Overseas Operations (Service Personnel And Veterans) Bill

Alistair Carmichael Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 23rd September 2020 Commons Chamber

[Mr Wallace]

My hon. Friend makes a substantive point, and one reason we find ourselves facing these challenges is because there is a clear conflict between international humanitarian law in some areas, and international human rights. The encroachment and growing reach of ECHR into areas of combat has created a clash, in some sense, between things such as the Geneva convention and individual human rights. That is why when the authors wrote the ECHR, they included some of those carve-outs as a way of accommodating the international laws under which they had been operating in the mass conflict of the second world war. Indeed, when the Defence Committee was chaired by my right hon. Friend the Member for New Forest East (Dr Lewis), it picked up on that very real clash, which is hard to resolve. In my view, some of the problems with lawfare is that people are exploiting that clash for financial gain. It is easy to hide behind a humanitarian law on one day and a human rights law on another, and we have a duty to try to make a difference.

We are not going as far as many countries under the jurisdiction of ECHR. Other countries in Europe have a statute of limitations on criminal offences. Germany and France both have a number of criminal statutes that are statutes of limitations. Other countries also do that, or have amnesties, but we are not going that far. We are trying to resolve that clash and see how we can ensure a proper threshold, so that there are no vexatious investigations and our men and women do not constantly find themselves the subject of them.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Surely, the debate of the past five or 10 minutes has exposed the truth of this matter, which is that it is easy to build consensus in the House on provisions relating to civil actions—there is very little exception to that. However, may I take the Secretary of State back to the answer he gave to the right hon. Member for Sutton Coldfield (Mr Mitchell)? He is right in what he says about torture, but the logic of his argument is that torture should be listed in the first schedule to the Bill. He is right to put sexual offences in that schedule because, as the Government says, there are no circumstances in which sexual offences can be tolerated in war, but the logic of not including torture suggests that there are some circumstances in which torture is accepted. That is the logic. Will the Secretary of State tell the House what those circumstances are?

[Mr Wallace]

The right hon. Gentleman is a learned Gentleman and a former colleague of mine—

[Mr Carmichael]

Not learned; I am a former solicitor.

[Mr Wallace]

Well, he should be. Only a solicitor would argue the toss between a barrister and a solicitor; for us mere soldiers, they are learned gentlemen or women in this context. I am afraid that he is absolutely wrong in his assertion. Nowhere in the Bill prevents a prosecution for torture either under five years or over five years. If he can show me where in the Bill there is a decriminalisation or tolerance of torture, I would be delighted to hear which clause or subsection decriminalises torture. Will he show me the statute?

[Mr Carmichael]

The exclusion of torture from schedule 1 raises the inference for any court that—and this is a matter of logic, not of law—there are circumstances in which torture is acceptable. All the Secretary of State needs to do is include torture in schedule 1, and the Bill would have no difficulty.

[Mr Wallace]

Does the right hon. Gentleman therefore venture that beyond torture there is murder? Should we include murder in that schedule as well?

[Mr Carmichael]

Obviously not, because murder is dealt with by the common law of this country. The Secretary of State is perfectly aware that such a case could still be brought under the exceptional circumstances provisions. The problem he has is that there is no such thing as unexceptional torture.

[Tom Tugendhat]

Will my right hon. Friend give way on that point?

--- Later in debate ---

[Stewart Malcolm McDonald (Glasgow South) (SNP)]

I, like others, pay tribute to the armed forces, not least for the work they have done during the coronavirus crisis, particularly in erecting the extraordinary construction of the NHS Louisa Jordan Hospital in my own home city of Glasgow. I know they have done much in Members’ constituencies all across the UK, and I am sure we will expect more of them in the times to come.

I acknowledge at the outset of my remarks—this will probably be the only bit that pleases Government Ministers and Conservative Members—the sincerity with which Ministers have approached this, in that they recognise the problem and sincerely wish to fix it. Indeed, the Minister for Defence People and Veterans, the hon. Member for Plymouth, Moor View (Johnny Mercer) was a jolly advocate of getting this done way before he became a Minister, and I think I am right in saying that the Secretary of State himself was raising this when he was a Member of the Scottish Parliament in the first Parliament of 1999. I acknowledge their long-standing desire to fix these issues, but I am afraid I do not believe that this Bill does it.

Those who risk their lives for their country do so in some of the most unimaginable circumstances. There are gallant Members here who have gone through that. I certainly have not. Far from home, they are often surrounded by danger at the behest of this Parliament, and they have to make split-second decisions under circumstances that, as I say, I cannot imagine. Sometimes those decisions are wrong, and when they are wrong, there needs to be a means by which that can be righted and justice can be done. Sometimes many years later these incidents rear their heads in the form of legal claims that force claimants and former service personnel to relive some of those dark days in a search for answers, but no one, least of all service personnel and veterans of the armed forces, deserves to be accused of a crime that they did not commit, and far less to be harassed by investigation after investigation. As the Chairman of the Intelligence and Security Committee and former Chairman of the Defence Committee, the right hon. Member for New Forest East (Dr Lewis) has said, the Bill does not achieve that.

The Secretary of State has mentioned Phil Shiner, and other firms have also sought to cash in on this kind of behaviour. I do not deny that they have done so, and they are to be deprecated for it. Indeed, I believe that they are deprecated on all sides of the House. However, this legislation is not the way to deal with this. It is using the proverbial sledgehammer to crack a nut. I accept that the nut is deeply problematic, but I have to say that this looks like a Bill designed more to protect the Government, and in particular the Ministry of Defence, rather than anyone who dons a uniform. Indeed, it was the Minister for Defence People and Veterans, who we will hear from at the end of the debate, who said that

“one of the biggest problems…was the military’s inability to investigate itself properly and the standard of those investigations…If those investigations were done properly and self-regulation had occurred, we probably wouldn’t be here today”.

The Bill makes no provision whatsoever for an independent investigative body or for reporting accountability mechanisms of the kind that would help to address the historical claims that I believe we all want to address. We are asked to hope by the Government, and to trust and believe that a real solution will come later, after we vote to undermine international law and the rules that keep us safe. That is a promise that seems to be being made with increasing regularity from the Government Benches. That is why I believe that this Bill is bad, not just for our rules and laws but for the armed forces as well.

If we can agree with the Minister for Veterans, as I do, that the investigations process in the Ministry of Defence is flawed and needs fixing, let us bring forward a Bill to do that. If that does not require legislation, let us bring forward those proposals. Let us have that discussion first. Passing the Bill in this form or a form close to it would be to put the cart before the horse. If the Government truly want to protect the UK armed forces from legacy allegations of war crimes, they must create mechanisms for allegations, both contemporaneous and historical, to be properly addressed by independent investigators. I am horrified, as I am sure other legal minds in this place, the other place and outside Parliament will be, at the extraordinary powers that the Bill invests in the Attorney General, who is not an independent Law Officer of the Government, but a political appointment and part of the Government.

We believe that the ways that I have just outlined are the ways to ensure that we can deal with this properly, but instead, the Government have offered a Bill today that does not help the victims of these cases—by which I mean service personnel, veterans and their families—who feel that the courts are their only recourse to justice. I would argue, as do other Members, that this exposes UK forces more to the International Criminal Court. And I can tell the House what will happen then: Tory Back Bencher after Tory Back Bencher will be on their feet complaining about foreign judges intervening in UK justice. How long would it then be before someone made it mainstream within the Conservative party that the United Kingdom should withdraw from the ICC? I can see the start of a very slippery slope indeed.

[Mr Carmichael]

Is it not part of the problem that, where suspicion exists, there requires to be an investigation, and that if that investigation produces evidence, there should be a prosecution? By putting barriers in the way of prosecution, we do no favours to those who are accused of criminal acts in the first place, because no line is ever drawn underneath it for them.

--- Later in debate ---

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

From the point at which I first became aware of its proper formulation, I have been a supporter of the military covenant. It has always seemed to me to be a statement of decent common sense. The covenant has been important for the past two decades because of the way in which it has shaped and, indeed, changed the debate in politics on matters relating to the military. It has given us something around which we can all unite and is a common starting point for us all. The debate in this House and in the community at large has been much the better for that.

It is for that reason that I have particular regret about the way in which the Bill has come to the House today and—I have to say—about the way in which we have debated it. There has been a degree of heat and asperity in this debate that does not serve this House, or those in our armed forces whom we seek to protect, well. I ask the House, and not just those on the Treasury Bench, to reflect on that. I am aware that I may even have been part of it myself, but on reflection I think those who serve in the armed forces deserve better than this.

As I said to the Secretary of State, there is an easy consensus to be built around taking action against vexatious civil dreams. Unfortunately, what we have heard in support of the Bill does not really build that consensus; we have heard a conflation of civil and criminal procedure, with a view to justifying the otherwise unjustifiable changes to criminal procedure. I have very little problem with the part of the Bill that relates to the regulation of claims. What Phil Shiner did was absolutely unconscionable. If we want to stop that sort of thing, the first point ought to have been to call in the regulatory authorities in the legal profession. If we really want to address that problem, that would be the first place I would start to look.

I wish to put on record the concerns that my right hon. and hon. Friends and I have about the Bill. First, there is the question of a presumption against prosecution. The Secretary of State said earlier that I was a right hon. and learned Member; he was not quite right: I was but a humble solicitor. In fact, in the early stages of my legal career, I served as a prosecutor—as a procurator fiscal depute—and it was useful experience. I cannot think of any other example of this presumption in legislation, and I counsel the House that it is a dangerous one.

I want to focus on the use of torture, because this illustrates very well the lack of logic in not having torture in schedule 1 to the Bill. Where there is evidence of torture, no prosecutor sitting in his or her office should say, “Well, there is clearly evidence of torture, but it is presumed that we will not prosecute it.” What sort of signal does that send? But if we read the Bill, we see that its architecture is such that torture is clearly designed to belong in schedule 1, along with sexual offences. That makes perfect sense. As I have said, that is a matter of logic, not of law. The provisions in schedule 1 cover eventualities whose use is never in any circumstances acceptable, so surely that is where torture belongs. Not to put it there suggests that the use of torture in warfare is in certain circumstances acceptable, and that is a proposition for which there should be no support in this House. In suggesting that, we risk doing ourselves serious damage and, worse than that, we ill serve those whom we seek to support and to help through the passing of this legislation. The people who will be most damaged by the application of that presumption against prosecution in relation to torture are those who serve and have served in our armed services. As I said in my intervention on the hon. Member for Glasgow South (Stewart Malcolm McDonald), the purpose of prosecution is to prove beyond reasonable doubt that something has or has not happened. This presumption will work against that, and at the end of the day, the people who will lose as a result are those against whom suspicion exists.

[Madam Deputy Speaker (Dame Eleanor Laing)]

After the next hon. Member to speak, the time limit will be reduced to three minutes so that we can try to give an opportunity to as many people as possible to participate in this important debate, but now I call Stuart Anderson to speak for five minutes.