this is a convenient moment to express two considerable concerns that I have in relation to the statement by the Secretary for Defence. The first is in relation to legal aid and the second is in relation to mental health support.
In relation to legal aid, there is a very serious ambiguity—perhaps not even an ambiguity, perhaps a straightforward gap—in the support that is being offered to service personnel in relation to legal aid. I refer your Lordships to the part of the passage that reads,
“where the chain of command accepts funding responsibility, this is means-test exempt and therefore no personal contribution will be required. The Armed Forces Criminal Legal Aid Authority will act as a conduit for the provision of publicly funded legal representation on behalf of the chain of command including all aspects of the financial and case management, however”—
I emphasise “however”—
“if available evidence suggests the individual was doing something clearly outside the scope of their duty then it would not be appropriate for that person to receive this chain-of-command funding.”
So this non-means-tested automatic funding that does not require a personal contribution is not available to personnel and veterans facing the gravest peril from investigation and prosecution. This is hardly comfort to those to whom this Bill is supposed to be addressed. It is those who face the gravest allegations who principle suggests should have the greatest legal support, for it is those who are facing charges that they were doing something clearly outside the scope of their duty who are losing sleep at night as they may face dishonourable discharge and very serious criminality and consequence. This is the very group who are being let down and denied automatic non-means-tested legal provision. I have to disagree with the noble and learned Lord, Lord Mackay, about the Defence Secretary’s statement offering very much comfort at all to serving Armed Forces personnel or indeed veterans for the reason I set out: those in greatest jeopardy are left with least protection by way of legal aid.
Secondly, in relation to mental health provision, we know and the statement makes clear that to put someone in harm’s way in these circumstances is almost automatically to expose them to great jeopardy in relation to their mental health. Here is an ambiguity rather than a clear gap because at various points in the passages of the statement referring to mental health provision there are caveats about “where needed” “pathways in the community”, “best practice” and “local population needs”. I do not know what these words mean and no doubt the Minister will be able to clarify them in a moment, but to me it looks as if, subject to signposting and pathways, these people are being left, broadly speaking, to take their chances in a Cinderella part of the NHS. It does not seem clear from this statement that all serving personnel and veterans are given automatic mental health support. It is all “subject to clinical needs” or “subject to local population needs” and all of those caveats. That is what I would have said later about the need for the duty of care in the amendment tabled by the noble Lord, Lord Dannatt.
Returning to Amendments 1 and 6, Amendment 6 and the proposed new clause seem to me to address exactly what the Bill was supposed to: the problem of delayed, shoddy and, therefore, repeated investigations, which cause so much concern to members of the Armed Forces and veterans. Tackling this head-on, with some comprehensive statutory provision to push investigations to be timely and adequate, is a very good idea. Of course, the amendment has very distinguished and gallant supporters.
In relation to Amendment 1, respectfully, I could not disagree with the noble and learned Lord, Lord Mackay, more than I do. It replaces the presumption against prosecution with a very common-sense consideration of fair trials and whether they have been compromised by the passage of time. The noble and learned Lord, Lord Mackay, says that you cannot expect a prosecutor to make those determinations and that it is not appropriate, but this is what prosecutors up and down the land do every day. It is completely within, and absolutely core to, a prosecutor’s duty to consider whether it is possible, in light of the passage of time and the possible deterioration of evidence, for the accused to have a fair trial. This would be crucial to both the evidential test and, indeed, the public interest test, which all prosecutors have to consider. If that is the case—if these are normal prosecutorial factors—this might lead some noble Lords to ask why they should be put in the Bill. They should be because we have been told repeatedly during the passage of the Bill to date that a lot of what is required is comfort—clear statutory comfort to personnel and veterans that they will not be let down by the system and that they will be protected.
Putting this fair trial consideration, and including the passage of time, alongside the new provisions offered on investigations is a very good idea. As others—the noble Lord, Lord Thomas, in particular—have said, the five-year rebuttable presumption is rebuttable. Perhaps with the triple lock it is very difficult to rebut that presumption, but it will still leave concerns in the minds of personnel and veterans that a lengthy or late investigation may lead to a prosecution. It is so much better to protect people in the way offered by those who tabled these amendments. It is a far greater protection against late, shoddy and repeated investigations than the so-called triple lock that is causing so much concern. Normally, when employers and people seek to protect those who have been under especial pressure at work and in their service, it is support, not immunity, that is offered. That is the common-sense approach offered in these amendments.
Lord Hope of Craighead (CB) [V]
My Lords, I add my support to Amendment 1, to which I have put my name. As a former prosecutor, I do not think that the task it sets the prosecutor is likely to be all that difficult, given that it must proceed on the information available to the prosecutor at the time the decision has to be taken. It may be that the information is relatively slender at the very beginning, when he is considering whether to bring proceedings, but such as it may be, it is the information that he should take into account. If one considers the stage at which proceedings are continuing, which this clause also covers, he is likely to be in possession of a good deal more information. So I do not think that there is anything wrong in the wording of Amendment 1. The essence of it lies more in what it takes out than the simple wording of what it seeks to put in. What it takes out is the presumption. I have no difficulty with the way in which the presumption is expressed in Clause 2, but I do object to it in principle.
Lord Morris of Aberavon (Lab) [V]
My Lords, I speak briefly in support of Amendments 1 and 6. There is little I need to add to the words of my noble friend who moved Amendment 1 and the particularly forceful speech of the noble Lord, Lord Thomas of Gresford.
As a criminal law practitioner all my professional life, I spell out my concern that, whatever the circumstances, there must be a fair trial in accordance with the principles of our criminal law. Defendants can be materially prejudiced by the passage of time and, as my noble friend Lady Chakrabarti said, prosecutors take this into account every day in their decisions. Certainly, in authorising prosecutions that came within my particular field as Attorney-General, I took this into account as a prosecutor. This is my concern. I hope it is the concern of Her Majesty’s Government regarding the current backlog of criminal trials in our courts.
I will give a simple illustration of what can happen in practice. First, memories fail. Secondly, circumstances are embroidered, sometimes innocently. Ask two or three people for their recollection of a fairly simple set of circumstances, and they frequently vary. I have spent many happy hours in our courts pointing out discrepancies in the accounts of different witnesses of very simple circumstances. The deeper one dug, the greater the rewards. They were frequently meat and drink to a defence lawyer who did not have much greater ammunition.
I will mention rape trials as an example. Whenever the defences consent, in my experience, the chances of a London jury convicting when no complaint is made within three weeks are not high. This is a very serious matter, which we will have to address at some stage. Time is of the essence in seeing that justice is done to both complainant and defendant.
I hope that the drafters of the Bill, in particular this clause, have sufficient experience of the dangers of justice not being done when there has been a passage of time. I support these amendments and believe that they are sufficiently important to be put in the Bill.
Lord Thomas of Cwmgiedd (CB) [V]
I support both Amendments 1 and 6. In the light of all that has been said, I need not add anything in respect of Amendment 1, but will make some brief remarks on Amendment 6. Investigating offences and prosecuting them are inextricably intertwined. To ensure fairness to all concerned—complainants, victims, defendants and prospective defendants—an integrated approach is essential.
By and large, in our civilian justice system, the CPS and police forces have, over the years, come to work very closely together to the benefit of all. In the military justice system, there can be no doubt that the creation of the post of DSP has, particularly through the work of the highly respected holders of that independent office, greatly improved the quality and fairness of service prosecutions. It is now clear that the conduct of investigations has given rise to most of the issues and, in that respect, reform is needed. This amendment is therefore greatly to be welcomed.
The amendment does not deal with instances in which there has been an error in failing to identify cases where there is evidence of criminal conduct but nothing has been done. It is not appropriate to address that at this stage; no doubt it can be covered when Sir Richard Henry Henriques has reported. However, in cases where the investigator has concluded that there is evidence of criminal conduct, the interposition and proposed role of the Director of Service Prosecutions should bring significant improvement.
In my experience of the military justice system, there are many reasons why delays in prosecution occur, but often the causes are lack of focus, insufficient concern about timeliness, and a lack of accountability—particularly the latter. It is clear that the delays that occurred in relation to Iraq arose in large part from these factors, although, as the Minister pointed out in Committee, there have been great improvements since and in the work of IHAT. The risks of a lack of focus, a failure to act with expedition and timeliness, and a lack of accountability remain, as they are endemic to any system. This clause should address those issues.
I will make one last observation. I particularly welcome the provision for the Judge Advocate-General to give practice directions to investigations of overseas operations. Although that would not be usual for a judge in the civilian system, the Judge Advocate-General has a unique role. This was particularly demonstrated by the highly successful and distinguished tenure of that office by Judge Blackett. When holder, he ensured that changes were made to keep the service justice system in line with modern procedure. The power to make practice directions for investigations is consistent with the Judge Advocate-General’s unique role and, I hope, will ensure that problems are promptly addressed as the way in which cases are investigated changes, with changes to the way in which matters should be done as well as the advent of technology.
Baroness Smith of Newnham (LD)
My Lords, I support both amendments, but in particular Amendment 6 in the name of my noble friend Lord Thomas of Gresford. Both seek to focus on prosecution, but also deal with the issue that the Government stated at the outset that they wanted to deal with; that is, as my noble friend Lord Thomas of Gresford pointed out, vexatious claims. The way the Bill is presently drafted does little to deal with repeated investigations. These amendments, in particular Amendment 6, are intended to deal with precisely the problem that the Government say that they wish to deal with. I would be grateful if the Minister could explain to us how she feels that the Bill, as drafted, is going to do what the Government claim that they want to do, because nothing in the Bill is going to stop vexatious investigations.
These amendments are not intended to undermine the Bill. In moving Amendment 1, the noble Lord, Lord Tunnicliffe, said that the Government would perhaps think that it would rip the heart out of the Bill. Neither is intended to do that; they are intended to be helpful and ensure that vexatious and unnecessary prosecutions cease and that prosecutions are dealt with expeditiously, where appropriate. Unlike the noble and learned Lord, Lord Mackay of Clashfern, these Benches do not think that prosecutors will find it too difficult to do the job outlined for them in Amendment 1. I support the amendments, and we will call a vote on Amendment 6, as my noble friend Lord Thomas of Gresford pointed out earlier.
The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
My Lords, first, I thank your Lordships for your contributions. As has been indicated, Amendment 1 seeks to replace the presumption against prosecution with a requirement that the prosecutor, when deciding whether or not to prosecute a case, should consider only whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.
I say as a general comment that my noble and learned friend Lord Mackay of Clashfern and the noble Baroness, Lady Chakrabarti, dwelled at length on the important matter of support for our Armed Forces, as covered by the Written Ministerial Statement tabled today. The noble Baroness raised specific issues which, with her indulgence, I propose to deal with when we debate Amendment 14 in the name of the noble Lord, Lord Dannatt.
I will explain why the Government are resisting Amendment 1. In doing so, I will cover much of what I said on this in Committee. First, we are not suggesting that service personnel or veterans have been subject to unfair trials. Our concerns have always been about the difficulties and adverse impacts on our personnel from pursuing allegations of historical criminal offences. Your Lordships are familiar with the character of such difficulties and adverse impacts—repeated inquiries and uncertainty hanging over the heads of our personnel for years as to whether any prosecution is to be brought.
Secondly, we are reassured that a person’s right to a fair trial—the nub of this amendment—is already protected in law by, among other safeguards, the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.
Thirdly, the amendment would remove the high threshold of the presumption against prosecution. We have specifically introduced this measure to provide the additional and overdue protection that we believe our service personnel and veterans so rightly deserve, while ensuring that, in exceptional circumstances, individuals who have done wrong can still be prosecuted for alleged offences.
Fourthly and lastly, Part 1 of the Bill already addresses the potentially negative effects of the passage of time, by requiring a prosecutor to give particular weight to the public interest in finality in Clause 3(2)(b).
Lord Tunnicliffe (Lab) [V]
My Lords, after listening to the debate, it is clear that we are united in seeking to protect our troops from vexatious claims and shoddy investigations. Both amendments in the group seek to do this and would approach the issue head on, unlike the presumption. However, I am convinced from my previous research and from listening to the debate that Amendment 6, which has direct effect, has the appropriate priority. It seems that, while one hears little accusation of unfairness by prosecutors, as a number of noble Lords have pointed out, there is a requirement for prosecutors to ensure that prosecutions are fair. There has been much concern about the investigations, so I favour the clarity of Amendment 6. We will not divide the House on Amendment 1 and will support the noble Lord, Lord Thomas, whom we urge to test the opinion of the House on Amendment 6. I beg leave to withdraw the amendment.
The Deputy Speaker (Baroness Henig) (Lab)
We now come to the group beginning with Amendment 2. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 5: Requirement of consent to prosecute
Amendment 2
Member’s explanatory statement
This amendment is one of a series in the name of Baroness Ritchie designed to limit the extent of the bill insofar as it applies to the courts in Northern Ireland in order to remedy the incompatibility of the present bill with the provisions of the Belfast Agreement that require incorporation of the European Convention on Human Rights into Northern Irish law in a manner that ensures direct access to the courts and remedies for ECHR breaches.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, all the amendments in this group apart from Amendment 18 are in my name. Amendments 2, 9, 10, 15, 16, 17 and 30 are the core amendments and the others in my name are consequential.
The purpose of this suite of amendments is to limit the extent of the Bill’s application to the courts in Northern Ireland in order to remedy its incompatibility with the provisions of the Belfast agreement that require incorporation of the European Convention on Human Rights into Northern Irish law in a manner that ensures direct access to the courts and remedies for ECHR breaches.
These amendments are supported by the Committee on the Administration of Justice in Northern Ireland, and Rights and Security International, based in London. They are concerned that the Bill as drafted directly conflicts with binding provisions under the 1998 Belfast/Good Friday agreement and would roll back broader reforms of the peace process in Northern Ireland.
I raised these issues in Committee and took note of the Minister’s response. In the longer term, it would be preferable if I could secure a meeting with the Minister, along with the two rights-based organisations, to discuss these pertinent issues. For now, I shall continue.
Both these organisations concur with the Joint Committee on Human Rights and others that the Bill, as it applies to the UK as a whole, breaches the UK’s legal obligations under international humanitarian law, human rights law and international criminal law. Amendments to remove provisions in the Bill to address these breaches would also, by default, remove the incompatibility with the Belfast agreement. Should these amendments not be made, the issue of incompatibility with the Belfast agreement would remain and would, I fear, set a dangerous precedent if left unchallenged. I therefore urge the Minister to meet me, and representatives of both organisations, to discuss these issues further.
The Belfast agreement includes a UN-lodged international treaty, under which the UK is legally bound to implement the provisions within its competence. Paragraph 6—the Rights, Safeguards and Equality of Opportunity section of the agreement—includes the following undertaking:
“The British Government will complete incorporation into Northern Ireland law of the European Convention of Human Rights (ECHR) with direct access to the courts and remedies for breach of the Convention”.
As currently drafted, the Bill undermines this provision by limiting direct access to the Northern Ireland courts and to remedies for breaches of the ECHR in relation to proceedings in connection with overseas operations. It should be noted that the commitment to incorporate the ECHR in Northern Irish law is not limited to events in Northern Ireland.
Under Article 2 of the Ireland/Northern Ireland protocol to the UK-EU withdrawal agreement, “Rights of Individuals”, the UK has made a legally binding commitment that there will be no diminution of rights in the Rights, Safeguards and Equality of Opportunity section of the 1998 agreement as a result of the UK’s departure from the EU. This commitment is given domestic legal effect through the European Union (Withdrawal Agreement) Act 2020. It would clearly make a mockery of this Brexit-related commitment to the Belfast agreement if the Government, while simultaneously championing it, concurrently diminish rights under the same section of the agreement for other reasons. That would be the case under this Bill.
Quite clearly, the Bill would set a difficult precedent, especially in the light of the Government’s stated intentions to review the Human Rights Act and of the Written Ministerial Statement of 18 March 2020 to introduce legacy legislation for Northern Ireland that provides a level of equivalence to the current Bill.
Clause 5—in so far as it applies to Northern Ireland—would have the practical effect of reversing one of the key criminal justice reforms of the peace process. In the criminal justice review which flowed from the Belfast agreement, superintendence of the Director of Public Prosecutions by the Attorney-General was removed to ensure the independence of the prosecutor. That change was made in the context of the Attorney-General’s controversial role in decisions not to prosecute members of the Armed Forces. Clause 5 would, in effect, restore the situation whereby the UK Advocate-General for Northern Ireland would wield a de facto veto over prosecutorial decisions in cases falling under the scope of the present Bill, returning to the situation of what would be seen as political intervention in such cases. That is why my amendment seeks to leave out lines 27 to 29, which deal specifically with Northern Ireland.
Baroness Hoey (Non-Afl)
My Lords, Amendment 18 stands in my name and that of the noble Lord, Lord Lexden. It is a simple amendment to Clause 15, seeking to put into legislation the promise made by the Government that the same protections in relation to prosecutions of veterans of overseas operations will apply to those who served in Northern Ireland—that is, to the 300,000 service personnel involved in Operation Banner from 1969. The amendment requires the Government to report on progress to that end before the necessary commencing regulations under subsection (2) are made. I hope that progress will come early rather than later, although I recognise that it will require courage within government—the same kind of courage as was displayed by the Parliamentary Under-Secretary, Johnny Mercer MP, who took this Bill through Committee in the other place.
On Second Reading, I explained that the Army and the police stopped a civil war breaking out in Northern Ireland, for which they get little thanks, just vexation, prosecutions and unending reinvestigations—largely due, ironically, to the overinterpretation of the right to life in Article 2 of the European Convention on Human Rights. They paid a colossal price in blood: some 700 soldiers, including in the UDR, and 300 RUC officers were murdered. The equivalent number of police officers killed on a UK-wide basis would be 10,000; that figure says it all.
In reality, the Bill is limited in its provisions. Reinvestigations will not be ended but I hope that they will be curtailed. It does not constitute an amnesty, although it is worth pointing out that, since the Belfast agreement, we have already had many elements of an amnesty, including the early release of all paramilitary prisoners and the letters of comfort for IRA members on the run.
Now the only matters investigated and coming to prosecution are those involving Army veterans, half a dozen of whom are awaiting trial in relation to events 50 years ago. That process has taken a very long time. Much of the investigation evidence appears to be based on files in the National Archives at Kew, where the Troubles archaeology proceeds apace. The IRA did not leave any paperwork to be excavated, of course.
The Bill before us carries in Clause 1 a permission for prosecutors to consider
“whether or not any proceedings against a person for a relevant offence should be continued”.
This is a key provision that must be extended to Northern Ireland and just might enable the persecution to cease. Our Amendment 18 is grouped with 17 others, all in the name of the noble Baroness, Lady Ritchie of Downpatrick, from whom we have just heard. Those 17 amendments are a pre-emptive strike against the extension of the Bill to Northern Ireland, which is what my amendment wants. It is being pushed hard by the legal academics at Queen’s University and the CAJ, who all seem to be more obsessed with persecuting veterans than real justice.
In the Member’s explanatory statement, the noble Baroness states that the Bill is incompatible
“with the provisions of the Belfast Agreement that require incorporation of the European Convention on Human Rights into Northern Irish law”.
However, in my view, she misinterprets the 1998 Belfast agreement. It said nothing about the prosecution or non-prosecution of members of the security forces. Yes, the UK Government undertook to incorporate the ECHR into British law; they duly did so in the November of that year when the Human Rights Act received Royal Assent. As the noble Baroness, Lady Goldie, said at Second Reading,
“nothing in the Bill could be interpreted as undermining the commitments contained in the Belfast agreement, and nothing that would diminish the essence of the protections that the Human Rights Act currently offers to the people of Northern Ireland.”—[Official Report, 9/3/21; col. 1585.]
The Government gave a promise. I strongly want to believe that promise but I am afraid that some of the things that have happened in Northern Ireland recently show even more that there is a need for this Government, and us in your Lordships’ House, to show that we mean what we say. That is why I very much hope that the Minister will be able to accept my amendment and put it into the Bill.
Baroness Chakrabarti (Lab) [V]
My Lords, I will speak briefly in support of the collection of amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick. It does not take me to remind your Lordships that this is a very difficult moment in Northern Ireland and not one to be doing anything to undermine, or anything that could be interpreted as undermining, the Good Friday agreement.
I hear the endorsement from the noble Baroness, Lady Hoey, of the Government’s position: that the Bill must do nothing to jeopardise the ECHR and the agreement. With respect, however, that view is not shared by human rights analysts in the United Kingdom, in Northern Ireland and internationally. Of course, in this respect, even the perception of jeopardising the convention, and therefore the agreement, is a significant problem.
In the context of Northern Ireland, the problem stems from going down this road of de facto—or attempted—immunities and statutes of limitation in the first place. The amendment in the name of the noble Baroness, Lady Hoey, further demonstrates the difficulty with opening this Pandora’s box and going for limits on prosecution and on suits against the Government rather than bolstering the robustness and timeliness of investigations and providing adequate support for veterans and serving personnel.
Lord Mackay of Clashfern (Con) [V]
My Lords, all the amendments that the noble Baroness, Lady Ritchie of Downpatrick, has put before your Lordships would delete from this Bill its application to Northern Ireland. In other words, the result of these amendments would be that this defence Bill would not affect Northern Ireland.
It is vital that all defence legislation for the United Kingdom applies to the United Kingdom because the purpose of that body of legislation is the protection and defence of the whole United Kingdom. Therefore, whatever solution may be necessary for what the noble Baroness speaks of, it certainly cannot be to delete from the defence legislation of Northern Ireland an Act that will affect the defence legislation of the rest of the United Kingdom. I strongly suggest that this is not a feasible way of proceeding. I am all in favour of her having a meeting with the Minister in early course— I hope that the Minister will have time for that—but I do not think that we in your Lordships’ House can possibly accept this solution.
So far as the amendment in the names of the noble Baroness, Lady Hoey, and the noble Lord, Lord Lexden, is concerned, the question of how to deal with this matter is very tricky indeed. I have been anxious about it for a long time, and I do not see it getting any easier to solve. I do not feel able to comment on the wisdom of that amendment at this time, but I would be happy to hear what the Minister has to say about it.
Lord Hendy (Lab) [V]
My Lords, it is a privilege to follow the noble and learned Lord, Lord Mackay of Clashfern, although on this occasion I do not reach the same conclusion as he does. I support the amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick, for the reasons that she has eloquently given. I wish to add to that only by emphasising that it is not acceptable to undermine the commitment to the European Convention on Human Rights provided by the Belfast agreement. Recent events have emphasised the importance of upholding and, as my noble friend Lady Chakrabarti pointed out, being seen to uphold, both the letter and the spirit of that agreement.
Baroness Suttie (LD) [V]
My Lords, this has been an important short debate. As the noble Baroness, Lady Ritchie, set out very clearly in her speech, these amendments aim to limit the extent of the Bill in so far as it applies to the courts in Northern Ireland. The Good Friday/Belfast agreement provides that the Government will complete incorporation of the European Convention on Human Rights into Northern Ireland law, ensuring direct access to the courts and remedies for breach of the convention. When we debated a different set of amendments in Committee last month, a number of noble Lords raised very real concerns that the Bill, as it currently stands, could potentially be interpreted as undermining this requirement.
As the noble Baroness, Lady Ritchie, pointed out, there are, in particular, concerns that the Bill will not allow for either direct access to the courts or domestic solutions for any breaches of the ECHR for cases that fall under its remit. When we previously debated these matters in Committee, it was made clear that this Bill does not deal with matters relating to Northern Ireland, but I would be grateful if the Minister would none the less address the specific issue of incorporating the ECHR into law in Northern Ireland.
In light of the recent tensions and, indeed, violence in Northern Ireland, it is more important than ever that the Government reconfirm their continued and unequivocal support for the Good Friday/Belfast agreement, including in all of its practical applications in terms of rights. In Committee on 9 March, I raised a number of other concerns about the Government’s general approach towards legacy issues and asked whether they remain fully committed to the balanced and well-considered approach set out in the Stormont House agreement. Some 23 years since the Good Friday/Belfast agreement was signed, and well over a year since New Decade, New Approach was published, it is increasingly important that the Government make clear their policies and general approach to legacy matters. This is all the more urgent given recent events, where, all too tragically, we have been witnessing a return to the politics of blame and division.
I appreciate that the Minister, who is always so generous in her replies, is not actually from the Northern Ireland Office, but I asked in Committee whether I could receive a more detailed reply on this subject, perhaps in a letter, or have a meeting with the Northern Ireland Office to discuss these matters in more detail. Unfortunately, neither has been forthcoming, so I would like to add to the request of the noble Baroness, Lady Ritchie, for a meeting so that we can discuss and explore these matters further.
Lord Tunnicliffe (Lab) [V]
My Lords, important issues have been raised on this group and I thank colleagues for tabling these amendments. The Good Friday agreement is central to the ongoing peace process in Northern Ireland; we all have a vital role to play in safeguarding that agreement and building on its promise, and we must ensure that this Bill, or any other, protects it.
The Bill raises important concerns over access to justice and it should be improved for the entire United Kingdom. The Government have also promised legislation to address the legacy of the past in Northern Ireland. Ministers need to get this delicate legislation right: it must be in the spirit of the Stormont House agreement; we need victims to be at the heart of legacy proposals; and the Bill must maintain a broad-based consensus on proposals, as outlined in New Decade, New Approach, which restarted power-sharing. I look forward to hearing from the Minister actual details about this, rather than the usual “when parliamentary time allows” line.
Baroness Goldie (Con)
My Lords, once again I thank your Lordships for contributions to an important issue which is, for obvious reasons, very much to the forefront of our minds at the moment.
Amendment 18 in the name of the noble Baroness, Lady Hoey, seeks to create a new condition that must be satisfied before the provisions in the Bill can be commenced. That condition is for the Government to publish a report on the progress made in relation to legislation addressing the legacy of the Troubles. I thank the noble Baroness for her eloquent address, to which I know we all listened with both respect and interest, but I think she will understand that the Government cannot accept an amendment, no matter how well intentioned, that puts conditions on the timing of the implementation of provisions that seek to provide certainty and reassurance to our service personnel and veterans who have served on overseas operations, which is a different issue from the position of Northern Ireland.
I understand the concerns that sit behind this amendment, so I reassure noble Lords that the Government remain committed to making progress on legacy issues and we will not allow our brave service personnel who served in Northern Ireland to be forgotten. In order to make further progress, the Northern Ireland Office must continue to engage with the Irish Government, the Northern Ireland parties, and civic society, including victims’ groups. The Secretary of State for Northern Ireland and the UK Government recognise the importance of working with all parts of the community as part of this process.
I hope noble Lords will recognise that, sadly, the pandemic has had an impact in causing a loss of momentum, but I reassure your Lordships—in particular with regard to what the noble Lord, Lord Tunnicliffe, said just a few minutes ago—that this Government will bring forward legislation to address the legacy of the Troubles that focuses on reconciliation, delivers for victims, and ends the cycle of investigations. The Government—in particular, the Northern Ireland Office —are committed to making progress on this important issue as quickly as possible. In these circumstances, I hope that the noble Baroness, Lady Hoey, will be minded to not move her amendment.
The other amendments in this group, in the name of the noble Baroness, Lady Ritchie of Downpatrick, seek either to remove references to Northern Ireland in parts of the Bill or to stop certain provisions extending to Northern Ireland. The Bill extends to England and Wales, Scotland and Northern Ireland for a reason. Defence is a United Kingdom competence and our Armed Forces personnel are drawn from all parts of the United Kingdom, in whose name they serve. That is why the effects of the provisions in the Bill are substantively the same throughout the entire United Kingdom. It is right and desirable that the objectives of the Bill should apply throughout the United Kingdom; my noble and learned friend Lord Mackay of Clashfern made that point well.
However, as different pieces of legislation in the different nations of the UK are impacted by the Bill, to ensure technical compliance and drafting accuracy the necessary amendments have been effected in respect of the relevant law in England and Wales, in Scotland and in Northern Ireland. I say gently to the noble Baroness, Lady Chakrabarti, that the Bill is not a de facto immunity, and I think many people are coming to accept that as being an extravagant interpretation of the Bill.
Clause 10 and Schedule 4, which this group of amendments seeks to remove in their entirety, amend only the Limitation (Northern Ireland) Order 1989. These provisions introduce new factors that the Northern Ireland courts must consider when deciding whether to allow certain claims relating to overseas military operations to be brought after the primary time limit expires and set the maximum time limit for such claims at six years. It is necessary to extend similar provisions across the whole of the UK to ensure consistency. Your Lordships would acknowledge, I think, that it would be deeply unsatisfactory if the changes that the Government are introducing in relation to claims brought in England and Wales and Scotland could be circumvented by a claimant bringing their claim in Northern Ireland instead.
I am absolutely sure that the intent of these amendments is not to create legal loopholes. No one could listen to the noble Baroness, Lady Ritchie, without understanding her commitment and sincerity about the concerns that she has articulated. The stated reason for these amendments is a concern that the Bill will undermine a specific provision in the Belfast agreement stipulating that the United Kingdom Government would complete the incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts and remedies for breach of the convention rights. The noble Baroness, Lady Suttie, sought reassurance on this point.
As I said when this issue was debated in Committee, the commitment to incorporate the ECHR into Northern Ireland law has already been met by enacting the Human Rights Act 1998, which provides for direct access to the domestic courts to vindicate convention rights, and the Northern Ireland Act 1998, which provides that the Northern Ireland Assembly may legislate only in a way compatible with the convention rights, and that Northern Ireland Ministers must also act compatibly with these rights. As currently drafted, the Government consider the Bill compatible with the convention rights. Your Lordships will acknowledge that review of the Human Rights Act is not the responsibility of the MoD.
Statutory limitation periods, which seem to be what these amendments are mainly concerned with, are generally considered legitimate restrictions on the right of access to a court. That right of access is not absolute, and the European Court of Human Rights has upheld the compatibility of limitation periods, even if these periods are in themselves absolute, including the absolute six-year limitation period for claims resulting from intentional torts in England and Wales. That was the finding in Stubbings and Others v the United Kingdom. Limitation periods do not impair the essence of the right of access to a court. Such periods ensure legal certainty and finality, avoid stale claims and prevent injustice where adjudicating on events in the distant past involves unreliable and incomplete evidence because of the passage of time. As such, nothing in the Bill would diminish the essence of the protections that the Human Rights Act currently offers the people of Northern Ireland. I reassure noble Lords that the measures in the Bill do not undermine the United Kingdom’s commitment to human rights and to the European Convention on Human Rights.
For the reassurance of the noble Baroness, Lady Ritchie, I repeat that this Government remain fully committed to the Belfast agreement, the constitutional principles it upholds, the institutions it established and the rights it protects. This agreement has been the foundation for the welcome political progress, peace and stability in Northern Ireland over the last 22 years and will be protected going forward.
The noble Baronesses, Lady Ritchie and Lady Suttie, have asked whether I am agreeable to meeting them. I am very happy to agree to meet them if I can help them, but it may be—and I would ask them to reflect on this—that they would find engaging with the review of the Human Rights Act, and perhaps meeting with the Northern Ireland Office, more relevant to their specific concerns. If they still wish to meet me, however, I would, of course, be happy to do that. With the explanation offered by these remarks, I urge the noble Baroness to withdraw her amendment.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I thank all noble Lords who have contributed to this debate, some in favour of my amendment and others not. That is the very nature of debate: it is about achieving an opinion that can be either for or against a particular Motion or amendment—or, in this instance, several amendments.
The noble Baroness, Lady Hoey, outlined her amendment in relation to Operation Banner. She obviously viewed my amendments as a pre-emptive strike at removing the references to Northern Ireland from the Bill. The noble Baroness, Lady Chakrabarti, believed that it was important not to undermine human rights provisions, particularly in relation to the Belfast/Good Friday agreement—a view also taken by the noble Lord, Lord Hendy. The noble and learned Lord, Lord Mackay of Clashfern, who is very much a learned lawyer, said that this was about protecting the defence of the UK. While I understand that argument, I am none the less concerned that there will be contraventions of the Belfast agreement in terms of the ECHR.
The noble Lord, Lord Tunnicliffe, agreed about the importance of the Belfast agreement, particularly at the moment, in developing political stability—a view shared by the noble Baroness, Lady Suttie—and the importance of that political stability. As I said earlier during my Private Notice Question, there is a compelling need for the British and Irish Governments to meet as part of the intergovernmental conference, a provision within the Good Friday agreement to deal with all these issues, including this one, which will become very pertinent to legacy issues and veterans.
The Minister has kindly agreed to the meeting request of the noble Baroness, Lady Suttie, and me. I suggest, in relation to that, that we might meet the noble Baroness, the noble and learned Lord and the Minister at the Northern Ireland Office, because these are issues to do with the Belfast agreement and Northern Ireland. While my views and concerns have not been assuaged to any degree, I feel that these issues would be better explored in such a meeting, to which the noble Baroness has very kindly agreed. On that basis, I beg leave to withdraw my amendment.
The Deputy Speaker (Lord Lexden) (Con)
My Lords, we now come to Amendment 3. Anyone wishing to press this amendment to a Division must make that clear in debate.
Clause 6: “Relevant offence”
Amendment 3
“( ) An offence is not a “relevant offence” if it amounts to—(a) torture, within the meaning of section 134 of the Criminal Justice Act 1988 (torture); or(b) genocide, a crime against humanity or a war crime as defined in section 50 of the International Criminal Court Act 2001 (meaning of “genocide”, “crime against humanity” and “war crime”).”Member’s explanatory statement
This amendment provides that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide or torture.
Lord Robertson of Port Ellen (Lab) [V]
My Lords, Amendment 3 is in my name and that of the noble Lord, Lord Alton, and my noble friends Lord Campbell and Lord West. The amendment will provide that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide and torture.
Maybe after a lifetime in politics I was affected by some uncharacteristic naivety in thinking that the Government, faced by almost universal and expert opposition on this aspect of the Bill, would by now have changed their mind. Reasonable and knowledgeable people can only be dismayed by the obduracy of Ministers in this situation, and it is why there is a more than normal responsibility on this House to ask the Commons to look again, reflect and change the Government’s mind, before lasting and serious damage is done to the interests of our Armed Forces and the reputation of this country.
The objective of the Bill is clear and understandable: it is to protect our troops in foreign operations from vexatious prosecutions. Who could reasonably object to that? Certainly not me. But sadly, the Bill does not do what it claims to do and instead actually harms those whom we seek to protect. At best it would prevent only 1% of prosecutions, but it would not prevent seemingly endless investigations. Not only would this legislation not do what it claims to do but it would single out our Armed Forces for a privileged protection previously unknown in British law—what the Law Society, in its submission to us today, calls a “quasi-statute of limitations”.
For the first time in the history of British law we would be creating a two-tier justice system in which troops acting for us abroad would be treated differently from other civilians in society. That is serious enough, and alone should make Ministers worry about what they are embarking on, but, additionally, by saying that there is a presumption against prosecution for the most serious of all crimes—namely genocide, crimes against humanity and torture—the Bill undermines some of the most basic international legal standards for which this nation was renowned.
It does not end there. As a result of this quasi-statute of limitations, our troops might, for the first time, have to appear in front of the International Criminal Court. The chief prosecutor of the ICC, Mrs Fatou Bensouda, has said that
“were the effect of applying a statutory presumption be to impede further investigations and prosecution of crimes allegedly committed by British service members … the result would be to render such cases admissible before the ICC”.
The next chief prosecutor of the ICC is a British nominee, Mr Karim Khan, and the irony might be that among his first cases could be a British one.
Like so many of my predecessors as Defence Secretary or NATO Secretary-General, in these positions I had to take weighty decisions about foreign deployments and sending people into harm’s way. These were never easy or lightly thought decisions, and there were many sleepless nights involved. No one should underestimate my feeling when I say that I believe that this Bill is bad for our troops, bad for our British legal system and very bad for our national reputation.
I ask the Minister today to reflect for a moment on a few additional factors. First, there was unanimous criticism from the noble and gallant Lord, Lord Craig, the noble Lord, Lord Dannatt, and my noble friend Lord West, in the last debate that we had. Field Marshal Lord Guthrie, former Conservative Defence Secretary and Foreign Secretary Sir Malcolm Rifkind, and former Conservative Attorney-General Dominic Grieve, have all publicly opposed this measure. What about General Sir Nick Parker, former commander of British land forces, who urged Ministers not to damage the reputation of British Armed Forces overseas? Then there is Bruce Houlder QC, a former Director of Service Prosecutions, who told the Financial Times that the five-year limit would be “an international embarrassment”. On top of all these salvos, just yesterday the UN High Commissioner for Human Rights, Michelle Bachelet, issued a statement of real significance, saying that this Bill
“in its current form, risks undermining key human rights obligations that the UK has committed to respect.”
I remind the House of the report of the non-partisan committee of both Houses of the British Parliament, the Joint Committee on Human Rights, which considered this Bill and said that
“we have significant concerns that the presumption against prosecution breaches the UK’s legal obligations under international humanitarian law (the law of armed conflict), international human rights law and international criminal law. It risks contravening the UK’s obligations under the UN Convention Against Torture, the Geneva Conventions, the Rome Statute and international customary law.”
Those are devastating comments.
Perhaps, in my naive hopefulness, I allowed myself to think that no Government, still less one ostensibly committed to the interests of our Armed Forces, would pursue a measure which would harm them, their reputation and the reputation of our country as a stalwart upholder of the highest international legal standards. That is why I hope that now, at the last minute, the Minister will recognise the forces of reason arrayed against her and, in good military parlance, make a tactical retreat. I beg to move.
Lord Alton of Liverpool (CB) [V]
My Lords, I am a signatory to the amendment tabled by the noble Lord, Lord Robertson of Port Ellen. I wholeheartedly endorse his comments. He has made the case so well, having spoken with all the advantage and experience of high office in government and NATO, that I can be relatively brief.
In Committee, the noble and learned Lord, Lord Falconer of Thoroton, pointed, as the noble Lord, Lord Robertson did, to the broad coalition inside and outside this House which spans from well-experienced military personnel to the United Nations, human rights charities and former Defence Secretaries. Those diverse voices have cogently argued that we should extend the exclusions from the presumption to cover genocide, torture and crimes against humanity. Echoing those concerns when speaking earlier today on a previous amendment, my noble and learned friend Lord Hope of Craighead also set out some of the compelling reasons why the House should support Amendment 3.
I will say a few words about the crime of genocide. Following the overwhelming support which the House gave to the all-party amendments on genocide that I recently moved to the Trade Bill, the House will have noted that many of the same arguments advanced during those debates about strengthening the rule of law also apply to Amendment 3.
Reflect for a moment that the International Criminal Court’s prosecutor has urged the United Kingdom
“to ensure that the exemption clause extends to all crimes within the jurisdiction of the Court”.
Are we seriously going to ignore this admonition? What calculation have we made of the reputational damage and the danger of being accused of being Janus-faced when we call out genocide in places such as Xinjiang, against the Uighurs, or Myanmar, against the Rohingya, but do not hold ourselves to the same stringent test?
Showing contempt or disdain for the ICC is something that we usually associate with authoritarians and dictators. We should be leary of being found in such disreputable company. It also stands in stark contradiction to the vaunted claims in the integrated review that the United Kingdom will be a world leader in promoting British values and a rules-based international order. Global Britain will be measured by its actions and not as a slogan.
The ICC’s chief prosecutor has said that, as this Bill stands, the result would be to
“render such cases admissible before the ICC”,
and that the UK would
“forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide on a statutory presumption against prosecution after five years.”
As we have just heard from the noble Lord, Lord Robertson, the United Nations Commissioner for Human Rights, Michelle Bachelet, added her voice only yesterday, urging us, as parliamentarians, to heed warnings that, in its current form, the Bill risks undermining key human rights obligations that the United Kingdom has committed itself to respect. She urged us to ensure that the law
“remains entirely unambiguous with regard to accountability for international crimes perpetrated by individuals, no matter when, where or by whom they are committed”.
She went on to pay tribute to our courts and what she called
“the independence and fairness for which they are known around the world”.
She urged us to maintain and strengthen our judicial approach to atrocity crimes—to strengthen, rather than diminish, their standing and reputation.
Lord Campbell of Pittenweem (LD)
My Lords, I support Amendment 3 and have added my name to it. I have the advantage of having heard the last two contributions to this debate, which is, to some extent, a rehearsal of that which we held in Committee. I will take issue with the noble Lord, Lord Robertson, on one point—I have often known him to be hopeful but never naive.
I am tempted to adopt a speech that I made in Committee and sit down, but I will not do that because, like those who have spoken already, I do not understand the intransigence of this Government. I do not recall any noble Lord, other than the noble Baroness herself, making any speech in favour of the Government’s position either at Second Reading or in Committee. How much does it take? How much evidence is necessary to persuade this Government to change their mind?
Of course, we have heard the weight and the quality of the evidence of the noble Lord, Lord Robertson, with his extensive experience. We heard, essentially, the forensic destruction of the government case, line by line, by the noble and learned Lord, Lord Falconer of Thoroton, in Committee, and we continue to hear the well-known and, one might think, well-informed opposition of Lord Guthrie of Craigiebank and General Sir Nick Parker. Some of these have been mentioned already, but no one has mentioned Elizabeth Wilmshurst —that most courageous opponent of the legality of military action against Saddam Hussein’s Iraq, who resigned from her position in the Foreign Office—and Sir Malcolm Rifkind, who has been both Secretary of State for Defence and Secretary of State for Foreign Affairs. How is it that, in the face of the mounting volume of evidence against them, the Government insist on holding to this position? I fail to understand.
In Committee, I quoted from the Bingham Centre for the Rule of Law. At that stage, its approach to this was to provide an executive summary, in the course of which it said that
“murder, torture and other grave war crimes face substantial legal barriers before there can be a prosecution … The Bill undermines our obligations under the Geneva Conventions and the UN Convention Against Torture”.
Again, I ask: what further evidence is required to persuade the Government that they are in the wrong place? Since then, the Bingham centre has produced a more detailed analysis of this proposed legislation. If your Lordships wish to see it reinforce what it has previously said, you will find that on page 16 of that analysis.
What do we know now? The chief prosecutor of the International Criminal Court has made pretty clear a view that might result in a British citizen, a member of the British Armed Forces, possibly being taken to the International Criminal Court—can you imagine it? This country takes pride in our being advocates for the rules-based order in the face of other countries that simply want to ignore it or toss it aside.
I refer to the interests of the United Nations and the official responsible for human rights. Can you imagine the embarrassment of a prominent member of the Security Council asserting the rules-based order, in the teeth of Russian and Chinese unwillingness? I would love to know what the permanent representative of the British mission at the United Nations thinks about the position now being adopted.
Perhaps we should not be surprised. To plagiarise Lewis Carroll, laws mean what we want them to mean. That is certainly the position that was adopted when we came to Part 5 of the Internal Market Bill. What does this do for our standing and influence? How can we make those who breach international law understand the consequences of what they are doing if we are, on the face of it, doing exactly the same ourselves?
I have some sympathy for the noble Baroness because she has gallantly sought to defend the Government’s position. However, I finish by offering her some advice: Oliver Cromwell, in a substantial disagreement with the General Assembly of the Church of Scotland, wrote on 3 August 1650—the language is perhaps of its time:
“I beseech you, in the bowels of Christ, think it possible that you may be mistaken.”
The language may no longer be appropriate, but the sentiment is surely something to which she should give effect.
Lord Hannay of Chiswick (CB) [V]
I wish to speak briefly in support of Amendment 3 in the name of the noble Lord, Lord Robertson of Port Ellen, and others. I say at the outset that I will not be able to match the eloquence of the noble Lord, Lord Campbell, who preceded me and whose views I totally share.
I speak in support of this amendment, as I did in Committee, on the grounds of both principle and pragmatism. The arguments of principle that underpin this amendment are clear. Unamended, the Bill would effectively—de facto if not de jure—open the door to a time limitation on the inquiry into and, where justified, the prosecution of the most heinous of crimes set out in the Rome statute, establishing the International Criminal Court—war crimes and genocide—and those set out in the convention against torture.
I say gently to the Minister that I was a bit disappointed that, in one of her replies to earlier amendments, she suggested that the suggestion that this was a de facto limitation was quite wrong. I question what she said then because if it is not a de facto limitation, what on earth is the point of the Bill? I really do not understand it. I happen to support the main thrust of the Bill.
Neither the Rome statute nor the torture convention provides for any such time limitation on the crimes covered by them, nor in my view should they do so for crimes of that extraordinary seriousness. I suggest that to allow such a limitation into our domestic legislation is not consistent with this Parliament’s ratification of the Rome statute and of our acceptance of the jurisdiction of the ICC. At a time when there is so much evidence worldwide of these sorts of crimes being committed—the noble Lord, Lord Alton, has spoken movingly about them—we should not be playing fast and loose with our own obligations to inquire into them and to prosecute.
The arguments of pragmatism are equally compelling. Unamended, the Bill will actually increase, not decrease, the chances of British service personnel falling within the purview of the ICC. We know that because we have been explicitly warned of it by the court’s prosecutor, who has hitherto relied on our willingness to prosecute crimes under the Rome statute as a sufficient reason not to pursue such cases through the ICC machinery. If that commitment were in any way removed or questioned, the chances of action by the ICC would sharply increase. I was glad to hear the Minister, in responding to earlier amendments, recognise that that risk really exists. It would be a supreme and shameful irony if action by the ICC had to be taken by the recently appointed ICC prosecutor, a British national.
I hope that the House will amend the Bill in the sense proposed to remove from it any limitations of time for crimes set out in the Rome statute and the torture convention and will do so without in any way calling into question the original objective of the Bill: to lift the shadow of vexatious inquiries and prosecutions for lesser offences from our service personnel.
Baroness Blower (Lab) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Hannay of Chiswick. I support Amendment 3. As your Lordships may know, I have no legal or military experience and therefore enter this debate today as someone who has listened to and participated in all previous stages of the Bill, and has been powerfully persuaded that my own concerns about the Bill at the outset were rightly felt.
As did the noble Lord, Lord Campbell of Pittenweem, I shall quote from the conclusion of the recent executive summary of the briefing from the Bingham Centre:
“The UK has a long and proud reputation of decisive action against war crimes. This Bill weakens that reputation. It makes it harder, not easier to stamp out abuses that our own troops have committed. We do not protect British troops and British values by hiding from the truth or acting with impunity.”
Although it invokes “British values”, surely these are international values, based on the international rule of law.
The UN Commissioner for Human Rights, Michelle Bachelet, quoted previously by my noble friend Lord Robertson, this week urged the UK Government to heed the warnings that the Bill in its current form risks undermining the human rights obligations that the UK has committed itself to respecting. As a former teacher, when people make a commitment to respect something, I expect them to follow through.
The UN press release says:
“In its present form, the proposed legislation raises substantial questions about the UK’s future compliance with its international obligations, particularly under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment … as well as the … Geneva Conventions. These include obligations to prevent, investigate and prosecute acts such as torture and unlawful killing, and make no distinction as to when the offences were committed … ‘The prohibition of torture in international law is both clear and absolute,’ Bachelet said. ‘Article 2 of the Convention against Torture is unequivocal, stating that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”’ The obligations in the Convention to investigate and prosecute such allegations recognize none of the new distinctions that the Bill would now bring into law.”
Surely that is a reason for amendment.
Baroness Chakrabarti (Lab) [V]
My Lords, it must be a rare thing in nature, and in life, for so many doves and hawks to fly together. I agree with every speech that has been made so far in this part of the debate, with perhaps the small caveat that I disagree with the protestations by the noble Lord, Lord Hannay, that he lacked the eloquence of my noble friend Lord Robertson of Port Ellen—he certainly did not.
I need not repeat the various points particularly regarding the coalition of disapproval in relation to refusing to, at the very least, put war crimes, crimes against humanity, genocide and torture in an excepted category. Like others, I cannot understand the Government’s intransigence, especially as they are so well served in relation to the Bill in your Lordships’ House by the noble Baroness, Lady Goldie.
As the Minister spoke gently to me with her usual charm earlier in the debate, I will speak respectfully to her in return. Five years is a very short time indeed in the context of war, covert operations or peacekeeping operations that may be ongoing five years after an alleged atrocity, so in practice this triple lock will make it very difficult to prosecute some of the gravest offences that unfortunately sometimes arise in conflict. As we have said repeatedly during the passage of this legislation, the Government have already conceded the need for certain excluded offences, particularly sexual offences, which have been placed in Schedule 1 to the Bill so do not become subject to the five-year limitation. So it is inexplicable that in the light of everything that has been said to the Government, in the most constructive tone possible, they should not listen to your Lordships’ House and add the offences mentioned in this amendment to that list.
Whenever the Minister has been asked about the distinction between these grave offences and sex offences, she has presented a response from the department about the importance of sending signals and giving confidence in relation to sex offences and overseas operations. We need that comfort and those assurances on these grave offences, not least to avoid the perversity of a situation where, in the context of sexualised torture—sadly, we know this has been perpetrated in conflict situations even by allied forces in recent decades—a veteran or a serving member of personnel could be prosecuted for indecent assault when the allegation is of sexualised torture because the five-year period had passed. That is absolutely perverse.
I urge the Minister yet again to listen to this coalition of opinion from people who do not always agree with me by any stretch of the imagination on human rights matters. Hawks and doves are in complete agreement about this. I urge her to think again. My noble friend Lady Blower may not be a lawyer or a military person, but she is an educator. As she spoke I wondered how we will explain this legislation to our children and grandchildren, let alone to the various hard men of the world cited by the noble Lord, Lord Alton, who will be applauding the opportunity that the duplicity of our position on these crimes presents them whether in China, Myanmar or elsewhere.
I can only support these amendments and hope that the distinguished signatories to them will, if the noble Baroness does not concede, test the opinion of the House.
The Deputy Speaker (Lord Lexden) (Con)
I call the next speaker, the noble Lord, Lord Judd. We have no connection at the moment, so I call the noble Baroness, Lady Kennedy of The Shaws.
Baroness Kennedy of The Shaws (Lab)
My Lords, once again I am taking the opportunity to express my concerns about this Bill, particularly the five-year window for prosecution and the ability that that will have for the Government to meet their long-standing human rights obligations.
I support Amendment 3. I want to remind everyone that there is already an exclusion in this legislation for rape and other sexual offences. It is there correctly. I suspect that the Government, in putting this Bill together, had their ears bent by women in their own ranks saying, “You can’t possibly put off rape allegations simply because they haven’t been put forward within the five-year window.” There are many reasons why you could not bring a prosecution within that window of five years in relation to sexual offences, which we are now much more willing to recognise as one of the horrors of war. The reasons why people do not come forward and are not able to put their case within short order may be fear or lack of resources. They are often in denial about the horror they have experienced. They may be experiencing coercion or threats or a desire to avoid reliving the past. I am afraid I know all this directly. The reason why evidence is gathered over time to become strong enough to bring cases—it does not happen with speed—is because it is difficult, hard work involving sensitivity to victims. The same is true for victims of torture and other grievous war crimes.
Without the present exemption, the vast majority of rape victims, largely women, would be barred from accessing justice through no fault of their own. Victims of other forms of abuse and violence, such as torture, should be afforded the same opportunity to seek justice on their own terms and in their own time. For example, we are now gathering evidence from places such as Syria—a war that started in 2011. The triple I investigatory processes are gathering that evidence. Prosecutions will happen much further down the line; that is the nature of this.
We have led the world in advocating for the rule of law. I have met the most wonderful lawyers in the ranks of the British Army working for the British Army. They are champions of the rule of law. We should recognise that we have been at the heart of creating the well-established principles and provisions of international human rights law and international humanitarian law. It is a source of pride to me and should be to everybody. We lose our moral authority by going down this road.
I work closely with the United Nations Human Rights Council on matters of law. Senior officials are shocked, deeply alarmed and disappointed to their hearts that the UK of all nations should be retreating from this high ground, so I want to emphasise the implications of this on our standing in the world. The United Kingdom has ratified the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the United Nations convention against torture. We have heard about the convention in relation to genocide, of which I have spoken many times in this House. They all mandate the absolute prohibition of torture. The absolute nature of the prohibition is at odds with the restrictions in this Bill.
I speak with sadness that we have come to this place. In answering the questions, “What has persuaded the Government? How have they come to be in such a wrong place?”, I think this Bill was put together at a time in relation to matters to do with Iraq, and of course with memories and considerations in relation to Ireland. Courage was given to this Bill by the fact that in the United States of America there was someone like Donald Trump, who had such little respect for the rules-based international order and wanted something somewhat different. He was not interested in international law or international courts. We stand as one of the nations that has been true to those things. We have been one of the few nations that has not experienced fascism, and perhaps that has given us the experience of sticking with law and knowing why it is so important. The value of our commitments becomes meaningless and rings hollow across the international stage by bringing this Bill into being.
The people who experience torture end up deeply traumatised. The families of those who have experienced the horrors of these terrible crimes are traumatised. It takes time to work with them to put together evidence to consider prosecutions. The United Nations Human Rights Committee has also found that a state’s lack of response to an investigation of a complaint is in itself a violation of the prohibition of torture.
We are coming up against a whole body of law that we have been at the heart of creating. What are we thinking about? I wonder whether there are other lawyers in government like Elizabeth, the great lawyer in the Foreign Office who was really alarmed over the Iraq war, who are experiencing the same anxiety that something of serious consequence is being lost here. In its present form, this Bill will not only violate individual procedural human rights and create a culture of impunity for torture and inhumane treatment, but will diminish our capacity to influence in the international human rights sphere, as the noble Lord, Lord Alton, described.
I urge this House and the Government to have a rethink because the consequences of this legislation will be far-reaching. Here we are trying to speak in a world that is currently dealing with the horrors perpetrated on the Uighurs and those in Myanmar and the anxieties and fears about what is going on in Hong Kong. We need to have our voice strong in the world right now. Look at Belarus, look at the different places where horrors are taking place; we need to be a voice for values.
Lord Stirrup (CB)
My Lords, in speaking to this amendment, I start by saying that I accept a number of the arguments that the Government have advanced against it. I do not think that the Bill is intended to provide UK forces with a blank cheque for torture or genocide; nor do I consider that, as currently worded, it has that legal effect. Investigations into and prosecution of those suspected of such offences should and could be pursued even after the five-year limit, provided that the evidential case is sound. I am in no doubt that those involved in such decisions would consider the facts carefully and conscientiously before coming to a decision one way or the other.
I do not regard the exclusion of sexual offences, and not of torture or genocide, as attributing any hierarchy of seriousness to these crimes. I accept that in claims of torture or genocide, the admitted outcome—the death or wounding of individuals—might reasonably be the consequence of legal military action. Sexual assault, on the other hand, can never be the result of anything but a criminal act. There is a logic behind the distinction. Nor do I accept the argument that the Bill as worded would make our own military personnel more likely to be tortured themselves. During the first Gulf War, I commanded aircrew who were shot down, captured and tortured. The Iraqis did not have, nor did they require, the incentive and cover of this Bill for their actions. I seriously doubt that future captors of UK military personnel would be likely to say to themselves, “Well, I would not ordinarily have tortured these prisoners but, in view of the UK overseas operations Act, I now will.” Regimes that are going to torture captors will; those that are not, will not. I do accept, however, that this Bill might make it harder for us to protest such actions or subsequently to hold the perpetrators to account.
My concern about this part of the Bill has less to do with its legal intent and effect, and more to do with the perceptions it may create and the consequences of such perceptions. I have said that in my view, the Bill does not diminish the seriousness with which we view or treat torture or genocide, but it is clear that many people disagree, and that they will not be persuaded by any words of mine or of the Government. This is important. What people think about such matters is crucial, regardless of whether we regard their interpretation as correct. Reputations, national as well as personal, depend on perception as well as on fact, and the UK’s reputation in the international arena is not something to be taken lightly or to be hazarded without great cause.
One possible consequence of a diminished reputation for an unswerving opposition to torture or genocide could be the increased interest of the International Criminal Court in accusations against UK military personnel—an outcome that I would regard as disastrous. I have heard the arguments against this likelihood, and I am unconvinced by them. I have in the past heard similar arguments advanced about the negligible impact that human rights legislation would have on military operations, only to see those confidently expressed opinions proved dramatically wrong. The Government no doubt feel that they are on firm legal ground with regard to the International Criminal Court, but that view has yet to be tested. Meanwhile, risk must be measured as a combination of probability and consequence. Even if the chance of challenge by the ICC is not large, the severe damage it would cause demands that we do all we can to guard against it.
The risks that I have identified might nevertheless be borne if they were sufficiently outweighed by the advantages that Clause 6 offers, but I do not believe this to be the case. The underlying problems that need to be addressed are the protracted and repeated investigations of speculative and malicious claims, along with the extension of human rights legislation into areas for which it is ill-suited. The Bill, of necessity, comes at these issues obliquely and is therefore likely to be of limited value. I know that the Government believe that the measures proposed on prosecutions will have an impact on the timeliness of investigations. I hope they are right, but the potential benefit is not obviously overwhelming. So, while I support the Government’s aim, and while I understand the logic behind the drafting of Clause 6, I believe that the current wording poses risks that far outweigh the potential benefits. Unless I hear in this debate a far more compelling argument than has so far been made against it, I shall support Amendment 3.
Lord Dubs (Lab) [V]
My Lords, it is a pleasure to follow the noble and gallant Lord, Lord Stirrup, as well, indeed, as my noble friend Lady Kennedy in the arguments they have put forward. The House has enormous respect for the Minister. I share that respect but it is noticeable that, despite her arguments, she had no support in Committee. I looked at her closing arguments then and found this one:
“In the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. They fight, they use force”.
That seemed to be the justification for this provision: that force has to be used. I do not believe that force is the same as torture. If there were to be confusion between the two, it would be up to the courts to make a decision. It would not be up to a government Minister to say whether an action was unacceptable or, indeed, appropriate for it to be excused altogether by the provisions of this Bill.
In her closing remarks—she was trying to be helpful—the Minister also said:
“I undertake to consider with care the arguments that have been advanced and to explore if there is any way by which we can assuage your Lordships’ concerns.”—[Official Report, 9 /3/21; cols. 1575-77.]
I am not sure that anything has happened about that commitment. I understand why Ministers make such commitments and why she did so; perhaps she was not comfortable with the Government’s whole argument. However, I am not clear what she has done to assuage our concerns; I do not believe she has.
As has been said before, the reputation of this country is at stake. One thing we surely value very much is our reputation for adhering to the rule of law—for having a proper system for considering it and, indeed, being implacable in our opposition to any breach of it. That reputation is surely worth preserving, yet it is now at stake. We deal all the time with countries that do not observe the rule of law, be it Hong Kong, China in respect of the Uighurs, or Myanmar in respect of the Rohingyas—or, indeed, of their own citizens. There are too many examples of the rule of law being breached; we can ill afford to join the ranks of countries that breach it. We have had severe warnings that we might find our service men and women up before the International Criminal Court—which would be mortifyingly embarrassing and absolutely appalling were it to happen.
I am a member of the Joint Committee on Human Rights, which made a detailed assessment of the Bill and its various provisions and produced a report. At paragraphs 63 and 64, the report says that
“we have significant concerns that the presumption against prosecution”
runs the risk of contravening
“the UK’s legal obligations under international humanitarian law (the law of armed conflict)”
and
“international human rights law ... It risks contravening the UK’s obligations under the UN Convention Against Torture, the Geneva Conventions, the Rome Statute and international customary law.”
The report goes on to say:
“At a minimum, the presumption against prosecution should be amended so that it does not apply to torture, war crimes, crimes against humanity or genocide.”
Nothing could be clearer than that.
We have also heard quoted today Michelle Bachelet, the UN High Commissioner for Human Rights. She said:
“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
I can think of no clearer comments than those I have quoted. I fully support this amendment.
Lord Morris of Aberavon (Lab) [V]
My Lords, we have heard some very distinguished speeches this afternoon and the passionate speech from the noble Lord, Lord Campbell of Pittenweem, destroyed any case that the Government might have. As an old soldier—a national serviceman—and a Defence Minister many years ago, I yield to no one in my concern to protect the armed services from vexatious investigations and prosecutions. As Attorney-General, I played a very small part in encouraging the late Robin Cook’s successful advocacy for the setting up of the International Criminal Court. As an active member some years ago, I advocated successfully at the IPA conference in Cape Town for the international recognition by all nations of the offence of torture. I believe I was kicking at an open door when the paper that I had prepared was accepted. All civilised countries now accept that the offence of torture is unique; likewise, of course, genocide.
My noble friend Lord Robertson comprehensively and eloquently moved the amendment. The Bill proposes a presumption against prosecution of torture and other grave crimes after five years, except in exceptional circumstances. As my noble friend states, this risks the creation of de facto immunity after that time. That is the bottom line. Unfortunately, the result is that our troops risk being open to prosecution by the International Criminal Court. The effect of the Rome statute is that the court can prosecute where there is no robust domestic civil process. Perhaps the Minister will say specifically what the danger is of our troops being brought before the International Criminal Court?
As a former law officer, I had the task of advising Her Majesty’s Government on international law; I cannot see how we can avoid process before the International Criminal Court. May I make a practical suggestion to the Minister? Before Third Reading, will she consult the law officers and get their views—if they have not given them already, as I suspect they may have—on the point raised by so many Members of this House, without opposition, that we are in danger of allowing our troops to be hauled before the International Criminal Court?
I strongly support the exclusion of the most serious crimes, such as torture, war crimes and genocide, from the immunity proposals. Put simply, in international law—I can only emphasise this—there is no expiry date for the prosecution of torture, war crimes and crimes against humanity. I am grateful to my noble friend for moving this amendment. The bottom line is that there is no expiry date for the prosecution of these offences. It may not have been the intention, but the unfortunate consequence is that our troops might find themselves before the International Criminal Court.
Baroness Smith of Newnham (LD)
My Lords, this amendment has had no opposition. I thought very briefly that the noble and gallant Lord, Lord Stirrup, was perhaps going to speak against it because he raised concerns about the nature of some aspects of what has been said. The Minister has heard nobody from her own Benches, or rebel Labour, Liberal Democrat or Cross-Bench Peers, speaking against the amendment. Nobody has given any reason why this amendment should not be supported. That has been true at virtually every stage. The only noble Lords who perhaps could have given the Minister some succour at an earlier stage, at Second Reading, were the noble Lord, Lord Lancaster, and, in particular, the noble Lord, Lord King of Bridgwater, who listened very carefully to what the Minister said. However, even the noble Lord, Lord King, said that maybe the Government needed to think again about torture and genocide.
If there is a presumption that sexual violence and exploitation should be left out of Part 1 of the Bill, what possible justification can the Government have to leave out genocide, torture, war crimes and crimes against humanity? As the noble Lord, Lord Dubs, said, the Minister, at previous stages of the Bill but also in her written response to the Delegated Powers and Regulatory Reform Committee, has said that the Government would never ask our Armed Forces to perpetrate crimes of sexual violence or sexual exploitation. Good—that is obviously what we want to hear. However, the Minister does not say the same thing about war crimes and torture. She merely says that the Government take them very seriously. While, clearly, the Bill does not make it impossible that prosecutions could be brought against allegations of torture, genocide, war crimes and crimes against humanity, surely the logic of the Minister’s response to the Delegated Powers and Regulatory Reform Committee is that the Government, if not endorsing or requesting that people perpetrate torture and war crimes, somehow do not view them in the same way.
Occasionally on these Benches we have very different views from the Minister. We know that we are never going to change the Minister’s mind; nevertheless, we listen and we understand where the Government are coming from. Perhaps the Government have a point of principle. On this occasion, it is almost incomprehensible what the Government’s point of principle can be. If somebody has committed torture or a war crime, that needs to be investigated and prosecuted. The fact that the Government merely take it very seriously simply is not good enough. This amendment rights a complete defect in the Bill. We support the amendment and I believe that many noble Lords from all sides of the Chamber support it.
I ask whether the Minister did go away and think carefully after Committee. As several noble Lords have said, we respect the Minister but we have not yet heard any sense of reflection from the Government. We have not had a scintilla of a change. We have heard nothing that makes anybody feel that the Government are likely to change their mind. If the Government cannot find a way of changing their mind, it is essential that this House asks the other place to think again.
Lord Tunnicliffe (Lab) [V]
My Lords, there is almost universal support in this House for ensuring that torture, genocide, war crimes and crimes against humanity are excluded from the presumption. It is clear what the ICC thinks: if we do not do so, as has been quoted many times, the UK would
“forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide.”
That is why there is such strong support for Amendment 3 and, importantly, for its approach to protect these offences so that they cannot be removed by statutory instrument at a later date. I hope that the Minister has listened closely to the powerful debate and the broad coalition that spans military figures and human rights experts, and will promise that government amendments will come forward at Third Reading. Otherwise, we support my noble friend Lord Robertson in his important amendment and urge him to divide the House.
Baroness Goldie (Con)
My Lords, first, I thank the noble Lord, Lord Robertson, and all other noble Lords for their thoughtful contributions. We heard some exceedingly powerful speeches on these issues in Committee, and they were echoed today. I recognise the understandable concern and emotion that accompany the arguments that have been adduced. This is an extremely important matter, perhaps the most passionately debated part of the whole Bill, and I do not underestimate the scale of my task to address the arguments advanced by the noble Lord, Lord Robertson, and his supporters, but it is my job to try. The noble and gallant Lord, Lord Stirrup, made a telling point about perception, and it is my job to try to address that issue as well.
I reassure the House that the Government have given considerable and careful consideration to the offences that are excluded from the measures in Part 1. The intent of the Bill, as drafted, ensures that the Part 1 measures will apply to as wide a range of offences as possible, in order to provide that necessary reassurance to our service personnel that the operational context will be taken into account, in so far as it reduces a person’s culpability, in the circumstances of allegations of criminal offences on historical overseas operations. The broad objective of the Bill is to support our Armed Forces personnel, and I accept that that has been recognised across the Chamber. The divergence of opinion is on how we can deliver that reassurance.
In considering the provisions of the Bill, the Government gave careful thought to the physical environment of an overseas operation. As noble Lords who have served on such operations will know, the range of activity is diverse and the threat of danger ever present. It is a lethal environment in which our Armed Forces are called upon to deal with unimaginably challenging situations, and it is predictable that, arising from such activity, allegations of wrongdoing may be made. The one type of activity which can never have any place in such an operation is the commission of a sexual offence, so I say to the noble Baroness, Lady Smith, that is why sexual offences are excluded from the Bill. She referred to that as a presumption: it is not a presumption—it is an explicit exclusion.
Some have argued that such an exclusion means that the Government are relegating other crimes to a lower classification of gravity. We are not. We are acknowledging that in an overseas conflict, because of the inherent nature of such activity, there is a predictability about allegations being made that crimes have been committed. The Government are neither defining nor categorising what these crimes may be, we are merely creating a clearer framework and structure as to how such allegations are to be handled. It goes without saying that of course we shall take other offences, such as war crimes and torture, extremely seriously. I repeat that the Government’s decision to exclude sexual offences only, as I set out in detail in Committee, does not mean that we will not continue to view with the utmost gravity other offences such as war crimes and torture.
Nor will the Bill somehow provide an excuse for poor behaviour or enable impunity for very serious crimes allegedly committed by our Armed Forces personnel. I am very grateful to the noble and gallant Lord, Lord Stirrup, for his comments in that respect and I am pleased that many noble Lords recognise that the presumption against prosecution does not amount to either an amnesty or a statute of limitations, nor the creation of a de facto immunity. I say to the noble Lord, Lord Hannay, that a bar on prosecution in gremio of the Bill would be an amnesty—it would be a statute of limitations and a de facto immunity— but there is no such provision in the Bill. I remind noble Lords that the severity of an alleged offence will continue to be an extremely important factor for a prosecutor in determining whether to prosecute. We should remember that the presumption is, of course, rebuttable.
A number of noble Lords, including the noble Baronesses, Lady Chakrabarti and Lady Kennedy, referred to the five-year period. I just observe that the period was informed by the response to the consultation carried out on the Bill. Interestingly, the period of five years was visited at an earlier stage, in Committee, and has not been revisited.
I have listened to the very real concerns expressed by many in this House, including references to many third parties holding similar views, that the Bill undermines the United Kingdom’s continuing commitment to, and damages our reputation for, upholding international humanitarian and human rights law, including the United Nations Convention against Torture. I say to the noble Lord, Lord Dubs, that I seek to assuage these concerns and to reassure once more on this point: the United Kingdom does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law. Our Armed Forces will continue to operate under international law, including, of course, the Geneva conventions, and we will continue to expect that others will do the same.
I would like to explain further why the Government’s view is that Amendment 3 should be resisted. First and foremost, we are concerned that it would undermine the reassurance that we are seeking to give to our service personnel and veterans by excluding a considerable list of offences from the application of the measures in Part 1. The Bill does not prevent such offences being investigated nor prosecuted. Indeed, in relation to prosecution, the gravity of the crime will be a cogent factor. It is perhaps also worth adding that, in the interests of clarity and to preserve the structure of the Bill as currently drafted, we believe that all the excluded offences should be listed in the same place in the Bill, and that the appropriate place is Schedule 1, instead of being spread across the Bill, as the noble Lord’s amendment would provide.
I have endeavoured to present the Government’s position and, in these circumstances, I ask the noble Lord, Lord Robertson, to consider withdrawing his amendment.
Lord Robertson of Port Ellen (Lab) [V]
My Lords, I do not have to repeat the respect that the House has for the Minister, but she does not speak with any great enthusiasm. That is not surprising because her case is so weak that enthusiasm and passion certainly cannot be part of her argument. I do not want to take up a lot of the time of the House at this stage, but let me quote what General Sir Graeme Lamb, the former director of Special Forces in the British Army, said in the weighty Policy Exchange document that was critical of this Bill. He said
“good intentions are not enough as the Bill as it stands may fail to protect our troops adequately … it does nothing to address the problem of repeat investigations.”
Then there was Bruce Houlder, the former Director of Service Prosecutions whom I quoted in my original speech, who told the Financial Times that the five-year limit would be an “international embarrassment”. I did not quote what he added, which was that
“the idea that we then treat torture and other grave crimes including homicide as excusable, and legislate in effect to make it difficult in the extreme to prosecute after five years, is really outrageous.”
The Minister has not quoted anybody in support of her contention that what the Government are saying is reasonable. I and other noble Lords and noble and gallant Lords have quoted endless examples of those who say that what is happening here today in this Bill is outrageous. Even today’s Daily Mail editorial condemns the Government for apparently legitimising torture in the way that the Bill does.
In light of the fact that the Minister has given no defence whatever, I insist that we test of the will of the House on this amendment.
Lord Thomas of Gresford
“Investigation of allegations related to overseas operations
(1) In deciding whether to commence criminal proceedings for allegations against a member of Her Majesty’s Forces arising out of overseas operations, the relevant prosecutor must take into account whether the investigation has been timely and comprehensively conducted.(2) Where an investigator of allegations arising out of overseas operations is satisfied that there is sufficient evidence of criminal conduct to continue the investigation, the investigator must within 21 days refer the investigation to the Service Prosecuting Authority with any initial findings and accompanying case papers.(3) An investigation may not proceed after the period of 6 months beginning with the day on which the allegation was first reported without the reference required in subsection (2). (4) On receiving a referral under subsection (2), the Service Prosecuting Authority must either—(a) order the investigation to cease if it considers it unlikely that charges will be brought, or(b) give appropriate advice and directions to the investigator about avenues of inquiry to pursue and not pursue, including—(i) possible defendants to consider,(ii) possible explanations to consider for the circumstances giving rise to the investigation, and(iii) overseas inquiries and seeking the help of overseas jurisdictions.(5) Where the investigation proceeds, the Service Prosecuting Authority must monitor and review its progress at intervals of three months and must on each review make a decision in the terms set out in subsection (4).(6) On the conclusion of the investigation, the investigator must send a final report with accompanying case papers to the Service Prosecuting Authority for the consideration of criminal proceedings.(7) After receipt of the final report, the facts and circumstances of the allegations may not be further investigated or reinvestigated without the direction of the Director of Service Prosecutions acting on the ground that there is new compelling evidence or information which might—(a) materially affect the previous decision, and(b) lead to a charge being made.(8) The Judge Advocate General may give Practice Directions as he or she deems appropriate for the investigation of allegations arising out of overseas operations.(9) For the purposes of this section—“investigator” means a member of the service police or a civil police force;“case papers” includes summaries of interviews or other accounts given by the suspect, previous convictions and disciplinary record, available witness statements, scenes of crime photographs, CCTV recordings, medical and forensic science reports.”
Lord Thomas of Gresford (LD) [V]
My Lords, the Minister’s response to Amendment 6—on the necessity of monitoring investigations to ensure that they are timely, effective and not continuously repeated—was to defend the status quo when the current system has manifestly not prevented delays, shoddy investigations and reinvestigations casting a shadow over serving members of the Armed Forces and veterans. I beg leave to test the opinion of the House.
The Deputy Speaker (Baroness Fookes) (Con)
We now come to the group beginning with Amendment 7. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 8: Restrictions on time limits to bring actions: England and Wales
Amendment 7
Lord Thomas of Gresford
Lord Thomas of Gresford (LD) [V]
My Lords, in speaking to these amendments, my first point is that legitimate claims for misconduct by British troops involved in overseas operations are a fact that has to be faced, however unpalatable that is. According to a Written Answer given to me by the noble Baroness, Lady Goldie, on 15 June last year,
“in excess of 1,330 claims”
have been brought against the MoD since 2003, and they have been settled at a cost of some £32 million. Nobody suggests that these were not proper claims. Indeed, the noble Baroness said:
“The claims received focus predominately on alleged unlawful detention but many incorporate allegations of mistreatment at the hands of British military personnel.”
Lord Faulks (Non-Afl) [V]
My Lords, Amendments 7 and 8 are, in effect, wrecking amendments, while Amendment 13 seeks to distinguish the position of service personnel and other potential claimants. I expressed the view in Committee that I was not convinced that the provisions in Part 2 would make all that much practical difference. The primary limitation period for personal injuries is three years, as the noble Lord, Lord Thomas, has just pointed out, except in so-called delayed date of knowledge cases, as provided by Sections 11 and 14 of the Limitation Act 1980. There is a discretion to disapply the limitation period under Section 33 of the 1980 Act. As he also pointed out, claims under the Human Rights Act have to be brought within one year, with a discretion to extend in rather limited circumstances.
My experience of personal injury claims as a barrister is that courts need considerable persuasion before they extend the three-year period and that the burden rests on a claimant to persuade a court that that primary limitation period should not apply. Limitation periods exist to reflect the difficult balance that has to be struck between allowing everyone to put a line under actual or potential claims and the fact that some claimants will have good reason for delay.
The provisions in Part 2 provide a long-stop, subject to a delayed date of knowledge provision. It seems that claims arising out of overseas operations present particular difficulties for all those involved, and I respectfully differ from the comment made by the noble Lord, Lord Thomas, about Salisbury Plain, particularly in overseas operations where the theatre of operations has moved on or changed its location and it may be extremely difficult to investigate, on either side, the basis of any such claim.
As I said, the provisions are not likely to have much practical effect, but they will nevertheless have some indirect effect in encouraging appropriate claims to be brought with as much speed as is practical. They will also provide a degree of reassurance to our service personnel that a time will come when they will be involved in one way or another in so-called late claims. The noble Lord, Lord Thomas, referred to some uncertainty over what the date of knowledge might be which would defer claims. Subject to what the Minister says, I understand it to be concerned with cases where, for example, there is latent disease that could not be reasonably known about by a claimant at the time; for example, somebody who sustains mesothelioma as a result of exposure to asbestos dust or who has some other illness or injury that becomes manifest only some years after the event in question.
I am not attracted to Amendment 13 either. In Committee, the noble Baroness, Lady Chakrabarti, suggested that I was concerned only with claims brought by the military and not with those brought by the non-military or civilians in, say, Iraq or Afghanistan. That was not in fact what I said or thought. It is therefore something of an irony that this amendment would make that very distinction. I am unaware of any such provision in any other area of the law of limitation of actions—that is, a provision that distinguishes between classes of claimant. There are of course provisions distinguishing the position of a claimant who has not attained his or her majority or who lacks mental capacity. However, it would set a most unfortunate precedent somehow to elevate a particular claimant to have a special status.
The provisions in Part 2 ought to apply in precisely the same way across the board to whomsoever is involved in claims arising out of overseas operations and provide equal protection for all of them. This amendment is discriminatory and should not be included in the Bill. Surely our service personnel want to be treated fairly, rather than to be given some special privileged litigation status. I will listen with great interest to what the noble and gallant Lords who are to follow in this debate have to say about the matter, but for the moment I am unconvinced that any of these amendments should be made to the Bill.
Lord Hope of Craighead (CB) [V]
My Lords, I will add just a few words to what the noble Lord, Lord Thomas of Gresford, said in support of Amendment 13. The provisions to which it is addressed which are of particular interest to me are in Schedule 3, which seeks to amend the legislation that applies in Scotland to the same extent to that in Schedules 2 and 4, which apply to the other jurisdictions. The crucial point is the imposition—for such it is—of an absolute prescription of six years.
As we know, the three-year limitation period that applies at present is accompanied by protections that enable the court to extend the limitation period if it is justified by the circumstances—the date of knowledge exception. It seems that the Bill applies a hard-edged cut-off that makes no allowance whatever for extenuating circumstances. I could understand it if this proposal had been accompanied by a carefully conducted research programme into how the three-year limitation has worked in practice over the years, identifying on how many occasions the period has been extended for more than three years, and why and at what point the extensions have been sought and justified. We are, of course, in this case, and indeed throughout the Bill, dealing with the consequences of operations that have been conducted overseas, maybe under very difficult circumstances. Gathering together enough information to determine whether a claim would be justified, let alone to bring together all the information needed to justify bringing the claim before the court out of time, may take much more time and effort than is needed in the more benign domestic cases. That is the reason for seeking the discrimination to which the noble Lord, Lord Faulks, referred.
Lord Hendy (Lab) [V]
My Lords, it is an honour to follow the noble and learned Lord, Lord Hope of Craighead. I too support the amendments. In particular, I support wholeheartedly Amendments 7 and 8, which, if accepted, would obviate the need for Amendment 13. I differ from the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Hope of Craighead, in relation to Amendment 13, which in my view does not go far enough.
Clauses 8 and 9 would have the effect of preventing a number—a small number, I accept—of meritorious civil actions being brought by service personnel, or their estates and dependants, against the Ministry of Defence, where the latter has negligently caused their injury or death. I see no justification for imposing harsher limitation provisions for actions in respect of personal injuries or death that relate to overseas operations of the Armed Forces than in relation to other civil claims. The factual matrix in which a claim arises will always be a crucial factor in the determination of the court’s discretion to allow late claims. The imposition of the time bar in Clauses 8 to10 will undermine the confidence of military personnel who might be injured or die on overseas operations. They knowingly and bravely take the risk of injury or death in enemy action, but they do not consent to risks created by the negligence of the Ministry of Defence, as in the case of my former client, the mother of a soldier killed by a high-explosive shell fired at his tank from another British tank, which had mistaken it for the enemy. After interminable investigations, belated disclosure of documents and the work of our expert, the case was made that the Ministry of Defence was at fault for a long-standing failure to fit identification equipment and for a consistent failure to train tank commanders properly in identification.
The Ministry of Defence eventually settled the case with a substantial payment but no admission of liability. It took years. Had the proposed regime of Clauses 8 to 10 been in place, my client’s action might never have got off the ground. I feel I owe it to those who might in the future be in the sad position of my former client, having lost a son or daughter, to resist the inclusion of these clauses.
What can be the justification for imposing a bar on such claimants, a bar which does not apply to any other claimants other than in relation to members of the Armed Forces who suffer personal injury or death on overseas operations? The ostensible purpose is to bar vexatious claims but, with respect, that is nonsense. Bill or no Bill, there will always be unmeritorious claims. The courts have a powerful armoury of mechanisms for throwing them out. They do not need the blunt instrument of Clauses 8 to 10. Although those clauses would time bar some vexatious claims, they would equally time bar meritorious claims. That is not forgivable. It is no answer to say that there would be few of the latter. There should be none.
In any event, as the noble Lord, Lord Thomas of Gresford, pointed out, all claims are subject to the Limitation Act, which imposes strict time limits on them. These may only be exceeded by express permission of the court—an exercise of the court’s discretion which is subject to specified and comprehensive conditions under that Act.
The imposition of the time bar in Clauses 8 to 10 is likely to undermine the confidence of military personnel who might be injured or die on overseas operations. They should not be subject to hurdles to which other claimants are not.
I agree with the sentiment of Amendment 13, which seeks to exempt service personnel from the time bar of Clauses 8 to 10. However, its shortfall is that it fails to bring the estate and dependants of such personnel within the exemption, thus allowing the time bar to apply to those in the position of my former client. Amendments 7 and 8 are therefore preferable. I had hoped that those who tabled them would have pressed them to a Division.
Lord Boyce (CB) [V]
My Lords, Amendment 13 is about the six-year time limit imposed by the Bill on those who have been engaged on overseas operations, and the ability of such servicepeople to bring any grievances against the MoD after that time. As we have already heard, this would have the perverse effect of limiting the rights of individual service personnel by restricting their access to legal remedies for harms caused by their employers. This would not apply to their counterparts not engaged on overseas operations.
In Committee, the Minister’s comment that, based on past statistics, this might apply only in a very small number of instances was specious. The Armed Forces are all of one company and thus should all be treated the same. Even if only one person were to be affected, he or she should not be discriminated against. It cannot be just for such situations to be allowed, so I support Amendment 13.
Viscount Trenchard (Con)
My Lords, I had intended to involve myself deeply in the passage of this important Bill through your Lordships’ House, although I hesitate to speak on matters about which I am much less qualified to pronounce than the learned and gallant noble Lords who have made such a great contribution to our debates on the Bill. I have found it difficult to keep up with and to remain fully involved in this Bill as well as in the Financial Services Bill. For most of my working life, I have been a full-time banker; on the other hand, my military experience is limited. I was a TA soldier for 10 years and, more recently, have been honoured to act as an honorary air commodore in the Royal Auxiliary Air Force.
I very much welcome the Government’s decision to introduce the Bill and to deliver on our manifesto commitment to end vexatious legal claims. I also understand and agree with the Government’s intention in Part 2 to ensure that claims are brought sooner. This should mean that service personnel and veterans will not be subjected to criminal investigations that may be triggered by civil claims. I therefore cannot support Amendments 7 and 8 in the names of the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Smith of Newnham, which have the effect of wrecking this part of the Bill in its entirety.
However, I am impressed by arguments by the noble and gallant Lord, Lord Boyce, and the noble Lord, Lord Thomas of Gresford, that the courts should continue to be allowed to hear personal injury claims against the Crown even after the six-year time limit has expired. I know enough about the culture within the Armed Forces—a major reason for the high regard in which they are held—to agree that it may also create situations where someone may be told that he cannot make a claim, when actually he can, but he will still believe and accept that he cannot. I am therefore sympathetic to the purpose of Amendment 13 but look forward to hearing my noble friend the Minister’s response to the powerful arguments put forward in its support.
Baroness Chakrabarti (Lab) [V]
My Lords, I support these amendments, with a very strong preference for Amendments 7 and 8, although I understand that they will not be pressed; half a loaf is better than no bread. It is clear to me that a combination of rules and discretion is what the law is. This is the protection against arbitrary action, and I have heard no compelling argument whatever at any point in the proceedings relating to this legislation for limiting the discretion of the courts completely, particularly in the light of the sorts of cases described by my noble friend Lord Hendy.
However, I was interested in the newly expressed concerns of the noble Lord, Lord Faulks, about discrimination; his view of equal treatment under the law is novel to me. He seems to be concerned about discrimination in relation to a Bill, which he supports, that is inherently discriminatory. He is concerned about giving extra protection to a particular class of claimant—namely, veterans and personnel, who are supposed to be protected by this legislation. But he is not concerned, it would seem, about giving special protection to a class of defendants—the MoD, the Executive—which is the initiator of the legislation as well as the civil defendant. He is not concerned about giving special protection and limitations to criminal defendants in the military, but he is concerned to give the protection offered by Amendment 13 when it is not being offered to overseas civilians, yet he does not support Amendments 7 and 8. This is not levelling up; it is levelling down.
As I say, I would very much prefer Amendments 7 and 8 to be pressed, but in their absence I will support Amendment 13. The Government brought forward this legislation with a promise to give protection to service personnel and veterans but, instead, if they do not go along with at least Amendment 13, it will protect the Exchequer—the Ministry of Defence—from the very people that it claims to protect.
Lord Stirrup (CB)
My Lords, I will speak to Amendment 13, to which I have attached my name. Its purpose is to ensure that service personnel are not debarred by time from pursuing claims against the Government for harms suffered on overseas operations. It seems strange to me that a Bill with the avowed purpose of providing government reassurance to service personnel seems intent on preventing those very personnel from seeking redress from that same Government. This may not be the intention, but it is one of the potential consequences of the Bill as it is currently worded.
In responding to a similar amendment in Committee, the noble and learned Lord the Advocate-General for Scotland, argued against it because it would have very limited effect. At Second Reading, the Government said that some 94% of service personnel and veterans who brought claims relating to events in Iraq and Afghanistan had done so within six years. He later confirmed that this figure included those who had brought a claim within six years of the date of knowledge. My response is to repeat the question that I posed on that occasion, and which was never answered: are we to assume then that, had the proposed timescale been in effect, the Government believe that it would have been acceptable for the other 6% to lose the opportunity to pursue their cases?
Lord Browne of Ladyton (Lab) [V]
My Lords, it is a great pleasure to follow the noble and gallant Lord, Lord Stirrup. Not for the first time, I found his contribution compelling and I hope the Minister did as well.
During the passage of this legislation, it has become clear that the application of this six-year unextendable deadline for claims by members of our own Armed Forces— principally against the MoD—is probably an unintended consequence. In Committee, the noble and learned Lord, Lord Stewart of Dirleton, the Advocate-General for Scotland, said:
“The purpose of the limitation longstops is not to stop service personnel from bringing claims”.
He went on to say that
“excluding claims from service personnel from these measures is likely to be incompatible with our obligations under the ECHR. That is because there would be an unjustifiable difference in treatment between different categories of claimants—for example, between service personnel and the Ministry of Defence civilian personnel who deploy alongside them on overseas operations … There is therefore no objective or functional reason why claims from service personnel and veterans should be excluded from the longstops”.—[Official Report, 9/3/21; col. 1596.]
A plain reading of that explanation is that the Government are compelled by obligations under the ECHR to apply these longstops to all personnel in respect of claims that arise from their deployment on overseas operations. It is that argument that I wish to test.
On 11 March, in the debate on Amendment 32 in my name—supported by the noble and gallant Lord, Lord Houghton of Richmond, and the noble Lord, Lord Clement-Jones—I raised the issue of discrimination in Part 1 between those who are deployed on overseas operations but operate remotely, such as UAV pilots, and those who are deployed on overseas operations and operate physically in the theatre. The purpose of the amendment was to explore whether the consequences of the stated intention of the integrated review—that new technology be integral to the future of UK defence—has been fully thought through in this legislation, and whether the discrimination between those operating remotely and those deployed in the theatre is sustainable in the light of the implications of this technology being used by service personnel deployed in overseas operations.
In response to the debate on that amendment and in a subsequent letter of 25 March, the noble Baroness, Lady Goldie, sought to assure me and others that the Bill was future-proofed and that the full implications of new technology and its deployment had been thought through. I am far from convinced that that is the case and will continue to press the Government for a comprehensive review of these issues.
As well as writing, the noble Baroness graciously offered and arranged for me a virtual meeting with her and senior officials to discuss many of the complex issues raised in the debate and referred to in her letter. That discussion is ongoing. I await a further letter of clarification, and I have been offered and have accepted a second detailed briefing with senior officials. It is likely that we will return to this in the Armed Forces Bill.
However, relevant to this debate, the letter of 25 March includes the following:
“When we were developing the policy intent for the Bill, we considered very carefully those flying UAVs in an overseas operation but from within the UK. We determined that, although UK-based UAV pilots would be considered to be part of an overseas operation, it could not be said that they would be at risk of personal attack or violence (or face the threat of attack or violence), as would be the case for an individual deployed in the theatre of operations. Nor would the difficulties of recording decisions and retaining evidence be the same as when deployed within the theatre of an overseas operation. We therefore determined that personnel in these roles should not be within the scope of this Bill. It is important to recognise that this decision is not limited only to UAV pilots. There may be others, in future … to whom these measures would equally not apply … When this technology is used by service personnel deployed on an overseas operation, they will be covered by the Bill, but it is important to make a distinction between those that are deployed in a high threat environment, and those that aren’t, due to the very different operating conditions.”
I repeat:
“We therefore determined that personnel in these roles should not be within the scope of this Bill … this decision is not limited only to UAV pilots … There may be”—
unspecified—
“others, in future, who participate in an overseas operation remotely … to whom these measures would equally not apply.”
This explanation makes it clear that, in respect of all parts of the Bill, the Government have decided that there will be a difference in treatment between different categories of claimants; for example, between different categories of service personnel deployed on the same overseas operations—that is, those who are in the theatre and those who are not. My question is simply: how is this difference in treatment justifiable, and how is it compatible with our obligations under the ECHR if it is not compatible when expressed as in Amendment 13?
Lord Tunnicliffe (Lab) [V]
My Lords, in essence, Amendment 13 in the names of my noble and learned friend Lord Falconer, the noble and gallant Lords, Lord Stirrup and Lord Boyce, and the noble Lord, Lord Thomas, would reintroduce the normal approach to limitation: if a claim is not brought within 12 months —or three years if it is a personal injuries claim—under the Human Rights Act, the court can extend indefinitely if it is just and equitable to do so. This will allow personnel to bring claims after the Government’s proposed six-year longstop.
While the Minister argues that the longstop will apply only to a small number of personnel, I was struck by the comment from the noble and gallant Lord, Lord Stirrup—repeated again today—that
“to argue that only a small number of service personnel would suffer injustice does not seem a respectable position for a Government to take at any time”.—[Official Report, 9/3/21; col. 1594.]
We wholeheartedly agree with him. We have to correct this unfairness and avoid a breach of the Armed Forces covenant, as suggested by the Royal British Legion. While a soldier injured through negligence by a piece of equipment on Salisbury Plain can bring a claim under normal rules, it is wrong that different rules apply for the same act of negligence if it occurs in an overseas operation.
I also want to highlight a concerning Answer I have received to a Parliamentary Question. When asked about government investigations against civil claims, the Minister revealed that the MoD is launching three times more investigations against personnel who pursue civil claims than it did five years ago. These examine
“the true extent of a claimant’s alleged injuries”
and
“the veracity of a claim”.
This Answer, along with the six-year limit in this Bill, indicates that government is increasingly more suspicious of civil claims from troops against the MoD. We should not provide additional limitational hurdles in respect of military personnel bringing claims against the MoD. Therefore, the Bill clearly needs to be amended. When Amendment 13 is called, I intend to seek the opinion of the House.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, Amendments 7 and 8 seek to remove Clauses 8 and 9 from the Bill. Clause 8, in conjunction with Schedule 2, introduces new factors to which the courts must have particular regard when deciding whether to allow personal injury or death claims connected with overseas military operations to proceed after the primary time limit expires, and sets the maximum time limit for such claims at six years. The Government’s intent behind that is to help ensure that claims for compensation for personal injuries or deaths arising from overseas military operations are brought more promptly, and to help achieve a fair outcome for victims, for the service personnel and veterans who might be called upon to give evidence, and for the taxpayer.
Sections 11 and 12 of the Limitation Act 1980 set a three-year primary time limit for claims for personal injury or death, as do equivalent provisions in the other jurisdictions of the United Kingdom. This three-year time limit is not absolute, as the House heard from the noble Lord, Lord Thomas of Gresford, when introducing the debate. Section 33 of the 1980 Act gives the courts discretion to allow claims to proceed beyond that time limit if it is considered that it is equitable so to do.
When assessing whether it is fair to allow a claim beyond the initial three-year limitation period, courts must have regard to all the circumstances of the case and, in particular, to six factors which are set out in Section 33 of the 1980 Act. In broad terms, these relate to the steps taken by the claimant to bring the claim, the reasons for delay and the effect of the delay on the quality of the evidence.
The Government’s view is that these factors do not adequately recognise or reflect the uniquely challenging context of overseas military operations—a factor, I think, which is recognised more or less universally across your Lordships’ House. The Government are concerned that, unless the courts are directed to consider factors that are relevant to overseas operations, they may wrongly conclude that it is fair to allow older claims connected with overseas operations to proceed beyond the primary time limit.
Lord Thomas of Gresford (LD) [V]
My Lords, I am grateful to all noble Lords who have spoken, particularly the noble Lord, Lord Hendy, and the noble Baroness, Lady Chakrabarti, for their support for my Amendments 7 and 8. I am also grateful to the noble and gallant Lord, Lord Stirrup, for pointing to the difficulties for MoD civilians who are deployed on overseas matters.
The argument put forward by the noble and learned Lord, Lord Stewart, is that Amendment 13 would not apply to them. It would discriminate against them because they are not included—so what do you do? You do not add in the MoD civilian employees; you reduce the rights of the combatants—it seems completely topsy-turvy. Another argument is: everything is okay because, when the guillotine comes down, there will only be a few people left on the other side. I do not think that that is a proper basis for a policy.
I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for answering the questions that I posed, and I shall study his answers with care. When he said that these proposals encourage civil claims to be brought more promptly, I reflected that, not an hour or two ago, the Government resisted the code that I proposed, in Amendment 6, to do precisely that in criminal matters. I argued there for matters to be brought more promptly, and the Government resisted those proposals—but I am pleased to see that the amendment passed.
The noble and learned Lord, Lord Stewart, said that there are factors unique to overseas operations that prevent, rather than allow, the extension of time. Overseas operations are extremely difficult, as was discussed in earlier debates; it is extremely difficult to pursue a claim, to get the evidence right and to get the advice, witnesses and so on. You would have thought that overseas operations would allow for more time to bring an action, not less.
The balance, apparently, is to be struck such that the problems of investigating witnesses’ memories are to come before the death or mutilation of a victim. The Welshpool figure of justice, with the scales of justice permanently tilted in one direction, comes to mind.
I have indicated that I beg leave to withdraw Amendment 7 and shall not move Amendment 8, but we shall certainly support Amendment 13 when it is put.
The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)
We now come to the group consisting of Amendment 11. Anyone wishing to press this amendment to a Division must make that clear in the debate.
Clause 12: Duty to consider derogation from Convention
Amendment 11
Lord Hope of Craighead
Lord Hope of Craighead (CB) [V]
My Lords, I understand that this may be quite a short debate, but I should like to say a few words by way of introduction, to explain again why I am unhappy with Clause 12. I still find it hard to know what to make of it. As I said in Committee, at first sight the clause is simply unnecessary. The power to derogate from our obligations under the European Convention by means of a derogation order under Section 14 of the Human Rights Act 1998 already exists. Of course, we must remember, as we were reminded last time, that derogation orders are open to judicial review, so derogation is not something to be undertaken lightly. Nevertheless, once again I question the need for this clause. Where there is a power, as there is here, there is already a duty to consider whether, should circumstances require, it should be exercised. This clause adds nothing to the existing law.
However, there is a much more troubling aspect to this issue than that. Is the clause there simply to send a message? If so, to whom, why, and what is the message? We must remember that there is a threshold that must be crossed if the order is to meet the criteria in Article 15 of the convention. Clause 12 says that this is where the operations
“are or would be significant”.
Article 15 of the convention, on the other hand, says that derogation may be resorted to only in time of war or other public emergency
“threatening the life of the nation”.
It is hard to see how conducting operations overseas in themselves, if that is all we were doing, could satisfy that test, even if they are or would be significant.
The fact that the clause shrinks from using the words of Article 15 makes me wonder whether the meaning and effect of Article 15 has been properly analysed. I wonder whether the clause is really facing up to what would be needed to justify derogation in this kind of case where we are operating overseas. There is a real danger that it will lead those who may be encouraged by this clause to resort to a derogation order when its use could not be justified. The message, if there is one, seems to be offering something that the Government cannot deliver.
There is no sign either that the Government have appreciated the other limitations in Article 15.2 of the convention. That provision states that no derogation from Article 2, the right to life, can be made except in respect of deaths resulting from lawful acts of war; or from Article 3, the prohibition of torture; or from Article 4.1, the prohibition of slavery; or from Article 7, no punishment without law. There remains Article 5, the right to liberty and security, which is what the 2001 order case, which pointed to the way that derogation orders are subject to judicial review, was about. Is this the purpose of the clause? Is it simply so that our Armed Forces can lock up any person they detain during their operations without trial indefinitely? If so, why does the clause not come out into the open and confine its scope to that article, for that is really all it could achieve?
I suspect that the Minister is unable to give clear and convincing answers to these questions, as she has chosen to make a statement immediately after me. I look forward to that statement and I very much hope that she will be able to give me an undertaking that this clause will be removed from the Bill. That, I think, is the only way that the real danger to which I have referred can be avoided. I beg to move.
Baroness Goldie (Con)
My Lords, I am grateful for the opportunity to make a contribution which I hope may assist the progress of the debate on this amendment. I am very conscious that I have been unable to radiate much cheer this afternoon, so I will try to do better. As the noble and learned Lord has stated, Article 15 of the European Convention on Human Rights provides that, subject to certain conditions, states may derogate from—that is, temporarily suspend—relevant human rights obligations. Clause 12 would require any Government in future to consider whether to make a derogation under Article 15 in relation to significant overseas operations.
I am very grateful to the noble and learned Lord, Lord Hope, for his analytical clarity in addressing the issue surrounding Clause 12. He has been persistent in his focus on this issue and I thank him for that close attention. He is correct that the ability under Article 15 to derogate in appropriate circumstances would remain and would not be affected by the removal of Clause 12 from the Bill. It is also the case that the removal of Clause 12 would not prevent the Government from making a conscious decision when committing the Armed Forces to significant overseas operations as to whether it is necessary to avail themselves of the suspension mechanism created by Article 15 of the ECHR. It is important to recall that, if the UK did decide to so derogate in relation to a specific future overseas military operation, it would not prevent Armed Forces personnel or the MoD from being held to account.
Having listened closely to the issues raised about the way in which the Government have presented this clause—as I promised the noble and learned Lord in Committee I would do—and, although the Government consider that there was a place for originally including the clause in the Bill, I have detected that the House is sympathetic to the representations of the noble and learned Lord, and that there is a general consensus across the House for the removal of this clause. I am therefore pleased to confirm that the Government will accept the noble and learned Lord’s amendment to remove Clause 12 from the Bill.
Lord Thomas of Gresford (LD) [V]
My Lords, I am relieved to hear the Minister’s statement concerning Clause12 and its removal. The noble and learned Lord, Lord Hope, asked who the message was to be sent to. The proposal to give notice to a potential enemy that British forces would not be bound by the restraints of the European Convention on Human Rights was truly alarming. It would have exposed our troops in the field to reciprocal treatment.
I followed the noble and learned Lord, Lord Hope, in Committee in pointing out the utter uselessness of this clause anyway, in that it could not deal with those most pertinent and significant rights in the covenant from which no derogation is possible. It did not even try to mirror the circumstances of war or national emergency contained in Article 15, which permit derogation only in very strict circumstances. I do not propose to repeat that analysis.
The Government have thought again on the desirability of this clause. I urge them to think again on the desirability of the whole Bill. I urge them to pull the whole Bill and bring it back in the next Session after proper consultation. I do not say this from any party-political position but wearing the hat of the chair of the Association of Military Court Advocates. I cannot say that I am speaking for that association because no meetings have been possible during the pandemic, but you will appreciate that its members’ primary concern is with defending the ordinary service man or woman in courts martial, many of which relate to overseas operations.
For the reasons which I gave in relation to Amendments 1 and 6 and will not repeat at this stage, this Bill does not protect our service men and women. The only body protected by the Bill is the Ministry of Defence, probably for the ignoble reason given in Committee by the noble Lord, Lord Hendy: to save a bob or two. It is badly thought out, with many omissions and with repercussions that were not understood, not least in its failure to carry out the manifesto commitment of the Government to give statutory force to the military covenant—a matter which we shall shortly discuss. So, they should pull it now, and by all means bring it back in the next Session in a form which will be of use to and protect serving seamen, soldiers and airmen, without the ill thought-out provisions which expose them to danger. I say to the Government: pull the Bill.
Lord Craig of Radley (CB)
My Lords, I too welcome the Minister’s statement. As I have reminded the House, the Government’s justification for this clause to amend the Human Rights Act 1998 was to reflect the undertaking of a ministerial Statement by the then Defence Secretary, and repeated in this House by the noble Earl, Lord Howe, on 10 October 2016. If the Government still stand by it, it is worth recalling parts of that Statement. It explained that in overseas operations our personnel have had to face growing legal uncertainty and an unprecedented level of litigation. The Statement said that
“the resulting uncertainties have been distressing to many current personnel and veterans, and military advice is that there is a risk of seriously undermining the operational effectiveness of the armed forces”.—[Official Report, Commons, 10/10/16; col. 3WS]
I draw attention to the risk mentioned in that Statement—the risk of seriously undermining the operational effectiveness of the Armed Forces when engaged in conflict.
The Bill does not adequately address the growing concern that commanders of whatever rank may, for fear of later legal challenge or charge, be unsure or inhibited in the orders or directions they give to engage and defeat an enemy in the course of conflict. Statements about combat immunity in relation to human rights legislation lack the precision required for conflict. To state that a court should be
“very slow … to question operational decisions made on the ground by commanders, whatever their rank or level of seniority”
lacks precision for commanders at the time, on the spot. Even before a case reaches court, the accused will be subject to worries and uncertainty for weeks, months and even years while evidence is collected, witnesses identified and prosecuting authorities decide whether to take the case to court for trial. Some might even describe this as mental torture.
In Smith, the judgment was that there is a “middle ground” between close combat on the one hand and political direction on the other about the allocation of resources, where the actions or omissions of individual service personnel can be determined only on the evidence ex post facto—that is, a review far removed in time, place and emotion from the possible extreme dangers of the moment.
I am not questioning these well-argued legal judgments but drawing attention to a mismatch—and I think it is important to draw attention to it—between the disciplinary dictates of the Armed Forces Act and human rights legislation that may arise when service personnel are at or near to war. I drew attention to this in 1998, when debating what is now the Human Rights Act 1998. Regrettably, this Bill does not address this issue, in spite of the Defence Secretary’s Statement. One must hope that the human rights review now being undertaken by Sir Peter Gross—he has assured me that the issue of combat immunity will be considered—will provide a workable solution.
Meanwhile, Clause 12 provided for no more than was originally and clearly stated at the time the Human Rights Bill was being debated in 1998. As the noble and learned Lord the Lord Chancellor, said, and these words are well rehearsed already:
“I also remind your Lordships and the noble and gallant Lord—
that is me—
that under Article 15 of the convention a state may, in time of war or other public emergency threatening the life of the nation, take measures derogating from its obligations under the convention to the extent required by the exigencies of the situation.”—[Official Report, 5/2/1998; col. 768.]
The noble and learned Lord further asserted that the human rights convention was a flexible instrument. I fear that is now rather a dubious claim. Clause 12 added nothing to what was made clear in 1998, and I welcome the Government’s acceptance of the amendment from the noble and learned Lord, Lord Hope.
Baroness Chakrabarti (Lab) [V]
My Lords, I too thank the noble and learned Lord, Lord Hope of Craighead, for his persistence with this, and I especially thank the Minister, for her gracious concession.
It was just a few weeks ago that the former Prime Minister Mrs May warned the Government, in another place, of what she described as the
“fine line between being popular and populist”.—[Official Report, Commons, 15/3/21; col. 78.]
I wonder whether that line is quite so fine. To be more explicit than the noble and learned Lord, dog whistles are bad enough in politics, but they are a lot worse in legislation and worse still when they are by way of legislative amendment to the Human Rights Act—our modern Bill of Rights. To turn the power to consider derogation into an express statutory duty, but not to import the appropriate legal test for such a derogation, was a very dangerous dog whistle indeed. I am very glad that it has been withdrawn. Like the noble Lord, Lord Thomas of Gresford, I hope that the Government continue in this positive vein and consider other fundamental concerns about the Bill in general.
I do not want to be churlish. This is an important concession from the Government; to treat the Human Rights Act in this way, and to set a precedent for creating duties to derogate and put them in the Act, would have been very dangerous and would have sent a bad signal about the Government’s commitment to human rights at home and internationally.
Lord Thomas of Cwmgiedd (CB) [V]
I thank the Minister for her pragmatic approach to this. I entirely agree with the analysis of the noble and learned Lord, Lord Hope of Craighead, that the real issue was Article 5 and the right and ability to detain on the battlefield. There was a real problem there and, with respect to the Government, they were right to consider it. The unfortunate thing is that they chose the wrong route. I do not think that they considered carefully enough the decisions of the Supreme Court in Al-Waheed and Serdar Mohammed. But, if a problem remains, I am sure that it will be looked at sympathetically because, for the protection of our troops, it is necessary to take a realistic view of the ability to detain on the battlefield or in close proximity to it. Again, I thank the noble and learned Lord, Lord Hope of Craighead, for his clear analysis of this, and the Minister, for her wise decision.
Baroness Smith of Newnham (LD)
My Lords, like others, I welcome the Government’s concession on this amendment and thank the noble Baroness for having listened, gone away and come back with a helpful proposal. Like the noble Baroness, Lady Chakrabarti, I suggest that it would be good if Ministers talk to their colleagues in another place and consider whether, rather than insisting that amendments that have passed through your Lordships’ House today have to be subjected to votes in the other place and brought back and forth for ping-pong, the Government could perhaps consider their own amendments to deal with the views that have been put forward on genocide and other matters. I do not expect an immediate concession on that from the noble Baroness, but I at least put it out there.
While my noble friend Lord Thomas of Gresford has clearly made his views known to the House—to kill the Bill—I do not expect that to happen. I do not expect my colleagues to push for a vote to kill the Bill, but, if we could amend it significantly to deal with the real concerns of our service men and women and veterans, it would be all the better for it.
Lord Tunnicliffe (Lab) [V]
My Lords, I have nothing to add but to congratulate to the noble and learned Lord, Lord Hope, on his tenacious pursuit of this point and to thank the Minister for this moment of warmth and light.
Baroness Goldie (Con)
To all noble Lords who have contributed, I am pleased that this gesture has been received positively. I have listened carefully to the other observations, and these will be relayed to my colleagues in the MoD.
Lord Hope of Craighead (CB) [V]
My Lords, I am grateful to all noble Lords who have contributed to this short debate, and especially to the Minister for her kind words and generous concession, which has solved my problem.
I would like to take a moment to refer to the remarks made by the noble and gallant Lord, Lord Craig of Radley, who has kindly supported me all the way through my attempt to deal with Clause 12. He has raised again a concern among certain people, which I entirely recognise, that the ability to bring claims under the Human Rights Act risks undermining operations on the ground because decisions taken by the people engaged in them are exposed to the risk of being said to be in breach of the convention rights.
I delivered the leading judgment in the case of Smith v The Ministry of Defence, which the noble Lord, Lord Hendy, referred to earlier this afternoon. One of his clients was the mother of a solider who was, unfortunately, killed by friendly fire from a tank operating in the same battlefield. I spent considerable energy, in delivering my leading speech, to make it clear that the ratio that had driven me to reach the conclusions I did was concerned with actions by the MoD far removed by the battlefield. I made it clear that decisions made in the circumstances of combat by people usually under great stress and pressure was not what the Human Rights Act claim was about. It was about decisions taken, as the noble Lord, Lord Hendy, explained, long before the operations began which could legitimately be criticised as breaching the convention right.
The decision that I led has been misunderstood because of a dissenting judgment, which has received more weight than it should have since it was only a dissent. So, I would encourage those who still have a lingering doubt to look carefully at my judgment, which was a majority judgment. They will see that it contains the reassurance I think the noble and gallant Lord, Lord of Craig of Radley, is seeking.
That said, I come back to the Minister. I am well aware that a speech of the kind she has made this afternoon cannot be made without discussion behind the scenes. She listened carefully to what I said last time, and we owe her a great debt for taking up the points I made, understanding them and putting them across to others to achieve the result we have achieved this afternoon. We owe her a considerable debt and are fortunate to have her in the House as a Minister. I commend Amendment 11, the effect of which is that Clause 12 should not stand part of the Bill.
Lord Tunnicliffe
“Restrictions on time limits: actions brought against the Crown by service personnel
Nothing in this Part applies to any action brought against the Crown by a person who is a member or former member of the regular or reserve forces, or of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (members of British overseas territories’ forces serving with UK forces) applies.”Member’s explanatory statement
This new Clause amends Part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the Part imposes in respect of actions relating to overseas operations.
Lord Tunnicliffe (Lab) [V]
My Lords, I beg to move Amendment 13 and wish to test the opinion of the House.
The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)
We now come to the group consisting of Amendment 14. Anyone wishing to press this amendment to a Division must make this clear in the debate.
Amendment 14
Lord Dannatt
“Duty of care to service personnel
(1) The Secretary of State must establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.(2) The Secretary of State must lay a copy of this standard before Parliament within six months of the date on which this Act is passed.(3) The Secretary of State must thereafter in each calendar year— (a) prepare a duty of care update, and(b) include the update in the Armed Forces Covenant annual report when it is laid before Parliament.(4) The duty of care update is a review about the continuous process and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;(c) judicial reviews and inquiries into allegations of misconduct by service personnel;(d) such other related fields as the Secretary of State may determine.(5) In preparing a duty of care update the Secretary of State must have regard to, and publish relevant data in relation to (in respect of overseas operations)—(a) the adequacy of legal, welfare and mental health support services provided to service personnel who are accused of crimes;(b) complaints made by service personnel or their legal representation when in the process of bringing or attempting to bring civil claims against the Ministry of Defence for negligence and personal injury;(c) complaints made by service personnel or their legal representation when in the process of investigation or litigation for an accusation of misconduct;(d) meeting national standards of care and safeguarding for families of service personnel, where relevant.(6) In subsection (1) “service personnel” means—(a) members of the regular forces and the reserve forces;(b) members of British overseas territory forces who are subject to service law;(c) former members of any of Her Majesty’s forces who are ordinarily resident in the United Kingdom; and(d) where relevant, family members of any person meeting the definition within paragraph (a), (b) or (c).(7) In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.(8) None of the provisions of this section may be used to alter the principle of combat immunity.”Member’s explanatory statement
This new Clause will require the Ministry of Defence to identify a new duty of care to create a new standard for policy, services and training in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, and to include a duty of care update in the Armed Forces Covenant Annual Report.
Lord Dannatt (CB)
My Lords, in opening this short debate on Amendment 14, I first thank the noble Baroness the Minister and the Minister for Defence People and Veterans for meeting me and other noble Lords on matters pertaining to this and other amendments. Indeed, I am grateful to the noble Baroness for meeting me twice on these matters.
It is perhaps no surprise that I am of the view that we share common objectives for the Bill, which I hope will become an Act within this parliamentary Session. These common objectives include the better protection of serving and veteran soldiers, sailors, airmen and marines from repeated and extended investigations and unjustified prosecutions arising from their service on behalf of the nation on overseas operations.
We also share the common objective of properly supporting such personnel while they are going through an investigation and prosecution process—after all, when a soldier lays their life on the line at the behest of their employer, I am sure that we can agree that he or she has a right to expect that employer to exercise a proper duty of care towards him or her as they go through any investigative or judicial process.
If we are broadly agreed on the common objective, where we are not yet fully agreed is on the scheme of manoeuvre—the campaign plan, if you like—to reach that common objective, but we are making progress, and many of the constituent parts of a successful plan are beginning to emerge. Amendment 6, which we earlier debated and voted to stand part of the Bill, for the time being at least, is an important and welcome addition to the provision of safeguards into the investigation of allegations relating to overseas operations. Moreover, the Minister has today released a Written Ministerial Statement asserting that the purpose of the Bill is to provide better legal protection to Armed Forces personnel and veterans serving on military operations overseas. The Statement references and underlines a defence instruction and notice whose basic principle is that the department
“is committed to standing behind its people who act reasonably and in good faith in the course of their duties”.
If we are agreed that a good employer will discharge a proper duty of care towards its people, then the pieces of this jigsaw—this campaign plan—are beginning to come together. Amendment 14 would join those parts of the jigsaw into one picture, to bring these hard-fought battles and engagements into line in a comprehensive campaign plan for the benefit of our people in uniform and for those who have worn a uniform in the past.
Defence priorities change; the fortunes of military charities fluctuate; Ministers come and go; but the law does not change. Amendment 14 would bring into law the good ideas and intentions of well-meaning Ministers and officials with whom we are currently united in common cause but who are strangely reluctant to enshrine the fruits of their endeavours in a Bill which will become an Act of Parliament and thus part of our law—a law to protect our people for all time from vexatious investigations and prosecutions.
I have heard an argument that says that if we enshrine a duty of care in law it will present the possibility of creating grounds whereby disaffected parties could take the MoD to court if in their opinion the terms of the legally binding duty of care had not been adhered to, but is that really an honourable or credible argument against creating a duty of care in the first place? Surely in any walk of life, rules and regulations setting out what is and what is not acceptable are a commonplace occurrence. If you act within the rules, all is fine, but if you step outside, then sanctions follow. I am no lawyer, but I am sufficiently aware of the way our civilised society is organised to know that if I step outside the law, whether it is in a transaction on the high street or in my behaviour on a rugby field, I will be sanctioned. Is the Ministry of Defence so frightened that if it establishes a duty of care that passes into law and then it acts outside that law some of its employees might sue it? Surely the correct approach is for the Ministry of Defence to lay down a duty of care within the next six months, as Amendment 14 suggests, and then commit to live within that legally based statement of the duty of care for the benefit and transparency of both the employer and employees. Is that too much to ask? I beg to move.
Lord Hope of Craighead (CB) [V]
My Lords, I offer my support for this amendment for all the reasons given by my noble friend Lord Dannatt. I thought that it would be right for me as a lawyer to ask myself whether the amendment was asking the Secretary of State to do something that our legal system would find hard to recognise or put into effect. It is a long amendment, full of what no doubt was thought to be necessary detail; but the key words to which I have directed my attention are to be found in proposed new subsection (1), read together with the definition in proposed new subsection (7). They are the words “duty of care”, which are used to define the obligation that is already owed to service personnel, both moral and legal, to ensure their well-being.
There are a number of things that need to be said to explain why the amendment has my support. First, this is a duty of care, not an absolute duty. It sets a standard that the amendment is talking about at the right level. An absolute duty is a duty that must be complied with irrespective of the circumstances. What has been talked about here is a duty to take reasonable care to achieve that standard. It is not driving the Secretary of State to achieve something that cannot be achieved with the exercise of ordinary care.
Secondly, the concept of setting a standard to be applied in addressing the needs of a particular group within our community is not new. It is familiar in the context of healthcare, for example, with regard to the care of the elderly.
Thirdly, and most importantly in view of the point made by my noble friend some moments ago, the method used should not be seen as encouraging a resort to litigation any more than the setting of standards does in healthcare. What is sought is to set a standard of behaviour, not a set of statuary rules. If litigation has to be resorted to, the complaint would be of a failure in a duty to take reasonable care, using the standard simply as setting out the criteria for what that duty required. There is nothing novel in that approach.
The Ministerial Statement that the noble and learned Lord, Lord Mackay of Clashfern, very helpfully read out to us when speaking on amendments in the first group this afternoon is, of course, to be welcomed. I do not for a moment doubt its sincerity, but Ministers come and go, and Ministerial Statements are, I fear, a bit like the Cheshire Cat. This amendment seeks to bring it up to a higher level of formality. Added to that, it seeks to ensure that the matter is kept under continuous review and public scrutiny. All that seems to me to be for the good. Therefore, if the amendment is put to a vote, I will support it.
Lord Faulks (Non-Afl) [V]
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.
Lord Boyce (CB) [V]
My Lords, as speakers ahead of me, and especially my noble friend Lord Dannatt, spoke eloquently in support of this amendment, I will not tax your Lordships’ patience by repeating all that has been said. However, I wish to reinforce the point that we need something of a more permanent nature by which the Government may be held to account rather than a set of conventions and understandings, including defence instructions and notices. These can be easily changed or cancelled without any significant effort or recourse to Parliament. That is why, although I have very carefully read the Ministerial Statement that the Minister laid before us this morning, which sets out what is available to Armed Forces personnel, serving or veteran, I am afraid that it does not offer the guarantee of permanency of the responsibility of the MoD for the duty of care that this amendment proposes.
I also share, by the way, some of the concerns about the Statement expressed earlier today by the noble Baroness, Lady Chakrabarti. Furthermore, regarding that Ministerial Statement, I am incidentally unclear of the definition of “legacy cases” that the Army Operational Legacy Branch has been created to deal with. That also raises the interesting question of why exemption from means testing for legal aid cannot be applicable for criminal cases arising from all overseas operations, not just Iraq and Afghanistan.
This Bill, which sets out to relieve the strain on personnel under investigation, must surely reflect the fact that the MoD has a statutory obligation for the care of such people. I therefore support Amendment 14.
Baroness Chakrabarti (Lab) [V]
My Lords, it is a privilege to follow the noble and gallant Lord, Lord Boyce, in support of the vital amendment tabled by the noble Lord, Lord Dannatt. It is vital because there does not seem to be anything quite like it on the statute book.
While the Bill, controversially, attempts to protect the MoD from civil suit and individual members of the Armed Forces and veterans from criminal prosecution, it does not provide actual support for them. It does not provide mental health support, legal support or anything else mentioned in the amendment of the noble Lord, Lord Dannatt.
I will not repeat what I said earlier, but even the Statement that was made today clearly to reassure your Lordships that the amendment tabled by the noble Lord, Lord Dannatt, is not necessary gives me cause for concern. There are holes in the automatic non-means-tested legal advice and support, which should be automatic and non-means-tested for any serving member of the Armed Forces or veteran, whether they are facing investigation or prosecution or are a potential witness. That was the biggest problem I found.
Even the mental health support was less than specific or certain and seemed to be about signposting people to general NHS services, even though we all accept that people serving overseas are under particular strain. If their mental health is under particular strain and they are especially exposed to the law, as the Government maintain, why do they not get specific statutory and automatic support?
This is perhaps one of the most important parts of the debate today, and this amendment is possibly one of the most important that has been tabled. I sincerely hope that the noble Lord, Lord Dannatt, will press it to a vote.
Lord Stirrup (CB)
My Lords, I start by adding my thanks to the Minister for the time and trouble she has taken since Committee to listen to the concerns that my noble friend Lord Dannatt and the other movers of this amendment, of whom I am one, have sought to address. The Government have argued, and no doubt will continue to argue, that what we are trying to achieve is both unnecessary and dangerous. I am unconvinced and I shall try to explain why.
In her response in Committee, the Minister pointed to the mechanisms and processes already in place to support service personnel and veterans. There are indeed both official and charitable structures set up for this purpose; they do a great deal of excellent work, as today’s ministerial Statement made clear. But as I tried to explain in Committee, the situation of those accused of criminal activities and subject to the corresponding and prolonged investigations is particularly difficult. I pointed out that the stresses on these individuals and their families are profound and enduring.
These people are not just accused of a crime; they are charged with trampling underfoot the values and ethos that are an essential element of the special body of which they have been a trusted part. They are suspected of betraying their comrades and bringing them into disrepute. I ask noble Lords to imagine what sort of impact all of that has on people who are members of such a close and unique community.
It is alas true that in some cases the opprobrium will be deserved, but we also know that in such circumstances the innocent and the guilty will suffer alike. Even a subsequent and unequivocal demonstration of innocence will not entirely remove the shadow from their lives or allow them to feel quite the same ever again.
Given such horrendous and, in some cases, undeserved consequences, is it so unreasonable to seek a special degree of support for these people? Is it unreasonable to ask that the requirement for and processes to deliver such support should be codified? After all, Part 1 of this Bill is itself mostly about codifying procedures that nearly everyone agrees a competent prosecuting authority would follow in any case. If these need to be set out in the Bill, why not the processes for ensuring the appropriate source of support for service personnel and veterans? To argue in favour of the former and against the latter would strike me as strangely inconsistent. Just to be clear, I do not believe that defence information notices constitute adequate codification.
The dangers that the Government seem to think lurk within this amendment apparently derive from the legal rights it would afford to those it seeks to protect. The accused could sue the Government if they thought that they had been inadequately supported—and who is to say what level of support should be considered adequate? The only beneficiaries, it appears, would be the legal profession.
Well, my first response would be that if the Government failed to provide the appropriate support, then they should be liable. It seems that in this day and age, we are keen to afford justiciable rights to just about everyone—except our service men and women. As to the definition of adequacy, I entirely accept that Amendment 14 as worded may not have adequately circumscribed this, but is it really beyond the wit of government lawyers to come up with a form of words that would do the trick? Surely, the concept of reasonableness and the appropriate kinds of test are not alien to our legal system.
The noble Lord, Lord Faulks, has said that this amendment would do nothing to prevent future Shiners, and I agree with him. I also agree wholeheartedly that tackling the difficulties caused by the extraterritorial application of the Human Rights Act is essential. None of this, though, obviates the need to support those who need our help.
The Government’s argument appears, in essence, to be, “We don’t think this amendment is necessary because we already do what it suggests, but we’re rather afraid of being sued for not doing what the amendment proposes.” This does not strike me as a tenable position. I urge the Government to think again.
Lord Houghton of Richmond (CB)
My Lords, I speak in this debate to support the amendment moved by my noble friends. I do so because it is the closest to resolving, or at least ameliorating, the problem—and it is a problem, as many have rehearsed. It is essentially a practical one, relating to training, leadership, command oversight, operational reporting and improved investigative capacity and competence.
I fear that I remain convinced that the resort to legal exceptionalism which this Bill contemplates, and which appears to have initiated so much of the debate in the House, is an ill-considered course of action. It will make our service men and women more, not less, exposed to the challenges of the law. Law, in the context of this debate, is not simply the legislative framework within which war is conducted; it has become a weapon of that war. In the jargon, it is a new vector of attack. By way of emphasising my point, while this Bill has been maturing, we have seen the product of an extended review of the country’s security, defence, development and foreign policy. The results have been the integrated review paper and the companion MoD document, Global Britain in a Competitive Age.
These are both excellent pieces of work and speak to the radically different character of future war. At the heart of both documents are the themes of systemic and enduring competition between nations, between political systems, across multiple spheres. The documents emphasise the lack of clarity over where the threshold of conflict sits, the impossibility of differentiating between peace and war, home and away, friend and foe. They speak of the far greater reliance, in future, on technical advantage, automated processes, autonomous systems. They move the comprehension of conflict beyond the recent sense that it is periodic, adversarial, away fixtures.
Baroness Smith of Newnham (LD)
My Lords, we have heard some important speeches making it clear why this amendment is so important. However, I confess that, having listened to the noble Lord, Lord Faulks, and the noble and gallant Lord, Lord Houghton of Richmond, I almost got to the point that my noble friend Lord Thomas of Gresford got to on the previous group: ought we to be killing the Bill, or asking the Government to kill it? Although I did not think at the previous stage that this amendment was necessarily a probing amendment, the more I looked at Amendment 14, the more it looked like the Government needed to be thinking about these issues more generally, not just in the context of overseas operations.
The Liberal Democrats will be supporting the amendment, but I think it raises issues which, if the Government have thought about them, have not yet been made clear to your Lordships’ House and perhaps to the other place. As the noble and gallant Lord, Lord Houghton, pointed out, since the Bill was introduced in the other place, we have had the integrated review, the defence White Paper and the defence industrial strategy. There seems to be a whole swathe of legislation coming forward. We also, I assume at some point, are going to have legislation dealing with historic issues associated with Northern Ireland, and surely the duty of care links to the issues of Northern Ireland.
I did not speak on the second group of amendments, but it was interesting to hear the very different approaches to saying that we need to think about Northern Ireland again. They did not fit into a Bill on overseas operations, quite clearly, yet some of the issues, and that sense of repeated investigations, apply as least as much to Northern Ireland as to overseas operations. Are the Government proposing at some point to bring these themes together? Are they going to be in the Armed Forces Bill 2021? Are we going to see questions of duty of care that ought to be embedded not just in this Bill but more broadly? If not, could the Minister take this away and talk to her colleagues in the MoD Main Building and in the other place?
The Armed Forces Bill is coming up this year. As we have heard, issues about hybrid warfare and artificial intelligence need to be thought about, and potentially thought about differently, but this Bill does not really get into them. I fully understand that the Minister might say that this is intended to be a very small and discrete Bill. That may be so, but if those matters are not being considered in this Bill, are they being considered elsewhere? If not, could she undertake to go away and think about them?
Lord Tunnicliffe (Lab) [V]
My Lords, we fully support Amendment 14.
By my count, the noble Lord, Lord Dannatt, and the noble and gallant Lords, Lord Boyce and Lord Stirrup, have about 120 years of service in the Armed Forces between them. They have all argued passionately for a duty of care standard to be in the Bill. As a former acting pilot officer, I have to say that I am very proud of the stance they have taken. It shows that the former leadership of the Armed Forces is capable of being both compassionate and wise. When colleagues of such experience speak, we should listen. I am unsure why the Government remain so resistant to this. We stand foursquare behind our troops and a duty of care would ensure that our Government did so too. We will support the amendment if it is pushed to a vote.
As Amendment 14 refers to legal support, I want to seek some clarity on legal aid. I thank the Minister for writing to me on this issue, but the position stated in the letter is a little different from the position of the Minister in the Commons. The letter says:
“We cannot categorically say that Service personnel will receive legal aid”
but Johnny Mercer said:
“There is … full legal support, paid for by the MOD, for everybody swept up in these investigations.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 22/10/20; col. 351.]
Can the Minister confirm that? The letter also says that cuts which were applied to the national legal aid system were also applied to the Armed Forces legal aid scheme as they mirror each other, but the Armed Forces Minister said that the Armed Forces system is “bespoke”. Can the Minister confirm how much money for legal aid has been cut in the last decade from the Armed Forces legal aid scheme? This confusion between Ministers demonstrates exactly why we need protection in the Bill.
Ministers say they have made progress, but ultimately Ministers move on. Let us put a duty of care in the Bill so that personnel have full confidence that Ministers are serious about helping them through difficult times. I look forward to the noble Lord, Lord Dannatt, seeking the decision of the House. We will undoubtedly fully support the amendment.
Baroness Goldie (Con)
My Lords, this has been an interesting debate and I am very grateful for all the contributions that have been made. Amendment 14 proposes that the Ministry of Defence should establish a statutory duty of care standard for current and former service personnel and, where appropriate, their families, and that the Secretary of State should be required to provide an annual update in the Armed Forces Covenant Annual Report.
This is obviously a matter of great importance which commands the interest of us all, and I am very grateful to the noble and gallant Lords, Lord Stirrup and Lord Boyce, and the noble Lords, Lord Dannatt and Lord Tunnicliffe, for their commitment to ensuring appropriate protection for our service personnel and veterans and for the conversations we had following the debate in Committee. In terms of the sentiments expressed by the noble Lord, Lord Dannatt, and the broad objectives which he and the noble and gallant Lords seek to achieve, I doubt if there is a cigarette paper between us—where we diverge is on the mechanism for delivery—so I can see why many are attracted to this amendment and feel the Bill could be enhanced by it.
I start by saying that we take our responsibilities to our service personnel and veterans extremely seriously. I have listened to the concerns raised in Committee and I have met further with the noble and gallant Lords. I thank them for their willingness to have these meetings, which have been constructive. I understood from the meetings that further reassurance was needed about the breadth and depth of support now available to those who are subject to investigations and prosecutions. As has already been referred to, a Written Ministerial Statement was published which set out as a matter of record the diversity and depth of the support that is and will continue to be available.
Although in Committee I provided an overview of the support that we give to our personnel and veterans, I am happy to summarise the key points from the Written Ministerial Statement for the benefit of the House. First—and importantly—as a matter of MoD policy, service personnel are entitled to legal support at public expense where they face criminal allegations and civil claims that relate to actions taken during their service and where they were performing their duties. I say to the noble Lord, Lord Tunnicliffe, who asked whether there was a discrepancy between the descriptions given of the availability of legal aid, that I am not sure what the nature of the difference is between what I had said and what my honourable friend the Minister for Defence People and Veterans said in the other place, but it may have been the simple distinction that there has to be a need to be performing duties. Obviously, a member of the Armed Forces could commit a crime while not engaged in their duties, and one would imagine that that would then become the responsibility of civil authorities if it took place in this country. If it took place overseas, other interventions might be necessary.
Legal advice and support are also available wherever people are required to give evidence at inquests and inquiries and in litigation, and this is co-ordinated by the MoD. This principle is at the heart of the MoD’s approach to supporting our people and is enshrined in the relevant defence instruction notices. I know that the noble and gallant Lord, Lord Stirrup, was slightly caustic about that, but these are the notices which make clear to our Armed Forces personnel what they can expect, in terms of support, from the MoD and their chain of command and what facilities are available to them. It is a responsibility that the MoD takes very seriously, and we keep our policies under review to ensure that they are appropriate and tailored to need.
At an earlier stage this afternoon, the noble Baroness, Lady Chakrabarti, raised a couple of issues about legal aid, and I will try to clarify what some of this provision is. Any individual who is investigated by the service police is entitled to legal representation as well as the support of an assisting officer, who can then offer advice on the process and procedure and signpost welfare support. Individuals who are interviewed as suspects under caution will be entitled to free and independent legal advice for this stage of investigation. Subsequently, legal funding for service personnel and veterans facing criminal allegations can be provided through the Armed Forces Legal Aid Scheme or through the chain of command for as long as is necessary.
As regards legal aid funding, the Armed Forces Criminal Legal Aid Authority will provide legal aid in circumstances where service personnel are not entitled to regular legal aid because of where they are employed or resident as part of their military duties. Where service personnel’s employment or residence has not disadvantaged them, they can apply for regular legal aid as well, as would a civilian, and are therefore not placed at a disadvantage. Personnel are entitled to apply for legal aid regardless of whether they are considered to have acted outside the scope of their duties, but the MoD can still decide to pay for legal representation in respect of an allegation arising from an act committed in the course of the service personnel’s duties. There is extensive provision. I know that the noble Lord, Lord Tunnicliffe, was interested in this issue, and I can undertake to provide both the noble Lord and the noble Baroness, Lady Chakrabarti, with more detailed information if that would be helpful to them.
Lord Dannatt (CB)
My Lords, I thank all noble Lords who have spoken this evening. I was going to say that it was a short debate but it was a proper-size debate, getting at a number of these issues. I thank the Minister for her thoughtful and comprehensive reply to the points raised and for addressing Amendment 14. She is right that in some ways there is no more than a cigarette paper between us. In my opening remarks, I said that I was pretty clear that we shared a common objective. The current area of disagreement is over how we march towards achieving success on this common objective.
Amendment 14 is about establishing a duty of care standard. I am grateful to the noble Baroness, Lady Chakrabarti, for referring to this as a vital amendment. The noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, also indicated the support of the Liberal Democrats and the Labour Party. If we believe that we have a common objective in doing the right thing by our serving and veteran personnel, then I fail to see why clearly setting out a duty of care is causing so much difficulty for the Ministry of Defence.
In Committee, there was some discussion about whether this was the right Bill to address these issues. Many of us argued that, if we were to lose this Bill, it could be quite some time before there was another Bill that could address them. I argue strongly that we should maintain this Bill on its passage through Parliament.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
My Lords, we now come to the group beginning with Amendment 20. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Schedule 1: Excluded offences for the purposes of section 6
Amendment 20
Baroness Goldie
Member’s explanatory statement
This amendment clarifies the scope of paragraph 14.
Baroness Goldie (Con)
My Lords, we come to what some might argue is the least thrilling and interesting part of Report stage, but I hope I can conclude our proceedings on Report with something slightly positive and welcome.
These amendments are minor and technical. They are being brought forward to improve the drafting of the Bill. Amendment 20 corrects the scope of paragraph 14 of Schedule 1 so that it refers only to the offences listed in paragraphs 2 to 13 of Schedule 1 and not to Section 42 of the Armed Forces Act 2006. This is not required because Section 42 does not create any new offences in addition to those listed.
Amendments 23 and 25 correct errors in the Bill and omit paragraphs 23 and 30 of Schedule 1 because neither is necessary. Paragraph 23 is unnecessary because Section 65 of the International Criminal Court Act 2001—referred to in paragraph 23—does not establish an offence separate from those already mentioned in paragraphs 17 to 22 of Schedule 1 to the Bill. Similarly, paragraph 30 is unnecessary because Section 5 of the International Criminal Court (Scotland) Act 2001—referred to in paragraph 30—does not establish an offence separate from those already mentioned in paragraphs 27 to 29 of Schedule 1 to the Bill. I beg to move.
Baroness Smith of Newnham (LD)
My Lords, this might be the shortest intervention of the evening. I am grateful to the noble Baroness for saying that there are errors in the Bill and removing the relevant paragraphs. I do not think anybody will be too sad to lose certain paragraphs from this Bill. There may be clauses that we would have preferred to lose, but I do not think that there will be any objections from these Benches.
Lord Tunnicliffe (Lab) [V]
I am willing to accept the assurance from the Minister that these are technical amendments, and I have no further comments.
Baroness Goldie (Con)
It would seem trite to say that I thank your Lordships for this long and interesting debate but, none the less, with great sincerity, I thank the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions.
Baroness Goldie
Member’s explanatory statement
This amendment corrects an error in the Bill. The provision omitted by this amendment is unnecessary because section 65 of the International Criminal Court Act 2001 does not establish an offence separate from those already mentioned in paragraphs 17 to 22 of Schedule 1 to the Bill.
Baroness Goldie
Member’s explanatory statement
This amendment corrects an error in the Bill. The provision omitted by this amendment is unnecessary because section 5 of the International Criminal Court (Scotland) Act 2001 does not establish an offence separate from those already mentioned in paragraphs 27 to 29 of Schedule 1.
Overseas Operations (Service Personnel and Veterans) Bill
Monday 19th April 2021
(3 years ago)
Lords ChamberRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 147-R-I Marshalled list for Report - (8 Apr 2021)
The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
My Lords, I beg to move that this Bill do now pass, and it is with pleasure that I make that Motion and propose to make a brief speech.
The Government stood on a manifesto commitment to
“introduce new legislation to tackle the vexatious legal claims that undermine our Armed Forces”,
and they have delivered on that promise. I have said consistently throughout the passage of the Bill that the principles are sound, the objectives are good and the Bill is necessary. The Government believe that the combination of measures in the Bill provides a better and clearer legal framework for dealing with allegations or claims arising from overseas military operations.
The Bill addresses the issue of unacceptable delays in bringing prosecutions and provides greater certainty to veterans for events which happened in the unique context of overseas operations many years ago. The provisions also require that civil claims arising from overseas operations are brought promptly so that the courts are able to assess them when memories are fresh and evidence is more readily available.
The measures recognise both the challenging and extraordinary—I use that word in its literal sense—circumstances of overseas operations and the adverse effects that they can have on our service personnel. These include being exposed to unexpected or continuous threats or being deployed alongside friends and colleagues who are killed or severely wounded in action.
The Bill delivers on a manifesto commitment to our Armed Forces and veterans. It is based on strong support for the proposals by clear majorities in the other place, and it is for these reasons that this House should support the Bill’s Third Reading.
I also thank those of your Lordships across the House who have participated in the various debates. I recognise particularly the contributions of the noble Lords, Lord Tunnicliffe and Lord Dannatt, the noble Baroness, Lady Smith of Newnham, and the noble and learned Lord, Lord Hope. While I may not have been able to acquiesce to all their requests, our meetings have been cordial and their contributions constructive.
The Government have listened very carefully to the views put forward throughout the Bill’s progress. However, they do not agree with amendments that undermine rather than strengthen the Bill, are simply not aligned with its aims or would render it incompatible with the United Kingdom’s international obligations.
None the less, I have noted and trenchantly relayed the very real concerns so eloquently and robustly expressed by your Lordships, not least by the noble Lord, Lord Robertson of Port Ellen, that by not excluding other serious offences, the Bill risks damaging not only the UK’s reputation for upholding international humanitarian and human rights law—including the United Nations convention against torture—but the reputation of our Armed Forces. I am sure that the other place has also heard those deep concerns loudly and clearly.
I also believe that we already offer the highest standards of care and support to our service personnel. I again reaffirm and reassure that the MoD has a long-standing policy that where a serviceperson or veteran faces allegations in relation to incidents arising from his or her duty, they receive full public funding for legal support, as well as welfare and pastoral support, for as long as necessary.
There have been a number of debates on investigations. In addition to requiring prosecutors to give consideration to the public interest in finality, where there has been a relevant previous investigation and no compelling new evidence has become available, we believe that the longstop measures in Part 2 of the Bill will help to reduce the likelihood of investigations being opened many years after operations have ended. Indeed, in the future, the longstops will act as a catalyst for encouraging any civil claims to be brought sooner, and any associated criminal allegations are also therefore likely to be investigated sooner. This reduces the risk of criminal investigations arising many decades later as a result of allegations made in civil claims.
I also remind the House that the review by Sir Richard Henriques into the reporting of allegations and the conduct of investigations on overseas operations is currently in progress. As I have said previously, this work will complement the measures in the Bill, and we should await his recommendations as to whether and what measures may be needed to improve our investigative processes and procedures.
The Bill will shortly move back to the other place for consideration of the amendments proposed by this House. Many of the debates we have had in Committee and on Report have, at times, been emotive. I am sure, however, that all have been born out of our conjoined desire to do the very best we can to support our brave current and former Armed Forces personnel both during and after their operational duties overseas.
In conclusion, I acknowledge and thank profoundly the Bill team led by Damian Parmenter and Jennifer Chamberlain and supported by the Bill manager, Richard Hartell. Their experience, expertise, resilience and patience with an at times crotchety Minister have been invaluable and exemplary. In these comments I embrace—metaphorically, that is—my colleagues: the Advocate-General, my noble and learned friend Lord Stewart, and the Government Whip, my noble friend Lord Younger. I thank them for their steadfast support. I commend the Bill to the House.
Lord Tunnicliffe (Lab) [V]
My Lords, the Bill goes back to the other place with important changes. Throughout the Bill’s passage, we have wanted to work with the Government and colleagues across the House to improve it. I thank everybody who has engaged with us, including the Minister—the noble Baroness, Lady Goldie—and the Bill team. This positive arrangement resulted in the removal of the derogation clause, which is welcome.
We do not want to wreck the Bill; we do not want to kill the Bill. The Government have identified a real problem: personnel can be plagued by vexatious claims and shoddy investigations. But the Government are approaching the problem from the wrong direction by failing to tackle the issue head-on, damaging our international reputation and threatening the Armed Forces covenant.
The amendments which have been successful in this House put personnel first by recognising the MoD’s responsibility to support troops facing investigation and litigation by placing adequate restrictions on reinvestigations and by ensuring that the Armed Forces covenant is not breached by the longstop. They put forces personnel first because they have been led by noble and gallant leaders in this House. I especially thank the noble Lords, Lord Dannatt and Lord West, and the noble and gallant Lords, Lord Stirrup and Lord Boyce, for their leadership and guidance on these important issues. I also thank former Defence Secretaries and Ministers for their contributions.
The other key amendment extended exclusions from the presumption to cover genocide, torture, war crimes and crimes against humanity. I want to thank my noble friend Lord Robertson for leading this broad coalition.
I also want to thank the Public Bill Office for all its advice and help, the House staff, my two leaders—my noble friends Lord Touhig and Lord Falconer—and my adviser and researcher, Dan Harris, without whom I could not have survived.
Baroness Smith of Newnham (LD)
My Lords, as the Minister and the noble Lord, Lord Tunnicliffe, have both pointed out, in many ways there is a lot of agreement on this Bill. Although from these Benches at times there were mutterings of “Kill the Bill”, they were not from me as the Front Bench spokesperson on defence; even my noble friend Lord Thomas of Gresford understands that this is an important Bill and that we are all coming from the same place. Our absolute commitment is to our service men and women and veterans, to getting the right provisions for them, and for dealing with vexatious claims. The question is: what is the best way of dealing with that?
Obviously, as the Minister has said, this Bill was part of a Conservative Party manifesto commitment, but I am also aware that a lot of the issues about vexatious claims and extent go back to Northern Ireland, so at some point I am expecting similar legislation to come forward. I am also expecting that some of the issues that we have debated at various stages of this Bill, particularly those associated with the duty of care, will come back in the context of the Armed Forces Bill later this year. Some of the amendments that were passed—important amendments, as the noble Lord, Lord Tunnicliffe, has pointed out—go wider than the narrow confines of this Bill.
Like the noble Lord, Lord Tunnicliffe, I would like to thank the Minister and also the Advocate-General for Scotland for the time that they spent talking to us and listening to our concerns. I am especially grateful to hear that the noble Baroness has trenchantly taken back our views on what was Amendment 3 on Report. One of the areas on which we have almost unanimous agreement on across the House is that it is appropriate for us to look again at the issues of genocide, war crimes, crimes against humanity and torture. If the Minister can do one thing, it would be to try to persuade the Government not to force the Commons to vote against that amendment; if it comes back here, we will send it back—it is so important. Clearly, the noble Lord, Lord Dannatt, brought forward an important amendment on the duty of care, and if that could be kept in, that would be even more welcome.
I would like to thank the Minister again, the Bill team, my noble friends and also the Liberal Democrat whips’ office, without whom I could not have done what I have done on this Bill either.
Lord Dannatt (CB) [V]
My Lords, I begin by thanking all those associated with this Bill, especially the noble Baroness, Lady Goldie, the Minister, for patiently attending to the points that we have raised in Committee and on Report. I would also like to echo the words of the noble Lord, Tunnicliffe, and the noble Baroness, Lady Smith, for the support that their Benches have given to many of the amendments to this Bill. I would also like to record my appreciation of the noble and gallant Lords, Lord Boyce and Lord Stirrup, for joining me in speaking on behalf of the Army, Navy and Royal Air Force in trying to ensure that, in carrying forward this Bill, the best interests of our service people, both serving and veteran, are attended to.
I would like to congratulate the Government on standing by their manifesto promise to bring forward a Bill of this nature. I believe that the Bill, now amended going forth from your Lordships’ House back to the other place, represents a far more effective way of achieving that manifesto commitment of the Government. Not surprisingly, I would urge that the amendments, particularly on the duty of care, are retained within this Bill and that this Bill now passes through the other place without further reverse amendment. Should a number of our well-intentioned amendments be reversed by the other place, we will have the opportunity of the Armed Forces Bill coming forward quite shortly. I have no doubt that many of the amendments that we have tried to put into this Bill will receive further attention in the Armed Forces Bill, not least of which is the issue of the duty of care. The Ministry of Defence as a caring employer has, indeed, a duty to ensure that they are seen through.
Once again, I thank all those involved, particularly those speakers from the Cross Benches. I hope very much that this Bill now passes in the other place without undue reverse amendment.
Baroness Goldie (Con)
My Lords, I thank the noble Lord, Lord Tunnicliffe, the noble Baroness, Lady Smith, and the noble Lord, Lord Dannatt, for their comments. I know that they continue to give me a message, and I continue to listen to the message.
Overseas Operations (Service Personnel and Veterans) Bill
Monday 26th April 2021
(2 years, 12 months ago)
Lords ChamberRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 192-I Marshalled list for Consideration of Commons amendments and reasons - (22 Apr 2021)
16:20 - Division conducted remotely on Motion E1 - Ayes: 312 / Noes: 243 - Motion E1 agreed.
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
We now come to the consideration of Commons reasons and amendments on the Overseas Operations (Service Personnel and Veterans) Bill. I will call Members to speak in the order listed. When there are no counterpropositions, as for Motions C and D, the only speakers are those listed, who may be in the Chamber or remote. When there are counterpropositions, any Member in the Chamber may speak subject to usual seating arrangements and the capacity of the Chamber. Any Members intending to do so should email the clerk or indicate when asked. Members not intending to speak should make room for those who are. All speakers will be called by the Chair. Short questions of elucidation after the Minister’s response are discouraged. A Member wishing to ask such a question must email the clerk.
Leave should be given to withdraw Motions and when putting the question, I will collect voices in the Chamber only. When there is no counterproposition, the Minister’s Motion may not be opposed. If a Member taking part remotely wants their voice accounted for if the question is put, they must make this clear when speaking on the group. Noble Lords following the proceedings remotely, but not speaking, may submit their voice—content or not content—to the collection of voices by emailing the clerk during the debate. Members cannot vote by email; the way to vote will be via the remote voting system. We will now begin.
Motion A
Baroness Goldie
That this House do not insist on its Amendment 1 and do agree with the Commons in their Amendments 1A to 1Q in lieu.
“(5A) An offence is not a “relevant offence” if it is an excluded offence by virtue of Part 3A of Schedule 1.”
“3A An offence under section 1(1) of the Genocide Act 1969 (genocide).”
(za) genocide as defined in article 6,”
(i) article 8.2(a)(ii)-1 (which relates to grave breaches of the Geneva Conventions of 12 August 1949), or
(ii) article 8.2(c)(i)-4 (which relates to armed conflicts not of an international character), or”
(za) genocide as defined in article 6,”
(aa) torture within—
(i) article 8.2(a)(ii)-1 (which relates to grave breaches of the Geneva Conventions of 12 August 1949), or
(ii) article 8.2(c)(i)-4 (which relates to armed conflicts not of an international character), or”
(za) genocide as defined in article 6,”
(aa)torture within—
(i) article 8.2(a)(ii)-1 (which relates to grave breaches of the Geneva Conventions of 12 August 1949), or
(ii) article 8.2(c)(i)-4 (which relates to armed conflicts not of an international character), or”
The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
My Lords, in proposing their amendments in lieu, the Government have listened to the very real concerns expressed by many in both Houses. I wholeheartedly concur with the thanks expressed by the Minister for Defence People and Veterans in the other place last week to my friend—I call him my “friend” in the most healthy and familial sense of the word—the noble Lord, Lord Robertson, for his constructive approach to this issue.
The Government have recognised the strength of concern that, by excluding only sexual offences and not other serious offences, the Bill risks damaging not only the UK’s reputation for upholding international humanitarian and human rights law, including the United Nations convention against torture, but also the reputation of our Armed Forces.
While the other place rejected the amendment proposed by the noble Lord, Lord Robertson, they accepted the Government's amendments in lieu to add genocide, crimes against humanity and torture to the excluded offences in Schedule 1, and to remove the delegated power in Clause 6(6), which allows the Secretary of State to amend Schedule 1.
Although we can be absolutely reassured that our Armed Forces would never resort to acts of genocide or crimes against humanity, and that it would be extremely unlikely for individual members of the services to be charged with such offences, the Government accepted, with the support of the other place, that not explicitly excluding these offences from the Bill was a clear omission that needed to be rectified. In addition, the Government recognised, with the support of the other place, that, to prevent any further perceived damage to the UK’s reputation in respect of our ongoing commitment to upholding the rule of law and our international obligations—particularly the United Nations convention against torture—torture offences should also be added to the list of excluded offences in Schedule 1.
Although the Government were not supportive of excluding further offences at that stage, they have continued to reflect on the very real concerns in both Houses that all offences that fall within the jurisdiction of the International Criminal Court, including war crimes, should be excluded from the measures in Part 1. I can confirm to the House that the Government will therefore table an amendment in lieu of Motion A1 in the name of the noble Lord, Lord Robertson, to exclude war crimes also.
I am also aware that many continue to have concerns that the International Criminal Court can step in to investigate and prosecute United Kingdom Armed Forces personnel. I am happy to reassure on the perceived risk of ICC intervention. I invite your Lordships to consider the criteria that might surround an allegation that the complainant maintains is a war crime. The prosecutor would have to consider the case evidence referred by the service police and if, in the opinion of the prosecutor, the evidence was sufficient to indicate that a war crime had been committed and that there was a reasonable prospect of conviction, the prosecutor would consider the public interest in the case being prosecuted, including whether the accused was fit to stand trial. With the strong likelihood that a prosecutor would determine that the case should be prosecuted, subject to the consent of the Attorney-General, this could all proceed well within five years.
However, if, for some reason, the allegation did not arise until after five years but sufficient evidence still existed that a war crime had been committed, the prosecutor could still determine that the public interest in prosecuting such a serious offence would rebut the measures in Part 1 of the Bill. A prosecution would therefore proceed, again subject to the consent of the Attorney-General.
It is important to be clear that there are already many instances where a prosecutor could exercise discretion not to prosecute a case and the ICC would not intervene—for example, if the evidence was not deemed sufficient because it was not robust, or the recollections of the witnesses were unclear or in conflict with each other. In such circumstances, the prosecutor might likely conclude, understandably, that there was not a justiciable case, and the case would not proceed to prosecution. In this case, the prosecutor would not have to consider the public interest or the Bill’s measures. However, in this circumstance, although the International Criminal Court could theoretically seek to intervene, it is inconceivable to me that it would.
Similarly, if the prosecutor exercising the discretion he or she has under the existing prosecutorial guidance took the view that the accused was not fit to stand trial, and that a prosecution was not sustainable or not in the public interest for some other valid reason, I think it again inconceivable that the ICC would intervene. As such, we have to be very careful with the distinction between “could” and “would”. I am illustrating how, if a prosecutor decides for valid reasons not to prosecute, there is no reasonable basis to conclude that the ICC would consider that the UK is unwilling or unable to prosecute a particular case and would then intervene.
Furthermore, I also make clear that, in accordance with the International Criminal Court’s procedures, a preliminary examination would first need to be initiated by the Office of the Prosecutor to decide whether it would be necessary for the ICC to seek to intervene in a state investigation or prosecution. In practice, if the Office of the Prosecutor were to raise issues with us, this would trigger a long and detailed preliminary examination of the situation, within which we would be consulted each step of the way. This would mean that we would have many opportunities to prevent UK service personnel being prosecuted at the International Criminal Court. We are confident that we would be able to show that the UK national system is both willing and able to conduct investigations and prosecutions, thus excluding the ICC’s jurisdiction over UK service personnel.
I have given that rather lengthy analysis and explanation because I seek to provide further reassurance to your Lordships on this particular issue. I believe that Commons Amendments 1A to 1Q go a very long way to addressing the concerns of this House in respect of relevant offences. I therefore urge that the House agrees to them, in lieu of Lords Amendment 1. I can confirm that the Government will not oppose Amendments 1R to 1U in the name of the noble Lord, Lord Robertson, noting that they will table a further amendment in lieu tomorrow. I beg to move.
Motion A1 (as an amendment to Motion A)
Lord Robertson of Port Ellen
Leave out “1A to 1Q in lieu” and insert “1A to 1G, 1J, 1K, 1M and 1N, do agree with the Commons in their Amendment 1Q and do propose Amendment 1R as an amendment thereto, and do disagree with the Commons in their Amendments 1H, 1L and 1P and do propose Amendments 1S to 1U in lieu thereof—
Lord Robertson of Port Ellen (Lab) [V]
My Lords, I welcome the Minister’s opening statement today. I, and many others, have a genuine sense of relief that the voice of this Chamber last week, so overwhelmingly expressed in the debate that took place, has been listened to with such clarity. There was a feeling then, before the Bill was amended, that it would have produced a situation that is profoundly embarrassing to the nation we live in, is unhelpful to the troops we send abroad and generally does no good for anyone at all.
The Government have now recognised the strength of the argument. By including genocide, torture and crimes against humanity in the excluded areas of the presumption against prosecution, they have rescued their own reputation. Of course, until today, they had excluded war crimes from those exclusions; at that point, we faced the ludicrous contradiction that meant that we would have seen a presumption against prosecution for some of the most heinous crimes that come under the definition of war crimes yet no limitation for torture or genocide—in contradiction, therefore, to international humanitarian law, which recognises no form of limitation of time or jurisdiction on such crimes. This is why I tabled the amendment that would include war crimes in those exclusions: so that there would not be a presumption against prosecution for some of the most terrible crimes that still could be committed—though they are unlikely to be—by British troops.
The Government listened to the chorus of criticism that took place. Why was it so widespread and deep? Why did so many of the military veterans of senior rank in this House vote for the amendment last week? It was principally because they believed that the reputation of our Armed Forces would be damaged by singling them out for what the Law Society called a “quasi-statute of limitations”. Importantly, it was also because, had we passed the Bill unamended, our troops would have been subject to the jurisdiction of the International Criminal Court.
At the weekend, the chief prosecutor of the ICC, Fatou Bensouda, wrote to the right honourable David Davis on this very subject. She repeated what she had said previously:
“If the effect of applying a statutory presumption was to impede further investigations and prosecution of the Rome statute crimes allegedly committed by British service members in Iraq—because such allegations would not overcome the statutory presumption—the result would be to render such cases admissible before the ICC.”
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
My Lords, the following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord Campbell of Pittenweem, Lord Anderson of Ipswich and Lord Lansley. I call the noble Lord, Lord Campbell of Pittenweem.
Lord Campbell of Pittenweem (LD)
My Lords, I begin by congratulating my noble friend Lord Robertson of Port Ellen on leading the opposition to the original proposals contained in the Bill. He did so with great skill and persuasion. At the same time, I thank the Minister, who clearly listened avidly throughout the proceedings in connection with these matters. I think it is fair to say that she did not always give the impression of being enthusiastically in favour of the provisions of the Bill. The noble Baroness was brought up in the Roman law traditions of Scots law. In those circumstances, the expression “pacta sunt servanda”—promises have to be kept—will come as no surprise. I suggest that this remark should be reproduced above the desk of every policymaker in government. I am at some pains to understand who in the Government endorses proposals which are, prima facie, contrary to law. I say that not only in relation to the topics the House is discussing today but also drawing your Lordships’ attention to Part 5 of the internal market Bill in which this House and the other place were encouraged by the Government to create circumstances in which the Government could break the law without any adverse reaction. It seems to me that there is a unit of opinion—or, perhaps, some powerful policymaker—somewhere in the Government which does not appear to have sufficient understanding of the important fact that, for a country which argues as frequently as it can for the rules-based system, our ability to do so is substantially undermined if we are not shown to be adhering to that very system. If you want to preserve your reputation, you cannot play ducks and drakes with the law.
The Government may have been saved the consequences of the original provisions, but it is important to remember that, as the Minister and the noble Lord, Lord Robertson, made clear, they had excited the concerned interest of the United Nations and the International Criminal Court. The UK is a permanent member of the Security Council of the United Nations. How embarrassing would it be if it was thought that this country had departed from the provisions of the United Nations charter and conventions made under and in respect of it? As the noble Lord, Lord Robertson, pointed out, there was a discussion about whether the United Kingdom should join the International Criminal Court—I remember it. The balance of opinion was that it should and, if my recollection is correct, the United Kingdom was a founder member. How equally embarrassing it would be if, as a former original member of the International Criminal Court, the United Kingdom had to be brought before it.
There is a benevolent outcome in this matter, but it will take some time. We may have saved the Government from the consequences of the original provisions, but we will not save ourselves from damage to the reputation of this country. We should be very sure that, from now on, we will do everything in our power to make certain that that reputation is justified and, in particular, that our legitimate claim that we embrace the rules-based system on all occasions can be shown to be endorsed, not just in principle, but in practice as well.
Lord Anderson of Ipswich (CB)
It is a pleasure to follow the noble Lord, who speaks with such great authority in this area. I spoke about war crimes at Second Reading and again in Committee, and supported, though did not sign, the amendment in the name of the noble Lord, Lord Robertson, that was carried on Report. I came in today because I thought it was important to emphasise that the omission of war crimes from the list of exclusions, which I understand to have been the Government’s position until just now, was not some minor footnote to the noble Lord’s amendment. It tore the heart out of it because it destroyed its objective of protecting our troops from prosecution in the ICC. For that reason, I was delighted to hear just a few minutes ago that the Government have finally agreed not to oppose Motion A1.
It was of course right in principle to exclude genocide and crimes against humanity from the presumption against prosecution, but the practical implications of doing that were, frankly, negligible. After all, the crime of genocide requires,
“intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
Crimes against humanity qualify as such only when they are
“part of a widespread or systematic attack directed against any civilian population”.
Not even in the extravagant imagination of Mr Phil Shiner could British forces be accused of these most serious of crimes. Of course, the original concession also extended to torture. That could have practical effects because British servicemen are, unfortunately, sometimes accused of that crime. It is right that the presumption against prosecution should not apply after five years to that very serious crime.
However, torture is only one war crime among the dozens listed in Article 8(2) of the Rome statute. Let me remind noble Lords of just some of the others: wilful killing; inhuman treatment; causing great suffering; the destruction and taking of property; unlawful confinement; attacking civilians; excessive incidental death, injury or damage; attacking undefended places; killing or wounding a person hors de combat; and outrages upon personal dignity.
In contrast to genocide and crimes against humanity, it is, I am afraid, quite possible to imagine such crimes being alleged—perhaps credibly—against British service personnel. The noble Lord, Lord Robertson, mentioned the letter sent last Friday from the ICC chief prosecutor to David Davis MP, in which she said:
“Some of the most serious cases pending before the competent investigating and prosecuting authorities in the UK, including those examining pattern evidence and command responsibility, concern such alleged crimes.”
If this Bill were to result in a decision not to prosecute after five years had passed, this latest letter puts it beyond doubt that such cases would be considered admissible before the ICC on the basis that the UK was unable or unwilling to prosecute. I respectfully suggest to the Minister that prosecutors could well take on cases of this kind that were deemed sufficiently strong, not least because the prosecution of British service personnel would be a firm warning to other states within the jurisdiction of the ICC that might be toying with the idea of following the dismal international lead set by the original version of this Bill.
For these reasons, I congratulate the noble Lord, Lord Robertson, and his supporters on holding their ground, the Minister on her efforts and the Government on finally agreeing to do the right thing.
Lord Lansley (Con)
My Lords, I am pleased to follow the noble Lords, Lord Anderson and Lord Campbell of Pittenweem. I, too, thank the noble Lord, Lord Robertson of Port Ellen, for bringing forward his amendment both on Report and now. I also thank my noble friend for the way in which she has responded. As she will recall, I did not participate on Report but I listened with care; we had subsequent conversations about this. I read with great interest the contributions made by a number of my former colleagues in the other place when our amendments were considered there last week.
First, while I agree with my noble friend and welcome the concessions that the Government have made, it is important for us to understand the nature of this further substantial shift. I am grateful to the noble Lord, Lord Anderson, who, in quoting part of Article 8(2) of the ICC statute, illustrated the wide range of potential crimes listed there. This gives rise to the concern that the chance of a vexatious allegation in relation to such a wide range of potential crimes is far greater than it is for crimes of genocide and crimes against humanity. However, as my right honourable friend Jeremy Wright, the former Attorney-General, helpfully said in the debate last Wednesday in the other place, by virtue of the exclusions that the Government have introduced, there is an increasing inconsistency as to which offences are relevant and which are excluded.
The truth of the matter is this: if we could be certain that the decisions made by prosecuting authorities on a relevant offence would exclude the potential of a further prosecution by the International Criminal Court—and that the decisions made by UK prosecutors would be sufficient for everybody’s acceptance—the UK would be able and willing to undertake a prosecution, even of a relevant offence, and this would be accepted by the ICC; my noble friend the Minister made this point in introducing the debate. The court could then proceed only if we were unable and unwilling, which we evidently would not be. I fear that there is uncertainty about this.
We have to balance, on the one hand, the uncertainty about exposing our potential servicepeople to the International Criminal Court—especially after the five-year period—against, on the other hand, not being able to reassure them that these offences have been brought within the scope of relevant offences for the higher prosecution threshold. The iteration between this House and the other House has helped enormously to understand that there is a balance to be struck.
Lord Houghton of Richmond (CB)
My Lords, it may be presumptuous of me spontaneously to offer, on behalf of all gallant Lords, a sincere thank you to the Minister for the good news she has brought today. I can probably extend that to all those who are involved on operations, who are in command of those on operations or who train them beforehand. Frankly, the idea that we might have sent soldiers, sailors and airmen to depart on operations with even an inkling that, in certain circumstances, they might have enjoyed some sort of exemption from prosecution for war crimes is fundamentally opposed to what makes us what we are and gives our Armed Forces moral authority. It is absolutely fundamental to our sense of service. The concession in the other place that the Minister has reported is fundamental to our ability to retain the moral authority of that service.
Baroness Smith of Newnham (LD)
My Lords, like noble and gallant and noble and learned Lords, I welcome the Minister’s further concession. One of the most welcome things in the final stages of this Bill is that we are gradually beginning to see its most egregious bits removed. We have lost Clause 12; this was most welcome. A very welcome amendment was tabled in the Commons, although it did not go far enough. However, it began to pave the way for the amendment brought again by the noble Lord, Lord Robertson, which the Minister has agreed to accept. This is extremely welcome.
I will not rehearse the arguments made by other noble Lords about the International Criminal Court. I merely want to say that we on these Benches support Amendment A1 in the name of the noble Lord, Lord Robertson. We also look forward to the government amendment in lieu and to seeing that war crimes—as well as genocide, torture and crimes against humanity—are excluded from the presumption against prosecution. This will tidy up the Bill in a most welcome way and, hopefully, will lead us to a piece of legislation that does what we need it to do and what our service personnel and veterans need it to do.
Lord Tunnicliffe (Lab) [V]
My Lords, following the overwhelming defeat in this House a couple of weeks ago, the Government’s decision to accept parts of the amendment of the noble Lord, Lord Robertson, to exclude torture, genocide and crimes against humanity from the presumption against prosecution was a welcome step forward. This was testament to the efforts of the noble Lord and the vast coalition of supporters inside and outside this House. I pay tribute to them all today.
We should not forget that these serious offences are illegal and immoral. Under all circumstances, they must be investigated, and if there are grounds for the allegations, there must be prosecutions and punishment. Not including them in Schedule 1 from the beginning was a mistake, and one that could have led to British personnel and veterans being dragged before the ICC, as the ICC’s chief prosecutor herself said. Now, she has written another letter about the current government concessions, saying:
“I remain concerned that many war crimes within the Court’s jurisdiction would still be subject to the envisaged statutory presumption … any gap between the scope of coverage in the excludable offences under the proposed legislation and conduct which might otherwise constitute a crime within the jurisdiction of the Court would risk the persistence of … rendering relevant cases concerning such conduct admissible before the ICC.”
Therefore, it was clear that there remained a serious problem and that the Government were still picking and choosing some crimes that are covered by the Geneva conventions.
We still believe that war crimes must be excluded and strongly support Motion A1 to exclude everything covered by Article 8.2 of the Rome treaty. We are therefore delighted with the Minister’s speech. Essentially, I believe the Government accept the essence of Motion A1, and we will see that in the new amendment from the Commons. I thank the Minister for her efforts and her willingness to talk to many interested parties. We have got to the right place.
It might be useful to lay out what I expect to happen now. As I understand it, Motion A1 will be pressed by the noble Lord, Lord Robertson, and the Government will accept it on the voices. It will then go back to the Commons, and an amendment in lieu will be moved by the Government. It will have substantially the same effect as Motion A1, and it will be approved in the Commons. The new amendment will then be returned to us, where we will unreservedly welcome and approve it. That will be a happy outcome to this complex debate.
I join other Members in celebrating that there have been a variety of speeches looking at this subject in this session, in previous sessions and outside the House. I accept that getting the balance right is a matter of some subtlety, but I believe we have got to the right place, and I look forward to the amendment in lieu coming back to us.
Baroness Goldie (Con)
My Lords, first, I thank all noble Lords for their contributions. Again, I thank and pay tribute to the noble Lord, Lord Robertson, for his assiduous attention and perseverance in respect of this issue. I endeavoured to engage widely, and I thank noble Lords for the recognition of that engagement. I was anxious to do my level best to understand where the concerns really lay.
I thank noble Lords for the welcome they have extended to the Government’s change of position on this. As indicated by the last speaker, the noble Lord, Lord Tunnicliffe, I welcome the recognition that there was a balance to be struck. I now detect, quite clearly, I think, that your Lordships are seeing the Bill reach a shape whereby it is a positive advance, providing clarity and greater certainty to our Armed Forces personnel. As I said in my opening speech, the Government will not oppose the amendment of the noble Lord, Lord Robertson, and they will table an amendment in lieu to ensure drafting accuracy.
Lord Robertson of Port Ellen (Lab) [V]
I am delighted with what the Government have said and with the support that has been given to this amendment in this House. We are doing absolutely the right thing by our troops. The noble and gallant Lord, Lord Houghton, makes the strong point, which I have heard from a number of military officers, that to have left any vestige of possibility that our troops might have appeared before the International Criminal Court would have been a disgrace, entirely wrong and very damaging to the morale of those who are still deployed to defend this country and its interests.
The offences under Article 8.2 of the Rome statute are protected in international law as being without limit of time. To have invoked any presumption against prosecution for those offences would have been to be in breach of international law and international humanitarian law. If that had happened, it would have been a stain on our country, or, as one of the senior military representatives said, a national embarrassment.
This country has also been saved from the use of this legislation by every dictator and warlord in the world, who would have used it as a precedent for their own illegal actions. Even in the last few weeks, we have seen a number of countries subject to the ICC jurisdiction praying in aid this draft of the legislation. We have been saved from that as well.
I, of course, admire and respect those who serve in our name in conflicts overseas. They do so bravely, tenaciously and professionally. As Defence Secretary and then Secretary-General of NATO, I often had to make decisions about the deployment of these individuals and place them in harm’s way. These were never easy decisions to make, but I was comforted by the fact that our Armed Forces always act within the law. To single them out as being somehow above these laws would have done a disservice to them and to their purpose.
I thank the Minister for her consideration and for listening, the Secretary of State, who listened to the voices that have come from such a wide range of opinion, and all those who have helped in this particular argument. I look forward to seeing, before they are tabled, the drafting amendments that the Minister promises will be brought forward for the amendment in lieu in the other place. As a matter of form, I beg to move Motion A1.
Baroness Goldie
That this House do not insist on its Amendment 2 to which the Commons have disagreed for their Reason 2A.
Baroness Goldie (Con)
My Lords, it is the Government’s view that the timescales included in the amendment are operationally unrealistic, do not take account of the nature of investigations on overseas operations and could put us in breach of our international obligations under the European Convention on Human Rights to effectively investigate serious crimes. Where the service police have reason to believe that an offence may have been committed, they have a legal duty to investigate it. Artificial timelines and restrictions placed on them in respect of the conduct of investigations would clearly prevent them carrying out effective investigations and would impinge on their statutory independence.
Lord Thomas of Gresford
Moved by
At end insert “but do propose Amendment 2B in lieu—
2B: After Clause 7, insert the following new Clause—
“Investigation of allegations related to overseas operations
(1) In deciding whether to commence criminal proceedings for allegations against a member of Her Majesty’s Forces arising out of overseas operations, the relevant prosecutor must take into account whether the investigation has been timely and comprehensively conducted.
(2) Where an investigator of allegations arising out of overseas operations is satisfied that there is sufficient evidence of criminal conduct to continue the investigation, the investigator must within 21 days refer the investigation to the Service Prosecuting Authority with any initial findings and accompanying case papers.
(3) An investigation may not proceed after the period of 6 months beginning with the day on which the allegation was first reported without the reference required in subsection (2).
(4) On receiving a referral under subsection (2), the Service Prosecuting Authority must either—
(a) order the investigation to cease if it considers it unlikely that charges will be brought, or
(b) give appropriate advice and directions to the investigator about avenues of inquiry to pursue and not pursue.
(5) On the conclusion of the investigation, the investigator must send a final report with accompanying case papers to the Service Prosecuting Authority for the consideration of criminal proceedings.
(6) After receipt of the final report, the facts and circumstances of the allegations may not be further investigated or reinvestigated without the direction of the Director of Service Prosecutions acting on the ground that there is new compelling evidence or information.
(7) For the purposes of this section—
“case papers” includes summaries of interviews or other accounts given by the suspect, previous convictions and disciplinary record, available witness statements, scenes of crime photographs, CCTV recordings, medical and forensic science reports;
“investigator” means a member of the service police or a civil police force.””
Lord Thomas of Gresford (LD) [V]
My Lords, I would like to quote some wise words on this Bill with which I entirely agree:
“those who commit criminal acts … 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.”—[Official Report, 20/1/21; col. 1170.]
That was the opening statement at Second Reading of the noble Baroness, Lady Goldie. A moment ago, as I understood it, she suggested that the current status quo was perfectly flexible and reasonable and that there should be no change. I do not agree. She has considered this Bill with remarkable fortitude and dealt trenchantly with her colleagues on some of these issues. I admire her very much for that. Having been present in person on the only occasion that a conviction of a war crime has been recorded in a British court, I am relieved that war crimes have now been removed from the presumption against prosecution. Clearly under her influence the Government can think again. I thank her. I also thank the noble Lord, Lord Robertson of Port Ellen, for his leadership on this.
No one has suggested throughout the whole passage of the Bill that there has been unacceptable delay by the Service Prosecuting Authority or the office of the Director of Service Prosecutions in bringing prosecutions, and nor has there been any complaint of delay in the listing of cases for trial or in the time taken in the courts martial process.
I referred at previous stages to the difficulties faced in investigations in theatre: the fact that investigations by victims in a hostile country may be made late, the likelihood of a lack of co-operation, the need for security for the investigators themselves, the problems of language and culture and, importantly, the lack of the range of forensic scientific facilities which would be readily available to investigators of domestic crime within the UK. All these pose considerable difficulties. However, the Bill still does not directly address the problem of delayed, shoddy and repeated investigations, which has very much been the concern of many members of the Armed Forces.
The Bill still introduces the novel idea of a presumption against prosecution for murder and for lesser charges to terminate proceedings arbitrarily; that has thankfully been truncated today but is still just about hanging in there on the serious offences of murder and likewise. This anomaly—this presumption against prosecution—may be the subject of law lectures in future, perhaps for a lengthy period until it is reversed, as I am convinced it will be, but will the presumption of prosecution still in this Bill be extended to other categories of public servants? Will there be a presumption against the prosecution of policemen after a number of years, or soldiers who have served in Northern Ireland? We have recently seen senior police officers tried for decisions made, under stress, more than 30 years ago. Have the memories of witnesses to those tragic events faded? Should retired police officers have the threat of prosecution held over them? Today a trial starts in Northern Ireland dealing with the events of 50 years ago. When the promised Bill to protect veterans of Northern Ireland operations is produced, will there be a presumption against prosecution in that? If so, I predict serious riots in Derry.
I return to my amendment, which sets out a practical and principled way of monitoring investigations and stopping them if, in the opinion of the Director of Service Prosecutions, there is insufficient evidence and no prospect of further investigations succeeding. Only if there is new and compelling evidence which satisfies the DSP could such investigations be resumed. It would not be, as at present, at the inclination or judgment of the investigator himself.
I am aware that the government response to my amendments in both this House and the other place, as we heard just now, has been to argue that its time limits are too restrictive. However, flexibility is built into the system I propose: no arbitrary cut-off applicable to all, regardless of the circumstances, but with each case considered individually on its merits. The insertion of time limits to control and monitor the investigation is precisely the point.
The alternative argument advanced by the Government is that Sir Richard Henriques is carrying out a review of the process of investigations. If that is so, it is not I who am premature with my amendment but the Government, who are pushing this Bill forward before he has reported. I know Sir Richard well from the days of my youth when I trespassed on the northern circuit; he is a judge of outstanding ability and integrity. If I were assured that my amendment and the speeches on it would be put before him, and that he could report in time for the Armed Forces Bill—the Second Reading of which we expect in this House perhaps in June—it would materially affect my decision as to whether to press this Motion. I beg to move, but look forward very much to the reply of the noble Baroness.
Lord Tunnicliffe (Lab) [V]
My Lords, we continue to accept and recognise the problem of baseless allegations and legal claims arising from Iraq and Afghanistan under both Labour and Conservative Governments. But the Bill, unamended, just does not do what was promised—that is, to protect British personnel serving overseas from vexatious legal claims and shoddy investigations. This is the gaping hole in this Bill, and it could be neatly fixed in the way that was proposed by the noble Lord, Lord Thomas.
I remind the Minister that the conditions set on investigations in the amendment are not arbitrary, nor are they time limited. The proposal ensures timely, not time-limited, investigations. This is not unrealistic, because it has been tried and tested in civilian law, and that is one of the reasons why the former Judge Advocate-General is so keen on such a proposal. We have worked hard with the Government and across the House to try to build a consensus on this. While we believe this has been achieved with colleagues from all sides, the Government remain extremely resistant to proposals, so we are forced to recognise the restraints and realities of ping-pong. Therefore, we support the calls by the noble Lord, Lord Thomas, for the amendment to be referred to Sir Richard Henriques, and reported on in time for it to be considered in the Armed Forces Bill, to ensure that we return to the issue.
Baroness Goldie (Con)
I thank the noble Lord, Lord Thomas of Gresford, for his Motion B1. He referred to my remarks at Second Reading relating to trying to address protracted and repeated investigations, and I stand by these remarks which, within the context of the Bill, seek to provide greater clarity and certainty to our Armed Forces personnel, but not by imposing artificial time limits on investigatory processes. That is implicit within the noble Lord’s amendment.
I accept that the noble Lord, Lord Thomas of Gresford, is well intentioned. He suggests that his amendment should be referred to Sir Richard Henriques, and the Government certainly have no objection to that. Indeed, Sir Richard Henriques may already have been closely following debates in this Chamber on the Bill. The noble Lord’s amendment may be a fruitful subject on which Sir Richard may wish to reflect. I cannot commit, of course, to saying that the report from Sir Richard will be concurrent with the Armed Forces Bill. Its Second Reading may reach this Chamber in June, and I understand that Sir Richard hopes to produce his report in the early summer. Again, while we will all be very interested in learning what Sir Richard has to say, the noble Lord, Lord Thomas of Gresford, will understand that I cannot commit the Government to whatever he may produce in his ultimate report. I certainly believe in having a wide field of material available for consideration of complex issues. If that reassures the noble Lord, Lord Thomas of Gresford, I hope he will be minded not to move Motion B1 to a division.
The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)
I have received no requests to ask any short questions of elucidation, and accordingly call the noble Lord, Lord Thomas of Gresford.
Lord Thomas of Gresford (LD) [V]
My Lords, I am grateful to the noble Baroness, Lady Goldie, for that reply. I note that she is prepared to refer this issue to Sir Richard Henriques. It would be sensible to see what he has to say. I am sure that he will take on board all the submissions that have been made, and will produce a way forward to ensure that delays are monitored and controlled, and not left to hang about for ever, as has happened in the past. On that basis, I beg leave to withdraw Motion B1.
Baroness Goldie
That this House do agree with the Commons in their Amendment 3A.
Baroness Goldie (Con)
My Lords, I beg to move Motions C and D.
Amendment 3A in Motion C is simply a consequential amendment to the title of the Bill as a result of moving the duty to consider derogation provision.
Commons Reason 4A in Motion D reflects the representations I made to this House previously, that the absolute limitation periods proposed in Part 2 of the Bill allow reasonable time for the bringing of claims, and that it is incompatible with our obligations under the European Convention on Human Rights for different periods to apply in respect of different types of claimant.
Lord Thomas of Gresford (LD) [V]
My Lords, I have nothing to say on Motion C, which is purely technical.
The original amendment behind Motion D proposed that the ordinary rules of the Limitation Act should continue to apply to members of Her Majesty's Forces serving in overseas operations. The Government’s objection is that this is discriminatory and contrary to the European Convention on Human Rights. Of course, the whole Bill is discriminatory, not least on the criminal side. It discriminates between personnel serving in overseas operations and personnel serving within the United Kingdom who do not have the protection of the so-called presumption against prosecution, for example, nor the protection against civil suit which these provisions seek to give.
Discrimination is not the problem here, the real issue is discretion: the discretion of a judge, in appropriate circumstances where it is equitable to do so, to extend or disregard the limitation period in actions in tort or, for example, for unlawful detention, or for breach of the articles of the human rights convention—for example, torture—or, in the case of our troops, for negligence, either in the provision of equipment or in training. The law has recognised over the centuries that the imposition of an absolute cut-off may in the circumstances of a particular case be entirely unjust.
Our system has operated quite successfully in cases arising out of operations in Iraq and Afghanistan. Vexatious claims or claims which were so delayed as to make it impossible to try the issues fairly have been struck out in their hundreds. That is the system that we have got, and it is a system that works.
Your Lordships will recall that, at Report, I argued that the clauses which created a blank wall for all litigants, whether foreign nationals, civilian victims or members of the Armed Forces, should be removed from the Bill and that the tried and trusted system that we have—allowing judges to do their job in the particular circumstances of the case—should continue. The Government persist in removing the judges’ discretion, even in the narrow class of service personnel on overseas operations. We shall see how this works out, but I expect that veterans’ organisations will be clamouring at the door of the Ministry of Defence to reverse the decision as soon as possible.
Lord Tunnicliffe (Lab) [V]
My Lords, we are very disappointed that the Government have rejected our amendment to Part 2 of the Bill. We still believe that it is simply wrong for those who put their life on the line serving Britain overseas to have less access to compensation and justice than the UK civilians whom they defend, or indeed than their colleagues whose service is largely UK based. The amendment was designed to ensure that claims by troops or former service personnel were not blocked in all circumstances after six years, as they would otherwise be under the Bill.
This provision also directly breaches the Armed Forces covenant, as the director-general of the Royal British Legion confirmed. He argued: “I think it”—by implication, the Bill—
“is protecting the MOD, rather than the service personnel”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 86.]
While our concerns have not gone away, we recognise that the Government have shown absolutely no desire to change this, so we will not ask the other place to think again with another vote. However, we strongly urge the Government to think further on this matter, and we will return to it as soon as possible.
For now, I want to thank colleagues for their unwavering support for our amendment, especially the noble and gallant Lords, Lord Stirrup and Lord Boyce. Having created such a widely based coalition against this part of the Bill, the Government should think long and hard and use the opportunity of the Armed Forces Bill to correct this deeply unwise feature of this one.
Baroness Goldie (Con)
My Lords, I thank both the noble Lord, Lord Thomas of Gresford, and the noble Lord, Lord Tunnicliffe, for their contributions. I think that what emerges is a simple divergence of opinion. I say to both noble Lords that the problem with Amendment 4 is discrimination between different personnel engaged in the same activity on which the Bill is predicated, an overseas operation. These differences of opinion are unlikely to be reconciled, but I thank the noble Lords for their contributions.
Baroness Goldie
That this House do not insist on its Amendment 5 to which the Commons have disagreed for their Reason 5A.
Baroness Goldie (Con)
My Lords, I have said before, and I say again, that the MoD takes seriously its duty of care for service personnel and veterans. There already exists a comprehensive range of legal, pastoral, welfare and mental health support for them. I have previously spoken at length to your Lordships about the nature of this support and do not propose to repeat my comments in full, but I wish to highlight a couple of the key points.
First, service personnel are entitled to receive legal support where they face criminal allegations or civil claims that relate to actions taken during their service and where they were performing their duties. Legal advice and support is also available whenever people are required to give evidence at inquests and inquiries and in litigation.
Secondly, a range of welfare support and mental health support is routinely offered to all our people. The potential impact of operations on a service person’s mental health is well recognised, and policies and procedures are in place to help manage and mitigate these impacts as far as possible. Additionally, the Office for Veterans’ Affairs works closely with the MoD and departments across government, the devolved Administrations, charities and academia to ensure the needs of veterans are met.
As your Lordships would have noted from the Secretary of State’s Written Ministerial Statement, significant progress has been made to ensure that our service personnel and veterans have access to a comprehensive package of legal, pastoral and mental health support. We therefore believe that it is unnecessary to establish a statutory duty of care.
Not only is Amendment 5 unnecessary but it could result in unintended and undesirable consequences. Whether an individual wants or needs pastoral, welfare and mental health support is a personal issue. A duty of care “standard” could, if not carefully drafted, end up as a one-size-fits-all approach, not being flexible enough to cope with the needs and wishes of individuals as they arise and are identified. It could even engender an approach whereby support is provided only in accordance with the “standard”, which may leave personnel without the right support at the right time for them.
We are also deeply concerned about the potentially negative effect of the amendment if it is included in this legislation. It is clear that it is likely to lead to an increase in litigation, which will mean more of our people being subject to potentially lengthy and stressful court proceedings. That is profoundly undesirable and contrary to the objectives of this Bill. I think that many of your Lordships will recognise that pastoral and moral duties are extremely difficult adequately to define, and there is a real risk that attempting to do so will lead to more, rather than less, litigation and greater uncertainty.
We are also concerned that, as investigations and allegations arise and often occur in the operational theatre during conflict, involving the commanding officer, the Royal Military Police and service personnel, the amendment may have unintended consequences which impact on the operational theatre and, again, lead to an increase in litigation. That is not some draconian concoction or lurid speculation; it is the simple practical fact of introducing a legal standard which, despite the efforts to exclude from the doctrine of combat immunity, could well encroach into the operational theatre.
The MoD is clear about its responsibilities to provide the right support to our personnel, both serving and veterans, and to seek to improve and build on this wherever necessary. Setting a standard for a duty of care in this Bill is neither necessary nor desirable. I urge the noble Lord not to press his amendment. I beg to move.
Lord Dannatt
As an amendment to Motion E, at end insert “but do propose Amendment 5B in lieu—
“Duty of care to service personnel
(1) The Secretary of State must establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.
(2) The Secretary of State must lay a copy of this standard before Parliament within six months of the date on which this Act is passed.
(3) The Secretary of State must thereafter in each calendar year—
(a) prepare a duty of care update, and
(b) include the update in the Armed Forces Covenant annual report when it is laid before Parliament.
(4) The duty of care update is a review about the continuous process and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—
(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;
(b) judicial reviews and inquiries into allegations of misconduct by service personnel;
(c) such other related fields as the Secretary of State may determine.
(5) In subsection (1) “service personnel” means—
(a) members of the regular forces and the reserve forces;
(b) members of British overseas territory forces who are subject to service law;
(c) former members of any of Her Majesty’s forces who are ordinarily resident in the United Kingdom; and
(d) where relevant, family members of any person meeting the definition within paragraph (a), (b) or (c).
(6) In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.
(7) None of the provisions of this section may be used to alter the principle of combat immunity.””
Lord Dannatt (CB) [V]
My Lords, it is with predictable disappointment, but no less determination, that I return to commending to your Lordships the amendment in my name to establish a duty of care standard. I draw your Lordships’ attention to the fact that in Committee and on Report this amendment stood in the names of the noble and gallant Lords, Lord Boyce and Lord Stirrup, thus reflecting support from former Chiefs of Staff of all three armed services.
It is fair to say that this overseas operations Bill has had something of a troubled passage through Parliament. It is extraordinary to note that the Minister piloting the Bill in the other place has now left his appointment as the Minister for Defence People and Veterans. What that says about smooth, joined-up government is a matter for speculation.
Notwithstanding the welcome concessions made by the Government this afternoon pertaining to our obligations under international law and Britain’s reputation as an upholder of a rules-based international community, the Bill is also about the wider interests of the people Mr Mercer in the other place sought to champion—namely, our defence people and veterans. The serving and veteran communities have been looking to the Bill to provide better protection from repeated, extended and vexatious investigations and possible prosecutions following their service overseas on deployed operations.
No one suggests for a moment that anyone is above the law. Indeed, soldiers take up arms only to protect the law, but when this new Bill passes into law it will singularly fail to provide the protection that serving and veteran members of the Armed Forces believe it should provide. For this reason, the duty of care standard amendment has been tabled to improve this Bill and enable it to achieve one of its original objectives. That it has been consistently opposed by government Ministers and the government majority in the other place is both puzzling and disappointing.
If the Government argue that the Bill as drafted would give serving and veteran members of the Armed Forces the protection that they seek and do not accept my amendment, will they commit to issuing a clear statement down the chain of command and out to the various veterans’ organisations as to how the Bill benefits and protects them? Those who are serving or have served have the right to believe that their employer will protect their interests. The Government have brought forward or implied various reasons why they will not support this duty of care standard amendment. It has been suggested that such an amendment is not necessary, in which case I repeat my request for a clear statement of benefit to be briefed to serving and veteran members of the Armed Forces.
It has been suggested that setting out a duty of care standard will invite further litigation from Armed Forces personnel. As I have argued previously, this is an empty argument, as in the amendment the Ministry of Defence has the opportunity to draw up its own statement of a duty of care standard, then act within it. That sounds to me like sensible, good practice to me—not something to be fearful of.
It has also been suggested to me that setting out a duty of care standard would create an unfortunate precedent. That argument misses the point as well. The inclusion of an Armed Forces covenant in the Armed Forces Act 2011 illustrates that the Armed Forces are acknowledged to be in a different category of employment from civilian occupations. The Armed Forces covenant was crafted and designed to recognise and protect that difference, so the argument of creating a precedent is also an empty one. The Armed Forces are in an employment category of their own.
Finally, I believe I have every right to be fearful. If the Government are failing to protect their employees from repeated, extended and vexatious investigations arising from overseas operations, what chance do Northern Ireland veterans have of gaining similar protection? I am not holding my breath, despite often-repeated statements that legislation would be introduced to address that problem too. I beg to move Motion E1 as an amendment to Motion E.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
I have not received any requests from unlisted speakers. Does anyone in the Chamber wish to speak? No. I call the noble Baroness, Lady Smith of Newnham.
Baroness Smith of Newnham (LD)
My Lords, this amendment from the noble Lord, Lord Dannatt, raises an important issue. Although we did indeed receive the Written Ministerial Statement, it did not go far enough. It is absolutely clear that the Government wish to make commitments to service men and women—the Bill was intended to do so—yet, when we get down to the details and requests to support the Armed Forces covenant and to ensure that the rights of service men and women and veterans are respected, the detail seems to disappear.
This amendment from the noble Lord, Lord Dannatt, perhaps does not go far enough. Such a duty of care should arguably be for all service personnel, whether overseas or at home, and for all activities. Had the noble Lord tabled such an amendment, he would almost certainly have been told it was out of scope of the Bill. Therefore, this is in many ways a modest amendment but a very important one. If the purpose of the Bill, as the Minister has pointed out—and pointed out so many times in the earlier stages of the Bill—is to stop vexatious claims, investigations and so on that are deleterious to the health and well-being of service personnel and veterans, the least the MoD can do is to commit to supporting service personnel and veterans going through the difficulties of investigations and prosecutions.
It is a limited but very important amendment. I am sure the Minister has been listening, because she has done a fantastic job of listening to us over many hours of debate. But if she has been listening, she has not yet yielded any ground whatever. Might she feel able to move at all? Otherwise, I suspect I will follow the noble Lord, Lord Dannatt, through the virtual Lobby to support this amendment.
Lord Tunnicliffe (Lab) [V]
My Lords, we remain four-square behind the important amendment from the noble Lord, Lord Dannatt, to provide a duty of care standard for personnel and veterans who face investigations and litigations. It remains unclear why the Government will not accept this limited proposal. If it is simply because they fear being sued for not fulfilling their responsibilities, I simply say to the Minister that all the Government need to do is to make sure their duty is fulfilled in the first place.
It has been suggested that it is unreasonable to single out the Armed Forces for this protection but, as the noble Baroness just pointed out, the covenant shows that the law recognises that being a soldier or serviceman in a combat situation is special and different. In no other job can you require somebody to go into a potentially lethal situation and, in the final analysis, die for their country. This amendment recognises that there needs to be something special when people have worked under conditions that those of us who have never been in that level of tension, responsibility and fear probably cannot understand. We can at least partly understand how difficult it must be. Surely, there should be a reciprocal movement by government, the command and the MoD to support those in such danger when they come under the aegis of the law and have the difficult job of defending themselves. This amendment merely makes sure that they are properly looked after and that anybody making decisions about how they are looked after recognises that, at the end of the day, there is hard legislation.
Since we last debated this amendment in this House, we have had a change of Minister for Defence People and Veterans—the ministerial lead for this legislation. While there are certainly mixed opinions about him, no one can fault Johnny Mercer’s passion or sense of mission. His resignation letter to the Prime Minister lays bare the failings of the Government on veterans’ concerns by saying that
“we continue to say all the right things”
yet
“fail to match that with what we deliver”.
Clearly, there is an issue and we believe that having this duty of care on the face of the Bill will allow the Government to deliver while being reminded how Ministers come and go but statutory protection remains in place. We have heard how troops and their families who have been through the trauma of these long-running investigations have felt cut adrift from the Ministry of Defence. When Major Campbell was asked what support the MoD gave him, he replied simply: “There was none”.
We believe that the Government should think long and hard about this amendment. It is an unlikely coalition of three former Chiefs of Staff of their respective parts of the Armed Forces, politicians from around this Chamber, and many outside, who recognise the value of looking after our troops when they are in difficult times. This has to change and we believe that legislative change is the right way. We therefore support the noble Lord, Lord Dannatt, in asking the Government to think again. If the noble Lord feels that he has had an unsatisfactory response and wishes to divide the House, we will support him.
Baroness Goldie (Con)
I thank the noble Lord, Lord Dannatt, the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions. I realise that this is an important debate. It is an issue which, as I have recognised in previous contributions, elicits very strong and sincerely held views and feelings.
The noble Lord, Lord Dannatt, referred to my former ministerial colleague, Johnny Mercer. I pay tribute to him and recognise his commitment to veterans, as I pay tribute to his successor, my honourable friend Leo Docherty, himself a former soldier, who has a deep and abiding interest in veterans.
I listened carefully to the contributions across the Chamber. What I have not heard in response to my attempt to describe the wide range of support which is offered to our Armed Forces personnel and veterans—through a range of directly provided services, likely to be the case, for example, with serving personnel; or in conjunction and co-operation with veterans’ charities; or through consultation with the devolved Administrations, many of whom are responsible for delivering the essential services and support which our veterans require; or through the Armed Forces Covenant and how we propose to develop that further in the Armed Forces Bill—is a detailed indication of where the MoD is falling short. I certainly feel it would be helpful to have greater clarity about what noble Lords think are the deficiencies of the MoD in this context.
I have also not heard a response to the Government’s legitimate concerns about the unintended consequences and the potential legal implications of creating a statutory duty of care. As I pointed out, this has to exist alongside the common-law doctrine of combat immunity and the very real concerns that this well-intended amendment could stray into and inhibit activity in the operational theatre. None of the contributions addressed these legal concerns or provided any alternative legal view. If one is available, it would be helpful to the discussion to hear what it is.
Lord Dannatt (CB) [V]
My Lords, first, I thank the Minister for her thoughtful and measured response to this short debate. She made a number of entirely legitimate and fair points. She asked whether there could be a statement of detail on the concerns that a duty of care standard would meet, but I do not think that this Chamber is the place to get into a detailed drafting session. The purpose of the amendment is a purpose in principle to establish the desirability of a statement on a duty of care standard; this should stand on its own.
Going beyond that, the drafting of the amendment is such that the initiative remains with the Ministry of Defence to draft the duty of care standard in the way that it wishes. This also addresses the legal question that the Minister posed. The answer is that, if the Ministry of Defence draws up its duty of care standard in a careful and thoughtful way then continues to operate within it, the unintended consequences of serving or former servicepeople litigating against the Ministry of Defence represent an empty argument, as I argued before.
However, I am grateful to the Minister for picking up the point that, if there are beneficial aspects to the Bill, they are extracted and put in an information format so that they can be briefed down the chain of command, as I asked, and to veterans’ organisations. As much as I welcome that move, why would the Ministry of Defence not do that at the conclusion of the Bill? Anyway, I am glad that the concession has been made and that that will happen.
Nevertheless, I believe that the case for setting out a clear duty of care standard remains extremely strong. There have been several references to the former Minister for Defence People and Veterans; as I understand it, he is currently sitting in the public gallery of a court in Belfast to show solidarity with two former servicemen who are being tried some 40 or 50 years after events took place. I salute Mr Mercer for doing that and continuing to champion veterans’ causes. Veterans look to him for leadership; they also look to a number of us former service chiefs for leadership.
I rise to that challenge to continue to provide leadership to the veteran community. I am therefore disappointed that the Government do not accept the need for the setting out of a detailed duty of care standard. I continue to press this issue, and therefore wish once again to test the opinion of the House and divide on this matter.
Overseas Operations (Service Personnel and Veterans) Bill
Tuesday 27th April 2021
(2 years, 12 months ago)
Commons ChamberRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 27 April 2021 - (27 Apr 2021)
16:30 - The House divided: - Ayes: 357 / Noes: 267 - Question accordingly agreed to.
The Minister for Defence People and Veterans (Leo Docherty)
I beg to move,
That this House agrees with the Lords in their amendment 1R but disagrees with the Lords in their amendments 1S, 1T and 1U.
Madam Deputy Speaker (Dame Rosie Winterton)
With this it will be convenient to discuss the following:
Government amendments (a) to (c) in lieu of Lords amendments 1S, 1T and 1U.
Government manuscript amendments (d) and (e).
Government motion to disagree with Lords amendment 5B.
Leo Docherty
I rise to propose Government amendments in lieu of Lords amendments 1S to 1U. I should once again like to thank Lord Robertson for his constructive contributions to debates on this issue.
It has always been the case that the measures in the Bill will not leave our service personnel at greater risk of investigation by the International Criminal Court. By adopting the amendments, we are happy to offer further reassurance and put that beyond any doubt. I should like to reassure hon. Members that service personnel and veterans will continue to receive the benefits of the additional protections provided by part 1 of the Bill in respect of historical alleged criminal offences under the law of England and Wales. Including war crimes in schedule 1 of the Bill will have little practical impact on the protection that the Bill affords our armed forces personnel. The Government are therefore delivering on our commitment to protect our service personnel and veterans from the threat of legal proceedings in connection with historical overseas operations many years after the events in question.
We have listened, and we believe that these proposed Government amendments in lieu will satisfy the House of Lords in respect of relevant offences, and they demonstrate our continued commitment to strengthening the rule of law and to maintaining our leading role in upholding the rules-based international system.
Sir Edward Leigh (Gainsborough) (Con)
Can the Minister name any country in the world that, 50 years after the event, would prosecute two of its own soldiers for killing a terrorist?
Leo Docherty
I am grateful for my right hon. Friend’s intervention. He is, of course, referring to legacy cases in Northern Ireland. I am confident, as I stated at the Dispatch Box last week, that legislation is forthcoming to ensure that our Northern Ireland veterans are protected from any prosecutions in the future. I urge that the Government amendments in lieu be accepted this afternoon.
Sir Christopher Chope (Christchurch) (Con)
I congratulate my hon. Friend on his appointment, but can he explain what he means by the expression “in the future”? There will be a lot of people listening and wondering, “When is it going to affect me?”
Leo Docherty
I am grateful for my hon. Friend’s question. I am confident that, in the near future, legislation will be brought before the House from the Northern Ireland Office to ensure that we see no more prosecutions of Op Banner veterans, and I know that he will share that expectation.
I turn to Lords amendment 5B on the duty of care. The Government continue to believe that it would not be practicable or desirable to define a legally binding standard of care in relation to the matters referred to in the amendment. As I said previously, the Ministry of Defence takes very seriously its duty of care for service personnel and veterans. Over the years, we have established a comprehensive range of legal, pastoral, welfare and mental health support for service personnel and veterans, and we have come a long way from the early days of our operations in Iraq and Afghanistan. Our welfare provisions were clearly laid out in the Defence Secretary’s written ministerial statement of 13 April. We are aiming for a gold standard and are improving our provision all the time without the requirement for legislation.
Jim Shannon (Strangford) (DUP)
It is a pleasure to see the Minister in his place. I know that he is committed to this; I have no doubt whatsoever about that. In my constituency and across Northern Ireland, a number of young service personnel who have served well have taken their own life due to post-traumatic stress disorder. Can the Minister assure me that when it comes to legal, pastoral and mental health support, everything that is necessary is in the Bill?
Leo Docherty
I am grateful for the hon. Member’s question. I can reassure him with confidence that we are aiming for a gold standard in welfare provision. It does not require legislation. It requires constant improvement and a deep interest across Government, and that is what the Ministry of Defence is committed to delivering alongside the Office for Veterans’ Affairs.
Additionally, we are deeply concerned about the potential unintended negative effects of Lords amendment 5B if it is included in the Bill. Notions of pastoral and moral duties are extremely difficult to adequately define, and there is a real risk that attempting to do so will lead to more, rather than less, litigation and greater uncertainty for our armed forces people. We are also concerned that, as investigations and allegations arise and often occur on operations, the amendment might have the unintended consequence of undermining our operational effectiveness.
The Government do agree with Lord Dannatt on the need to set out clearly the benefits of the Bill to the armed forces community. He has asked for a commitment that the Government will communicate the measures of the Bill down the chain of command. I am, of course, delighted to give that assurance now. We will ensure that all service personnel understand the positive effects of the Bill and the legal protection it affords them. We will explain how the measures in the Bill are beneficial to individual service personnel who have deployed or will deploy on overseas operations.
Part 1 of the Bill will reduce the number and length of criminal investigations, and our armed forces personnel should be reassured that the unique context of overseas operations will be taken into account when criminal allegations against them are being investigated. The longstop measures in part 2 of the Bill mean that we should never again see the industrial scale of civil claims that we saw in the wake of Iraq and Afghanistan. These measures are delivering on our manifesto commitment and our solemn pledge to protect our armed forces personnel and our veterans and to bring to an end the shameful cycle of vexatious legal claims brought against our finest asset—our defence people. Together, both parts of the Bill will give greater certainty to service personnel that they will not have the shadow of legal proceedings hanging over them for decades after they return from doing their duty on overseas operations.
We will be clear, of course, that the Bill will not stop service personnel being held to the highest standards that we would expect from all our armed forces, and that they will still be subject to domestic and international law when they deploy on overseas operations. Similar, we will make it clear that the limitation longstops will also apply to claims by them that are connected with overseas operations, and emphasise that they should bring any civil claims connected with overseas operations within six years of either the event or their date of knowledge. The vast majority have historically already done so, but it is important that this message is understood so that, in future, an even greater percentage of service personnel bring their claims in a timely manner.
In summary, the Bill delivers for our armed forces and protects our people, but I do not believe that setting a standard for the duty of care in the Bill is necessary or desirable, so I urge the House this afternoon to disagree with Lords amendment 5B.
John Healey (Wentworth and Dearne) (Lab)
Before turning to the amendments before us today, I want to place on record my thanks to all those who have worked so hard and so collaboratively on the Bill throughout its passage, although I have been dismayed at earlier stages when Ministers have tried to make the Bill a matter of party politics. I believed from the outset that Members on all sides in both Houses wanted the same thing from this legislation—that is, to protect British troops and British values.
The Lords have certainly approached the Bill in this constructive cross-party manner, and I want to thank in particular those on the Labour Lords Front Bench: Lords Tunnicliffe, Touhig and Falconer, and Lord Robertson for his tireless work on part 1 of the Bill, which the Minister has acknowledged. I also want to thank Lord Hope for his convincing arguments on the European convention on human rights, Lord Dannatt for his leadership of the duty of care amendment we are considering this afternoon, and Lords Stirrup and Boyce for their experience, their wisdom and their backing for all the Lords amendments that were sent to this House. I also want to thank the Minister’s colleague, Baroness Goldie, and indeed the new Minister himself for their similarly constructive approach.
Mr Kevan Jones (North Durham) (Lab)
I agree with my right hon. Friend’s comments about their lordships, but does he agree that if some of the amendments that were tabled in Committee had been adopted, the Lords would not have had to redo the work on the Bill? Is he as disappointed as I am that the Minister at the time would not take into consideration any amendments in Committee?
John Healey
My right hon. Friend is right. Last week when we debated the first set of Lords amendments, I described the Minister’s predecessor, the hon. Member for Plymouth, Moor View (Johnny Mercer), as a “roadblock to reason” on this Bill. Unfortunately, that has meant that more work was done in the Lords, and that the deep flaws in the Bill have not all yet been fixed. So this is a Bill that in many ways fails to do what it set out to do; it fails to do what it says on the tin. Finally, before I move on to talk about the amendments—which I am sure you wish me to do, Mr Deputy Speaker—I want to make sure that I thank the Bill team in the Ministry of Defence and the Bill teams and Officers of both Houses for their advice, their professionalism and their hard work on the Bill.
We welcome the Government’s acceptance of Lords amendment 1R, which excludes from the Bill’s five-year presumption against prosecution all war crimes covered by articles 6, 7 and 8 of the Rome statute, which of course set up the International Criminal Court and applies the Geneva conventions, which were very much Britain’s brainchild under Attlee and then Churchill after the second world war.
The Government have rightly followed through today on the principle that Ministers conceded last week on torture, genocide and crimes against humanity, because not excluding the full range of crimes falling within the jurisdiction of the International Criminal Court would damage Britain’s international standing, including that of our armed forces, and lay open our armed forces to the risk of being hauled before the ICC. The Government’s acceptance of that amendment and its consequentials, to give full effect to the Lords’ intent from last week, is welcome. We have worked hard for it, and I am sure that the move will be welcomed across the House.
Mr Kevan Jones
May I also say to my right hon. Friend that it will not in the future either, because it will not, as the Minister said, stop vexatious claims coming forward, because they will have to be investigated? There is a huge hole in this Bill, which the former Minister refused to accept in Committee, about trying to case manage investigations, so people will still be investigated. There is nothing in this Bill to say that they will not be investigated, so it does not do what it says on the tin and it would be dishonest to people to suggest otherwise.
John Healey
My right hon. Friend is right. I have described it as the big gap in this legislation. It is a big flaw in the Bill. We may not succeed this time around, but we will certainly return to it in the Armed Forces Bill, which I will come on to. The proposals before us in this amendment are simple, flexible, tried and tested in civilian law, and backed by all the leading military and legal experts in the other place.
I urge the Minister this afternoon to confirm what he hinted at last week, and what his colleague, Baroness Goldie, said she would not stand in the way of yesterday. The Secretary of State made an offer to me in conversation last week to formally ask Sir Richard Henriques to examine this proposal as part of his current review so that it can be considered alongside other recommendations from that review for incorporation into the Armed Forces Bill. The Minister’s predecessor said at the very outset of this Bill’s proceedings in this House, on Second Reading back in November:
“The right hon. Member for Wentworth and Dearne raises time and again the issue of the investigations, but he knows that they are for the forthcoming armed forces Bill and will be addressed there.”—[Official Report, 3 November 2020; Vol. 683, c. 258.]
Of course, they are not, but we will ensure that they are. I say to the Minister that I hope we will be able to work together constructively on that, in a way that proved so difficult with his predecessor.
Mr Jones
But it was not for lack of trying. I moved three amendments in Committee, and not only were they fiercely resisted by the hon. Member for Plymouth, Moor View (Johnny Mercer), but there was no explanation of how and when in future legislation anything around investigations would be addressed, even though my right hon. Friend is right that the former Minister had given a commitment that investigations would be addressed in the Armed Forces Bill.
John Healey
Yes indeed. My right hon. Friend has worked as hard as anyone in this House on this Bill and I am really grateful to him for that. He has been part of what the Opposition, certainly, are now set to do, which is to forge a consensus on the changes needed to the Bill so that it better serves the interests of British troops, British justice and Britain’s standing in the world. I believe that we, as the official Opposition, and we as a House, have a duty to try to make this Bill fit for purpose as the new legal framework for this country when we have in future to commit our servicemen and women to conflict overseas. It falls short of that test at present. We will not let those matters rest.
This is a classic case of a Government who will win their legislation but have lost the arguments. When that is the case, the Government will find that those arguments come back again, not just from the Opposition but from all parties, not just from this House but from both Houses, and not just from Parliament but from all the range of outside organisations that together have been the chorus of criticism about so much in this Bill that is still left undone but will be done in future.
Mr Deputy Speaker (Mr Nigel Evans)
I inform the House that the knife falls at 4.32 pm and we have nine speakers, plus the Minister to respond. That gives hardly any time, so can I implore those contributing either remotely or physically please to use self-discipline? With nobody specifically in mind, I call David Davis.
Mr David Davis (Haltemprice and Howden) (Con) [V]
Thank you for the hint, Mr Deputy Speaker. I will confine myself to issues around Lords amendment 1R in order to limit what I have to say.
Last week’s concessions from the Government on the matters relating to amendment 1R were long overdue. With their tabling of the amendments removing genocide, torture and crimes against humanity, some of the most egregious errors in the Bill were corrected, which is why I voted in favour of the Government amendment last week. However, as I warned on Wednesday, that amendment left one serious matter unresolved—war crimes are still subject to a presumption against prosecution. Thankfully, further representations from Lord Robertson and others have led the Government now to rectify this oversight with the amendment we are considering today. I welcome that further concession. In government, as I said last week, it is always difficult to change your mind once you set out on a specific course of action, but the Government are to be commended for doing just that in the case of this Bill. In particular, I again commend the new Minister for his extremely rational approach to this and using the time that ping-pong has given him to good effect.
The original drafting of the Bill created a situation whereby the UK’s standing on the international stage would have been threatened. Our reputation as an upholder of the rule of law would have been tarnished and we would have run the risk of potentially having our troops hauled before the International Criminal Court. That would have been a truly shameful outcome. The ICC is usually in the business of prosecuting tyrants and torturers, not the soldiers of law-abiding democracies, let alone one with the United Kingdom’s reputation. The concessions last week would still have left our soldiers open to charges of war crimes. To be clear, these are not theoretical concerns of myself or other Members either here or in the other place. When I asked the chief prosecutor of the ICC for her consideration of the Government’s concessions on this point, she said in her response to me last Friday that
“any gap between the scope of coverage in the excludable offences under the proposed legislation and conduct which might otherwise constitute a crime within the jurisdiction of the Court would risk…rendering relevant cases concerning such conduct admissible before the ICC.”
In other words, the Bill in its state last week would have still left our soldiers open to prosecution.
Today’s amendment means that torture, war crimes, crimes against humanity and genocide will all now, quite rightly, be excluded from the presumption against prosecution contained in the Bill. That is to be welcomed. On that basis, I am entirely supportive of the Government and they will get my vote today. However, I will just make a comment en passant relating to what the right hon. Members for Wentworth and Dearne (John Healey) and for North Durham (Mr Jones) said. The Ministry of Defence now needs to take the advice of people like former Judge Advocate General Blackett, and others, and improve its own investigation system to stop soldiers from going through the same problems again in future. The problem has always rested, in part, within the walls of the Ministry of Defence, so improvements to the investigation process must be made. Our troops need to be reassured that if they ever face allegations of wrongdoing they will be investigated fairly, rapidly, and without the threat of constant reinvestigation. Only then will our service personnel be properly protected from vexatious and damaging litigation, and only then will this Bill and its associated policy have properly achieved its aim.
Martin Docherty-Hughes (West Dunbartonshire) (SNP)[V]
May I first take this opportunity to congratulate the Minister on their new position? It is always good to see Dochertys in very lofty positions, even ones that are lofty in the wrong direction.
The Bill was supposed to tackle vexatious claims, yet the evidence received, both written and in Committee, pointed to the problems arising from flawed investigations. Nothing in the Bill improves service justice or tackles repeated investigations. The Bill was an opportunity to overhaul the system, but that is an opportunity now lost. Unless the Government establish proper structures and processes for investigations, including independent investigators, personnel will remain vulnerable to repeated investigations and indeed investigations by the International Criminal Court.
Still, the Government have been forced into significant concessions in other areas of the Bill because of the work of Members in the other place. The Government agreed last week that genocide, crimes against humanity and torture would be excluded from legal safeguards in the Bill. The threat of a further possible defeat at the hands of peers has, I am glad to hear, forced the Government also to exclude war crimes from the presumption against prosecution. Although we on the SNP Benches recognise this change, it should not have taken until the last gasp of this Bill for the Government to make it.
In their refusal to listen to evidence presented in Committee and to the calls of Members of this House, the Government, at least from our perspective, have profoundly damaged the UK and Parliament’s reputation internationally. We also see that the final version of the Bill retains the six-year longstop on civil claims against the MOD, denying members of the armed forces justice in valid civil claims. Indeed, it will significantly disadvantage those who have served abroad. The House should be making it easier for personnel to make claims when the MOD has been negligent, but this legislation seems to be crafted especially to protect the MOD and not the personnel themselves.
Lords amendment 5B ensures care and support for personnel involved in investigations, and every Member of this place should be supporting it. The House knows from discussions with personnel that the structures currently in place are not working for those facing prosecution, and we have seen that in evidence to the Armed Forces Bill Committee, of which I am a member. Finally, if that support is already there and it is not working, we need to strengthen it through statutory requirements. I wonder whether the Minister and the Government are willing to do that.
Bob Stewart (Beckenham) (Con)
The distinct purpose of the Bill is to provide legal protection to military personnel serving overseas on operations—that is what it is about. It is all about stopping vexatious prosecutions, often generated, for large sums, by unscrupulous lawyers. In short, lawfare, such as we saw a few years ago, should be a thing of the past, but is it totally gone? I wish to explain a little of the worries I have.
I am pleased that the Government have now decided to include war crimes alongside torture, crimes against humanity, genocide and sexual crimes, such as a rape, as being not subject to a statutory presumption against prosecution. That is good news, because, as others have said, it might stop our service personnel being dragged before the ICC in the future. So we must now prosecute war crimes like any other crime, but might I suggest a slight spanner in the works here?
I have seen such crimes in my time in Bosnia, in 1992-93—obviously, I should emphasise, they were not carried out by British soldiers. I have also given evidence in the International Criminal Tribunal for the former Yugoslavia, where such crimes were tried—this is now done by the ICC. I gave evidence in trials where the guilty were sent to prison for between 15 and 45 years. I wonder exactly what crimes are not subject to a statute of limitation. What crimes creep through? As far as I can see, most of the definitions allow us to decide exactly what happens. I am quite worried that the Minister might not be able to identify a crime carried out that we could prosecute without a statute of limitation.
Sexual crimes can be prosecuted anyway under Navy, Army and Air Force Acts. Service personnel can never be ordered to carry out such acts by superior officers. Effectively, the Bill accepts and confirms crimes under the Sexual Offences Acts 1956 and 2003. The Bill states that unless there is compelling evidence, service personnel cannot be charged with crimes committed more than five years ago, unless of course they have taken part in war crimes, torture, crimes against humanity or genocide, which are offences without a time limit. As I mentioned earlier, I am slightly worried about what is left. Of course I go along with what we have done, but I am slightly worried that many crimes can evade the provisions and that people could be done on these classifications.
On service personnel who have suffered some form of physical or mental injury, the limit is broadly six years after the event. In short, they must have started proceedings against, say, the Ministry of Defence within that period. However, the Bill allows for the possibility of someone bringing forward proceedings where, for example, they have PTSD but had not discovered it, even if they are affected 20 years later. In such as case, they will have six years from the point when they discover they are affected or when they are diagnosed to bring a claim against the MOD. I reckon that is fair enough. The MOD is certainly not trying to disadvantage its own.
I end by reminding everyone of a point the Minister made. The Government are still committed to bringing forward a Bill to protect veterans in Northern Ireland in the same way as those who have served overseas. If they do not, our servicemen and servicewomen will have two levels of protection: those like me who served in Northern Ireland will have a lesser degree of protection than those who have served overseas. To that end, I have always believed and supported the suggestion by the Defence Committee, on which I served several years ago, that the way forward in Northern Ireland is for there to be a qualified statute of limitations unless compelling new evidence has been produced. I therefore hope that very soon the Government will bring forward legislation to stop possible unequal treatment of our service personnel.
Mrs Emma Lewell-Buck (South Shields) (Lab) [V]
It is a pleasure to follow the right hon. and respected Member for Beckenham (Bob Stewart).
It is welcome that the Government have eventually accepted that war crimes should be excluded from the Bill. However, that it took this long for them to understand the grave implications of their proposals remains very worrying. What remains of concern is the stubborn refusal to introduce a duty of care to our service personnel. I am still at a total loss as to why the Government would reject and oppose care standards for service personnel and veterans involved in investigations or litigations arising from overseas operations.
I was not comforted by the Minister’s words last week—neither, indeed, was I just now—when he assured us that,
“The Ministry of Defence takes very seriously its duty of care for service personnel and veterans, for whom there already exists a comprehensive range of legal, pastoral, welfare and mental health support”,
bearing in mind the testimonies from those in my own constituency and those who gave evidence to the Bill Committee of how inaccessible and ineffective that support can be. I was even less assured after reading the media comments made by the hon. Member for Plymouth, Moor View (Johnny Mercer), who said that help is available, yet it is hard to understand it and
“hard to understand where it is”,
and that promoting where it is and how to get to it was simply not part of this Government’s agenda.
The Minister also claimed that the Lords amendment carries a risk of
“unintended consequences, including a possible increase in litigation, which would be contrary to the Bill’s objectives.”
As the noble Lord Dannatt said in the other place, that is simply an empty argument because, under the amendment, the Ministry of Defence has the opportunity to draw up its own statement of a duty of care standard and act within that. I reiterate my comments from last week—that to claim that the duty of care proposals would be better placed in the Armed Forces Bill is not acceptable. We are debating and voting today on this Bill; it is not right for MPs to accept gaps in legislation on the promise that it may or may not be rectified in future legislation.
The Bill’s objective is to offer more protection and support to service personnel and veterans, so how can an amendment that offers just that protection and support be, as the Minister said last week,
“contrary to the Bill’s objectives”?—[Official Report, 21 April 2021; Vol. 692, c. 1058.]
I would really appreciate it if, in summing up, the Minister could expand on and clarify why the Government’s stubborn objection to this duty of care has remained. There still remains nothing in the Bill that will solve the problem of repeated investigations. Without Lords amendment 5B, there is nothing in the Bill that will afford our forces personnel and veterans a duty of care when they are undergoing such awful investigations.
I remain of the view that this Bill is a hurried and inadequate piece of legislation that has never matched up to the rhetoric surrounding it. No one is in disagreement that greater legal protections for armed forces personnel and veterans serving overseas were needed, but the Government have drafted legislation that makes the problem worse, leaves our service personnel and veterans at a disadvantage and without crucial support, and fails on its promise to those who served in Northern Ireland.
Our service personnel and veterans deserve the very best for risking their all for us; I echo the pleas made by my right hon. Friend the Member for Wentworth and Dearne (John Healey) that, in today’s vote, Government Members show that they believe this too by joining us in the Lobby.
James Sunderland (Bracknell) (Con)
I stated on Second Reading that this is a good Bill and my view remains exactly the same. As we know, the other place wanted torture, genocide, war crimes and crimes against humanity excluded from relevant offences. We disagreed initially, but amendments 1A to 1Q from the MOD, whereby breaches of the Geneva convention and genocide are excluded from the offences, are very welcome. This Government have sent the clear message that they stand against all breaches of human rights in conflict.
My stance throughout this whole process has been very clear. The supposition from some quarters that British troops are somehow predisposed to committing war crimes wantonly and that the UK has somehow given them a “get out of jail free” card is absurd. The MOD already has one of the most effective and robust service justice systems in the world. The presumption against prosecution also in no way affects the UK’s ability to conduct investigations and prosecutions into any crime, including war crimes; it is a high threshold, not a bar. However, as Baroness Goldie stated in the other place only yesterday, there was significant concern that through exclusion of serious crimes, such as sexual offences, this Bill would run the risk of undermining the work that the Government have put in to push the UK as a force for good around the world. I agree. To be worthy of its pre-eminence, I concede that this House should absolutely agree to Lords amendment 1R.
Lord Dannatt’s revision to Lords amendment 5, Lords amendment 5B, is also worthy of consideration, but I want to point out at this juncture that service personnel are entitled to legal support at public expense when they face criminal allegations and civil claims. The Armed Forces Bill brings the armed forces covenant into statute, and there is unrivalled medical support, including mental health support, available to all personnel and veterans. I agree, again, with the Government’s continuing stance that the amendment is not necessary, and I will vote with the Government on all occasions today.
Jamie Stone (Caithness, Sutherland and Easter Ross) (LD) [V]
I shall try to be brief. Last week, I spoke about what I see as British values, which have been mentioned in the debate. I therefore welcome the concession on war crimes, because any erosion of how we and the rest of the world perceive our British values would be deeply damaging to this country’s reputation.
As others have said, I believe there is still work to be done on the duty of care, and I flag up its connection with mental health. When I talk to constituents who have served Queen and country bravely, there is a fear that they will be abandoned if they find themselves in the position of being accused. I hear what other Members have said about the legal help that they would be afforded, but there is still a fear out there.
It would be churlish of me not to say thank you to the new Minister. Last week I said I did not know him very well, but what I have seen during one week gives me much more confidence in him. His predecessor was referred to as a roadblock, but I think the thoughtful and conciliatory attitude shown by the new Minister, whose fingerprints I rather suspect are on the war crimes concession, is very useful indeed.
I want to talk about the process. The Bill we see today is a lot better than the one we looked at last November. The cross-party work in the other place is deeply significant. Many Tory peers have been instrumental in bringing forward amendments. In yet another place, known as the Scottish Parliament, I knew Baroness Goldie in another incarnation. I came to respect that good lady’s thoughtful and judicious approach to matters, so I am not surprised to see her playing the role she does in the other place. We belong to different parties, but I recognise quality where I see it.
We have a Bill that is better than it was. In my opinion and that of my party, the jury is out on the duty of care in mental health, but the way we have improved the Bill is instructive to all of us. There is possibly a message to Her Majesty’s Government here. The reputation of the UK Parliament depends on the quality of the legislation that is enacted. Where there is co-operation across the House and between both Houses to make the best legislation, that is ideal. I very much hope that the Government will look at the process by which we came to be where we are today, learn from it and apply that technique to other legislation as it comes before us. I reiterate my thanks to the new Minister.
Mr Deputy Speaker
I will call the Minister at 4.27 pm, and the debate will finish at 4.32 pm.
Mr Kevan Jones
The hon. Member for Bracknell (James Sunderland) said that this was a good Bill—no, it is not. It is a bad Bill, and it is an unnecessary Bill. All of this could have been done within the Armed Forces Bill that is going through Parliament, but the Government chose, for their own reasons, to put forward this Bill. It does not get to the central point of the issue, which is around investigations. They are completely absent from this Bill and currently absent from the Armed Forces Bill. They were resisted by the hon. Member for Plymouth, Moor View (Johnny Mercer) in this Bill and in the Armed Forces Bill. It galls me that yesterday he was standing outside a court in Northern Ireland, trumpeting the fact that he was on the side of trying to stop people being investigated, when he had been in a position to do something about it. I think of him as being a bit like an actor in a play who has been sat in the audience watching, rather than taking part.
Without investigation, the Bill is flawed. I have written to the Minister: he needs to ensure that investigations are put in the Armed Forces Bill, because without that, despite the protections that have been claimed today, servicemen and women will be watching our proceedings, thinking that they have more protection than they have. They will still be investigated if allegations are made. There is an opportunity now, with the Armed Forces Bill, to remedy that.
Part 2 of this Bill should simply have been scrapped. I am sorry, but the idea that we should all have Limitation Act rights and yet members of our armed forces should not—that we should take those away from them—is just not good enough. A Bill that is supposed to give things to our armed forces has been taking things away from them. Part 2 will be challenged in court; only the lawyers will benefit from it.
I welcome the change on war crimes because, like many across the House, I was concerned about our international reputation. I fully support Lord Dannatt’s amendment; I believe we should support anything that helps servicemen and women who are going through such a process.
The Bill claimed to do a lot but does very little. It is disappointing. It could have been vastly improved, or just ignored altogether and incorporated into the Armed Forces Bill. There is an opportunity to put right what is not in this Bill when the Armed Forces Bill passes through the House. I know that the Minister is open to discussions about that, but I urge him to ensure that that happens, because without that, people will still be investigated; they will still go through the agony that this Bill was intended to stop. We all sympathised with that intention. It clearly will not be achieved in the Bill’s present form.
Stephen Timms (East Ham) (Lab)
I also warmly welcome the further concession that the Minister has announced. The Bill will now exclude all the offences for which service personnel could be summoned before the International Criminal Court. That has now fixed the worst of the problems that many have been anxious about during debates on the Bill.
It would be helpful to understand why it has proved so hard for the Government to realise how awful what they were proposing was. No Minister wants to give armed forces carte blanche to commit torture, genocide and war crimes, and yet it has required the most extraordinary struggle to stop the Government doing exactly that. The noble Lord Robertson—I welcome the Minister’s tribute to him—introducing his amendment in the other place, said:
“Maybe after a lifetime in politics I was affected by some uncharacteristic naivety in thinking that the Government, faced by almost universal and expert opposition on this aspect of the Bill, would by now have changed their mind.” [Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1190.]
Yet they ploughed on until yesterday. Perhaps it was indeed the change of Minister that averted disaster, and with others I congratulate him on his achievement in a short time, but if he can, in winding up, shed some further light on what on earth has been going on, the House would be grateful.
I strongly support what my right hon. Friend the Member for Wentworth and Dearne (John Healey) said on duty of care and investigations. I hope that we will come back to them soon if the duty of care amendment is lost this afternoon. I warmly welcome the progress on the Bill in the past few days and would be grateful for any light the Minister can shed on what has been going on.
Mr Deputy Speaker (Mr Nigel Evans)
I call Jim Shannon —Please resume your seat no later than 4.27 pm.
Jim Shannon
It is a pleasure to speak in this debate. I echo the comments by others in relation to those who served in Northern Ireland and the protection that we need. The Minister has responded on that very positively, but we also need a timescale for that to happen.
In the short time that I have, I want to refer to the legal, pastoral and mental health support provided to service personnel who are involved in investigations or litigation arising from overseas operations. I am aware of this because I am aware of a young fellow in my constituency who served overseas and fought with many demons in his own life. I am not blaming the MOD for it, but I ask the question: could we do more? Lords amendment 5B on the duty of care to service personnel could give them the level of care that is earned from putting the uniform on. Subsection (6) of the new clause inserted by the amendment states:
“In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.”
When it comes to mental health and the effects on people’s families and lives, our moral obligation should and must be to go the extra mile. That is why I support the premise of the amendment. It reminds us of our moral obligation, which is as important as our legal obligation, to those who serve in uniform.
A five-year programme of study has been carried out in tandem with Queen’s University. The results show—and I want to have this on the record, in Hansard—that more than a third of all military veterans in Northern Ireland are likely to be suffering from post-traumatic stress disorder. Those are the stats, according to this study. More than 1,300 veterans responded to the survey, with 36% reporting signs of PTSD and the same number reporting problems with alcohol.
We have many charities in Northern Ireland that help out. I think of Beyond the Battlefield, in particular, which reaches out to those whom other charities perhaps miss; that is not to take away from the importance of other charities. Some of those cases are incredibly complex, and there are lots of issues for not just the individuals but family members. We need to address the duty of care, both morally and legally.
This is not helped by the fact that those who served in Northern Ireland continue to see no movement. They seek protection, which is very important to have in place for those who served in Northern Ireland. I know that the Minister has given a commitment, but could he tell us where discussions are with the Secretary of State?
I usually say that I will not rehearse previous speeches, but this, I believe, bears repeating. Veterans who served in uniform and operated legally with honour, great courage and great fortitude deserve to be treated with equality. I say to the Government: please do the right thing and bring legislation on this issue forward in the Queen’s Speech in May. Let us show that our moral and legal obligation extends to those who have served on every occasion and from every region of this great nation of ours, the United Kingdom of Great Britain and Northern Ireland.
Leo Docherty
I am grateful for all Members’ contributions. I thank the right hon. Member for Wentworth and Dearne (John Healey) for his constructive tone. I am happy to confirm that I will communicate to Justice Henriques the concerns that he has raised. Of course, it is an independent review, but we would be happy for Justice Henriques to consider those concerns within the scope of his review.
We heard contributions from my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and the right hon. Member for North Durham (Mr Jones). I look forward to receiving the right hon. Gentleman’s letter, and I will give it due consideration and respond in due course. We also heard contributions from the hon. Members for South Shields (Mrs Lewell-Buck), for Caithness, Sutherland and Easter Ross (Jamie Stone) and for West Dunbartonshire (Martin Docherty-Hughes), as well as my right hon. and gallant Friend the Member for Beckenham (Bob Stewart); I thank him for bringing his personal experience into the debate.
We also heard from the hon. Member for Strangford (Jim Shannon). Returning to the question of Northern Ireland veterans, I would like to be clear. I mentioned earlier that Her Majesty’s Government intend to bring forward legislation in relation to Northern Ireland. The House will understand that I cannot comment on any ongoing legal matters, but I will give the reassurance that we are absolutely committed to delivering on our commitments to veterans of Op Banner as soon as possible.
In closing, I would like to put on record my sincere thanks to the Bill team, who have been first class throughout, and in particular to the Bill manager, Richard Hartell. It is to their great credit that we have brought the Bill to this point. If the House accepts the Government amendments in lieu and rejects Lords amendment 5B, the Bill will allow us to deliver on our manifesto commitment—our solemn pledge—to protect our armed forces personnel and our veterans and bring an end to the shameful cycle of vexatious legal claims brought against our finest asset: our people. I commend the Bill to the House.
Question put and agreed to.
Resolved,
That this House agrees with the Lords in their amendment 1R but disagrees with the Lords in their amendments 1S, 1T and 1U.
Government amendments (a) to (c) made in lieu of Lords amendments 1S, 1T and 1U.
Government manuscript amendments (d) and (e) made.
After Clause 12
Duty of care to service personnel
Motion made, and Question put, That this House disagrees with Lords amendment 5B.
Mr Deputy Speaker (Mr Nigel Evans)
In order to observe social distancing, the Reasons Committee will meet in Committee Room 12.
Could those leaving do so carefully, without touching the Dispatch Boxes, as they have been sanitised during the Division? Will Ministers coming in do likewise?
Overseas Operations (Service Personnel and Veterans) Bill
Wednesday 28th April 2021
(2 years, 12 months ago)
Lords ChamberRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 197-I Marshalled list for Consideration of Commons amendments in lieu and reason - (28 Apr 2021)
Baroness Goldie
That this House do not insist on its Amendments 1S, 1T and 1U and do agree with the Commons in their Amendments 1V, 1W, 1X, 1Y and 1Z in lieu.
The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
My Lords, I am extremely pleased to confirm that the Commons has agreed to the government Amendments 1V, 1W and 1X in lieu of Lords Amendments 1S to 1U. In doing so, I draw attention to the consequential Amendments 1Y and 1Z—which were also agreed—to the government amendments, which serve only to delete the now unnecessary definition of articles in Schedule 1.
As I set out in some detail in our debate on this issue on Monday, it has always been the Government’s view that the measures in the Bill will not increase the risk of our service personnel or veterans being investigated or prosecuted by the International Criminal Court. Accepting this amendment in lieu, which will exclude all offences that fall within the jurisdiction of the International Criminal Court, including war crimes, will offer further reassurance and put this issue beyond any doubt.
The other place has agreed to Lords Amendment 1R, which excludes all offences under the Geneva Conventions Act 1957 from Part 1 of the Bill. The grave breaches of the Geneva conventions referred to in that Act are also war crimes offences through the International Criminal Court Act 2001. As such, it is right that these offences should also be included in Schedule 1 in order to maintain a consistent approach.
The measures in Part 1 of the Bill will apply to all “overseas operations”, as defined in Clause 1(6), and it is perhaps worth remembering that not all alleged offences committed on an overseas operation will amount to an ICC Act offence. I can reassure your Lordships, therefore, that service personnel and veterans will continue to receive the benefits of the additional protections provided by the measures in Part 1 of the Bill in respect of historical alleged criminal offences under the criminal law of England and Wales through the Armed Forces Act 2006, saving those offences that have been excluded by Schedule 1.
The decision of whether to exclude war crimes from the measures in the Bill has limited practical effect. In practice, the prosecutor would still have retained their discretion to prosecute an individual for a war crime, because any credible allegation would be likely to trigger the exceptionality threshold in the presumption. The decision to exclude war crimes is aligned with the highest standards that we expect from all our Armed Forces personnel, the overwhelming majority of whom meet those expectations and serve with great distinction. But we rightly hold anyone to account when they fall short of these expectations.
The Bill delivers the Government’s commitment to protect our service personnel and veterans from the threat of legal proceedings in connection with historical overseas operations many years after the events in question, and it reinforces our continuing commitment to strengthen the rule of law and maintain our leading role in upholding the rules-based international system. We intend to maintain our leading role in the promotion and protection of human rights, democracy and the rule of law.
The Government have listened to the concerns of both Houses, particularly the concerns so eloquently expressed by noble Lords on this matter, and the other place has accepted the government amendments in lieu. I therefore urge your Lordships to likewise accept these amendments.
I also beg to move Motion B, that this House do not insist on its Amendment 5B, to which the Commons have disagreed for their reason 5C.
Viscount Younger of Leckie (Con)
My Lords, I think it may have been noticed that my noble friend has strayed from Amendment A into Amendment B. I think it would be wise to allow the Deputy Speaker to deal with Amendment A before we move on to Amendment B. I might be able to persuade my noble friend to keep her opening speech short for Amendment B as it has been given already.
Lord Robertson of Port Ellen (Lab)
My Lords, I am grateful for the clarification by the Whip on the Bench. I am going to talk about Amendment A only at the moment, but the Minister clearly was trying to save us time by conflating everything into one. I thank the Minister for her co-operation and help during the course of this particular issue. My prevailing sentiment at the end of this process is relief. I am happy to accept the government amendments that have been put down that discharge the decision taken by the House in its earlier session.
It is a relief that we have, in doing so, saved the Government and, more importantly, the country from the embarrassment, maybe even the humiliation, of challenging international humanitarian law, which would have been the import of where we were going. It was, however, not easy to persuade Ministers and their somewhat acquiescent majority in the other place that this aspect of this Bill would cause more trouble than it would solve. It took two chunks of parliamentary time to persuade them to come to this conclusion this evening, but, finally, sense has prevailed. Our troops, sent overseas in our name, will now not be singled out as being above the law that they seek to uphold. They will not face the prospect of being subject to the jurisdiction of the International Criminal Court. Nor will we, this United Kingdom, become the precedent for every warlord or war criminal to say that our presumption against prosecution after five years would give them some sort of carte blanche to be let off the hook. Improving—some might say saving—this Bill represents the conclusion of a tenacious campaign to draw public and parliamentary attention to its manifest defects.
In particular, I pay tribute to John Healey MP, the shadow Defence Secretary, and Stephen Morgan MP, who sought in the other place to demonstrate the weaknesses of the Bill. I also thank David Davis MP— who I once was in hand-to-hand combat with as his shadow in the days of the Maastricht treaty—who was, in this case, a powerful voice in changing the legislation. I also pay tribute to Dan Harris in the PLP office, who gave so much advice and support to me and my colleagues, my noble friends Lord Tunnicliffe and Lord Touhig, as they campaigned vigorously during this Bill. I also pay tribute to the noble Lords, Lord West, Lord Campbell of Pittenweem and Lord Alton, who were my co-signatories on the key amendment.
I would also like to mention the Financial Times, the Daily Mail and Nick Cohen in the Observer, who also joined in the campaign to change the Government’s mind on this case. A number of NGOs also played a major part in drawing attention to what we are talking about here this evening, and I single out Steve Crawshaw at Freedom from Torture, who did a huge job here. The Bingham Centre, the Law Society, Liberty, the APPG on Drones and the British Legion all offered detailed advice and intelligent, perceptive and constructive criticism of the Bill. It was a Bill that sought to do a commendable service for our fighting forces but which almost ended up leaving them liable to trial in The Hague.
As I said originally, my overwhelming sentiment now is relief, and I welcome the Government’s amendments tonight. Elegantly, they make it clear that war crimes, improbably committed by British troops serving overseas will be subject, as they are in international law, to no time limit at all. I thank the Minister, the noble Baroness, Lady Goldie, for her understanding and indulgence, and I am so pleased this evening to be able to give her support in relation to Motion A.
Baroness Smith of Newnham (LD) [V]
My Lords, between the two items of business on defence matters, the Government Chief Whip pointed out that there are three pieces of legislation still going back and forth between your Lordships’ House and the other place. With regard to the Overseas Operations (Service Personnel and Veterans) Bill, I suspect that this will be the last iteration in either Chamber because, as the noble Lord, Lord Robertson, so eloquently pointed out, the Government’s amendments in lieu of this particularly important amendment basically give everything that we have been asking for at various stages.
I will not rehearse the litany of people that the noble Lord, Lord Robertson, said, had either supported the amendment or given advice on it, other than to say, in line with his sentiments, that the omission of genocide, war crimes and crimes against humanity and torture had potentially created a lacuna in the Bill that could have been detrimental to service personnel and veterans. While the stated intention of the Bill, to deal with vexatious claims, was a good one, the original framing of the Bill was less good. With this amendment, we have moved a long way towards making the Bill fit for purpose and we certainly support the amendments that the Government have brought forward at this stage. I thank the noble Lord, Lord Robertson, for his tenacity in bringing the amendment again and again, and I thank the Minister for listening and for the representations that have gone back and forth between the Chambers. At this stage, I welcome this Motion and expect to see the Bill passing relatively soon.
Lord Tunnicliffe (Lab) [V]
My Lords, we welcome the Government’s amendments to ensure that serious offences, including war crimes under the jurisdiction of the ICC, are excluded from the presumption against prosecution. These amendments give full effect to the amendments passed on Report in this House, which were signed by noble and gallant Lords who have much wisdom and guidance, both on military matters and human rights.
It has taken a lot of work to get to this point and is a testament to the important work we do. I thank the noble Lord, Lord Robertson, for his leadership on this issue, as a former head of NATO and former Defence Secretary. I also thank colleagues for the collaborative approach that all sides have shown on this issue. I remind the Minister that this mistake was not discovered at the last minute; it was a glaring issue when the Bill was first published, an issue that threatened our international standing, including that of our Armed Forces, and could have led to British service personnel being called in front of the ICC.
The Government’s amendments mean that our international reputation will not be trashed, but it has been damaged, just like it was by the internal market Bill and by the cut in development spending. It leaves me wondering what message this Government want to send to the world, because the world watches what we do. As the noble Lord, Lord Robertson, said, this would have set a terrible precedent, likely to be grabbed on by many of the worst regimes in the world. I close by imploring Ministers, if they really want Britain to be a moral force for good in the world, to not be so reckless. With this Bill, which still has many flaws, we got there in the end on this issue, and for that, I am grateful.
Baroness Goldie (Con)
My Lords, first, I offer my apologies to the Chamber and the Deputy Speaker for my inadvertent acceleration of proceedings. At this time of day, immediately after a Statement, I fell into the trap of reading the two speeches I found in the folder together. I emphasise that no discourtesy was intended to the Chamber, and very particularly I say to the noble Lord, Lord Dannatt, that none was intended to him.
I thank noble Lords for their comments, and particularly the noble Lord, Lord Robertson, for his singular contribution to this issue. I am very grateful that on what is an important issue we have managed to reach a position acceptable to him and his fellow contributors. I am very grateful to the noble Baroness, Lady Smith, for her helpful comments on the Bill and for her desire to get it passed. I also express to the noble Lord, Lord Tunnicliffe, my appreciation of his acknowledgement, while he may still have reservations about aspects of the Bill, of the progress made to bring it to an acceptable place.
I thank noble Lords for their contributions, and I commend the Motion.
Baroness Goldie
That this House do not insist on its Amendment 5B to which the Commons have disagreed for their Reason 5C.
Baroness Goldie (Con)
I beg to move Motion B. I again apologise to the noble Lord, Lord Dannatt, for inadvertently making my speech in advance; I am sure that all your Lordships will be relieved to hear that I do not intend to repeat it. However, I wish to say how much I have appreciated the noble Lord’s profound and passionate interest in the issue which he is pursuing. I know that that is born out of a genuine desire to do his best and ensure that Parliament does its best for our Armed Forces personnel. Therefore, although I will not repeat my speech, I shall certainly listen with great interest to what he has to say.
Motion B1 (as an amendment to Motion B)
“Duty of care to service personnel
(1) The Secretary of State must establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in section 1(6).
(2) The Secretary of State must lay a copy of this standard before Parliament within six months of the date on which this Act is passed.
(3) In subsection (1) “service personnel” means—
(a) members of the regular forces and the reserve forces;
(b) members of British overseas territory forces who are subject to service law;
(c) former members of any of Her Majesty’s forces who are ordinarily resident in the United Kingdom; and
(d) where relevant, family members of any person meeting the definition within paragraph (a), (b) or (c).
(4) In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.
(5) None of the provisions of this section may be used to alter the principle of combat immunity.””
Lord Dannatt (CB) [V]
My Lords, this is now the fifth time that I have spoken in favour of an amendment to the Bill inviting the Secretary of State for Defence to lay down a duty of care standard to protect the legal, pastoral and mental health support available to serving and veteran members of our Armed Forces involved in investigations or litigation arising from overseas operations.
I continue to be most grateful to the Minister for her courteous but determined rejection of the arguments in favour of such a duty of care standard that have been advanced by many other noble Lords and by me. I am also most grateful for the cross-party, cross-Bench and tri-service support that this amendment has attracted. I have also most carefully read the Hansard reports of the debates on this amendment in the other place. I note support there for the amendment from right honourable and honourable Members from all the main political parties.
Given that the Minister and I are now not going to agree on this issue—I am grateful for her unintended but helpful preview earlier of her arguments in anticipation of this debate—I do not wish to detain your Lordships’ House unduly on this matter this evening. I have previously argued that this is a matter of principle: of the Ministry of Defence showing itself to be a good employer by standing solidly behind its people. I have rejected arguments that a duty of care standard would create a dangerous employment precedent and that it would itself give grounds for serving and veteran personnel to sue the Ministry of Defence.
However, I take away some comfort on behalf of those who are serving or who have served their country in uniform from the commitment by the Government to publish down the chain of command, to serving personnel and out through appropriate means to veteran personnel, a clear statement as to how the Bill when enacted will provide them with a measure of the protection that my amendment sought to put into law. Indeed, I was encouraged to read that in the other place yesterday, the new Minister for Defence People and Veterans, Mr Leo Docherty, said,
“We are aiming for a gold standard and are improving our provision all the time without the requirement for legislation.”—[Official Report, Commons, 27/4/21; col. 287.]
Clearly, there will be no legislation at this time, but I am delighted to hear the pledge of a gold standard. I will not be alone in watching for that gold standard to become manifest.
I will make two final points. First, on a point of principle, it is clearly an appropriate part of our national and political debate about foreign security and defence policy that opinion is often split along party-political lines. However, while that is appropriate, it is not acceptable or appropriate to extend that party division to the treatment of our service men and women and our veterans as people. For our service, on operations overseas and at home, our sworn allegiance is to the Crown and not to the Government of the day. Yes, of course, our elected Governments may well decree that such an operation is in the national interest, and members of the Armed Forces get on and do their duty, often laying their lives on the line on behalf of the nation in so doing. But party politics should not play any part in the way those personnel are treated as people. It has been thoroughly depressing, despite the widespread support for a duty of care standard, that the divisions in your Lordships’ House and in the other place have been along party lines. That is not the way to treat our service people and veterans, who serve the Crown and the people of this country.
Secondly, on a point of opportunity, later in the year the Armed Forces Bill will return to your Lordships’ House, as it does every five years. In the context of further strengthening the Armed Forces covenant, there is an opportunity to look again at issues of the treatment and care of our Armed Forces personnel, serving and veteran. I hope that we will take that opportunity and do so in the spirit of doing the right thing by those people and not just what the party Whips dictate. I believe we owe it to our service personnel to take party politics out of their treatment and care. If we are to seize that opportunity on a point of principle, I believe that difficult and divisive issues arising from operations overseas and in Northern Ireland could be satisfactorily addressed. We must not play party politics with the lives and well-being of those whose duty is to protect the security and interests of our country. I do not regard this matter as closed satisfactorily.
Baroness Smith of Newnham (LD) [V]
The noble Lord, Lord Dannatt, has exhorted us not to play party politics with this issue, and I certainly have no wish to do so. Our duties to our service personnel are crucial. It is absolutely right that the MoD and, by extension, the Government, should be a good employer, and I agree with the noble Lord that that should be a matter of principle.
The issues that the noble Lord has sought to put on the agenda and which we have debated on several occasions now, to ensure legal, pastoral and mental health support for service personnel, are crucial. However, the amendment to the Bill was for a duty of care in very limited circumstance: that for service personnel involved in investigations or litigation arising from overseas operations. That is clearly appropriate within the confines of a narrowly defined Bill. However, the issues are much wider. I am therefore grateful that the noble Lord is not pressing this amendment to a Division this evening, because it would be wise to be able to have a fuller and well-informed debate on a duty of care to be considered in the context of the Armed Forces Bill.
Whether that then takes a statutory form will depend on negotiations and, as the noble Lord suggested, not necessarily party-political discussions, but an understanding of the likely consequences, intended and unintended, of such a duty of care. From these Benches, we absolutely agree with the noble Lord that it is vital that the MoD provides legal, pastoral, and mental health support for service personnel. We must get this issue right, and clearly it is appropriate that we do not divide the House again this evening, but that these issues come back in the next Session and that we keep raising them with the Minister.
Lord Tunnicliffe (Lab) [V]
My Lords, again, after another overwhelming majority in this House, the Government have rejected a duty of care standard for personnel and veterans who face investigations and litigations. This legislation is still very far from doing what it says on the tin: protecting British forces personnel serving overseas from vexatious litigation and shoddy investigations. It still fails to incorporate a duty of care for forces personnel who are faced with allegations, investigations, and litigation.
The gap was identified by veterans faced with investigation or litigation consistently saying that they are cut adrift by their chain of command and abandoned entirely by the MoD, with no legal, pastoral, or mental health support. Major Bob Campbell made that point so powerfully, from his own dreadful experience, in evidence to the Public Bill Committee in the other place. As the noble Lord, Lord Dannatt, has said,
“when this new Bill passes into law it will singularly fail to provide the protection that serving and veteran members of the Armed Forces believe it should provide.”—[Official Report, 26/4/21; col. 2109.]
The Government’s arguments have been weak against this amendment. They argued that they already provide this support, yet a gap has been clearly highlighted time and again. They also argued that it could lead to more troops being caught up in litigation—when all the Government need to do to avoid this is to fulfil their responsibilities—and that the duty of care amendment has drafting issues, when the Government have failed to produce their own version, as with the amendment tabled by my noble friend Lord Robertson.
With prorogation fast approaching, I accept that we should not divide on this amendment tonight. I will be entirely happy if the noble Lord, Lord Dannatt, withdraws his amendment for now, but I urge the Minister to think hard about this, as we will return to this issue in the Armed Forces Bill.
Baroness Goldie (Con)
My Lords, I thank the noble Lord for his comments, and for his warm personal comments to me as an individual, which I appreciate. I also thank the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions.
The noble Lord referred to this as a matter of principle. He may be surprised to hear me say that a duty of care is a very important matter of principle. On the principle, there is proximity between him and the Government, but the divergence of view is on the mechanism. Does doing this by statute makes things better for our Armed Forces personnel, or does such a statutory creation, through unintended consequences, inadvertently make things worse by creating scope for more litigation and possibly inhibiting operational command?
These are significant matters, and I sense that the noble Baroness, Lady Smith, recognises the need for caution—not in terms of what we all want, because I think there is a lot of agreement on that, but on the question of how we safely get there.
I am very grateful to the noble Lord, Lord Dannatt, for not pushing this to a Division this evening and recognising that there is merit in getting this Bill passed, but I warmly suggest to him that we continue our engagement and continue to explore whether we can find a route forward. I am a great believer in dialogue and discourse; when there is such obvious conjunction of opinion over what we want to try to achieve for our Armed Forces personnel and why, I like to think it might be possible to explore a safe road towards arriving at that destination—one which does not involve the hazards I have outlined.
I look forward to that continued engagement with the noble Lord and again express my appreciation to him for not moving this issue to a Division this evening.
Lord Dannatt (CB) [V]
My Lords, I once again thank all noble Lords who have spoken or voted in support of my amendment on this important issue of a duty of care standard. It remains clear to me from what I have just heard from the Minister that there is no movement in the position taken by the Government on this. However, picking up a reference from the noble Lord, Lord Tunnicliffe, there must be no more Bob Campbells.
I am aware that this Session is nearing its end and that there is therefore a danger that, if I press this amendment to a further Division tonight, the Overseas Operations Bill, with its other important amendments now included, might be lost. For that purely practical and procedural reason—and recognising the moment for a tactical, if not a strategic, withdrawal—I will not seek to divide your Lordships’ House again on this amendment. Instead, I will watch for the promulgation of the gold standard of care for our serving and veteran personnel and will, in the spirit of the Minister’s comments just now, write to her to ask for an update on the development of that gold standard, and maintain the dialogue. Moreover, I note that we may return to this issue on the Armed Forces Bill later this year—in an open and frank way, I hope, and ideally not constrained by party politics. I beg leave to withdraw Motion B1.
Royal Assent
Thursday 29th April 2021
(2 years, 12 months ago)
Lords ChamberRead Full debate Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 12 March 2021 - (12 Mar 2021)