Overseas Operations (Service Personnel and Veterans) Bill (Sixth sitting)
Lord Beamish ExcerptsWednesday 14th October 2020
(5 years, 7 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 View all Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 October 2020 - (14 Oct 2020)
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
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.
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
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.
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 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.
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.
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.”
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.
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.
Covid-19 Update
Lord Beamish Excerpts(5 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Prime Minister
Yes. I thank my hon. Friend, and everybody in Devon, and the local authorities, for their efforts to keep the virus down. This is a giant collective effort, and alas, even in the south-west we are seeing the virus going up, although by nothing like as much as in other parts of the country. It is going up across the whole country, and we must work together to get it down.
Mr Kevan Jones (North Durham) (Lab)
The Prime Minister says that he is listening and working with local authorities, but that simply is not true. Since the beginning of the crisis, local authorities and directors of public health have argued for a locally based test and trace system. When will he admit that his national approach and national system has failed? Will he hand over to local authorities and directors of public health the responsibility and resources to ensure an effective local test and trace system? That is the only way we will get on top of this crisis.
The Prime Minister
I think I have answered that point about four times already. We need a combination of both national and local.
Overseas Operations (Service Personnel and Veterans) Bill (Fourth sitting)
Lord Beamish Excerpts(5 years, 8 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Johnny Mercer
Q Of course, and that that is why we have built in there that it is the point of knowledge, rather than when the incident took place. Therefore, if you had PTSD 24 years later, your six-year clock would start from that 24-year point.
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.
Stuart Anderson
That is brilliant. Those are all my questions. Thank you very much.
Mr Jones
Q Hi, Chris. In terms of the cases you have dealt with, we have already heard from other witnesses that the real issue is the length of time these investigations take. We took evidence on Tuesday from Major Campbell—frankly, the way that individual has been treated is disgraceful. This Bill does not cover investigations, and I wonder whether you think there should be some way in which investigations could be speeded up, or a way to prevent people from being reinvestigated for the same thing on several occasions, which certainly happened in Major Campbell’s case.
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 I agree with you on that, but the Bill does not stop potential prosecutions by the International Criminal Court. The problem with this legislation as it is drafted is that it includes a presumption not to prosecute even before investigation, which seems very odd. The Minister is looking bemused, but it is actually in the Bill. Are you not concerned that if we are not seen to investigate these things to a certain level, we could end up with individuals being placed before the International Criminal Court? That is certainly something I would not want to see.
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 Can I turn to the issues around investigations? You talk about the duty of care and the chain of command—I know it well, and how it works sometimes and does not work at other times. Do you think there should be an obligation on the Ministry of Defence to provide legal assistance to individuals who are being investigated or are accused of crimes?
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 I raise that because if you were in civilian life and were accused of something in line with your employment, you could go, for example, to a trade union, which would provide you with legal assistance. We have not got that for individual soldiers. I am just thinking about trying to level the playing field, in the sense that members of the armed forces should at least have some recourse to legal assistance. As you say, the other side could perhaps spend a fortune on very expensive barristers and others. Leaving it to associations such as you and others to provide legal support that is a bit hit and miss, isn’t it? I know that some associations do.
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 That is one of the things I argued very strongly for when we did the Deepcut inquiry—it came out of that in the early 2000s. The problem with the ombudsman is that he or she can only look backwards. What I am trying to get to is that people need legal support and so on in these cases when they are going through it. I will come on to the ombudsman in a minute, because you raised another issue with it earlier.
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 But they are slightly different, in the sense that they have recourse to, for example, in the ambulance service, a trade union, or the Police Federation.
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 The ombudsman can look backwards. We heard Major Campbell the other day; even though he had been completely exonerated, there was no ability to investigate why he was treated the way he was. Do you think it would help those individuals who have gone through very poor service—in his case, it was 17 years of hell, by the sound of it—to have recourse to the ombudsman to have that investigated, to at least get some answers as to why things were actually happening?
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 Princess of Wales’s Royal Regiment, the Tigers, was caught up in the battle of Danny Boy. As an association representative, can you give the Committee a sense of what the soldiers and families went through during those vexatious claims? There have been high-profile cases of Brian Wood and Scott Hoolin, whom I assume you know all about. Can you give us a sense of what they went through during these vexatious investigations?
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.
Mr Jones
Q I have, but I just want to pick up on that point. The Bill would not stop the agony that you have just talked about, because in the five or six-year period, you would still be investigated. Is the root of this not that if accusations are made, they should be investigated and dealt with speedily and efficiently and, frankly, thrown out? That is what is missing from the Bill. A time-limit can be put on it, but six years is a long time for a family to go through that, as you have described. We cannot put ourselves in those people’s shoes; for anybody accused of something that they have not done, it must be awful.
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 Can I now turn to part 2 of the Bill? I accept that you and others have perhaps not read the Bill line by line, but part 2 would put a six-year limit on section 33 of the Limitation Act 1980, which means that veterans will not be able to bring claims outside that time limit. As one witness explained the other day, that would mean that prisoners would have more rights than members of the armed forces. That cannot be right, can it?
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 But what this is doing is putting veterans at disadvantage by comparison with what I or you can do as a civilian, in terms of taking a case outside the Limitation Act 1980. It does not sit comfortably with me that veterans should not have the same rights as everybody else. It is possibly one of those things that we get in legislation sometimes—an unintended consequence. Personally, I think it should be taken out of the Bill, because it will limit the ability of veterans to bring civil claims outside those time limits. Knowing the MOD lawyers as I do, they will use it as an excuse for why claims should be discontinued.
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.
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 In your letter to the Secretary of State you said:
“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 That would clear out a lot of frivolous and vexatious cases, the difference being that it would not be about a presumption not to prosecute. An independent legal body—a judge or a magistrate—would make that decision. That is the important thing there. It is not the chain of command or the MOD making that decision, or the Attorney General. It is independent legal—
Judge Blackett: Yes.
Mr Jones
Q On raising the bar, how would that work in effect?
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 I am aware of the criminal case review because I have just been involved with the Post Office Horizon cases that are going before that. It is a high test to get them there, but it does give that. I will come on to one of your third points in a minute, but the issue that has come out throughout all the evidence that we have taken so far is around investigation and—I think this came through from the last witness—the trauma, not only for individuals but for families, because things are taking too long, although the two cases you mentioned were done quite quickly. In terms of judicial oversight, can you explain how that would work?
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 So it would not be an automatic cut-off.
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 Can I turn to clause 3? I think it is a very strange one. It refers to “exceptional demands”, but I think your letter to the Secretary of State outlines that the service justice system already takes that into account. That is certainly why I am a big supporter of it, in the sense that it recognises the nature of military service, which of course civil courts cannot take into account. Can you talk us through your concerns about clause 3?
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 In your letter, you give the example of Marine A. Could you talk the Committee through how that worked in practice in that case?
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 Do you have concerns—I certainly do—that there is a danger that the way in which the Bill is constructed could give credence to some of those who are advocating the abolition of the service justice system? I am not one of those who want to do away with the service justice system, because I think it is a system that protects its unique nature.
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 You have already mentioned the presumption to prosecute. I have said this before and I will say it again, but in my opinion, the Bill fails the Ronseal test: it does not do what it says on the tin. I find the presumption not to prosecute remarkable—the idea that you can investigate someone, but start the process with a presumption that you are not going to prosecute them. The argument made is that this will mean that people will not face courts later on. However, is it not true that this will open up an entire system of judicial reviews, not only of decisions to not prosecute, but where the Attorney General decides to?
Judge Blackett: Sorry, I am not quite sure what the question is.
Mr Jones
Q Well, in terms of the way judicial review is done, if you have a presumption at the start to not prosecute and somebody then says, “We are not going to prosecute you even when we have done the investigation,” could that not lead to other court action coming in through judicial review?
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 No, you do investigate, but you have the presumption at the back of your mind that you are not going to prosecute at the end of it.
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.
Overseas Operations (Service Personnel and Veterans) Bill (Fourth sitting)
Lord Beamish ExcerptsThursday 8th October 2020
(5 years, 8 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 View all Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 8 October 2020 - (8 Oct 2020)
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.
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.
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.
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.
Overseas Operations (Service Personnel and Veterans) Bill (Second sitting)
Lord Beamish ExcerptsTuesday 6th October 2020
(5 years, 8 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 View all Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 6 October - (6 Oct 2020)
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.
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.
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.]
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.
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: 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.
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
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.
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.
Civil Service Appointments
Lord Beamish Excerpts(5 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Urgent Questions are proposed each morning by backbench MPs, and up to two may be selected each day by the Speaker. Chosen Urgent Questions are announced 30 minutes before Parliament sits each day.
Each Urgent Question requires a Government Minister to give a response on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Michael Gove
My hon. Friend, the Chairman of the Select Committee, makes a very important point. David Frost has already appeared in front of Select Committees—the Select Committee on the Future Relationship with the European Union and also the House of Lords European Union Committee—and I am sure that he would be delighted to take up that invitation. As my hon. Friend quite rightly points out, the building and maintenance of alliances are critical to projecting our interests and protecting our values globally.
Mr Kevan Jones (North Durham) (Lab)
Can I add my thanks to Mark Sedwill for his work both in security and as Cabinet Secretary? Mr Frost is a political appointment. He has been given a seat in the other place, but he is not a Minister; he is a special envoy. Picking up on the question that the Chair of the Foreign Affairs Committee has just raised, will the ISC and other Committees that scrutinise his work be able to summon him before them to scrutinise what he is doing? That is important if we are going to have clear parliamentary oversight of his role. I think that needs clarifying, because the Minister in his reply to the Chair of the Foreign Affairs Committee did not answer that question.
Michael Gove
I am sorry if I failed to provide the clarity required, but I am sure that for all Select Committees, including the very important ISC, David Frost will make himself and his colleagues available so that he can answer questions.
Local Government Finance
Lord Beamish Excerpts(6 years, 4 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Andrew Gwynne
My hon. Friend is absolutely right. I will touch on that report later in my speech, but it highlights the impact of 10 years of cuts to our local councils and public services at a time of rising demand, particularly for adult social care and children’s services—the expensive people-based services. Given that the councils with greatest social need and the worst health inequalities have a limited tax base to make up for any financial losses, the problem is that the so-called fair funding formula could be what tips them over the edge.
I know that the Minister for the Northern Powerhouse and Local Growth, the right hon. Member for Rossendale and Darwen (Jake Berry), will stand up and pronounce that the finance settlement that we are set to agree next Wednesday shows that he is investing in local services, but he is a lone voice in saying so. That shows just how detached the Government are from the sector that they are here supposedly to represent, because the truth is that since 2015—just five years—local government funding across England has fallen by 32%.
Mr Kevan Jones (North Durham) (Lab)
Does my hon. Friend agree that local government is also fearful of last week’s rumours that the Chancellor will ask Departments to cut another 5% from their budgets?
Andrew Gwynne
That is very worrying, and I hope the Ministry of Housing, Communities and Local Government will stand up against it. Those of us who have been a Member of this House for some time will remember that the former Secretary of State for Communities and Local Government, Lord Pickles, was only too keen to offer up the maximum cuts from his Department, meaning that local government in England was the part of the public sector that was clobbered the hardest.
It is even worse than the 32% fall over five years because, since the Conservative party entered government in 2010, funding for local councils has been slashed by more than half. We have all seen the consequences of that neglect: the unrepaired roads, the uncollected bins, the cuts to adult learning and the closed children’s centres. Under Conservative leadership, almost a fifth of our libraries have been forced to close because of cuts to funding. One of the previous Labour Government’s greatest achievements, the Sure Start programme, has had its funding slashed in half, forcing as many as 1,000 Sure Start children’s centres to close since 2010.
Andrew Gwynne
As the hon. Gentleman states, the block grant is set by this place, so the Welsh Assembly Government have had to ensure that their spending meets the money granted by Westminster. I have been sent a budget briefing from the Welsh Government about their intentions not only to increase the adult social care budget in the year ahead, but to give a real-terms increase in local government spending. I welcome that overwhelmingly, because Welsh councils, like English councils, need good public services.
Mr Kevan Jones
Durham County Council has lost £224 million in core spending since 2010, and the Government’s direction of travel has been to move the expenditure on to the council tax precept. The problem for County Durham is that more than 50% of its properties are in band A so, irrespective of how much the council tax is put up, it will do nothing to plug the gap left by the reduction in core spending.
Andrew Gwynne
My right hon. Friend is right on that. Councils cannot change their council tax base overnight. If their properties are predominantly in bands A and B, that is the council tax base for that local area. Governments of all political persuasions over the years have always recognised that not every council has the same baseline and the same ability to bring in enough money for basic, decent statutory public services, which is why we had the rate support grant in the 1980s and the revenue support grant from the 1990s onwards. Those things were in recognition of the need for a redistribution of funding to areas that cannot generate enough funding from council tax and business rates alone.
Andrew Gwynne
I reiterate what I just said: it is for the Conservatives to come forward with their proposals. We will view those in the round with other ideas and see whether we can reach a consensus. I know that there are different views on both sides of the House about a system of insurance, but I am not personally in favour of that. I think that actually the easiest and quickest way to resolve the social care crisis in local government is to make sure that we fund social care through local government.
I want to come on to the issue that could make the situation that I have set out even worse for many of the same local authorities that are already at breaking point. The research from the Local Government Association has exposed the so-called fair funding review for what it really is: a cynical plan that risks leaving more sick and vulnerable people without the care they need. If implemented in the way that the LGA has calculated—and MHCLG apparently told the LGA that its assumptions were along the lines that the Ministry is going—then funding for social care for older people is due to drop in London, the west midlands, the north-east and the north-west, while the south-east and the south-west will see an increase in many areas. For young adults, the largest decreases will be seen in the north-west, the north-east, Yorkshire, the east midlands and west midlands, while the south-east and east of England will see some of the largest increases.
This research from the Tory-led LGA has shown that many of the areas that voted for, and put their trust in, the Conservatives for the first time in 2019—the so-called red wall seats—will see some of the largest cuts to social care funding if the plans go ahead in the way that has been outlined. Indeed, three quarters of those red wall constituencies—the seats that gave the Prime Minister his majority—will see millions of pounds of funding diverted from their hard-pressed councils to another part of the country. The LGA Labour group estimates that that is £300 million of funding that will be funnelled from less affluent councils to the more affluent communities.
But even worse than both those factors is the effect that there will be on the most deprived communities. The 10 most deprived local authorities in England will see, on average, a 13% cut, while the wealthiest communities in England will see their budgets grow by 13%. This model was devised back in 2014 at the height of coalition austerity; perhaps it was then politically expedient for the Conservatives to divert funds to leafy Tory shires at the expense of more deprived metropolitan and urban communities. But given that the Prime Minister’s claim that austerity is over, divvying up an ever-shrinking pot differently is so last Parliament—in fact, it is so the last two Parliaments before the last Parliament—and it is certainly no longer politically expedient.
Last week, I wrote a letter, with council leaders, to the red wall Members on the Government Benches, urging them to speak out against a plan that will see cuts to adult social care—one of the largest cost pressures facing all local councils, particularly those in deprived areas. I know from some of the responses that Government Members have given to the press that the calculations from the LGA have been dismissed as speculation. I say to those Members that this analysis was produced by the cross-party LGA and was released officially to support councils as they plan their budgets in the coming years. The analysis that the LGA produced was also informally shared with MHCLG, whose officials privately confirmed that the assumptions in the analysis are sound.
This new research is also consistent with what we already knew. Last year, researchers in Liverpool warned that removing deprivation from the funding formula would see the 20% most deprived areas lose £390 million a year. The Institute for Fiscal Studies has warned that removing deprivation from the formula would likely hit councils in inner London and most other urban areas, like Manchester, Birmingham, Newcastle, Bristol and Kingston upon Hull, where deprivation tends to be not just concentrated but over-concentrated. The IFS states that
“proposals by the government to base assessments of councils’ needs for spending on services like homelessness prevention, public transport, waste collection, libraries, and planning on population only would shift funding from councils serving deprived areas to those serving more affluent areas.”
It has also warned that the evidence base to justify this decision is weak.
Mr Jones
It is not just about social care. County Durham, under the formula that is proposed, is likely to lose £39 million in public health funding, whereas Surrey County Council will actually increase its budget by £14 million. I look forward to my new Conservative colleagues in County Durham arguing how that can be fair to County Durham.
Andrew Gwynne
My right hon. Friend is absolutely right. It is not just about social care, but the LGA has published the fair funding review calculations based on social care. It has also done the calculations for children’s services, for the foundation formula and for the public health grant. I would hazard a guess that they show exactly the same trends. He is absolutely right about County Durham, because the LGA’s analysis shows that the change in funding there since 2015 alone is already 29% down. The change in funding from the fair funding formula would equate to another 6.71% reduction—a £10,327,679 cut—for his constituency. Contrast that with Beaconsfield, for example, where there would be a 17.5% increase—nearly an extra £15 million of funding. That is not fair by any stretch of the imagination.
The issue is really straightforward for the Government. If they do not agree with the analysis, the response is simple: follow up on the promise made by the Under-Secretary of State for Housing, Communities and Local Government, the hon. Member for Thornbury and Yate (Luke Hall), at the LGA conference in January and publish the exemplifications of the funding formula so that we can see exactly what the impact is. It really is that simple. If the LGA assumptions are now wrong, show us. Let councils, councillors and Members of this House see the exemplifications; we will then know how fair the fair funding review is to the different parts of England.
My worry is that what we know is just the thin end of the wedge. We know that the five least-deprived local authorities have, on average, seen their budgets grow—the least deprived local authority, Wokingham, saw its budget grow by 18%—but that has been gained at the expense of the most deprived. The top 5% most deprived local authorities face cuts of 22% on average. That is not fair. As I said at the start of my contribution, we know that those same local authorities do not have the same ability to raise income from council tax.
This is a scandal for those who claim to be one nation Conservatives. I genuinely believe that across all political parties not one of us stood for election to come to this place and introduce measures that will make life more difficult not just for the people we represent but for the poorest communities in this country. I like to give the benefit of the doubt even to Members from the Conservative party, so I hope that today Members from all parties will support our motion, or at the very least intensively and strenuously lobby Ministers and take a stand against what could cause misery for their constituents. This will be a major test of Conservative Members’ commitment to their constituents. I am sure that local people will not forgive or forget if they fail to stand up for those who put their trust in them at the election, knowing what we already know.
Finally, I say this to Ministers: be open, be transparent and publish the exemplifications. If they are anything like what the LGA, the LGIU and other local government experts fear, scrap the scheme and go back to the drawing board. A fair funding review that is genuinely fair will have our support.
Jake Berry
I am very pleased that we are making such good progress in south Yorkshire. The hon. Gentleman and I, along with many colleagues across the House, welcome that. He is correct to say that mayoral combined authorities have retained their 100% business rate retention for next year. Following the successful pilots, including in areas such as Lancashire—the hon. Member for Blackburn (Kate Hollern) and I have benefited from that—any further business rate retention will be part of the spending review process.
Devolution is particularly pertinent to areas such as south Yorkshire. Every deal so far has been bespoke, but as part of our ambition to level up powers we have written to every existing regional Mayor and asked them to take on new powers so that they can truly drive the ambition for the region. I am delighted to tell the House that one of the first to respond was Ben Houchen, the Mayor for Tees Valley. Not only has he made the Tees fly again, by saving Tees Valley airport; he is also making his economy fly again, by working with the Government on a suite of new powers to unleash the full potential of Teesside and everyone who lives there. In addition, the Government are talking to Cumbria, West Yorkshire, East Riding, Hull, County Durham and Lancashire about their ambitions for change in their areas.
Already, 50% of communities in the north have, to coin a phrase, taken back control through devolution. More areas want to be part of our devolution revolution, and we will ensure that they get that opportunity. Later this year, the Government will publish their devolution White Paper, setting out the Government’s ambition for full devolution across England. Through this White Paper, we will work with everyone in our local government family to ensure that they are truly empowered to be partners in growth.
As this Government unite and level up cities, towns and coastal and rural areas across our country, we acknowledge that our town centres are absolutely at the heart of a growing economy. They are the ground on which local jobs are created and small businesses are nurtured, and they inject billions of pounds into the local economy. That is why, through our £3.6 billion town deal fund, we are directly intervening in local communities. We are working with local areas and councils on more than 200 investment plans that have the potential to transform their economies.
The local Member of Parliament is able to sit on the town deal board in each and every one of our town deal areas. That ensures that Members of Parliament from across this House, whichever party they represent, have the opportunity to be an active part of the conversation in driving local growth in their communities. This is a new approach that I cannot recall previous Governments taking. It is about drawing on the talents of every single Member of this House with a town deal.
I now want to briefly mention the hon. Member for St Helens North (Conor McGinn)—this will probably ruin his career. He attended his first town board meeting on 23 January. He then approached me just outside the Division Lobby, fizzing with enthusiasm.
Mr Kevan Jones
On a point of order, Mr Speaker. I might be wrong but I thought this debate was entitled “Local Government Finance”. My hon. Friend the Member for Denton and Reddish (Andrew Gwynne) on the Front Bench made a very good speech about finance, but we have heard very little about it from the Minister, who has talked instead about devolution and other things to do with local government. Could I have some advice, please?
Mr Speaker
I think if we look in detail at both speeches, we will see that they are around the finance package and the delivery of different projects. I think there is an interconnection there, but I am sure that if we did drift too far the Minister would come straight back into line. For the moment, I am more than happy.
Jake Berry
If we double the council tax that is paid by local people, then I will start to take lectures from the hon. Gentleman about what we should do. He should remember his own record. He entered Parliament in 2005 and was here when all this was happening; perhaps he would like to recall that.
Taken as a whole, this protection will mean that we see the lowest average council tax rise since 2016, ensuring that taxpayers continue to receive the breadth and quality of services that they enjoy today without, as they had under former Labour Administrations, the imposition of crippling tax hikes and rocketing monthly bills.
As we look towards future settlements, the Government intend to conduct a full multi-year spending review. We are already putting more money in this year, but the spending review will give us the opportunity once again to look at pressures in the round and provide councils with the certainty they need. We have committed to a fundamental review of business rates. As part of that work, we will need to consider carefully the link between the review and retention by local councils. We will of course continue to discuss that and the future direction with our partners in local authorities.
Everyone in this House wants to refresh the way we allocate funding, so that it reflects the most up-to-date needs and resources of local areas. That is key work to achieve the agenda set out by the Prime Minister, because dealing with local government finance is part of levelling up our entire country. We have made good progress with the review of relative needs and resources—or the fair funding review, as it is known—and I want to take this opportunity to thank Members on both sides of the House, some of whom have made constructive contributions to the process. The direction of the review has been welcomed by many, including many in local government, but now we have to deliver a sustainable approach, and we look forward to continuing to work with the whole sector.
The review is a large and complex project. Expectations are high on all sides, which is why we are committed to sharing emerging results with local government as soon as possible. We plan to share significant elements for technical discussions in the coming weeks and months. That will include formulas in the review that represent a majority of local government spending. However, I should remind Members that needs formulas represent only a small aspect of the review. As the LGA pointed out, it is simply not possible to predict the overall outcome for individual local authorities or groups of authorities and therefore the extent to which funding may move between authorities. Of course, we will need to consider the review in the context of the outcome of the planned spending review. We look forward to working with colleagues and sharing those results with the sector and the House shortly. I also look forward to updating the House once we have finalised proposals for our new and exciting settlement for local government. Finally—
Jake Berry
I have more—I can keep going.
I welcome the subject of today’s debate, because it gives us an opportunity to look at the exciting programme that this Government have for devolution, levelling up and supporting our towns. However, it would be remiss of any Member not to take this opportunity to thank everyone who works in local government. I often feel that being a councillor is a thankless task, and I want to ensure that they hear a clear message from this House today that, on a cross-party basis, we thank them and support them in their work. Of course, councils are not just run by locally elected politicians. They have fantastic officers who support the work of the council and local communities. [Interruption.] While the Labour party seems to think it is funny that I want to thank people who work in local authorities for their work, Conservative Members think that it is important to do so.
Mr Kevan Jones (North Durham) (Lab)
My hon. Friend the Member for Sheffield South East (Mr Betts) highlighted what has been happening over the past 10 years, which is that local government as a sector has taken the biggest cuts. Added to that, Departments might have to find another 5%, and no matter what the Minister says in his reply about levelling up and making promises to northern councils, it will be very difficult, because this Government and the coalition Government had a clear policy to move funding from more deprived to more affluent areas.
Interestingly, the Minister said in reply to an intervention by my hon. Friend the Member for West Ham (Ms Brown) that he was here because he wanted to make the point that he was the Northern Powerhouse Minister. With one sole exception, the hon. Member for Keighley (Robbie Moore) has been the only new Conservative northern MP who has sat through this debate. We had a brief interlude from the hon. Member for Bishop Auckland (Dehenna Davison), who stayed for about 10 minutes, and I did spot briefly the hon. Member for Darlington (Peter Gibson). If this new army—supposedly—of new Conservative MPs want to argue for their region, they should be doing it in here and they are not setting a very good example. I will work with them to argue why the Government got it wrong on local government finances over the past 10 years.
It is not just me saying that: the National Audit Office and the Centre for Cities have clearly demonstrated that money has moved from northern councils—the more deprived areas—to the more leafy suburbs in the south-east. That has not been done by accident; it has been deliberate design and policy. If the Minister levels up the system and makes it fair, I will fully support that, but that would be very unpopular among some of his colleagues in the south-east.
We have a situation now, after the last 10 years, where County Durham has lost £224 million in grant. Core spending per dwelling in County Durham stands at £1,727, whereas the figure for Surrey is £2,004, so it is clear that deprived areas such as County Durham are getting less core spending, and that has been deliberately designed by this Government.
The cover for that is the so-called “fairer funding formula”. That is complete nonsense, because it is fundamentally flawed in two respects and it is a disguise to use the word “fairer”. It starts from the premise that the needs of every single area and council are the same, when that is clearly not the case; I will give examples later. As my hon. Friend the Member for Sheffield South East highlighted, it also works on the basis that each council has the ability to raise local finance on an equal basis; I am sorry, but they don’t.
Mr Jones
I will give way in a minute.
They don’t, because, for example, in County Durham over 50% of our properties are in band A, so, no matter how much we put up the council tax, we will not—unlike more affluent areas, with larger numbers of Ds, Cs and even Gs in some cases—be able to bridge the gap that has resulted from the withdrawal of core funding.
Kevin Hollinrake
I am grateful. The right hon. Gentleman seems to imply that somehow shire counties are getting a better deal from central Government in terms of spending allocation than metropolitan areas, but that is absolutely the reverse of the truth. The reality is that the shire counties get less than half as much as the metropolitan areas allocated from central funds, and that is why our council tax is, in some areas, twice as much.
Mr Jones
Yes, but I have to say that in the hon. Gentleman’s area, North Yorkshire, the ability to raise council taxes is a lot better than in County Durham and others. I am not talking about a metropolitan council; I am talking about County Durham. In Surrey—Woking—and other areas in the south, the core spending has not been reduced at all. So the hon. Gentleman should be shouting from the rooftops about the unfairness of the current formula.
The other issue—
Mr Jones
I will give way in a minute; I know the Minister gets very excited when I make speeches.
The other issue is the ability of local councils to raise finance through, for example, the distribution of business rates. To be fair to County Durham, it is trying some ambitious plans for economic development to get business rates up, but Durham’s ability to raise extra funding through business activity is not at all comparable with that of, for example, the City of Westminster.
Jake Berry
I just wonder if I could recommend to the right hon. Gentleman’s reading the Government’s December 2018 fairer funding review consultation, in which we specifically deal with the point he has raised about differing council tax bases. So it is not correct to say that this is not dealt with in the fairer funding review. The relevant paragraph is 3.2.2 on page 50 of the December 2018 consultation document.
Mr Jones
The Minister says that, but then he actually has a situation such as the following one, based on the funding figures put out at the moment—I accept we have not had the final decision. Under the formula for public health funding—and I supported public health funding going back to local councils—County Durham was forecast to lose £19 million, or 35% of its budget, whereas Surrey will increase its budget by £14 million. I am sorry, but that just cannot be right when comparing the two areas in terms of deprivation and health needs. The Minister may say what he likes, but in the past 10 years that has been the direction of travel. If he levels it up and changes it suddenly as Northern Powerhouse Minister, he will have my 100% support, but I doubt whether he will be able to do that. The promises that he and others have made to northern councils are going to be very limited.
On the point about need, there are two areas with which all local councils have been struggling—adult social care and looked-after children. Again, to work on the basis that need for all councils in those areas is the same is to start from the wrong premise. For example, since 2010 demand for children’s social care has increased by £7.2 billion but central Government support has halved. That has pushed demand on to local councils, which have had to make very difficult decisions. As my hon. Friend the Member for Denton and Reddish (Andrew Gwynne) said, these services are not optional—they must be provided, by law. If we look at the national figures, in 2010, 54 children per 10,000 of population were in social care. By 2019, that had risen to 65—an increase of 20%. If we look at the figures for the north-east, the figure is 101 children in care per 10,000 of population. In the south-east of England, the figure is 53, and in Surrey there are only 37 children in care per 10,000 of population.
The demand on councils such as County Durham and others in the north-east, and in other urban areas, is far greater than it is on Surrey. Demand for statutory services, which councils have to provide, is going up and they are very costly. At the same time, core funding from the Government is being taken away from some areas and redistributed to areas such as Surrey, which is not just flatlining but receiving an increase in funding. I am sorry, but that just cannot be fair.
I said at the start of my speech that the direction of travel has been pork barrel politics of the worst type, doling out money to people who vote Conservative in certain parts of the country. The problem for the Conservative party is that the pork barrel has got bigger. The big test will be whether the Government can actually spread that around the country and meet all the pledges they have made. I doubt whether they can, because this has not just happened in local government funding. On fire and police, the direction of travel has not just been cuts, but moving revenue collection to local taxpayers. For example, the Government announced an increase in the amount of money going into policing, but that has been moved on to local taxpayers. Councils like Durham County Council are less able, because of their council tax base, to raise that type of financing.
I do not like using the phrase “fairer funding formula review”, because I do not think it is that at all. I doubt whether the new system will be, either. A lot of promises have been made and we shall have to wait and see whether they will actually be met. I will work with anyone to ensure that County Durham gets a fair hearing. I am sad that my new Conservative colleagues are not here today to join me in demanding fairer funding for County Durham, but I will certainly press the case for County Durham to receive the fair funding deal it wants.
I will end with a point raised by the Minister. I came from local government. I was a councillor for 11 years. I respect, and am very grateful for, the work done by councillors of all parties. They are remunerated at a very low level for the amount of work they do. However, I find it a bit difficult to take it from this Government, who have demonised certain people in local government over the past few years and used them as scapegoats for decisions that have been taken—[Interruption.] The Minister says codswallop, but I remember—as I am sure we will witness again in the next few weeks in the local government elections—the Government using the issue of pay and so on in local government to argue that local councils were being profligate. Those are diversionary tactics to remove attention from the core issue, which is that the Government have decimated local government over the past 10 years. We shall wait and see happens in the review, but I shall continue to make the case to ensure that the people of County Durham get the funding and services they require from what is a very good council, and to ensure that the Government have a formula funding that is not only fair but equal across the country, and recognises need.
Jim McMahon (Oldham West and Royton) (Lab/Co-op)
It is a privilege to wind up this important debate. We all believe in the power of local public services, but you can’t do it on the cheap.
May I congratulate Government Members who have made their maiden speeches today? The hon. Members for North Norfolk (Duncan Baker), for Keighley (Robbie Moore) and for Orpington (Mr Bacon) all displayed a real sense of place and community.
May I also thank my fellow Labour Members for their contributions? My hon. Friend the Member for Sheffield South East (Mr Betts) is, of course, the Chair of the Housing, Communities and Local Government Committee, which has done a great deal of work on local government finance and devolution in particular. He was very clear that unless we address the crippling pressure on adult social care and children’s services, there will be a £10 billion funding gap. He also commented on the real pressure on and costs for neighbourhood services, which we all see in our communities. Many of the services on which we rely have had to be removed so that adult social care and children’s services can be kept going.
My right hon. Friend the Member for North Durham (Mr Jones) pointed out that the red wall Tories were all absent from this debate, even though the areas they represent—[Interruption.]
Mr Kevan Jones
The hon. Member for Sedgefield (Paul Howell) is waving, but he has not been here for most of the debate.
Jim McMahon
Better late than never. The hon. Gentleman has missed contributions highlighting the impact of austerity and cuts on many of the seats now represented by Conservative MPs. It is little wonder that the actual formula—the data, analysis and impact—has not been shared with the House at all. Why is that? The answer is that the Government realised that they need to go back—[Interruption.] I am going to continue, so that the Minister has time to respond.
Council tax increases generate very different amounts of money, depending on the locality and its funding base. A 5% increase in Wokingham would generate £5.2 million, while the same percentage increase in Knowsley would generate just half that amount, even though both areas have a similar population base. That is no way to fund adult social care. There is a genuine postcode lottery whereby house price valuations that are nearly 30 years old determine whether somebody gets looked after in their old age. I just do not think that is a fair way to do it.
I congratulate my hon. Friend the Member for Jarrow (Kate Osborne) on her fantastic maiden speech. What stood out in particular for me was the sense of the power of community. In spite of deindustrialisation and the real pressures faced through austerity, it is the power of people and place that binds and makes communities. The Government just need to be a bit more on their side in future, compared with the past 10 years.
My hon. Friend the Member for Ealing, Southall (Mr Sharma) highlighted that £300 million has been taken from his local authority budget, and noted that the fair funding review is far from fair. It takes money from areas of high deprivation and directs it to more affluent areas, which is absolutely the opposite of fair.
My hon. Friend the Member for Luton South (Rachel Hopkins) highlighted a £130 million cut and its impact on neighbourhoods. My hon. Friend the Member for Vauxhall (Florence Eshalomi) highlighted the important role that councillors play in making sure that we have strong local leadership, but they need Government on their side. Far too often, when we ask the Government to step up and to do what is right, they are late in doing so, like some Members arriving in the Chamber. The example was given of the Government being far too late in responding to the cladding issues facing many tower blocks. I am afraid that that is just not good enough.
The truth is that the Government do not want to talk about finance. They know that they are not on strong ground on that issue. They certainly do not want to give any detail about the fair funding review, because it would highlight just how unfair the review really is. I am glad that the Ministers are sitting down, because this will surprise them: we are not going to accept the amendment tabled in the Prime Minister’s name. It does not mention finance; it talks about devolution. The Prime Minister wants to be able to pretend that his flavour of devolution is all about giving people power, but that is not what we have experienced.
Under this Government, many parts of this country have been denied devolution. There is no clear framework to enable local areas to know exactly what types of powers can be devolved to them. What we see with this Government is a flavour of devolution that goes from Ministers to Mayors, whereas Labour recognises that to give real power to communities, we need to start off in neighbourhoods and work up to the nation. Neighbourhoods and communities have not been central to the Government’s devolution agenda, and that has been the hallmark of all we have seen from this Government. I am glad that Labour Mayors are using their powers to ensure that the worst excesses of this Government do not filter down as strongly through to their communities they serve.
We have talked about the town centre fund. Clearly, all of us want to see investment in our town centres. We recognise their importance at the heart of our communities, and the decline that many have seen while retail has struggled to catch up with the online world. But frankly, we will never make progress if the Government are not willing to recognise that the business rates system is actively harming our high streets and town centres. It is not good enough to give just the local independents a boost. Of course that is welcome, but it does not go far enough. Doing only that massively underestimates the importance of anchor stores to bring footfall into big town centres.
Early Parliamentary General Election Bill
Lord Beamish ExcerptsTuesday 29th October 2019
(6 years, 7 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Bob Seely (Isle of Wight) (Con)
I think we have had a filibustering of democracy for much of the last year. We have had endless games and arcane procedures to prevent Brexit, and we are seeing the same games today to prevent a general election. I think this Parliament is really reaching new levels of absurdity. In the Leader of the Opposition, we have—perhaps for the first time in history—a man who can neither lead nor oppose. I still do not quite understand whether he is supporting an election today. We need an election or we need Brexit. The Labour party voted against the Brexit timetable motion, which means that we cannot proceed. Therefore, we have to go for plan B, which is an election.
Mr Kevan Jones (North Durham) (Lab)
May I say to the hon. Gentleman that he is just wrong? On the morning of the vote on the first programme motion, the Labour side of the usual channels asked for a meeting, but it was refused by the Government. It is now up to the Government to lay down a new programme motion, but they have refused to do that. It is still within the powers of the Government to do it.
Mr Jones
No, it is worse than that. In the morning, the Labour Chief Whip asked through the usual channels whether he would be able to sit down to talk about a programme motion. It was the Government who refused to do that, and it is the Government who are refusing to bring back a programme motion. The idea that somehow this House is stopping debate on the withdrawal Bill is absolutely not true.
Mr Jones
We opposed the programme motion because a major constitutional Act would have been put in place that was going to be discussed within 48 hours? The Wild Animals in Circuses Bill got more than that on the Floor of the House. The Government could have come back and said, “Right, we’ll negotiate on a programme motion”. The usual channels on the Labour side were offering that, but it is up to the Government to do it. We have always said—this has been said by the Leader of the Opposition—that we would sit down to talk about a programme motion. It is the Government who have refused to do it, not the Opposition.
Mr Seely
I am not giving way because I want to answer the point made by the right hon. Member for North Durham (Mr Jones). It is really important, and I would like to continue to make my point. Three times we had a withdrawal agreement this summer, and three times it was voted against, but now we are told you want that withdrawal agreement again. Whatever the right hon. Gentleman votes against, a week later they say, “Oh, why didn’t we get that back again?”
Mr Kevan Jones
I ask the hon. Gentleman a simple question. If the Government are so proud of the withdrawal agreement they have drawn up, why do they refuse to let the House discuss it? The House proposed a programme motion that could actually move it on today. If anyone is stopping Brexit, it is the Government.
Mrs Main
I want to give my hon. Friend a bit of a breather. I understand his frustration. Until the last incarnation of the withdrawal agreement, the Labour party—Her Majesty’s official Opposition—had set their face against a withdrawal Bill. Only five Members of Parliament—
Mrs Main
No. I am making an intervention on my hon. Friend. Eventually there was a consensus on the withdrawal agreement, so the next point of attack became how long we could discuss it. It is obvious to the country that there is a process that is coming to a conclusion. The conclusion should be that the withdrawal agreement is passed to give business and people certainty. Arguing about it will not get us anywhere.
Mr Seely
My hon. Friend is spot on. To answer the hon. Member for Newcastle-under-Lyme (Paul Farrelly), I think that the Prime Minister is acting in good faith. I personally have found him entirely reasonable in my dealings with him in the past couple of years. He was very supportive of a project that I helped to write earlier this year—he did not have to be.
The Prime Minister is trying to keep a promise that was made to the British people. In the Labour party manifesto, which Labour Members stood on, there was a promise to respect the referendum.
Mr Seely
Roughly, yes. About 10 minutes ago, I was making the point that we needed a new Parliament, before I faced a host of helpful interventions from Labour Members. We need a new Parliament because we spend so much time talking about the same old thing; talking about Brexit endlessly, when there is so much else out there.
Mr Seely
Please let me make some progress. I will let the right hon. Gentleman intervene a little later.
We need a new Parliament because there are so many other things that we need to debate. I am interested in debating the rise of autocracies in the world. We have significant issues regarding Huawei.
Mr Seely
I suspect the answer to that is that I am sure the hon. Gentleman will enjoy telling his electorate why Brexit has not been passed. The hon. Gentleman believes that that is a competent answer. We look forward to seeing him back here. I clearly hope very much that I will be back here too, but I need to explain to my electorate why Opposition Members keep voting against Brexit and, thus far, keep voting against a general election.
Mr Kevan Jones
The hon. Gentleman says that Labour Members are constantly voting against Brexit, but he should remember that for two years and eight months this House had no say on Brexit because it was an internal debate within the Conservative party. He says that the Labour party opposed the deals. If he reads the Labour party manifesto, he will see that I stood on a clear commitment to not support no deal, and that a customs union and close integration with our European allies was key. My colleagues and I have stuck to our manifesto, and the idea that we have spent three years discussing Brexit is just not true.
Mr Seely
I would say that we have arguably spent 25 years debating it, certainly in some parts of Britain. We then spent months before an election campaign and a couple of years afterwards debating it. The right hon. Gentleman is right to point out that those of us on the Government Benches are not perfect and that there was argument within the Conservative party. Arguably, we spent too long trying to work out the sort of Brexit that we wanted. I accept that point. It would be churlish of me to say that we are perfect and that the right hon. Gentleman’s side is not, but there is a basic principle here which I am very happy to explain to the good folks on the Isle of Wight. It is this: we have tried repeatedly to push through a realistic and sensible Brexit deal. We tried three times this summer. We tried again with the Prime Minister’s very good withdrawal deal. Granted, I did not like some elements relating to Northern Ireland, but we have to move on and try to make the best of what we can. We have not got that, because it has not been supported by this House. We then said that we need to go back to the people, but that has not been supported by this House. That is why I said a few minutes ago that the right hon. Gentleman’s leader is the first Leader of the Opposition in history who has not led and not opposed. I want him to do that because we need to have a general election.
Mr Kevan Jones
It was the Prime Minister and members of the European Research Group who voted down the previous Prime Minister’s deal, so the idea that he is somehow blameless in the process of stopping Brexit is not the case at all.
Mrs Main
Yes, we are discussing a Bill about having a general election. My point is that we need a general election because we have moved so far away from the original concept of the referendum, which was a choice between in and out, not a party political choice. Now, we are in a sclerotic position. We cannot move forward in here, and the only obvious answer is to ask the public to decide.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
The question before us today is: do we want a general election? Do the public want a general election and do the politicians want a general election? I do not think that anybody wants a general election. If we have an election in December, it will be the third time in three years that my electorate have been asked for their vote, and I hope that they give the same answer this time. But what people do want is Brexit to be delivered.
My constituency of Sleaford and North Hykeham voted overwhelmingly to leave. The country as a whole voted to leave, but even the constituents I meet who voted remain—including business owners and people who run businesses—also want Brexit done. They tell me, “Look, we really wanted to stay and to start with we thought another vote might be a good idea, but now what we see is that the ongoing uncertainty—this kicking the can down the road all the time—is more damaging to our business than any form of Brexit, and we want you to get it done and respect democracy.” So why has it not been done?
There has been much talk of whether we are representatives or delegates, and whether the 450 MPs who represent constituencies that voted to leave should also want to leave. We are representatives, and as such we can choose whether to follow the majority of our constituents. I have followed the majority of mine in supporting Brexit, because that is what they voted for. In this case we have a very unusual situation, whereby we representative politicians gave the choice to the British people. We delegated the responsibility for this one decision to them, asking them, “What do you want us to do? This is such a momentous decision that we want you to make it for us.” They said that they wanted to leave, and it is up to us as representatives to deliver Brexit on their behalf. But we have now a perfect storm, whereby the representatives do not agree with the delegated decision of the British people, and the Government lack a parliamentary majority with which to deliver their will. Under this Prime Minister, the Government have tried every single avenue open to us to deliver Brexit.
Mr Kevan Jones
What the hon. Lady is saying is not exactly true, is it? It took her party two years and eight months to put anything to this House. The Government now have a Bill that has passed its Second Reading and could actually go forward, so it is not the case that an election is somehow going to deliver Brexit. The architect of stalling the Brexit process was the present Prime Minister, when he voted against the former Prime Minister’s original withdrawal deal.
Dr Johnson
My right hon. Friend is exactly right.
The Prime Minister was told that he could not reopen the withdrawal agreement, but he did. He was then told that he could not remove the backstop from that agreement and could not gain other important changes, but he did. He was then told that he could not get a deal that, in principle, was voted for and supported by this House, and on Second Reading he did. But then the Opposition voted to prevent it from being discussed, because it cannot be discussed without a timetabling motion, and they voted against that.
Dr Johnson
I have given way to the hon. Gentleman already.
This is a question of trust. The British people trust us to deliver on our promises, and if we do not deliver on our promises we undermine the basis of democracy. The leaflet that came out during the European referendum said: “We will implement what you decide.” Many people, some of whom had never voted for the whole of their lives because they felt it did not make anything change, went and voted in the European referendum because they thought it would make a difference. It was the biggest democratic exercise in our country’s history and a majority voted to leave—and leave we must.
The Opposition are playing party politics, because their only determination is to try to make sure that Brexit cannot happen by the 31st. That is because they think the public are stupid. They think the public will say, “Ah—the Prime Minister did not deliver Brexit by the 31st, so we can go to the country and say that he did not keep his promise.” But actually the public are not stupid. They can see that the reason we have not delivered it by the 31st is that the Opposition voted to institute the European Union (Withdrawal) No. 2 Bill, which surrendered control of when we leave to the European Union.
I want to deal with the issues in the amendments. The first amendment would allow all EU voters living in this country to vote. Quite apart from the fact that this has not been properly debated, it is very difficult to add 3 million voters to the register at very short notice. It would also have—
Jess Phillips (Birmingham, Yardley) (Lab)
I agree. I plan to say a number of things, but I want to follow up on some of the things that have been said during the debate. There has been a huge amount of talk about being honest with the public, political expediency and turning the referendum into a party political thing. The hon. Member for St Albans (Mrs Main) seemed very concerned that the referendum and how we vote on Bills has been used for political expediency. I would like to gently remind everybody of the time that the Prime Minister got a camera crew to come and take a picture of him as he signed his little resignation letter to Theresa May—sorry, the right hon. Member for Maidenhead (Mrs May). Some might say that it had been politically expedient and, lo and behold, he is now the Prime Minister. Gosh forbid that anybody should use things for political expediency or that Conservative Members have always voted for the Bill.
The trouble with the arguments we are having is that the Government have continued to behave like a Government who have a majority, regardless of the fact that they do not. The right hon. Member for Maidenhead suffered exactly the same problem after the referendum, which was not won decisively by one side—it was a marginal win—and after the 2017 election, when again the country was split, and the idea of bringing forward a Bill that we could all sit down and work on was literally never ever taken forward.
I have listened to Conservative Members saying today, “Well, you shouldn’t be allowed to amend the Bill”, or “You only want time to amend it”. Er, yes—that is absolutely right, because that is the job of this House. Different people come here from different backgrounds and make laws that are not just for one sort of person, but that represent this country. I seem to be in a twilight zone where the Government and the Executive seem to think that they just write a line and then go, “Er, well, it’s my way or the highway”. Welcome to parliamentary democracy!
Mr Kevan Jones
Does my hon. Friend agree with me that it is even worse than that because Parliament was excluded from this process for two years and eight months while the Conservative party had an internal debate about what type of Brexit they could get through, and it was only then that this House was let in to the arguments?
Jess Phillips
I entirely agree with my right hon. Friend. It is ridiculous.
I represent a leave seat, and, as we enter this general election, I may face the fate for my beliefs that the hon. Member for St Albans fears that she will face—and that is okay. She thinks it is okay, and I think it is okay that I may have done something different from what the majority of my constituents did, regardless of the fact that 10,000 extra of them voted for me post the referendum.
The reality is that the Government have only ever wanted obedience. They have looked on people like me and said, “Do as we say, little girl. We’re not going to let you do anything to our precious Bill.” But that is not the meaning of this place. What nobody in this place can answer is how will it end if what is returned is another hung Parliament. We did not think we were going to be here before, yet here we are. I believe the right hon. Member for Maidenhead thought that she would be having a considerably nicer time when she was next to Lord Buckethead on the evening of the general election, yet here we are.
What has happened since then is like a Rorschach test. The hon. Member for St Albans can look at the exact same result as the one I can look at, and we can say, “In this piece of toast, I can see the Virgin Mary”. We say that the voters think exactly what we think, regardless of what they actually said, because the question is fudged. We did not do so when we asked them in a general election, and we are not going to get a decisive answer on the issue of Brexit.
I spoke to the Prime Minister in the Lobby the other day. He was loitering around outside the private Members’ Bills ballot, which I invited him to enter as it seems he would struggle to change the law otherwise. He asked, “What will it take for you, Jess, to support this Bill?” Am I allowed to say my own name? Is that allowed? He asked, “What will it take for you, the honourable— the incredibly honourable—Member for Birmingham, Yardley?” I said, “What it will take for me is that you ask the people where I live if they are happy with the deal”. It is as simple as that. He looked at me as if this was brand new information—“This is the first time I’ve heard such a revelation”—which I thought was odd, but, you know, he is an unusual man.
Then the Prime Minister said to me, “Don’t you think another referendum will be dangerous for this country?” To that, I said, “I’m not entirely sure why you think it would be any different from a general election”. We are all sitting in here talking about this general election, but pretty much no one has actually talked about general elections, apart from a few party political broadcasts about people’s museums in their constituencies and how beautiful the islands are. The reality is that we have all talked about the referendum. This is going to be a Brexit referendum whether we like it or not, except that we will not be being clear and we will not be being honest—none of us will be—and in what we get back we will be able to see whatever we want to see.
I have heard people in here say that I as a Labour voter voted to deliver Brexit based on the last general election, and that is simply not true. I did not do that. As a Labour voter, I voted for many, many things that I believe in about Labour values. My vote had nothing to do with the Brexit position of my political party and I would say the same if I was not a representative of it. We are going to dishonestly use a general election. It will not be about the fact that people in my constituency cannot send their kids to school five days a week, or about whether the NHS is serving them properly, or about whether they are happy with something that the Conservative party might say. We are going to use the general election for political expediency. Can we all stop pretending that it is about anything else?
Early Parliamentary General Election
Lord Beamish Excerpts(6 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Sir Bernard Jenkin
I am not going to give way.
The voters’ faith in the established political parties is not being improved by what is going on; it is being further undermined. The last thing I want is for the whole of British politics to be realigned around the question of Brexit, but that is what will happen the longer we carry on putting off this decision.
Like so many of my voters and so many colleagues in this House, I long to move on to the questions beyond Brexit, but that requires us to respect the decision that has been taken. It requires respect for the fact that there is a Government in office with a responsibility to conduct the negotiations as they see fit, or it requires those who do not have confidence in the Government to table a motion of no confidence to resolve that question.
That brings me back to the Fixed-term Parliaments Act 2011, from which the motion we are debating this evening arises. It has turned out to be a recipe for this paralysis, which would never have arisen but for the Fixed-term Parliaments Act.
Sir Bernard Jenkin
I beg your pardon. The right hon. Gentleman says that accusingly, but I certainly did not vote for it. I remember walking through the No Lobby on Second Reading with remarkably few people, and I said to them, “Don’t worry. This House will rue the day that it passed this piece of legislation.” We should now be rueing the day, because that legislation has put this House in a position where it can endlessly wound a Government but avoid killing them.
If the Leader of the Opposition has so much contempt for how this Government are conducting their affairs, and this Government no longer have a majority, why does he not table a motion of no confidence? It is because there is fear in this House about facing the consequences of a general election because of how this House has conducted the whole Brexit affair for the past three years.
I asked how this will be resolved, and I can tell the House that putting it off again and again will not make the political outcome of the eventual general election any easier for a great many colleagues. The Prime Minister, in his inimitable style, is showing leadership and courage at last. He is trying to resolve this issue.
“Leave” and “remain” were the words on the ballot paper. There was no reference to deal or no deal, but the Prime Minister of the day made it quite clear that we would leave the European Union, and this House has conspired again and again to delay that happening.
People in the constituencies of Opposition Members, particularly in remain-voting constituencies, should ask themselves what mandate they have for putting off this decision again and again. It is democracy in our country that is paying the price, and it is the rise of far more extremist parties that will be the result if this House carries on putting off the decision.
Detainees
Lord Beamish Excerpts(6 years, 10 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Speaker
Order. Musings and commentary are not required. Single-sentence questions and pithy replies are.
Mr Kevan Jones (North Durham) (Lab)
I welcome the statement and note that a lot of the recommendations of our ISC report have been adopted, although I have to say to my right hon. Friend the Member for Islington South and Finsbury (Emily Thornberry) on the Front Bench that a judge-led inquiry was not one of them. The important thing is the five-year review. Will the right hon. Gentleman ensure that when it happens, it is made fully public?
Mr Lidington
I am grateful to the right hon Gentleman for his welcome, and I will ensure that we seek to be as public as possible about the five-year review. The five years should be regarded as a maximum period. Frankly, if evidence comes to light at any stage that amendments are needed, I would expect the Government and the agencies to act accordingly and make the amendments sooner.