Overseas Operations (Service Personnel and Veterans) Bill (Tenth sitting)

Debate between Lord Beamish and Chris Evans

Committee stage & Committee Debate: 10th sitting: House of Commons
Thursday 22nd October 2020 Public Bill Committees

[Mr Kevan Jones (North Durham) (Lab)]

Welcome back to the Chair, Mr Stringer.

My hon. Friend the Member for Islwyn spoke this morning about the duty to consider derogation from the European Convention on Human Rights. Clause 12 states:

“After section 14 of the Human Rights Act 1998 insert—

‘14A Duty to consider derogation regarding overseas operations”.

It then details ‘overseas operations’. I have a problem with that for many of the same reasons outlined by my hon. Friend. What do we derogate from, and for what reasons? The Human Rights Act 1998 gets a bad name in the sense that people start foaming at the mouth and think that it has something to do with Brussels and Brexit, but it is nothing of the sort. That is important to remember in view of the rights that it gives us and the signatories to it. The Act covers all 47 states that have signed the European Convention on Human Rights. As my hon. Friend said, this country has a proud history of acting as a champion of human rights under the convention, and was instrumental in the convention’s creation in 1950. It was championed by Winston Churchill, mainly as a result of the issues arising from the second world war. It is also important to note that the people who wrote it were members of the United Kingdom Government, and lawyers as well. That convention contains a fundamental part of British DNA—in fact it goes back to Magna Carta and the 1679 Habeas Corpus Act. We build up laws in this country over time, but the horrors of the second world war prompted us to enshrine basic rights for everyone. As I have said before, the Human Rights Act has been portrayed—as it has in terms of the Bill—as the means for nasty foreigners to be able to sue the Ministry of Defence. But the opposite is true: it is fundamental for members of our armed forces. I have already mentioned how it was used in the Smith case in connection with Snatch Land Rovers.

The Bill, as drafted, asks for derogations from the human rights convention. Such derogations are allowable, but subject to limitations, and an applicant must be clear about what they want. When people start chomping at the bit and foaming at mouth when we talk about the Human Rights Act and the human rights convention, I always say, “Just look at it and see what it does. Can you really disagree with it?” Unfortunately, some people do disagree with it, but article 2, which is the most quoted, relates to the right to life.

[Chris Evans (Islwyn) (Lab/Co-op)]

Would my right hon. Friend accept—

[Chris Evans]

In the past, the European Court of Human Rights has been judged as the most effective international human rights court in the world.

[Mr Jones]

It is, because it sets a standard that I do not think many British people could disagree with. Article 2 enshrines the right to life; I do not think that most people would disagree with that. Article 3 relates to freedom from torture, again I am not sure that anyone would disagree with that. People may say that that is self-evidently accepted these days, but not that long ago in Iraq, one of our closest allies, the United States, did commit acts of torture. I did not see any evidence that UK servicemen and women were involved in that when I was part of the rendition report produced by the Intelligence and Security Committee, but there were occasions when UK servicemen and women, and our intelligence agents, were present. Perhaps we all take it for granted that we should be against torture, but there were such cases in Iraq in living memory.

Article 4 relates to freedom from slavery. Again, a few years ago we may have thought about slavery in terms of historical cases and the transportation of slaves from Africa to America and the West Indies. But today, in all our constituencies, slavery is, sadly, alive and kicking, even in my constituency of North Durham, where we had a case of modern slavery about 12 months ago. It exists in modern society.

Article 7 relates to the right to a fair trial, and that comes to the heart of the Bill.

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[Mr Jones]

I know. If he is patient, I have a full description of what we cannot derogate from. If he sits back and just enjoys it, he might learn something as well.

We have already discussed how the Bill is removing veterans and armed forces personnel from section 33 of the Limitation Act 1980, and I believe that that does not allow people access to a fair trial. But we would all agree that the right to a fair trial is a basic right. Article 8— Minister, do not worry, I am not going to read out the entire list of articles in the Human Rights Act, but I want to concentrate on those that may come within of the Bill’s remit and may be subject to derogation—relates to respect for family and private life. No one should disagree with article 9—freedom of thought, belief and religion. A normal society should have no problems with such a freedom.

The Minister intervened to point out that any derogations are subject to limitation. That leads on to the important question about why such a derogation is included in clause 12. It has always been accepted that the rights given to us under the Human Rights Act should be considered in law according to their hierarchy in the convention. In terms of the Bill and warfare, people have focused on the idea that somehow that Act and the convention on human rights stop a country like ours, or members of the armed forces, using lethal force.

To come to the issue that the Minister just raised, I should say that, yes, there are some absolutes that cannot be derogated from. For example, article 15(2) of the convention states:

“No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.”

That was upheld by the Supreme Court in the Smith case. It held steady—Hilary Meredith mentioned this point—in saying that lawful conduct cannot be questioned in terms of the use of the other ones, which the Minister referred to; this comes on to the rights that are absolute and cannot be impaired in any way. There is article 2, about the protection of the right to life, apart from the qualification that I have just given. Article 3 is about the prohibition of torture—something that the Bill could not derogate from.

I should say to the Minister that I disagree with some of my colleagues who said on Second Reading that the Bill gave carte blanche for torture. I simply said that, no, it does not, as would be clear if they read the Bill. Alas, these days many people hold forth in the Chamber without ever having read the relevant Bill—a bit of a disadvantage, I always think, if someone wants to make a useful contribution.

Article 4 is about the prohibition of slavery and forced labour. We cannot derogate from those issues. Article 7 is about punishment without law. One right that some might think we should be able to derogate from is in article 12—the right to marriage. We could not derogate from any of those rights. My issues with the Bill are not about the headlines that some have grabbed in saying that it gives carte blanche for torture. It does not, because of the limitations on derogations.

I then ask myself why the derogation that we are discussing is needed. All my hon. Friend the Member for Islwyn was trying to do—and I asked about this earlier—is establish what we can define about what derogations are actually needed, and why. Is this a way of trying to protect the MOD from civilian claims, as I was saying earlier?

[Chris Evans]

Article 15 of the European convention on human rights allows derogation in times of war. The last time this country asked for a derogation was in the wake of 9/11 and the rise of al-Qaeda; there was another time in the ’70s during the troubles in Northern Ireland. Does my right hon. Friend agree that derogation is so important? Even when it was granted in the wake of 9/11, this country had still had to argue the reasons for derogation.

[Mr Jones]

My hon. Friend obviously must be reading my mind; I was about to come to the Northern Ireland case, which is important in respect of the limitations of derogation and the controls around it. The other thing about when a state wants to derogate from the European convention on human rights is that it first has to inform the secretary-general of the Council of Europe, who should be given an explanation about why. Can the Minister tell us in what circumstances he sees this Bill being used, in terms of the derogation from human rights, particularly when it does not limit lawful combat actions in a conflict situation? The Bill also needs to give the reasons and measures, and how they will operate, and set out why it will not be withholding those rights. It comes back into the tier, as I said, where there are some that cannot be touched and others that can.

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[Chris Evans]

I think my right hon. Friend is referring to the case of Lawless v. Ireland, where the European Court of Human Rights said that for it to be a state of emergency the entire population needs to be under threat for it to be possible to derogate from the convention on human rights. That underlines how significant it is to even ask for a derogation from the European Court of Human Rights.

[Mr Kevan Jones]

My hon. Friend is right on the second point, but that was not the first case I referred to. In the first case, legislation that the UK had put forward was challenged as a breach of the convention’s obligations. It is Brogan and others v. the United Kingdom. In that case, the judge ruled that the UK would only be able to apply for a derogation if it declared a state of emergency, pursuant to article 15.1 in the derogation clause of the convention. Under the Human Rights Act, there are good reasons why we are able to derogate, but, justifiably, they have to be damn good reasons. Those derogations were found to be unlawful, which allowed the respondents to claim compensation for unlawful imprisonment.

That demonstrates that these provisions are there for good reasons, but we should not use them loosely. I have not yet heard anything about why they are included in this Bill. Clearly, all the issues around warfare and people using lethal force on the battlefield are covered by the convention. That has been upheld by the Supreme Court.

[Chris Evans]

When a Government ask for derogation under article 15, the key words are “exceptional circumstances.” If, and only if, it is granted it is then limited and the Government have to justify that. That is the crux of the problem with the Bill and why we have introduced the amendment. The Bill seems to be going against the spirit of that article. Does my right hon. Friend agree?

[Mr Jones]

I do. I do not know why it is in the Bill, without an explanation about why one would want to use it. As my hon. Friend the Member for Islwyn said, there are perfectly good reasons why there are derogations in the Human Rights Act, for example in times of emergency. But for this area? I just do not see it, because as I say, lawful combat is covered. Torture and other things are proscribed anyway, so nobody can get derogations for those. For what other purpose would it be in the Bill? That is what I find very difficult to understand, and that is why I have a problem with some of this Bill.

The situation we are in is possibly due to the fact that the Human Rights Act 1998 has been portrayed by a lot of people as this horrible piece of socialist, human rights-hugging legislation brought in by a nasty Labour Government. It was not: all it did was incorporate the European convention on human rights into UK law. Previously, if claimants wanted to raise a case under the ECHR, they had to take that case to Strasbourg. Because of the Human Rights Act, those cases were able to be looked at in UK courts and decided by UK judges, which I think was a lot better than the previous scenario. It made it easier, but that is possibly why the focus and attention has been on human rights cases, or the uses of them.

The other thing about human rights cases, which gets into the mythology around those cases, is that the Human Rights Act is often quoted by lawyers and given as a reason why a case should go forward. It is often just struck out, because those lawyers are sometimes just flying a kite and seeing if they get anywhere, but it is quite a robust piece of legislation. It also gives us a lot of protections: it protects individual citizens, but more importantly, it protects individual servicemen and servicewomen when they are bringing cases against the MOD. That is the problem we have had with some of the optics around this, rather than what the facts themselves are. I have had these discussions with constituents, and when I tell them that the Human Rights Act has nothing to do with the EU and that it was actually Winston Churchill’s invention, they look at me agog.

The point is that, as my hon. Friend the Member for Islwyn said this morning, these are the standards that we apply when we are arguing the moral case, both in foreign policy and in anything else. These are the things we want people to follow, and if we are just loosely throwing derogations into this Bill, we are going to be quite rightly accused of not holding ourselves to the same high standards, or somehow trying to wriggle out of our basic commitments under the Human Rights Act, which is very difficult for me. As I say, I do not understand why this is in the Bill.

The other issue, which I have raised before and was also raised by Hilary Meredith, is the time limits under the Human Rights Act. There is a one-year limit on Human Rights Act cases, but what we are saying is that there should be a longstop, because they are covered by the Limitation Act 1980. We are arguing for a separation of that, in terms of the six-year longstop, and I think Hilary Meredith said in her evidence to us that it would be interesting to know how that fits with the EHCR and its incorporations. I am quite happy for the Minister to write to me on this topic, but he did say that the Bill complies with the Human Rights Act, and I would like to see the explanation from the lawyers about the implementation of the time limits, because I am not sure whether that is something we would have to run by the secretary-general of the Council of Europe. What we are saying, in effect, is that we are limiting someone’s access to human rights. That is the use of human rights legislation, so I think that is the important point.

The other issue is, as the Minister said, the growth in the areas for these cases. I admit that, in some of the Phil Shiner cases, the Human Rights Act was just flying a kite, basically. Those cases should have been knocked down very quickly, and it should have been said that they were nothing to do with the Human Rights Act.

The Defence Committee did a very good report—I think the Minister was on the Committee at the time—called “Who guards the guardians? MoD support for former and serving personnel”. It is worth reading—I have read it, and it is a good report. The main issue in it is investigations, which we have been talking about throughout this Committee. It is very critical of the £60 million spent on IHAT, for example. There was no mention of it being anything to do with the Human Rights Act. It outlines in detail the chaos when IHAT was set up in 2010 by—I reiterate yet again—the coalition Government.

I would like to know what the justification is for having this measure in the Bill. As my hon. Friend the Member for Islwyn said this morning, it potentially has huge implications for us.

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[Johnny Mercer]

Next time.

[Chris Evans]

I am not going to go on forever and I will withdraw the amendment.

[Mr Jones]

I thank my hon. Friend for giving way. It is interesting that the Minister has read his speech into the record like he used to, and his Whip told him to sit down. Can my hon. Friend think of an example that was so urgent for operational reasons that it would have to be rushed through on this basis? The Minister clearly did not want to give one.

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[Chris Evans]

Does anyone else want to intervene now? I feel like a post box at the moment. With the amount of whys coming over my left shoulder, it was just like my four-year-old son asking me why all the time—I do not mean to offend my right hon. Friend the Member for North Durham.

I hope this matter is revisited on Report. I believe the derogation is very important and, as my right hon. Friend mentioned, article 15 is so important. It is usually in states of emergency that derogation is asked for. That means it needs to be scrutinised in both Houses. I will withdraw the amendment at this stage, but I hope that we will revisit the issue on Report, when the Bill comes back to the Floor of the House. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clause 13

Power to make consequential provision

Question proposed, That the clause stand part of the Bill.

[Mr Jones]

We are moving in the direction of a lot of things in this House being done by regulation. Here again:

“The Secretary of State or the Lord Chancellor may by regulations make provision that is consequential on any provision made by this Act.”

We have just had a discussion about the Human Rights Act, and I am less than convinced. The other issue—because, again, this is a contentious area—is the statutory instruments that will be used, and how the provisions will be amended. Once the Bill is passed, it will, I think, lead to a lot of problems, so I would just like to understand a bit more about how the powers will be used.

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[Mr Kevan Jones]

I rise to speak to new clause 9, which is in my name. My hon. Friend the Member for Portsmouth South made an important point. We ask our servicemen and women to do dangerous, remarkable things on our behalf. Is there a straight read-across to an equivalent civilian job? No, I do not think there is, if we are talking about combat and some of the other things that we are asking people to do. We are asking two things: that they will ultimately have to take human life or give their own life in defence of this country and their comrades. That is a unique set of circumstances that many of us will never experience.

It is important, therefore, that we get it right and support our servicemen and women on two sides: where, because of their actions, they are accused of wrongdoing, or where, in the service of their country things are done to them through no fault of their own. They may contract a disease as a result of work conditions or the way a piece of equipment is designed. The problem with some of the Bill is that we are quite rightly focusing on the unique set of circumstances in foreign combat. There is also a whole swathe of areas where people are not in immediate danger but are capable of being injured while serving their country. That applies to a chef on a ship right through to somebody who is working in a maintenance depot.

If these service personnel were in civilian life, they would be allowed to join a trade union and to get independent legal redress. I think it was mentioned in the evidence session that the Dutch armed forces have a staff association or trade union. Although they do not have recognised trade unions in the United States, they have very strong regiment associations. The US Marine Corps has a very strong representative for its members and, having met the individual, very strong lobbying power on Capitol hill.

[Chris Evans]

When I was a young parliamentary researcher, a rather young hon. Member for North Durham raised this issue in a Westminster Hall debate in, I think, 2006—it might have been 2007. At the time, he was on the Back Benches and was yet to be appointed Minister for Veterans. What was stopping some form of staff association emerging? He argued for such an association in the Westminster Hall debate, but what sorts of obstacles did he encounter from military brass when he was in the Ministry of Defence?

[Mr Jones]

I am not in favour of a trade union for the armed forces—let me make that very clear—but there needs to be some type of representative body for members of our armed forces. The reasons argued against it were the same reasons that were argued when we brought in the service complaints commissioner and the ombudsman —that somehow it would affect the chain of command. Has the world stopped since we have had the ombudsman and the service complaints commissioner? No, it has not. It is not perfect, but the world has not stopped. I used to describe it as a pressure cooker: it allows another avenue for disputes or complaints to be dealt with in a timely way.

Reading the ombudsman’s annual report, I think she is making great progress, but there is a long way to go. A lot of the complaints that come forward are nothing to do with combat; they are to do with the way in which the Army handles its personnel issues—issues that, to be honest, would in some cases be very similar to what we would find in private industry.

I turn to the issue of representation. If we are going to have fairness, there has to be a level playing field. It surely must be right that there should be some way for members of the armed forces to have legal redress. I am not talking about minor disciplinary cases and things like that; I am talking about some of the serious cases that have been outlined. If you cannot sleep tonight, Mr Stringer, it is worth reading the Defence Committee’s 2016 report on this issue—I referred to it earlier—called “Who guards the guardians? MoD support for former and serving personnel.” The Minister was on the Committee at the time. The report was mainly about the issues around the IHAT inquiry. It did not only find, as we have already heard, the catastrophic delays that were happening, but it raised the issue of who represented the members of the armed forces who were being accused. As my hon. Friend the Member for Portsmouth South says, not only were they not represented, but they were actually encouraged in some ways not to take representation. I think even Major Campbell said in his evidence to us that he was more or less told, “Go away—it’ll be okay, everything will be all right.”, but it dragged on and on.

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[Chris Evans]

Sorry. Maybe next time; that is the third mistake I have made today. As my right hon. and hon. Friends said, the crux of the Bill is not just about the law but the investigation. I believe from what the Minister has said that he has some sympathy for that as well.

The problem that we have with mental health, of course, is that we do not know what somebody’s background is when they join. Yes, they do psychometric testing and follow tests for reading and writing, and so on, but we do not know what was in their background. What was their family history? Might they have experienced personal distress or trauma in their childhood? That leads on to the problem that military investigations are often preceded by internal disciplinary acts.

What actually happens is that someone is faced with two pieces of law, especially if they have had a mental health problem. They have civilian law on the one hand and military law on the other, making things extremely complicated.

For example, investigations in military contexts are often more complex and involve additional investigative personnel, many of whom do not deal with investigations as their primary task. Therefore, we have all these multi- layered rules and regulations that are not in civil law.

[Mr Jones]

I agree with that. The Armed Forces Act 2006 tried to simplify the legal system, but the issue, again, is time delays. If we look at the ombudsman’s report each year, some of the simplest disciplinary issues should have been dealt with. That is not about investigations; it is about resources.

[Chris Evans]

As I said, the military are not employing full-time investigators. Many of the people who are investigating are doing other jobs as well.

It can get even more complicated. In cases of suspected disciplinary misconduct, the initial investigation is usually done by the immediate disciplining senior officer. That can then move on to the military supervisor, which makes it even more complicated again. In cases of suspected criminal acts, military police and probably legal advisers are called in as well. So we have large numbers of people who are not speaking to each other and who are getting confused about the rules, regulations and what is covered by what law. It is increasingly confusing.

Consider someone who already has problems with alcohol or drugs. I have some sympathy with what my right hon. Friend the Member for North Durham said earlier. When veterans are going through the criminal justice system—I am sure the Minister knows this—they often rely on the defence of post-traumatic stress disorder, but if we look at the facts, there is little research into how much it affects criminal behaviour. I am aware that 4% to 5% of the prison population—

[Mr Jones]

It is 3%.

[Chris Evans]

It was in 2016. The figure I have is 4% to 5%. If my right hon. Friend wants to correct me, I would be happy to take an intervention.

[Mr Jones]

Before 2010—I instigated the review—they had no figures at all about the numbers. The important thing is that the number is small. Most of the people who go through military life get a positive benefit out of it.

[Chris Evans]

That is the point I was getting to. Based on the Ministry of Justice figures that I have—the Minister may want to correct me—2,500 former members of the armed forces are in prison, largely because of sexual or violent crimes. However—again, my right hon. Friend might want to correct me, because I might be using out of date figures—0.1% were discharged from the armed forces, usually for mental health reasons. Are those figures that he recognises?

[Mr Jones]

The problem my hon. Friend underlines is the same problem I think the Minister will confirm we have today. Some people claim that 25% of the prison population is veterans, which is nonsense. The real problem—again, it was a problem when I was a Minister, and I am sure it still is today—is early service leavers. A lot of these people are early service leavers.

[Chris Evans]

Whatever the figures are, these people are still vulnerable to social exclusion and homelessness. I well remember a harrowing case from when I was growing up of a boy who joined the forces. He came straight out of care, and he did not do very well in the forces—he did not get above private. He had severe mental health problems. He came out and he could not operate outside of a stringent regime. He went to pieces and ended up in prison for committing a violent crime. It was very harrowing because I knew the family.

[Mr Jones]

Just because someone joins the armed forces, it does not mean that their mental health history is scrubbed at the recruitment door. My hon. Friend is right. A lot of things are put down to military service that are pre-military service. It is sometimes wrong to blame the service for some of those issues.

[Chris Evans]

My right hon. Friend is absolutely right. The person who was recruited in this case was clearly unsuitable for the forces. He did not take advantage of the fantastic opportunities that there are in the forces. He clearly had some sort of problem, and he needed to live in that regime where he was told what to do day in, day out. Once that left his life, his life went completely off the track. He said that he missed not just being told what to do but the camaraderie of his unit. Once that was gone, he felt friendless and alone.

However, the problem we have is that there is a dearth of academic research, and that is why we need a report. We do not know the unique factors that have an impact when it comes to military investigations, including the psychological wellbeing and the mental health of service personnel. I know that the Minister is a champion of this in the Government, and I am glad of that fact—I know that he will work on this issue for as long as he is a Minister—but that is the problem we have, and it is why we need a report. There are large numbers of factors that help personnel deal with the complexity of disciplinary and criminal proceedings and the potential of those two processes, but we do not know their effects.

Returning to the example from many years ago that I mentioned, there is also the point about camaraderie. When someone is under investigation, whether disciplinary or criminal, that has an effect on the morale of their unit, which in turn has a wider effect on their mental health. At the end of the day, many people who find themselves under investigation will say one thing: “I was simply following orders. Why am I the one being investigated?” Also, as my right hon. Friend the Member for North Durham alludes to, there are far more laws, regulations and rules in a military investigation. Some military laws have different objectives from criminal and civil laws: in contrast to the criminal law, military discipline has educational objectives, positive as well as negative.

I am not an expert on military law, but I would say that it is confusing. Take the example of a military guard guarding a checkpoint in Helmand 15 years ago, protecting the security of a region’s population. An approaching vehicle opens fire on them—imagine it is you, Mr Stringer. In this role, you as the guard are the victim: you have been fired on. However, you return fire, and you kill the alleged insurgents in the vehicle. That could mean you are investigated simply for following orders and returning fire. That is the crux of the problem: on one hand, somebody is the victim of a crime; on the other hand, they are the perpetrator of a crime, simply because they have followed orders. That is the type of thing I hope we can clear up in future.

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[Mr Jones]

The hon. Member for Filton and Bradley Stoke makes a very good point, because these things are covered by the rules of engagement and the training that takes place. However, they are incredibly easy to look at and make a determination about while sat in a nice, comfy armchair away from the place where they occurred. These cases involve split-second decisions, and mistakes do happen. The important thing, surely, is that the investigation that comes afterwards should be done as rapidly as possible so that it takes the onus and pressure off the potentially accused individual.

[Chris Evans]

My right hon. Friend is absolutely right: the investigation should be effective and efficient. As I said while building up the background to this issue, if we could cut the multi-layered process that people have to go through down into one simplified investigation, that issue would be resolved pretty quickly.

[Mr Jones]

Would that not be achieved by including in this Bill the suggestions that I made in my new clauses—suggestions that are completely missing from the Bill—about making sure there is some judicial oversight of those investigations after a certain period of time? The individual my hon. Friend refers to would at least be able to have his or her case looked at judicially after a certain period of time, and if the investigation was going nowhere it could be dismissed.

[Chris Evans]

That is eminently sensible, and I hope that at some stage the Government will accept that and perhaps put it in the Bill. That is up to the Government, but I think that that is absolutely right. The problem is that these investigations seem to go on for ever and ever. For ex-service personnel or veterans, if there is no end in sight, that will affect their mental health. That is surely one resolution that could be written into the Bill.

I want to talk about learning disability. Obviously, if someone has a physical disability, they are disbarred from joining the armed forces, but we have to address the issue of mental disability. Someone can go through life without being diagnosed as dyslexic or autistic, or as having attention deficit hyperactivity disorder. There are many cases of people in their 40s and 50s being diagnosed with those conditions, which we do not know about. When someone is under investigation, how do we know that they do not have those types of disabilities? Usually, if someone is arrested under civilian law, they have a responsible person with them—a designated person. People do not have access to that in the military.

[Mr Jones]

My hon. Friend makes a very good point. When I was a Minister, the average reading age of some of the infantry when they were recruited was 11 years of age. All credit to the Army and the Darlington College at Catterick for doing a great job of getting people’s reading ages up,. The problem that was spotted, which had never been spotted before, was dyslexia. Individuals had gone through the education system without being diagnosed until they were in their late 20s.

[Chris Evans]

There is still a huge stigma in relation to illiteracy, as my right hon. Friend knows. A lot of issues in the prison population concern people with undiagnosed learning difficulties. There are higher than normal levels of illiteracy that we need to address. However, someone who has come through the basic tests to join the forces might be on the autistic spectrum but still able to function, and they need the help of a designated person as well.

I have written down something about a split decision. I do not know whether Members remember the case of Alexander Blackman, a Royal Marine who had his conviction for murder quashed on the grounds of diminished responsibility in 2016 after he had fatally wounded a Taliban prisoner. Blackman’s lawyers argued that he had an adjustment disorder at the time of the killing, because of months on the frontline in terrible conditions, and we can see how that would affect his mental health.

The whole issue of investigations comes down to one thing: training. Written evidence from David Lloyd Roberts and Dr Charlotte Harford stated:

“Regular and effective training for the armed forces on compliance with the law of armed conflict can reduce the risk of situations arising in which allegations of war crimes are levelled at British service personnel serving overseas. There is no need for military personnel to be given a comprehensive legal education. However, if knowledge of and consistent respect for the following ten principles, at least, can be instilled in all members of the armed forces, they should have little reason to fear prosecution…Torture is prohibited in all circumstances…Summary executions are prohibited…Those hors de combat may not be attacked…Only military objectives may be deliberately attacked…Civilians may not be deliberately attacked unless they are taking a direct part in hostilities…Buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law may not be deliberately attacked…Combatant adversaries may not be treacherously killed or wounded…The wounded and sick must be collected and cared for…Prisoners of war should be evacuated from the combat zone as soon as possible…The dead may not be despoiled or mutilated …Effective training on the law of armed conflict is likely to take the form not of the testing of theoretical knowledge, but of presenting members of the armed forces on a regular basis with hypothetical (but realistic) scenarios in which to practise thinking how military operations in a particular context might be conducted effectively in compliance with the above principles.”

I think that is eminently sensible, but if we are producing a report to Parliament, we can start building on the gaps in knowledge about mental health and its effect on service personnel. I look forward to the Minister responding on the basis of his knowledge. I am sure he will give us an interesting insight.

Overseas Operations (Service Personnel and Veterans) Bill (Ninth sitting)

Debate between Lord Beamish and Chris Evans

Committee stage & Committee Debate: 9th sitting: House of Commons
Thursday 22nd October 2020 Public Bill Committees

[Mr Kevan Jones (North Durham) (Lab)]

May I welcome you to the Chair, Mr Mundell? It is a pleasure to serve under your chairmanship again. I will talk about schedule 2 in general, but I will first refer to amendment 93, which stands in my name and which would amend the end of schedule 2 to say

“save for exceptional cases where the overriding interest of justice should be served.”

I will come back to schedule 2 in a minute.

We are again getting to the issue of justice for servicemen and women and veterans, in terms of the conditions they are bound by. I will come on to the Limitation Act 1980 in a minute, of which section 33 disregards the limits on the right of veterans and servicemen and women to make claims. We heard in the evidence sessions and during consideration of the Bill from my hon. Friend the Member for Portsmouth South and others about particular issues affected by this hard stop of six years. We talked about mental health and psychological conditions, but there are also physical conditions. Mental health is a complex area. The Minister tries to hide behind the date of knowledge, and mental illness is difficult to pin down. I would certainly say that the whole gamut of mental illness should be treated as exceptional cases.

Did the Labour party, when we were in Government, get it wrong on the armed forces compensation scheme? Yes, we did, even though it was a landmark scheme, in the sense that it brought in lump sum compensation for the very first time. I remember people at the time complaining about the levels of lump sum payments. We had a big debate about that in around 2008. However, it brought in lump sum payments for the very first time for those injured in service of their country. Going back to the Falklands war, for example, no such thing existed, so it was quite a landmark.

However, we clearly had not seen the challenge around mental illness. When I was a Minister, I asked Lord Boyce to undertake a review into the effects of service on mental health, so that we could potentially bring into the scope of that scheme people suffering from an array of mental illnesses. That was the right thing to do, and it was an attempt to future-proof the legislation.

[Chris Evans (Islwyn) (Lab/Co-op)]

I draw my right hon. Friend’s attention to the Armed Forces Act 2006, particularly the part where the Labour Government pardoned those who had been shot at dawn during world war one. For shell shock to emerge and be accepted took some 60 to 70 years. The Bill was an example of a Government saying that they had got something wrong and were willing to backdate it to ensure that justice was meted out to the families so that they would not think that their grandparents or ancestors were cowards, as they were deemed at the time. If we can do that in that situation, we can surely do it in this as well, as we learn more about the effects of post-traumatic stress disorder and of alcohol and drug abuse as well.

[Mr Jones]

I do not disagree with my hon. Friend, but the problem I always have with veterans’ mental health is the fixation on PTSD. I am not for one minute downgrading PTSD and the numbers of people that suffer from it, but it is one of a range of mental illnesses that might arise later in life. My hon. Friend referred to alcohol abuse, which is sometimes a form of self-medication. Is it automatically recognisable that a mental illness that might come in later life is a result of service? No, it is not. I agree with the Minister here. Most people leave service and have a perfectly good career that is life-enhancing for many servicemen and women. They end up in a variety of careers and have a good quality of life. Obviously, the failures end up as Members of Parliament, but that is neither here nor there. I have always said that military service overall is a good and positive thing for people’s life chances because it gives opportunities to people.

However, some individuals can be affected. Is it easy to determine what caused someone’s mental health problem? No, I do not think it is. That was recognised in the armed forces compensation scheme. I want to add exceptional circumstances because, by taking section 33 out, we stop recourse to civil law and the ability to claim against the MOD. As Mr Byrne from the Royal British Legion said, this is not about protecting servicemen and women and veterans; it is about protecting the MOD. I have heard the Minister’s arguments about the date of knowledge and this, that and the other, but, as I have said before, if we leave it to the solicitors or lawyers in the MOD, they will use this to strike out these cases, and that cannot be right.

We then come on to physical conditions. I mentioned the other day the issue of cold weather injuries, which can develop later. There are also musculoskeletal conditions that develop not at the time but as the body gets older. If the body has been through large amounts of stress earlier on, whether it is physical or mental, the condition can start later on. That leads to a situation where a lot of individuals will not necessarily think straight away, “It was due to my service”. That is why I have always strongly argued—we did it in 2010, but the coalition scrapped it—for the importance of having a flag on people’s medical records as they leave the service so that in future doctors can see that people had served and then link the two together. We provided for that in 2010, but an election was called and the coalition seemed to forget about it, but I thought it was important not only in terms of physical injuries but, very importantly, for mental health issues. If a physician, a doctor or a consultant can see that someone has served, that is a red flag and they can ask whether that has had an impact on that individual.

The six-year longstop will stop those individuals taking cases to court. I accept that legally it might be difficult to insert the words “exceptional cases”, because we then get into the issue of what is an exceptional case. To be honest, the easiest way of solving it is to retain section 33 of the Limitation Act 1980, because then at least a judge will be able to determine what an exceptional case is. I accept that there are problems with the amendment as it is written, but it goes to the core of the issue of ensuring that, while as few cases as possible are brought out of time, people have the ability to do that.

I am not sure I would leave it to the MOD to make the decision, because I think the kneejerk reaction would be to use the Limitation Act to strike the cases out. I accept that the amendment is not expertly written, but I am not so proud as to prevent somebody from stealing the idea and drawing it up so that, at least in exceptional circumstances, members of the armed forces would be able to take their cases forward for consideration to determine whether they should go beyond the six-year longstop, which limits them at the moment.

We also heard about issues relating to the Human Rights Act 1998. I asked the Minister to write to me to explain how a time limit or a longstop can be put on human rights cases. I do not know whether he has been able to do that yet—I accept that I only asked the other day—but it would be interesting to know that before Report. There is the one-year time limit, but they are covered by section 33 of the Limitations Act. Hilary Meredith said that she found it difficult to understand how it would be possible to have a limitation on the Human Rights Act because it is part of a convention. The Minister responded the other day that it had been cleared and that it was human rights law-compliant. It would be interesting to know what the legal advice is on that, and whether there are any other cases—although there is already a time limit of one year—in which the Limitation Act is not applied to individuals.

As we heard from the Association of Personal Injury Lawyers in the evidence session, that issue was crucial in the Snatch Land Rover case. A widow took a case against the MOD—it was not a civil case, but a Human Rights Act case, because a decision had been taken in relation to the right to life. Again, that was about not putting the Human Rights Act on the battlefield but trying to ensure that a decision was taken about Snatch Land Rover’s procurement and deployment. It was not about getting the Human Rights Act into the battlespace. I suggest that people read the Smith judgment, because the Supreme Court is very clear about combat immunity and about human rights not applying. People sometimes argue that this Bill is somehow about trying to stop human rights intervening with our right to defend ourselves, but they should read the Supreme Court judgment, because it is very clear that it does not apply there, but it does apply to that important case.

There were two issues in that case. The first was whether it was out of time. Quite clearly it was, because the incident took place in 2006 but the case was not brought until after Chilcot, which was 2015, so it was way out of time. The reason it was taken forward was that, in the first instance, although the MOD argued that it was out of time—I have no complaints that it did that—it was successfully argued that it was not. There were special circumstances that meant that it could not be brought within the time period, and it was allowed to go forward. I understand that the case was settled before it went to court, and the individual widow got a substantial payment. As I said the other day, it also focused, in policy terms, Ministry of Defence thinking about the decisions on the Snatch Land Rover. It gave closure to the widow and some compensation, though no amount of money can ever compensate for somebody’s loss, but it also made MOD policymakers say, “Wait a minute. In future, we’re going to have to actually think about this.”

--- Later in debate ---

[Chris Evans]

I beg to move amendment 57, in clause 12, page 8, line 20, at end insert—

“(1A) No order may be made by the Secretary of State under section 14 following consideration under this section unless a draft of the order has been laid before, and approved by, each House of Parliament.”.

This amendment would require significant derogations regarding overseas operations proposed by the Government from the European Convention on Human Rights to be approved by Parliament before being made.

Good afternoon, Mr Mundell. It is a pleasure to once again serve under your chairmanship as we head into the final straight of this Bill Committee. I rise to speak in support of amendment 57. I have concerns about multiple aspects of the Bill. This amendment is crucial to improving the Bill and safeguarding our reputation at home and abroad, and it can easily be implemented.

The amendment is simple. It asks that the Government seek approval from both Houses of Parliament before the Secretary of State for Defence approves any derogations from the European convention on human rights. I spoke in the last sitting about parliamentary scrutiny of the role that the Bill gives to the Attorney General, and I must once again raise the absolute importance of scrutiny. I remind the Government that the UK is not a presidential system—given what we see from the United States at the moment, amen to that. The Government draw their power from this House. This House must be consulted on matters as serious as derogating from our key international obligations. The Government are in danger of destroying our reputation as a country that upholds and defends international law. They should at the very least let Parliament act as a check on the worst urges that may come out this legislation.

The Bill would use article 15 of the European convention on human rights, the derogation clause. A guide from the Council of Europe says of article 15:

“It affords to Contracting States, in exceptional circumstances, the possibility of derogating, in a limited and supervised manner, from their obligations to secure certain rights and freedoms under the Convention.”

The words that stick out to me are “exceptional” and “limited”. If these cases are exceptional, there should be no problem with the Defence Minister seeking parliamentary approval on the very rare occasions when they deem derogation necessary.

[Mr Jones]

Does my hon. Friend agree that, although the Human Rights Act is often portrayed as being used by unscrupulous foreigners to attack us, it is very important for our servicemen and women if they are bringing claims against the MOD for injuries that they have suffered?

[Chris Evans]

My right hon. Friend is absolutely right. Human rights are a political football that is being kicked around by everybody. If hon. Members want to see the importance of the Human Rights Act, they would do well to look at the debate that I introduced last week about the Uyghur Muslims in China, and at what they are going through. We have had human rights problems with China. On the issue that my right hon. Friend raises, of course human rights are vital when claims are brought against the Ministry of Defence, and that should be considered. We should not attack anybody’s right to defend their human rights in court, and we should not view human rights as something bad. They are fundamental rights that we all have as humans.

Parliament can then decide whether a derogation is limited. If we are going to derogate from international obligations, consent must come from Parliament. The Equality and Human Rights Commission said in written evidence:

“At the very least, we recommend support for amendment 57, which would require significant derogations regarding overseas operations proposed by the Government from the ECHR to be approved by Parliament before being made.”

As it points out, the amendment is the very least that we should be doing to ensure that the UK upholds its very proud record of human rights across the world. To set a legal norm for derogation from the European convention on human rights would seriously damage Britain’s international standing. It would send a signal that these international conventions and treaties are not taken seriously by our nation, and would have the knock-on effect of harming the integrity of our troops.

In its briefing on the Bill, Redress said:

“the Bill risks undermining the UK’s influence on human rights in the global context”.

Derogating from the international conventions on human rights will clearly diminish our integrity on these matters. The Government should be keen to mitigate that in any possible way. The Opposition believe that this amendment is a good start if the option to derogate must be written into the Bill at all.

Martha Spurrier, the director of Liberty, said in one of the evidence sessions:

“The concern, of course, is when you take a wider view and look at this Bill as a whole, which very much signals the desire to water down the human rights arrangements”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 76, Q149.]

Surely the Government want to do everything in their power to counter those views and assure the global community that this country still regards human rights as of the utmost importance.

I echo the words of my hon. Friend the Member for Barnsley Central (Dan Jarvis), who said on Second Reading:

“At a time when we are witnessing an erosion of human rights…it is more important than ever before that we uphold our values and standards and not undermine them.”—[Official Report, 23 September 2020; Vol. 680, c. 1109.]

In a similar vein, the Equalities and Human Rights Commission warned:

“At a time when the UK Government’s adherence to international law”

and the relationship with Northern Ireland

“is under increased scrutiny, it is imperative that the UK is seen to show the highest regard for the international legal order.”

To write in a system of derogating from European conventions regarding human rights would severely undermine us. This clause, unamended, will determine our international reputation, and therefore the reputation of the brave men and women who serve in our forces.

Amnesty has said that, as it stands, the Bill

“will do irreparable damage to the reputation of the armed forces of this country, undermine basic principles of access to justice and send a bad message internationally.”

The former director of service prosecutions, Bruce Houlder, has called the Bill an “international embarrassment”. David Greene, the vice-president of the Law Society, has added to the voices warning of our loss of international standing, saying that while

“Our armed forces are rightly known across the world for their courage and discipline”,

the provisions allowing for a derogation from human rights conventions and breaking international law

“would undermine this well-deserved reputation”.

Multiple people and organisations say that the Bill will damage our international standing. After all, how can we call on other countries to respect international treaties on human rights, or to honour international obligations, when we are setting a precedent in our legislation for derogating from them? How are service people supposed to carry out missions overseas with the integrity that the British forces have if they know that they might not always be held to international standards by their own Government?

If the Government insist on writing derogations from the European convention on human rights into the Bill, the legislation must be scrutinised at the highest level. It is that important. The Government cannot simply ignore international conventions without getting approval for doing so from both Houses, and ensuring that derogations are considered case by case and are deemed exceptional actions. That would signal to other countries that we still valued international conventions on human rights.

[Mr Jones]

Does my hon. Friend agree that the problem with the European convention on human rights is that people are confused about how it relates to the European Union? Clearly, there is a dog-whistle approach to anything with the word “Europe” in it. The convention has nothing at all to do with the European Union. It is actually something of which we should be proud. Winston Churchill and others pioneered it at the end of the second world war.

[Chris Evans]

Yes, my right hon. Friend is absolutely right. He gets to the nub of the issues that we are facing nationally. In the press, and even in some quarters of the House, it seems that putting the word “European” on anything makes it something to do with the European Union, and then we open up a can of worms about Brexit. As he says, the European convention on human rights has a proud history, involving such luminaries as Sir Winston Churchill, who was responsible for setting it up.

My right hon. Friend is absolutely right to say that we have to be careful about confusion. When the word “Europe” or “European” is slapped on something, people think it is all about Brussels and its rules on bendy bananas, or whatever else people want to throw at us. This is a really important point. Whatever side of the argument people are on—whether they supported Brexit or wanted to remain in the EU—they should realise that the European convention on human rights has nothing to do with the EU. This is fundamentally about human rights.

[Mr Jones]

Does my hon. Friend congratulate the Members of this House who sit on the Council of Europe? Its role is to ensure that the European convention on human rights is a beacon of freedom and rights throughout the world, but in parts of Europe today—Ukraine being one, and Russia another—the human rights that we take for granted are not practised.

[Chris Evans]

I echo my right hon. Friend’s comments about the work of the Council for Europe; I know how important it is. If we want to talk about human rights more widely, look at what happened in Nigeria yesterday, and what has happened in Azerbaijan, Belarus, Ukraine and Russia. We are the guardians of the rule of law. This whole country is formed on the rule of law, but we have always had an international and Atlanticist outlook whereby we defend human rights to the hilt. There is a fundamental belief, which I think is shared across the House, that if one person loses their human rights, we all do. That is something we should be guided by.

No member state of the Council of Europe has previously derogated from the European convention on human rights in the manner proposed in the Bill. That is how unusual its provisions are. What we are asked to agree to today would make us an anomaly right across the continent of Europe and beyond. It is therefore clear that intense scrutiny of derogations would be highly sensible.

[Mr Jones]

I agree. On combat in overseas operations, the Supreme Court was very clear in the Smith case that combat immunity was not in any way prevented by the Human Rights Act 1998. In that case, the MOD was trying to extend the Human Rights Act to cover planning decisions that were taken in Whitehall about Snatch Land Rovers.

[Chris Evans]

It comes back to the point that my right hon. Friend has so eloquently made over the last few sittings. I tell the Minister this: I have enjoyed my right hon. Friend’s contributions, though they may have been difficult.

[Chris Evans]

Sometimes I am not sure.

I was not au fait with the case of the Snatch Land Rovers before I came here. The point my right hon. Friend the Member for North Durham has been making is that one day, in the near future—a nearer future for some than for others—we will not be here, and others will come in, but the legislation will stay. We have to get it right. He knows as well as anyone else, given his experience, that the Ministry of Defence will hide behind its lawyers. In this case, they would have used the Human Rights Act. That is why it is important that we have scrutiny at the highest level. It is important that the provisions are not left open for lawyers to use at will. I absolutely agree with my right hon. Friend.

To me, it is clear that intense scrutiny is highly sensible. It ought to be required when the UK decides to derogate from conventions; otherwise, we will be setting a dangerous precedent. This country has a unique role in global history. We have set the standard for so many countries to follow.

[Mr Jones]

The provisions may also pose a practical problem for deployment with other forces. Everyone agrees that in the future, many of our deployments will be with other nations, and if we have a derogation, and our situation is different from theirs, that could create problems in building alliances, or UK armed forces deploying with our allies.

[Chris Evans]

I absolutely agree. We do not know who will lead our combined forces in the future. If we have a piece of legislation that allows us to derogate from the European convention on human rights, that puts us at a disadvantage. This year we celebrated the anniversary of VE and VJ Day. Of course, during the famous D-day landings, we were led by an American, General Eisenhower. We might be putting our forces at risk if we are allowed to derogate from the European convention on human rights.

Given the UK’s standing and influence, there is a risk that if this provision remains in the Bill as it is, and is acted on without parliamentary scrutiny or consent, it would set a dangerous precedent to other countries in future conflicts. Having carte blanche to derogate from international conventions is not a precedent that the UK should set. As I said, other countries look to us for the standards that we have set in the past. We should be setting the highest standards in the future.

Other organisations have also raised their concerns about the Bill and giving the Government the ability to ignore international law. Justice stated:

“the Bill would damage the standing of the armed forces by acting contrary to established legal norms—both domestic and international…The Bill risks both contravening the UK’s obligations under the European Convention on Human Rights…and other international legal instruments, many of which the UK helped to create.”

Our country has a proud history of upholding international conventions on human rights across the globe, but the Bill threatens to undo our international standing as the rightful champion of human rights. Amendment 57 will make it clear that our country still sees international obligations and human rights conventions as vital. It states that the Government will not derogate from human rights conventions without real and significant cause. It shows a commitment to transparency and parliamentary scrutiny.

--- Later in debate ---

[The Chair]

The hon. Member for Islwyn has concluded his remarks.

[Chris Evans]

No, I have not; I have three hours of this. I give way.

[Mr Jones]

My hon. Friend is just getting into his flow. Does he agree that the problem with the Bill is that it does not define the circumstances in which a derogation will take place? We have a Conservative Government today, but if there is no definition of the reasons for allowing a derogation, a future Government could use the provision to do anything.

[Chris Evans]

I agree with my right hon. Friend. We have to be careful; we are in the here and now, but we have to attempt to future-proof the legislation we pass. That is true of anybody. It will be difficult, but if, God forbid, there was an extreme Government in future, they could do whatever they liked, using this anomaly in the Bill, and would be acting within the confines of the law. That is why it is extremely important to remember that the legislation will remain long after each and every one of us has gone.

[Mr Jones]

That is not in the realms of fantasy. In Europe, we need only look at the way Hungary is going under the leadership of Mr Orbán, who seems to disregard a lot of what we would take to be human rights legislation. This argument is not based on a figment of the imagination, or fantasy.

[Chris Evans]

This is on our doorstep. Look at the annexation in Ukraine. Hungary is running over human rights like a tank. If we leave these anomalies in the legislation and do not tighten it up, people can do whatever they like in future. It is extremely important that we have certainty; that is the most important element of law. Judicial precedent and statutory interpretation are important, too, but we need certainty, and that is unfortunately not in the Bill. It would be lovely if the Government supported the amendment—it would be the first Opposition amendment that they agree to in the Committee—because it would ensure certainty.

If we cannot give certainty, because we do not know when we will use the provision, we can at least ensure parliamentary scrutiny of derogations. As Justice and other human rights groups have publicly stated, the Bill signals that the Government are willing to break international conventions. It signals a worrying disregard of the European convention on human rights and the Geneva convention. That cannot be allowed to pass unchecked. That is extremely important. Particularly as we leave the European Union, we should be aiming to highlight our commitment to international conventions such as those on human rights. Any derogation from the European convention on human rights must be checked by Parliament, decided on democratically, and subject to the highest level of scrutiny, as any derogation should be.

[Mr Jones]

My hon. Friend refers to the Geneva convention; there are very good reasons for such conventions. They are not just the right thing to follow, in terms of human rights; they afford protections to our servicemen and women. In the past, we have rightly criticised—and, going back to the Nuremberg trials, taken cases against—individuals who ignored the Geneva convention.

[Chris Evans]

Absolutely. Our troops must be defended, and they must have the right protection in law.

I point out, Mr Derogation—please forgive me, Mr Mundell; that was my first mistake in a number of sittings. I point out, Mr Mundell, that derogation from treaties is extremely rare. To derogate frequently from a treaty would be to undermine it. [Interruption.] I see that I am shaping up to be the most unpopular Member present, because I keep speaking and eating into lunchtime, so I will come back later this afternoon.

Ordered, That the debate be now adjourned.—(Leo Docherty.)

Overseas Operations (Service Personnel and Veterans) Bill (Seventh sitting)

Debate between Lord Beamish and Chris Evans

Committee stage & Committee Debate: 7th sitting: House of Commons
Tuesday 20th October 2020 Public Bill Committees

[Chris Evans (Islwyn) (Lab/Co-op)]

As my right hon. Friend was speaking, I thought of an anomaly. The Bill now strikes out claims on the Ministry of Defence after six years. However, if new evidence comes to light and there is a criminal conviction for the same offence, there could be a situation in which a criminal court imposes compensation when the MOD has already struck the claims out. How does my right hon. Friend see clause 4 squaring that circle?

[Mr Jones]

It does not, and that comes to one of the other problems with the Bill: it combines both criminal and civil. As I think Ms Meredith said, that is the problem, in terms of what we are trying to achieve. If we keep the longstop for six years on civil claims, a situation would arise whereby they would not go forward, although potentially they could even after six years under clause 4.

The other thing put forward by the Bill’s supporters is that it will somehow stop investigation of our servicemen and women for cases that they do not think have substance. However, it does nothing of the sort. I learned a long time ago in politics that the worst thing we can do is promise things and then not deliver after raising people’s hopes. The problem with the entire Bill, especially on investigations, is that people will think that we could never get another case like Major Campbell’s. I am sorry, but we can. A lot of the veterans believe what is being said—that the Bill will stop investigations—but it will not. It will not stop investigations within the six-year period. It will not even do so afterwards, because, as we have already heard, cases will go to the International Criminal Court and others.

Clause 4(1) states:

“For the purposes of section 3(2)(b), where there has been at least one relevant previous investigation in relation to the alleged conduct, evidence—

(a) is not “new” if it has been taken into account in the relevant previous investigation (or in any of them);

(b) otherwise, is “new”.”

Again, we get to dancing on the head of a pin about what is new evidence. There have been some complex cases, certainly from Iraq. If a witness comes forward many years later with a piece of evidence saying that they were there, who makes the determination on what is new evidence? That will make the investigation more difficult, because what will be deemed as new evidence? Who makes that judgment call?

We are not dealing with house burglars, are we? We are dealing with very complex cases in other countries, where there are cultural and language difficulties. Sometimes, six years might have passed. The passage of time can not only affect the securing of evidence; it would also affect judgments about people’s memory, which has always been the case with civil cases in this country, let alone in a war zone.

I understand what clause 4 is trying to do, but, like a lot of things in the Bill, it leaves a lot of loose ends. As I said, it will lead to a lot of disappointment on the part of veterans who think that somehow reinvestigation will not happen. Likewise, victims will perhaps feel that new evidence or evidence that they have put forward is not being taken seriously.

--- Later in debate ---

[Mr Jones]

Does my hon. Friend agree that this Government and the previous one have been reluctant to allow Parliament to see that advice and have had to be brought kicking and screaming to produce it for our scrutiny of the decisions?

[Chris Evans]

The decision not to present the rationale, what advice was taken and how the Government arrived at their decision have eroded trust in politics and have been a problem for as long as I have been in the House. We have an opportunity with the Bill to start to rebuild trust in the decisions that the Government make. I hope that that Government will take that on board.

The Attorney General should be required to publish a report on the findings to reassure Parliament and the public that a decision has not been a political one. Many of the issues we have had in the past few years—the north-south divide and Brexit and remain—would have been avoided if the advice had been published and made transparent and fair. When we are making decisions, especially about our service personnel—some of the bravest people in this country—we must ensure that the public interest is at the heart of decision making. Dominic Grieve believes that the fact that the courts can review a decision by the Attorney General may create more litigation rather than reduce it and simplify the process. There is already a backlog of court cases, and we do not want to add to it.

[Chris Evans]

The hon. Gentleman has a lot of experience in this area. If I was Chair of the Backbench Business Committee, he would just have talked himself into a debate on the Floor of the House. If he will forgive me, I shall stick to the amendment, because as I said earlier, we should have at least a 90-minute debate in Westminster Hall on that point.

The concerns expressed by Dominic Grieve have been echoed by His Honour Judge Jeffrey Blackett, who stated that

“the decision of the Attorney General to prosecute or not prosecute certain cases is likely to lead to judicial reviews and, as Mr Grieve stated, more litigation.”

In the Bill’s evidence sessions we heard from the most recent Advocate General of the Armed Forces. He expressed deep concern that this decision should be taken away from the Director of Public Prosecutions:

“My concern about the Attorney General’s consent is that it undermines the Director Service Prosecutions. If I were he, I would be most upset that I could not make a decision in these circumstances.” ––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 125, Q267.]

It is quite clear that by taking this responsibility away from the Director Service Prosecutions the Government intend to assert a certain level of political control over these decisions. I hope that when the Minister responds he will give us a full explanation.

This is a risky decision from the Government. If they do not comply with the Geneva convention in making such decisions, that could add to the reputation, which they appear to be determined to establish around the world, that the UK no longer respects international law.

[Mr Jones]

Does my hon. Friend agree that by inserting, as the Bill does, a politician into that prosecutorial process, questions will be raised about our obligations under international treaties where there should be independent judicial oversight, not political decisions?

[Chris Evans]

That goes back to my earlier point. As my right hon. Friend says, inserting a politician would mean only more cases where the courts are asked to review the decision of the Attorney General, which would have the knock-on effect of clogging up the courts when we do not need that. It could be nipped in the bud simply by producing a report.

Disregard for international law is not only wrong but sends the wrong message to the British public and the rest of the world. Some have argued that it will even put our service personnel in more danger. Sir Malcolm Rifkind, QC, an ex-Defence Secretary, warned that the Bill will put soldiers at greater risk if Britain is seen to ignore international law. In a letter to Downing Street, he wrote:

“It would increase the danger to British soldiers if Britain is perceived as reluctant to act in accordance with long established international law.”

Similarly, Lieutenant Colonel Nicholas Mercer, who was a senior military adviser, said that the Bill

“undermines international humanitarian law while shielding the government”.

While the Government may be able to shield themselves from blame, soldiers may find themselves in the International Criminal Court, whose jurisdiction will be triggered if the Government chooses to avoid prosecuting. In fact, Judge Blackett raised that concern with the Committee. He said that

“the Attorney General has to consent to prosecuting any International Criminal Court Act 2001 offence—that is, genocide, crimes against humanity or war crimes. Under section 1A(3) of the Geneva Conventions Act 1957, he has to consent to prosecuting any grave breaches of that Act, and under section 61 of the Armed Forces Act 2006, he has to consent if a prosecution is to be brought outside of time limits.”––[Official Report, Overseas Operations (Service Personnel) Public Bill Committee, 8 October 2020; c. 125, Q267.]

If the Attorney General must consent in those circumstances, what is the need for a political appointee to be involved in the decision making? Why not allow the Director of Public Prosecutions or the Advocate General in Scotland to make the decision?

That leads to concerns that the Government intend to break international law and politicise prosecutions. If that is the Government’s plan, it must be scrutinised by the House so that we can understand the reasoning. Ultimately, the public deserve to know why the Government would deem it fit to break international law and damage the reputation of our troops serving abroad.

Another voice we were grateful to hear from in our evidence sessions was that of General Sir Nick Parker. He added a further concern about the damage to Britain’s reputation if we are not seen as a country that respects international law, which will not only damage the reputation of and endanger our troops serving abroad but have more complex results. He said:

“If there is some doubt about this—”

the willingness of the UK to break international law and the Geneva convention—

“and we are viewed in the international community as being prepared to operate outside norms, there is an implication for the people who will have to command in the international community.”— [Official Report, Overseas Operations (Service Personnel) Public Bill Committee, 8 October 2020; c. 99, Q203.]

He expressed concern about not knowing whether that would affect the willingness of other countries to work with the UK armed forces. If other countries are less willing to work with our forces, that creates additional problems for our troops. He later said

“I believe that we need to be consistent with our coalition partners. All I would add is that you cannot predict who your coalition partner will be, because we do not know whom we will be fighting with in the future.” [Official Report, Overseas Operations (Service Personnel) Public Bill Committee, 8 October 2020; c. 100, Q206.]

Today’s friend is quickly tomorrow’s enemy. Therefore, there must be that certain consistency provided by international norms.

--- Later in debate ---

[Chris Evans]

I am glad the Minister nods in assent.

The present Attorney General has been accused of advising on legal matters from a political standpoint. The Scottish National party’s Attorney General spokesman, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), has accused our Attorney General of putting her political loyalties ahead of her loyalty to the rule of law when it should be the other way round. If the role of the Attorney General is seen as a political one, involving them in this Bill politicises—

[Mr Jones]

Does my hon. Friend agree that if we have the Attorney General involved in this, matters will end up in the courts? Again, it raises a false flag to servicemen and women that somehow this will stop prosecutions. If something is overturned by the Supreme Court or whatever, the prosecution will still go ahead, so the longstop is not achieved.

[Chris Evans]

It is not. I would like the Minister to answer this conundrum that I came up with when I was listening to my right hon. Friend’s very good speech earlier. The trouble that I see with the Attorney General being involved is that if we have a civil case that is ruled out after six years, according to the Bill, and we have new evidence that emerges from the previous case—this is an important point—the Attorney General then decides to prosecute. That person is then found guilty of a crime and damages are given out. We have a situation where we have a criminal court giving compensation for a case that has already been struck out. That is an anomaly in the Bill that I hope the Minister will address because it is a concern. Given the mixed opinions on the role of the Attorney General, and the general cloudiness of what their role and priorities ought to be, the requirement to produce reports on their decisions to prosecute or not seems entirely sensible.

[Mr Jones]

Would it not also be the case that we would not know how the Attorney General made a decision in terms of legal thresholds and suchlike? There will be a political decision, and there is no guidance in the Bill on what the important factors would be for an Attorney General to make his or her decisions.

[Chris Evans]

From a legal perspective, it is really important that when an Attorney General gives their advice, they do that through the process of legal precedent, statutory interpretation or whatever we want to call it. It is extremely important that when the Attorney General arrives at Parliament with their advice, they have a very strong legal argument. They have consulted academics or leading lawyers, presumably in the area of human rights, and they have crossed all the t’s and dotted all the i’s, and when they come before Parliament, they are confident in their decision. That is why it is extremely important that a report is presented, because at least they can cross-reference how they arrived at the decision. It also gives confidence in the decision. If the case does end up in court, they are standing in a stronger legal position than they would be if they had not released that advice.

As there is a long-standing worry about the balance between law and politics in the role of the Attorney General, it surely makes sense that the Attorney General, if they are to be involved in this Bill at all, is required to publicise the decision. That would ensure that prosecutions covered by the Bill continued to be legal matters or could be at least scrutinised by other bodies to regulate them. It would ensure that party politics was not placed above the law.

It is a judicial process that the Government are concerned with. It should not be politicised or manipulated by party politics in any way, shape or form. If the Government feel the need to grant the power of decision over prosecution to the Attorney General rather than an independent legal body such as the Director of Public Prosecutions, the process must be entirely transparent, so that all those involved can clearly see the thinking behind the decisions. There is no reason why that information cannot be shared. It should and must be subject to parliamentary scrutiny.

[Johnny Mercer]

I thank the hon. Member for Islwyn for his very thoughtful contribution. I will address some of those points.

First, let me come to the points raised by the SNP. I will not call it “hypocritical”, because that would be out of order, but the irony of being lectured about behaviour in debates by the hon. Member for Glasgow North West, who has repeatedly screamed at me at the Dispatch Box, is not lost on me in any way. I have no ribs left from laughing at the SNP’s position on defence matters. The idea that it is possible to have a constructive debate from such a false position is ridiculous, but I will address some of those points in my comments.

Dominic Grieve and Nicholas Mercer are people who have contributed. I do not know whether Members expected those who had overseen the disaster of things such as IHAT, who had overseen those processes, to come in and say, “This was a good idea.” I never expected that. Nicholas Mercer was not some senior legal adviser; he was a brigade LEGAD, and there were many brigades in Iraq. His evidence, a number of times, has been called into question. Dominic Grieve was a Member of this House. I have huge respect for him. But he, as Attorney General, oversaw some of these horrendous experiences that some of our people went through. Of course they are not going to be supportive of changing that scenario, because they did not do that when they were in charge. I respect that that was their decision, but we have come in on a very clear promise to end the unfair nature of this process.

I understand that it is combative; I understand that it is contested, but it is about time that someone came here with the voice of those who actually go through the process and was at the head of this debate, rather than those who are managing it and ultimately, in my view, have no real idea what it is like to walk in the shoes of those who serve on operations or who are dragged through these investigations.

When it comes to the Attorney General’s consent—

--- Later in debate ---

[Chris Evans]

As my right hon. Friend has been speaking, I have been thinking in particular of the people serving in the Royal Navy who were affected by asbestos. In the 1950s and 1960s, asbestos was this magic formula—used everywhere from schools to garden sheds. Then, years later, it was found to cause tumours in the lungs. That caused serious problems to our servicepeople, but the evidence did not emerge for 30 years. People may be using chemicals now that we do not understand. How would the MOD be held responsible, and families be properly compensated?

[Mr Jones]

I will come back to asbestos. The aircraftman could not walk because the paint had attacked his nervous system, and his case was able to be taken forward only because of scientific evidence about exposure to that paint. However, if the Bill goes through, such an individual would not be able to make a case because it would be way out of the six-year limit. A lawyer friend of mine took that case to court and argued successfully before a judge that the individual was only able to bring the case then because of the scientific evidence, and that allowed them to take the case forward.

--- Later in debate ---

[Mr Jones]

Yes, and the lawyers will use it to protect the MOD. Like I say, if the Minister and I had to judge, we both would say “Yes, give the benefit of the doubt to the veteran.” I certainly would. However, neither he nor I will be there. It will be down to some Minister in the future and some lawyer to do that.

Coming on to asbestos, let me give an example. The issue in the early test cases on asbestos that I dealt with was about the date of knowledge. As my hon. Friend the Member for Islwyn just said, the issue with asbestos and asbestos-related diseases is that they can lie dormant for 20 or 30 years. It is an indiscriminate issue. I have met men who worked with asbestos and have what they call asbestos scars—asbestos in their skin—with no symptoms whatsoever and no health effects at all. I have also dealt with cases where a doctor and a nurse, who were just walking through a tunnel where an asbestos pipe was broken and were being covered in asbestos every day, developed mesothelioma, which we all know is a death sentence within 18 months to two years.

The MOD used to have a get-out because of Crown immunity; it could not be sued. As such, we are bringing back time-barred Crown immunity and saying to people that they cannot take cases against the MOD. Would cases around asbestos be time barred? I do not know. Again, why change it? I accept what the Minister is saying—we do not want frivolous and vexatious cases—but if they are time barred, there is a perfectly legitimate system in place at the moment called the Limitation Act, which allows people to take a case forward, if they wish to or their legal representatives feel there is a case.

[Chris Evans]

My right hon. Friend has, like me, worked with many constituents on this issue. Plural plaques may or may not develop into full-on asbestosis, but if someone develops the plaques within six years and then goes on to develop—God forbid—the worst kind of asbestosis, how does he see the MOD addressing that anomaly with the Bill?

[Mr Jones]

That is the point. I do not want to go off piste and explain the issues around pleural plaques, but I am a little bit of a sceptic on this. Although pleural plaques are lung scarring, I have not yet been convinced of any evidence that every case turns into something asbestos-related. It can be an indicator but it does not always go on to that.

Again, the MOD used to have Crown immunity, which used to mean that a case could not be brought against the MOD; that is what we are doing. Certainly in cases involving submariners who worked in submarines—as my hon. Friend the Member for Islwyn said, they threw asbestos around like confetti, as it was the great wonder material at the time—they would be time barred under the Bill. Again, coming back to what the Minister said, were it he and I then yes, I would agree, but lawyers will use that.

I do not understand why part 2 is there. Why would the Government want to put veterans and servicemen and women at a disadvantage? The Limitation Act is there for a perfectly good reason; it acts as a sieve because the person involved has to go before a judge and argue an exceptional reason as to why that case has not been brought within that period of time. From my experience in dealing with limitation cases for industrial diseases, for example, they are hard to prove, so it does act as a sieve.

If the Government are wanting to ensure that we are not getting huge amounts of unwarranted claims, the Limitation Act, as it stands at the moment, acts as that protection because the bar is high. In the cases where it does apply—with Snatch Land Rovers for example, the paint case I mentioned, or other cases, including those on hearing loss—it is very important, and I cannot support anything which means that our servicemen and women will be at a disadvantage.

In the evidence we took, Hilary Meredith said:

“I think that part 2, on the time limit, should be taken out and scrapped completely. It is the time limit for the procedure. It went on too long”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 19.]

She then referred back to investigations, which we come back to all the time. The other issue that she and a few other witnesses raised was the Human Rights Act 1998. I know that a lot of people start frothing at the mouth and gnashing their teeth whenever we mention the Human Rights Act, because it always applies to those that do not deserve justice—the ne’er do wells, asylum seekers and everyone else—but it is actually there to protect us all.

There are cases where servicemen and women will bring cases against the MOD under the Human Rights Act. One of the arguments—and I think the reason why, in this Bill, the Human Rights Act is a bit of a bogeyman—is that somehow the Act will impinge on the ability of servicemen and women to do their work. I do not accept that because, looking at the Smith case, the Human Rights Act was not an impediment; it clearly separated out combat immunity—that is, that lethal force must be used on occasions. Putting a time limit on the ability for servicemen and women to bring a case under the Human Rights Act would be a disadvantage to them.

Hilary Meredith says in her evidence that:

“There is a difficulty putting a time limit on the Human Rights Act…For civil claims against the Ministry when people are injured or killed in service overseas, I do not think a longstop should be applied. There are tremendous difficulties in placing people in a worse position than civilians. In latent disease cases—diseases that do not come to light until much further down the line, such as asbestosis, PTSD, hearing loss—it is not just about the diagnosis. Many people are diagnosed at death.”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 06 October 2020; c. 18, Q30.]

Again, that is something that I dealt with when I dealt with asbestos cases. The only time that a lot of people knew about them was when there was a death certificate. On more than one occasion, I stopped funerals to ensure that we had done the proper post-mortems.

Overseas Operations (Service Personnel and Veterans) Bill (Eighth sitting)

Debate between Lord Beamish and Chris Evans

Committee stage & Committee Debate: 8th sitting: House of Commons
Tuesday 20th October 2020 Public Bill Committees

[Mr Kevan Jones (North Durham) (Lab)]

It is a pleasure to have you in the Chair, Mr Mundell. I trust that everyone has had a nice lunch. I hope the Minister has not had too much raw red meat and that he has been able to have a lie-down after his exertions this morning. He will certainly not be eating haggis for his dinner or lunch, or at any time soon, after his comments about Scotland this morning. I shall let him enlighten you later on those points, Mr Mundell.

We were talking about the rights of veterans. My hon. Friend the Member for Islwyn raised the issue of asbestos and how asbestosis is one of a number of diseases that limits the serviceman or woman from bringing claims within the six-year period. As I said this morning, the Minister and I agree on one thing: we understand the limitation and the date of knowledge. The bit where we have a problem is where the Bill takes out veterans, apart from anyone else, from section 33 of the Limitation Act 1980. We heard evidence last week from the Association of Personal Injury Lawyers. I accept that there are certain people in the room who perhaps do not like lawyers—criminal, civil or whatever. The association told us that the Bill strips service personnel and veterans of certain rights in relation to civil claims. I will come back to this later, but we were told that if the Bill is enacted, prisoners will have more rights than veterans or servicemen and women.

On the claims brought before the Ministry of Defence, clearly this Bill has its origins in what its promotors argue is a tsunami of unfounded civil claims that then led to criminal investigations, which then took many years. We have demonstrated in Committee that the actual number of prosecutions have been very small, but in terms of civilian claims there is also a very important set of claims that we should protect: the claims that allow servicemen and women and veterans to bring claims against the Ministry of Defence. That is done in two ways: via a civil claim or under the Human Rights Act. As I said this morning, some people in this place suddenly start frothing at the mouth as soon as the Human Rights Act is mentioned, but as I have said, it protects us all by giving us basic human rights.

The problem with part 2 of the Bill is that it will not only stop the straightforward civil claims, where people ask for compensation for injuries and other things; it would limit claims under the Human Rights Act. Such claims are important. I referred this morning to the Smith case involving Snatch Land Rovers, which was around the right to life and human rights. Hilary Meredith, who I thought had very good, detailed knowledge in the claims area, said in her evidence:

“There is a difficulty putting a time limit on the Human Rights Act—I do not even know whether we can do that constitutionally, because it is a European convention.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 18, Q30.]

I said that I would not question the Minister’s motives for what he is trying to achieve, but again, we are the seeing the huge implications that this Bill could have. We have already discussed criminal cases and possible trials before the International Criminal Court, but it would be interesting to know how the longstop—which is stopping the rights we all have under the Human Rights Act for veterans and armed force personnel—will be put into practice legally if, as Hilary Meredith said in her evidence, the UK has certain rights that are not just governed by what we agree as a country, but are part of an international convention on human rights. How does that square with part 2 of the Bill? That needs some explanation, because I do not want veterans and armed services personnel not to be covered by the Limitation Act 1980 or the rights that we all get from the Human Rights Act.

[Chris Evans (Islwyn) (Lab/Co-op)]

Does my right hon. Friend agree that the nub of the problem that he is driving at is that clause 8 and schedule 2 take away the court’s discretion under section 33 of the Limitation Act 1980 to disapply the time limit if

“it would be equitable to allow an action to proceed”?

That is being taken away from our service personnel, and it is the same under the Human Rights Act. Is not the nub of the problem with clause 8 that it is removing the court’s discretion to allow these actions to go ahead?

[Mr Jones]

It is. Again, this is about the rights of veterans and armed services personnel, which I thought this Bill was trying to protect. If we are taking away rights that everyone else has access to, that is a retrograde step. We need an explanation of why that is being done and why it is necessary, because I certainly do not think it is proportional. Again, that is one of the things this debate has thrown up, in that the Bill is about protecting the MOD from litigation, whether by armed forces personnel or veterans, and that cannot be right.

Coming back to investigations, Hilary Meredith raised another important thing that does not apply:

“That is a really interesting point, actually. I had not thought of a time limit on investigations. Certainly under the Human Rights Act, there is a right to have a speedy trial, and that did not happen in these cases.”—[Official Report, Overseas Operations Public Bill Committee, 6 October 2020; c.19, Q31.]

This issue therefore cuts into investigations, another central point that we have been considering in this Bill.

When the Minister replies, I would be interested to know whether that has been cleared. I am not sure whether things still work this way, but when I was a Minister, the usual process for bringing forward a Bill involved sending a write-round to all Departments to get their agreement before it was sanctioned to come before the House. I do not know whether that still applies, because I know that, for a lot of things that this Government do now, they do not accept the usual common-sense conventions, which are there for very good reasons—to stop this type of thing—but how will the MOD be separate from the Human Rights Act?

[Chris Evans]

My right hon. Friend was a member of the Defence Committee, which wrote to the Secretary of State in July 2020 saying that

“the Bill may not be an effective way of achieving”

the aim of protecting personnel and veterans against

“vexatious and unnecessary investigations and prosecutions”.

My right hon. Friend was a member of that Committee. Does he agree with its finding that the Bill would have been better served by scrutiny from an ad hoc Select Committee before it came before Parliament?

[Mr Jones]

I am a big defender of pre-legislative scrutiny. I think I said a couple of sittings ago that our current system of pre-legislative scrutiny as part of the Bill Committee process is important. However, an important Bill such as this should have been road-tested a little more than just what we are able to do here, in terms of not only scrutiny, but the process that we are going through today.

I come back to the point that I do not understand why the Bill is now before us—well, I do understand, because the Minister gave it away the other day; it is an election commitment to bring it within 100 days of taking office—rather than what would have been a better place for it, the armed forces quadrennial review next year, which could have covered those issues. Now we are going to have a strange process: we will have this Bill and then the Armed Forces Bill next year, which we are now told will cover investigations, because the Secretary of State has now set up a commission to look at that. The best thing would have been to do those two things together, but that would not have met the political commitment that was put forward.

I do not think it is too late to make some changes to the Bill to improve it on investigations. Deleting part 2 would certainly be an important part of that, because part 2 changes the status of veterans and armed forces personnel. I genuinely believe what the Minister said in a Sunday newspaper over the weekend: that he does not want this in any way to affect our armed forces personnel. As I said, if it were left to both of us, we would guarantee that this type of limitation would not apply to individuals, but eventually none of us will be here and it will be the law that takes it forward. That is the weakness.

I do not understand why the Government want to reduce the role of veterans, and certainly not this Minister, who has prided himself on trying to be a champion for veterans. It is not just me saying this, or some lawyers or anyone else; we only have to look at the transcripts of the evidence put before us by the Royal British Legion. On 8 October, we took evidence from Charles Byrne from the Royal British Legion and General Sir John McColl from Cobseo. My hon. Friend the Member for Portsmouth South asked whether this was a breach of the covenant. The covenant should be about not only protecting the rights of veterans and armed forces personnel, but, where it can, enhancing them. Charles Byrne from the RBL spoke in response to the Minister, when the Minister said:

“No, because what we are looking to do is to protect, and to ensure that our servicemen are not disadvantaged.”

Mr Byrne replied:

“I think it is protecting the MOD, rather than the service personnel—that is the debate that we have had.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q163.]

I think it is clear, as we have heard from other witnesses as well, that this goes against the armed forces covenant. I fully support the covenant, and not just in ensuring that the armed forces have no disadvantage and are treated the same. I take a very clear view on this. If people have served their country, they should be given certainly the same rights as everyone else, and in some cases better ones to recognise that service. That is important.

--- Later in debate ---

[Mr Jones]

Had the Bill been in place in 2009, that would have been it for those veterans—there would have been no case at all. The 2009 case, which I know well, was a limitation case, and they brought it before Justice Foskett because they argued that new evidence—medical evidence from New Zealand—had emerged about what my hon. Friend is referring to. If this Bill had been in place then, they would not have even been able to go to court to argue why their case should have had consideration, because of the time that had elapsed since the 1950s, when the exposure took place.

[Chris Evans]

I pay tribute to my right hon. Friend for his service during that time. I know that as a Minister he dealt with the case with sympathy and respect. My direct predecessor, Lord Touhig, also dealt with the case when he was a Minister. I know that everybody who served during that period was wrestling with it, but my right hon. Friend is absolutely right to say that it would not have been possible to bring the case.

If radioactive particles are ingested, the harm might occur at a slow but steady rate for many years, with minor ailments leading to a dramatic diagnosis, and eventually to death. There was no way for the veterans to know that their minor ailments were linked to the nuclear tests that they were involved in. As the Minister knows, however, it often prevented them from gaining the compensation they deserved.

How can we ask young men and women to serve and not guarantee their rights in the same way as civilians are guaranteed theirs? Should the Bill progress, I worry for the next generation of service personnel who are affected by the equivalent of nuclear tests. We do not yet know what might happen in the future that could cause problems further down the line. That is just one example of why someone might need to extend the six-year limitation as currently set out.

I must raise concerns from specialist members of the Association of Personal Injury Lawyers, a not-for-profit firm that specialises in military claims. It has voiced concerns that injured personnel can be misinformed of their right to make a legal claim. They might not even know that they have a right to a claim. According to a report by the Association of Personal Injury Lawyers, it is unfortunately not unusual for service personnel to be misinformed about their right to bring a civil claim.

[Mr Jones]

Does my hon. Friend agree that it would also limit families? In some cases—especially those involving asbestos, but also some involving cancers—the claim is generated only after the person passes away. Even though somebody might have known earlier that they had cancer, it is only once they pass away that the family might think that it was related to service. I know of some cases that were the result of submarine service. The Bill would actually stop families getting any redress in such cases.

[Chris Evans]

I agree. I will come to an example that my right hon. Friend probably knows as well, but I first will say something about service families. When servicepeople are away, their families are left with the worry, the childcare and other needs. When a serviceman suffers from cancer, it is the family who have to watch their loved one wither away. It is vital that they have a chance to make a claim.

It is interesting that my right hon. Friend the Member for North Durham intervened in my speech. When we talk about personal injury, those of us who come from mining communities will remember the example of the miners’ compensation scheme and how miners were left behind. I am not comparing miners to veterans, but it is a similar principle.

--- Later in debate ---

[Chris Evans]

I thank the Minister for that.

[Mr Jones]

I am not sure that that is the case, because those veterans brought quite a successful case. The Minister just said that it was not an operation, but it was: Operation Grapple, I think. If it was called an operation—the MOD loves giving deployments various—

--- Later in debate ---

[Mr Jones]

It was Operation Grapple. If the Minister wants to intervene on my hon. Friend, I am sure he will act as the post box again. However, those veterans brought a successful case, although the Minister says that that is not true, just to clarify.

[Chris Evans]

I give way to the hon. Member for Wolverhampton South West.

--- Later in debate ---

[Chris Evans]

I was about to say—as we spoke about earlier when I moved the amendment about the Attorney General—that we could have a huge debate about this. I have made a plea to the Minister about the nuclear test veterans. I know he is a good man and that his heart is in the right place when it comes to veterans, and I hope he will recommend to the HD committee that they receive some recognition for their service.

I will move on to the meat of the Bill and the amendment, otherwise we could be here all day. Simon Ellis, a senior partner at the law firm Hugh James, argues from experience that the point of knowledge of the injury, especially in cases of post-traumatic stress disorder or deafness, as the hon. Member for Glasgow North West said, is difficult to define. For illnesses such as PTSD, the sufferer may take a long time to understand what they are suffering from—similar to what the hon. Lady mentioned about her father—long after healthcare professionals or friends or family have this knowledge. Therefore, although there is knowledge of the injury, the victims themselves do not fully know or are not willing to admit that they are suffering. It can then take even longer for them to accept that they have post-traumatic stress disorder, to link that to an overseas operation or a series of operations and to realise that they therefore have a right to a civil claim. The point of knowledge, therefore, can be marked only as the point at which the serviceperson has a full understanding of their condition and their right to a civil claim.

I listened with interest to the hon. Member for Glasgow North West when she talked about what her father was going through. As I understand it, he knew he was deaf and those around him knew he was deaf, but it took him a long time to admit to it. Where is the point of knowledge in that? I do not know. I would be interested to learn, maybe afterwards, when he did finally admit that he had a problem.

Even in simpler cases, when the service person is aware of an injury at the point of the event, it would be grossly unfair for the longstop to start on the date of that event, if they had no knowledge that they could even bring a claim if they wished. Will the Minister therefore concede that clause 11 is not comprehensive enough to deal with the intricacies of a process that includes an event occurring, the sufferer fully understanding and accepting the injury, and their knowing that it is something that fulfils the criteria for a civil claim––that the option of a claim is open to them? If the Government insist on placing a time limit on service personnel or their families for bringing a civil claim, surely the clock must start from the point at which the claimant was both fully aware of the content of the claim––be that negligence, injury or death––and aware that they had the right to file a claim.

If that is not taken into account, it becomes even more clear that the Bill is intended to protect not service personnel but the Ministry of Defence. If these clauses relating to the rights of civil claims become law, those injured through negligence during overseas operations will no longer have the benefit of the full discretion of the court to allow a claim to proceed after the limitation period has expired. They will have fewer rights than other employees while the Ministry of Defence will be sheltered behind the longstop.

An employee who frequently works on military claims for Simpson Millar Solicitors said that, from her experience, she expects that Ministry of Defence lawyers

“could use this new Bill to support arguments that personal injury claims are out of time.”

Therefore, it is a bare minimum that the time limit starts ticking only once the claimant has full knowledge of their right to file a civil claim. This strikes back hard in respect of what my right hon. Friend the Member for North Durham said. Once the Bill is passed, it will be handed over to MOD lawyers. Now, none of us will be here for ever and we will have our successors. It will be the lawyers who interpret the Bill. It is therefore vital that we get this right. There is no justification for the MOD having special protection in terms of limitations on civil claims. It is vital that service personnel can bring claims to court in accordance with civil law, without fear or favour. It is vital that they are entitled to the same rights and civil considerations as the rest of the population when it comes to employment disputes.

There is a concern that the Bill could put troops at a disadvantage compared with their civilian counterparts. In our first sitting, Mr Young said:

“Imposing an absolute time limit places armed forces personnel claimants themselves at a disadvantage compared with civil claimants in ordinary life, where the court has discretion. Of course, the Minister has made it perfectly clear, absolutely correctly, that the time limit for this particular part of the Bill only starts to run at the point of knowledge. That is completely understood. That point of knowledge, diagnosis or whatever, could be many years later. Nevertheless, I would have a worry about an absolute longstop as proposed.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 9, Q6.]

If as Mr Young says, it is the case that the Minister considers the time limit as beginning from the point of knowledge, let us say so in the Bill. This is too important a matter to be imprecise in our words. We need clarity and we need definition. Let us be clear what the amendment means for our armed forces. Let us be clear that service personnel will not be disadvantaged if a link between actions and events overseas and a particular injury or negligent action comes to light only years later. We have seen time and time again, from asbestos to our test veterans, that these things unfortunately do happen. People get injured and hurt. Let us not use this Bill to protect the Ministry of Defence and disadvantage our service personnel. They deserve our support and, more than anything, our protection.

[Mr Jones]

I thank my hon. Friend for moving amendment 76. He makes a good point: whatever legislation we put in must be future-proofed. There are claims that it will do x, y and z, but we have all seen legislation that goes through Parliament with the best of intentions, but, as things change, still sits on the statute book and disadvantages individuals. Is it ever possible to future-proof legislation completely? No, it is not, but it is certainly possible to ensure that we do not put things in a Bill at the start that discriminate against veterans and armed forces personnel. That should be the starting point for this.

In this group of amendments, I will speak to my amendment 92, which relates to clause 11, page 7, line 36, leave out,

“or first ought to have known”.

It gets to the point that my hon. Friend has just referred to about date of knowledge and the issues surrounding it. Is it straightforward to know when a condition happens? No, it is not, as he eloquently explained, and I will explain some examples in a minute.

Many conditions that arise from service are complex; they first require diagnosis, and that sometimes takes time. If someone has a condition and knows they are suffering from something, that is their date of knowledge, but it might take several years to diagnose exactly what it is. Also, as we heard in the evidence session and has come out again today, it may take time for members of the armed forces to recognise that they might have a claim against the Ministry of Defence anyway. I hear what the Minister said about how we should publicise that, and I welcome the idea that we should make it known to people that they can make claims for injuries or conditions, whether through publicity or just ensuring that people know it, both when they are in service and when they leave. That must be recognised.

The conditions fall into two areas. If we look at industry—I know the Minister will say that is different from the military, and it is in many ways, but in other ways, on key issues such as hearing loss, there are some clear links—over many years litigation has led to improvements in standards and training, and I would argue that that should also be a lever in terms of the MOD.

I remember, when I was in the Ministry of Defence, dealing with the question of hearing loss. To be honest, I accept that in combat operations people are going to be exposed to loud noise. They are, and I do not think we can get away from that fact. But when I think back to the MOD in those days, we were paying out huge claims—quite rightly—for people’s hearing loss caused by training and other things, and it struck me that we were not getting to the root cause. As I said this morning, litigation can be seen, not as ambulance-chasing from the claimant’s point of view, but as a way of informing the MOD that it should change things, and can change things.

--- Later in debate ---

[Chris Evans]

Removing the ability for the courts to extend the six-year period would leave our veterans, ex-service personnel and their families at a disadvantage compared to those who bring normal civil claims against their employers. That is the problem we are facing in the Bill.

[Mr Jones]

It is a right. Okay—it will not be straightforward, because in my experience of asbestos cases, even with a clear diagnosis and an autopsy report, getting someone to admit liability is very difficult. The first thing that insurance companies used to do, which is exactly what the MOD will do, is require date of knowledge and say that it is time barred. If the claimant gets over that hurdle through a limitations hearing, the company usually settles. In this case, the MOD will reach for this straightaway, to say that it is not covered because it was contracted on an overseas operation and, therefore, it cannot go any further. That would give no rights at all to that family or the servicemen and women to take that case forward.

[Chris Evans]

I want to give an example and ask my right hon. Friend about his experience. He knows as well as I do that both our constituencies have large numbers of ex-miners who have had compensation for chronic obstructive pulmonary disease and vibration white finger. If these rules were applied to them, would they have got the compensation?

[Mr Jones]

No, because some of those cases, especially with vibration white finger, were taken on limitation hearings, because those things happened a long time ago. That is the fundamental right. To protect the veterans or servicemen and women, they need the right to go to the law, if they wish to—not everyone does and I respect people who do not.

The best example—it is a tragic example—which came up in the evidence session was the Snatch Land Rovers. The events in which people were killed and injured took place in Iraq. Although it was an issue in the MOD when I was there, in terms of the suitability of the vehicles, the real focus on it never came until July 2016 and the Chilcot report. The case that was mentioned in the evidence session was in 2005. A serviceman was killed in a Snatch Land Rover, but his widow did not really know the significance of the vehicle until the Chilcot report in July 2016. At that time, she thought that there had been a failing on behalf of the MOD in its duty care and in the provision of that equipment, so she brought a claim for the loss of her husband, not under civil law but under the Human Rights Act on the basis that her husband had a right to life.

That case was clearly time-limited, because the event took place in 2005 but the case was not brought until after the Chilcot inquiry in 2016. Obviously, a limitation hearing was held and it was successfully argued that the case should go forward, and it was settled, along with—I understand—other cases.

If the Bill goes through unamended, that case would not have been able to go forward, because—I mean, if it was left to me and the Minister, we would both agree that the date of knowledge should have been 2016, and therefore it could go ahead. However, I am not sure that the MOD lawyers would be as generous to veterans as the Minister and I would be. That is the problem when the Minister argues that the date of knowledge somehow protects veterans: it does not. The date of knowledge should not be used as argument to throw such cases out straightaway.

What will that take? If the Bill goes through as planned—especially on the human rights side, there will be a court case and an argument will be made. Let us say that a case similar to the one that I just mentioned was active today in the courts. What will happen is that someone will challenge that. So we will get litigation as a result of that process on whether the Bill is compatible with the Human Rights Act. I accept that the Minister will write to me on these issues, but we will get more litigation than we would if we instead said, “Let us have a judge look at the limitations on whether a case should be brought”, and if the case is deemed to be special circumstances, it should go to trial.

We must recognise that the MOD acts no differently to the insurance companies that I used to deal with when I took personal injury cases and industrial injury cases against employers, and I am sure that the hon. Member for Darlington knows this as well. It is horse trading. If there is a limitations hearing, what someone will do is to try and get it settled—nine times out of 10, an offer will be made. It is only the ones who really want to be stubborn who take the matter all the way through to trial. Very few of those cases go to trial, because people look at the evidence, to see whether it is worth going further in court, and the case is settled.

However, that process will be closed down for the individual if this tight six-year time stop goes ahead. The cases will not get to the second stage after the limitation hearing, which is about negotiating with the other side to say, “Well, come on. Can we make an offer?” It is a difficult judgment call. It is a bit like a game show—take the prize or play on—and I am sure the hon. Member for Darlington has had many sleepless nights about what is being offered. In most cases, there is an agreement and the individual making the claim is content with what is offered. Some will want their day in court, but that is not always a good idea.

What the Minister said about nuclear test veterans was interesting. I accept the point about operations—the MOD loves to give things “operation” names—but in that case, which is one I know well, and I know the medical evidence, having read it as a Minister, the Government argued in 2009 that it was time-limited. In terms of overseas operations, it was overseas.

Overseas Operations (Service Personnel and Veterans) Bill (Fifth sitting)

Debate between Lord Beamish and Chris Evans

Committee stage & Committee Debate: 5th sitting: House of Commons
Wednesday 14th October 2020 Public Bill Committees

[Chris Evans (Islwyn) (Lab/Co-op)]

I beg to move amendment 23, in clause 1, page 2, line 1, at end insert—

“(ba) operating weapon-bearing UAVs (Unmanned Aerial Vehicles) or RPAS (Remotely Piloted Aerial Systems) from the British Islands in support of overseas operations.”

It is a pleasure to serve under your chairmanship, Mr Stringer.

The Bill is important to our service personnel, and it is crucial that we get it right. Last week, one of our witnesses, Mr Sutcliff, said to us:

“please scrutinise the Bill as carefully as you can…and…look after your service and ex-service personnel in the best way you can.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 10, Q9.]

It is important to keep those things in mind as we proceed. I hope that the Government will consider our amendments even-handedly. They have been tabled in good faith, in the hope that we can make the Bill the best it can be for the brave men and women who serve in our armed forces.

Amendment 23 calls for unmanned aerial vehicles or remotely piloted aerial systems operated from the British isles in support of overseas operations to be included in the Bill. The Minister has said that he is happy to look again at all aspects of the Bill and that he wants to build a collegiate approach in the House to get the Bill through. I would argue that this clause is a good place to start. The amendment would a simple and effective way to help the Bill to achieve its stated aims. If the Government are serious about making this Bill comprehensive, I see no reason for UAVs not to be included. As drafted, the Bill is not clear enough about its scope or what it includes.

In recent times, we have seen a dramatic rise in the use of UAVs. The failure to include them in the Bill gives me concern that it is not looking enough to the future of warfare. The Government have made their plans clear, saying that they will rely increasingly on unmanned aerial vehicles, meaning that those will account for an important part of the integrated review. Across the world, armed forces have invested millions in the development of UAVs for military operations. The United States has increasingly relied on drones to carry out its military operations overseas, and the rest of the world is quickly following.

In 2016, at the cost of £816 million, the drone acquisition programme was approved by the Ministry of Defence. Earlier this year, the permanent secretary at the Ministry of Defence said that the estimated cost had risen by an additional £325 million. The UK Government are funnelling ever-increasing sums into the funding of UAVs for military purposes. Since 2007, about 3,700 Royal Air Force drone missions have killed 1,000 terrorists in Iraq, Afghanistan and Syria.

[Mr Kevan Jones (North Durham) (Lab)]

Does my hon. Friend agree that UAVs are an integral part of the new battlespace and that, while some people argue that they are outside any rules of engagement, they are in fact governed by the same rules as govern conventional weapons and that the people using them are aware of the legal restraints?

[Chris Evans]

I thank my right hon. Friend for his intervention. A long-standing member of the Defence Committee, he has developed a reputation as an expert in the field of defence. He is right that the impact of technology will only increase in changing our world beyond all recognition. It is important to realise that, in future, whether drones are operated from the British islands or America, they will be as much a part of warfare as boots on the ground. Unmanned combat is likely to become an increasingly common form of warfare. The Ministry of Defence has said it aims for a third of the Royal Air Force to be remotely piloted by 2030, and funding for unmanned aerial vehicles for military purposes continues to grow. Given their rising use, the exclusion from the Bill of UAVs and remotely piloted aircraft systems is a glaring oversight if the legislation is to serve its purpose in the future.

The Ministry of Defence is also considering the most appropriate systems for air combat, especially when Typhoon leaves service in 2030. Options for air combat forces include unmanned combat aerial vehicles with both offensive and defensive capabilities. That would see a mix of manned and unmanned craft in the air force, working alongside each other. Surely those piloting UAVs from the UK should be given the same consideration under the Bill as those they work alongside.

[Mr Jones]

The hon. Friend refers to unmanned aerial vehicles, but is it not the case that in future we will also have unmanned sea vehicles and, increasingly, autonomous tank-type vehicles on the battlespace?

[Chris Evans]

My right hon. Friend is absolutely right. People will still have to operate those vehicles in future, and they will also be open to the horrors of war and what happens on the battlefield. We should keep that in mind as we develop this argument.

Until recently, the drones used by the UK armed forces were remotely piloted aerial systems. The proposed unmanned combat aerial vehicles differ from the previous drones as they are designed to fight for air supremacy. That widens the scope of drone and other unmanned warfare, as my right hon. Friend just said, increasing the number of service personnel working on an overseas mission but not physically based overseas. General Sir Mark Carleton-Smith recently said that he foresees the Army of the future as an integration of “boots and bots” and that in future combat those on the ground will be supported by “swarms of drones”. We look forward to hearing more about those plans when the integrated review is finally published.

The Ministry of Defence also continues to fund research into the future of drones. The Government are funding jointly with the French a study into the feasibility of an unmanned combat aircraft as a possible replacement for Typhoon from 2030. The Government have said they have no plans to develop fully autonomous weapons; that means that service personnel will continue to operate UAVs for the foreseeable future. What is clear from all that is that drones are here to stay. Therefore, those who operate those missions should be included in the Bill. It is important to note that drone operators face a worryingly high chance of developing post-traumatic stress disorder. In fact, in 2015, Reaper squadron boss Wing Commander Damian Killeen told the BBC that staff operating drone aircraft in Iraq and Syria may be at greater risk of mental trauma.

While drone operators may be based in the UK, they are completing overseas missions. There is a popular image that operating a drone is like playing a video game, but those who serve say that that is simply not the case. One US drone operator is quoted as saying:

“You are 18 inches away from 32-inch, high-definition combat, where you are in contact [by headset with] the guys on the ground... You are there. You are there. You fly with them, you support them and a person you are tasked with supporting gets engaged, hurt, possibly killed, it’s a deeply, deeply emotional event. It’s not detached. It’s not a video game. And it’s certainly not 8,000 miles away.”

For some, drone operation can be more traumatising than flying a conventional aircraft. As Commander Killeen says:

“You’ve got that resolution where you know exactly what it is that’s on the other end of your crosshairs.”

Research by the US air force also suggests that those in the kill chain see more graphic violence than their special forces counterpart on the ground. On surveillance missions, they are more likely to see destroyed homes and villages, as well as witnessing dead bodies and human remains. One UAV pilot told the Daily Mirror:

“The days are long and hard and can be mentally exhausting. And although UAV pilots are detached from the real battle, it can still be traumatic, especially if you are conducting after-action surveillance.

When you are piloting a UAV for hours, you feel part of the battle, even though you are thousands of miles away.”

The risk of post-traumatic stress disorder is also increased by the fact that, unlike personnel on the ground, who perhaps do a four-month tour, UAV operators often work year round, meaning less chance for a break and time to recover. Justin Bronk, a research fellow for airpower at the London-based Royal United Services Institute, said that fast jet crews were used to deploy on short tours abroad, but that drone operators switched daily between potentially lethal operations and family life, which could be

“extremely draining and psychologically taxing”.

The psychological stress of drone warfare is visible in difficulties that the UK faces in recruitment and retention of those qualified to fly armed drones. During an appearance before the Public Accounts Committee in January, the Ministry of Defence permanent secretary said that for the Royal Air Force, the training and retraining of drone crews has “historically proven challenging”.

The effect that taking part in such machines has on UAV pilots mentally, despite their being physically further away from the action, merits their inclusion in the Bill. Only last week, in our evidence session, Clive Baldwin of Human Rights Watch said:

“The idea of having one rule for overseas operations and one for domestic operations will be increasingly artificial”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 67, Q135.]

Drone operators may not be physically overseas, but they are very much taking part in overseas operations. With unmanned warfare looking like it will be more common in future conflicts, I would argue that failing to include those operations in the Bill may cause the Ministry of Defence service personnel issues down the line. The Government have said that they want the Bill to protect service personnel from repeated investigations and vexatious claims. Do those service personnel who operate UAVs not also deserve to be protected?

Given the increasing use of UAVs and RPAS, I would be deeply concerned were they not included in the Bill. If the Bill is to do as the Minister purports, surely, if we are to protect our service personnel, we want to include and protect those personnel who operate our drones.

[Mr Jones]

I thank my hon. Friend for introducing this amendment, which I assume is a probing one in order to have the debate. But, Mr Stringer, it was remiss of me not to say what a pleasure it is serve under your chairmanship, especially now we are both serial rebels on our Benches, after votes that took place this week on covid.

I do not like the word “drone”. It gives the sinister idea that somehow these things are indiscriminate weapons and there is no human in the chain. Unmanned aerial vehicle is a more appropriate term. I accept that, in the future, we may get to a system where unmanned aerial vehicles or subsea systems are completely autonomous, but at the moment, we are talking about the human in the chain.

It is a common myth, mainly argued by those who are against the use of UAVs, that somehow there are no rules that govern how they are used. Nothing could be further from the truth. When I was a Minister in the Ministry of Defence, I met the individuals who pilot—that is the word we use—these unmanned systems in both Iraq and Afghanistan. They are in the same decision-making process and legal framework as if someone was dropping a ordnance from a Typhoon or any type of manned aircraft.

There is a chain of command, including a legal framework around their decisions. Before each individual airstrike takes place, there is a legal justification. That might come as a surprise to some people who want to portray the view that people are sat in Nevada or Waddington or Florida pressing buttons, attacking targets. Nothing could be further from the truth. There is a legal framework for each operation and that is supported by the legal service. It surprises some people that each strike has a legal sign-off, with lawyers who agree what can and cannot be done, including, as I know from my time in office, a chain that sometimes includes Ministers who have to agree to those sign-offs. There are many examples where Ministers have had sign-off.

Is what we are talking about pretty? No, it is not—but anyone who knows the battle space or any type of combat knows that it is not a pretty thing. Killing people is not something that anyone wants to do, but unmanned aerial vehicles have given a capability to us and our allies which has been of tremendous help, not only in saving UK and allies’ servicemen and women’s lives, but in saving civilian lives.

The chain of command is a legal framework. Do things go wrong? Yes, clearly they do, and not just in this theatre. Sometimes in a very complex battle scenario, no matter how well you plan for it, you cannot foresee every eventuality. What irritates me is that people sometimes look back at those situations with some sort of crystal ball and say, “Well, if I was there, I would have done X, Y and Z.”

Overseas Operations (Service Personnel and Veterans) Bill (Sixth sitting)

Debate between Lord Beamish and Chris Evans

Committee stage & Committee Debate: 6th sitting: House of Commons
Wednesday 14th October 2020 Public Bill Committees

[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.

--- Later in debate ---

[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.

[Mr Jones]

Is not an obvious way of doing that to adopt the new clause I spoke to, which would give judicial oversight?

[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.

Overseas Operations (Service Personnel and Veterans) Bill (Second sitting)

Debate between Lord Beamish and Chris Evans

Committee stage & Committee Debate: 2nd sitting: House of Commons
Tuesday 6th October 2020 Public Bill Committees

[Chris Evans]

Q What is your view, Mr Baldwin?

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 In the Bill, there is a presumption against prosecution, which I think is very odd, in the sense that you are basically presuming that you are not going to prosecute even before you have done the investigation. Are you aware of any other international comparisons that have that in law? Basically, it presumes that you will not prosecute even before you have done the investigation.

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.

--- Later in debate ---

[Mr Jones]

Q May I add a supplementary question to that? You mentioned the role of the Attorney General, which is a political appointment. Again, are there any international comparisons where the decision to prosecute in these cases is actually vested in a politician? Clearly, the pressure on that person not to prosecute, for example, could become quite intense. I remember the big campaign against Marine A. I am sure that a political appointment in that situation may have had undue influence, in terms of making a decision not prosecute in that case.

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 There has been a lot of talk this afternoon about the danger that armed service personnel and veterans could find themselves being prosecuted in the International Criminal Court. Are you of the view, like many others, that this Bill, unamended, could see more of our service personnel and veterans being prosecuted in the International Criminal Court?

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 Before I move from the criminal to the civil side, I want to talk about the definition in clause 1 of the Bill. Do you think that is a sufficient definition of “overseas operations”? To explain my thinking, technology is moving at such a pace that we already read reports that future warfare will not include boots on the ground; it might be drones or other technology fighting that, and that leaves open a whole new area of potential laws that could be broken or crimes that could be committed. Do you think there is enough detail in that for overseas operations to be covered by the Bill, Mr Baldwin?

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 How would this interface with United Nations peacekeeping operations? In those situations, you often have UK military personnel under the command of non-UK personnel. Do they have separate laws governing specific UN operations? How does it work in practice?

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.]

--- Later in debate ---

[Mr Jones]

Q A theme that has come out throughout today’s discussions is around timely and proper investigations. Is there anything you could put into the Bill, in terms of investigations, that would at least be a move in the right direction and improve the situation?

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 This morning we heard that there were deep concerns about the six-year limit for bringing civil cases against the Ministry of Defence. How do you see the problems we heard about? Many medical conditions take years to come to the fore and be seen as damaging. There are cases where people have been locked up abroad under the Terrorism Act 2000, unfairly sometimes, for over a decade. How do you see the time limit developing for civil cases for those who bring claims against the MOD, both as serving personnel and as victims of MOD decisions?

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.