Overseas Operations (Service Personnel and Veterans) Bill

Bob Stewart Excerpts

Report stage & 3rd reading & 3rd reading: House of Commons & Report stage: House of Commons
Tuesday 3rd November 2020 Commons Chamber

[Mr David Davis]

It is a privilege to follow the gallant and hon. Gentleman, who is a co-signatory with me to amendments 1 to 10, which deal with the issue of torture. If this country stands for anything, it stands for the rule of law. That enhances our reputation abroad and increases our influence abroad. It is also important to the reputation and effectiveness of our armed forces, who are made safer and more effective because of it. The right hon. Member for North Durham (Mr Jones) spoke at length about the Bill not dealing with investigations, so in the interests of time I will move past that.

As the hon. Member for Barnsley Central (Dan Jarvis) said, the Judge Advocate General—the most senior judge in the Service Prosecuting Authority, the person who is the most knowledgeable about all these issues and who was in place for 16 years when these issues were being dealt with—says that this Bill does not address the issue. I will quote him again later on, because he is clearly not some left-wing, liberal lawyer or somebody who wants to undermine the armed forces; he is somebody who wants this country to succeed.

In the witness statements to the Bill Committee, the overriding view of the witnesses was that the principal failing was the failure to include war crimes, crimes against humanity and torture in schedule 1, which in their view contravenes the UK’s commitment to international law and invites the attention of the International Criminal Court.

[Bob Stewart (Beckenham) (Con)]

Article 3 of the Geneva conventions covers torture and crimes against humanity, and there is a convention on torture itself. When I was a member of the armed forces, we were subject to that as our highest priority. Indeed, I often used the Geneva conventions to justify my actions, and the Geneva conventions guide the armed forces. All those people who go on operations are guided by the Geneva conventions, I promise that.

[Mr Davis]

My hon. and gallant Friend is exactly right, and I want to see the reputation that comes from that preserved after this Bill becomes law.

I will briefly address the weaknesses of two parts of the Bill separately—this addresses directly my hon. Friend’s comments: first, the criminal prosecutions and then the civil cases.

Prosecutions against armed forces personnel are not brought by just any lawyer. They are brought by the Service Prosecuting Authority, which is part of the Ministry of Defence. As it stands, a prosecution can be brought only where there is sufficient evidence that the accused committed the offence and where it is in the public interest that the prosecution should be made. There is therefore already a high threshold for prosecution. As a result, since 2000, there have been 27 prosecutions. Given how many thousands of members of our armed forces have been in operations in difficult circumstances—in close quarters with the civilian population, fighting against an asymmetric enemy—that is an astonishingly low number. That is not a prosecution system that is out of control. That alone shows that the system is not slanted against soldiers.

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[James Sunderland (Bracknell) (Con)]

Having been spared the commitment of serving on the Bill Committee, I am fortunate also to have been spared some of the polarisation that has affected this Bill, so I talk today from a position of complete objectivity. Having also tracked this important journey very carefully for many years, both professionally and personally, I believe this is an essentially good piece of work that deserves a fair passage through Parliament.

As I stated on Second Reading, any new legislation needs to be set in the context of the prevailing macro-conditions and previous legislation. This Bill fills a void where little has previously existed, so I commend the Minister for his vision, resilience and fortitude to date.

The bottom line is that this Bill delivers on the Conservative manifesto commitment to address the issue of vexatious claims and makes the first substantial amendments of their kind to the Human Rights Act by limiting the time during which claims can be brought. I can say from experience that this is what our armed forces want. They aspire to better protected in law. They want to know that the country values their service. They need to know that they will be supported if they pull the trigger lawfully and, after the misery of the ambulance-chasing years, they want the threshold for prosecution to be raised so that the endless knocks at the door finally stop. This is a no-brainer.

[Bob Stewart]

Not only the ambulance-chasing lawyers, but it is really good that we will not ever see the Iraq Historic Allegations Team, which really made our soldiers’ lives hell when it investigated them. That will not happen again either.

[James Sunderland]

I could not agree more.

I am aware that several amendments were tabled in Committee, but none was agreed to. The Bill is hence essentially unaltered from Second Reading, so perhaps it is no surprise that such a large list is being considered today. I will admit that some of the amendments have merit. Having been contacted over the weekend by the eminent hon. and gallant Member for Barnsley Central (Dan Jarvis) and my right hon. and gallant Friend the Member for Haltemprice and Howden (Mr Davis), I have looked in particular at amendments 1 to 10. My view, however, is that this Bill will not prevent the UK from rightly prosecuting acts of torture, war crimes, crimes against humanity or genocide, and that the Bill does not need to exclude these from its triple lock because existing provisions already exist in law.

I also struggle with the notion that the MOD would somehow fail to investigate or prosecute, because the bad apples will always face justice, as indeed they did during my time in uniform. Regarding torture, the Government’s position is that the presumption against prosecution will not prevent any prosecutor from considering the severity of the crime or the unique circumstances in which it was committed. Indeed, war is a nasty business, so I do not believe that a court should somehow be prevented from giving weight to the mental health of the individual or the prevailing conditions. Hence I am minded against amendments 21 and 22. I agree with the Minister that this would be nonsensical, as prosecutors should give recognition to the difficulty, the trauma and the acute stress of military operations, as any member of HM forces will testify.

In addition, the Bill confirms that on a case-by-case basis, a prosecutor can determine that a crime is exceptional, so there is no collision course here with the UN convention against torture, the Geneva convention, the Hague or even NATO, as nothing will be swept under the carpet. As for the five-year time limit, this is correct, as the clock will start ticking from the point at which matters come to light, not from the time of the alleged incident. That was also the overwhelming preference during the public consultation. Not only should it be possible for all the evidence to be gathered within a five-year period, but I concur with the Minister that memories do fade, that evidence does deteriorate and that it remains in the interests of everyone involved to deliver justice quickly. I do not therefore support amendments 18 and 19, which seek to lengthen the period to 10 years. This is ultimately about taking pressure off our people, not prolonging it.

Part 2 of the Bill relates to claims by service personnel against the MOD. As 94% of all employer liability claims against the MOD since May 2007 have been brought within the limitation longstop of six years, I agree that there should be a time limit here, too. To be fair, I have considered the suggestion that this Bill is more about protecting the MOD than it is about protecting HM forces, but that, too, is ridiculous. I note that the time limit extends here, too, from the point at which the issue first came to light. There is more than enough time here for any complaint to be submitted, and the MOD cannot simply write a cheque for yesteryear. I will be voting against new clauses 5 and 6 and amendment 23 if they are divided on.

Lastly, I am aware that this Bill has attracted lots of interest in the media in recent months, so I want to set the record straight: I am not convinced that the criticism from the Royal United Services Institute, the Royal British Legion, the Joint Committee on Human Rights or other senior figures is necessarily fair, as the Bill delivers what it says on the tin. Having read it in detail, I am clear, too, that any new presumption against prosecution is not a statute of limitations and does not in any way create a bar to either investigations or prosecutions. Unlike some, I have complete faith in both our legal system and our armed forces, so I commend this Bill to the House.

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[Ian Paisley]

I thank the Minister for getting to his feet and making that commitment again from the Dispatch Box. That is important, and will go some way to alleviate some of the concerns that have been expressed.

I would just say this. People in Northern Ireland—for good cause—do not believe in the good will of the Northern Ireland Office and its mandarins there. They believe that their attitude to our armed services is that they are expendable, and that there will be a time, when push comes to shove, and if it is expedient, that our soldiers who served in Operation Banner and the police officers in the gallant RUC who supported them would be easily jettisoned in some sort of trade-off with the people who were quite happy to fire bullets at our armed service personnel.

[Bob Stewart]

I support exactly what my very great friend is saying, but may I point out to the House that no Bill will protect someone like Dennis Hutchings, who has been repeatedly brought back and reinvestigated, in Northern Ireland or elsewhere? This legislation will not be retrospective, as I understand it. Does my hon. Friend agree?

[Ian Paisley]

I thank my dear friend, who has travelled widely in Northern Ireland, both as a soldier and as my guest in my constituency, with former squaddies. The applause that they gave to him is now legendary in Ballymoney; but the Minister will forgive me for saying that probably the less said about that adventure, the better for both of us.

Some Members have made the point that it is difficult to make a prosecution stick. One of the cases that got me into active politics was that of the UDR Four, on which I worked as a researcher, where four soldiers were wrongly convicted of the murder of a civilian in Northern Ireland. Many Members have advocated today the books that they have written on these subjects. I actually did write the book on the case for the UDR Four, with an exceptional foreword by Robert Kee, the eminent historian. In that book, we detailed the case for those soldiers and how their conviction should be quashed. I am delighted to say that three of those convictions were quashed, but it took us 10 years to get that case before the courts and to have those wrongful convictions quashed. So I do not buy that prosecutions will be hard to pursue and make stick.

There is, unfortunately, an unhealthy appetite out there among some people to blame veterans and our armed services. That will not end with this Bill, but we wish it Godspeed and hope that we can get a piece of legislation that will defend our armed services with the integrity that the Minister speaks with.

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[Apsana Begum (Poplar and Limehouse) (Lab)]

I am grateful to be called in this important debate.

I believe that this House should promote internationalism that is anti-imperialist and peace seeking, yet as I have raised before in this House and as has been noted by many, the Bill before us could result in torture and other serious crimes being protected from prosecution five years after being committed. That is so clearly in breach of the human rights of those affected by conflicts involving UK armed forces. Due to the amount of time that trials relating to services personnel often take, the five-year period proposed in the Bill is likely to mean that many prosecutions would not be made. Indeed, the whole tenor of this Bill is to deter cases being brought regardless of their merit. I echo Grey Collier, advocacy director at Liberty, when I say that a war crime does not stop being a war crime after five years. This Bill also offers no protection to armed forces personnel; neither does it offer them access to justice.

[Bob Stewart]

I thank my good friend the Deputy Speaker and the hon. Lady for allowing me to intervene. I do not understand why she thinks a war crime will not be a war crime after five years. A war crime is a war crime forever, and if the Attorney General considers it to be a war crime, it will be brought to a court. I do not think this Bill stops a war crime being prosecuted if a British soldier, sailor or airman carries one out.

[Apsana Begum]

I thank the hon. Gentleman for making his point, but I disagree with him. The point I am making is about prosecution and allowing for that war crime to be considered by the courts.

If I can continue, I believe in a fair justice system for all. Such a system would have built into it access for justice for armed forces personnel and those bringing cases against them. Most fundamentally, in order to pay tribute and show respect to those who have lost their lives in foreign conflicts—both from the UK and abroad—we must set in place a system of transparency and political accountability. We must face head-on the lasting effects that wars in, for example, Iraq and Afghanistan and sectarian conflicts have had on the lives of many in the UK and around the world. It is only with proper accountability and transparency that we can ensure that such mistakes and injustices are a thing of the past.

Hiding from accountability does not do anyone favours. Rather, it feeds mistrust, because for most people it is only those who have something to hide who fear scrutiny. Going to war and other activity by the armed forces involve decisions about some of the most fundamental values, and people have the right to know what is being done in the name of our country.

I conclude by saying that this Bill will act only to entrench a culture of fear and mistrust, increase the risk of crimes being committed overseas and instigate an opaque justice system, benefiting neither armed forces personnel nor the victims of war.

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[Stephen Farry (North Down) (Alliance)]

I have co-sponsored a number of amendments in the hope—perhaps it is naive—that some of the rougher edges of the Bill can be improved. Ultimately, I think this Bill is flawed from top to bottom and is unnecessary. We have, for example, existing prosecutorial tests. One is the evidential test and the second is the public interest test, which are more than adequate to take into account some of the concerns raised by Members. The Bill also raises the question whether our judiciary are not capable of weeding out vexatious claims whenever they come before them. I believe they are, and we should have confidence in their abilities to address those very points.

The Bill creates some very difficult and unnecessary precedents by breaking up the long-standing convention that everyone is equal before the law. There is no need to put in place measures that create additional prosecutorial tests and hurdles to be jumped in relation to certain categories of people—even those who on the face of it are incredibly deserving of our support, such as our veteran community and current active service personnel.

The most egregious aspect of the Bill is what it does in relation to torture. A number of Members have already said this, but in effect it decriminalises torture. I say “in effect” because that is not on the face of the Bill. That is the outworking of what the provisions entail. People will say that torture and war crimes can still be prosecuted through the courts, but it is a fact that a triple lock of additional hurdles, which do not exist for any other category of criminal offence, is to be put into law, and that makes this situation much more difficult and challenging.

I am conscious that we are all looking across the Atlantic today to see what happens in the US presidential election, and there is a clear interest in ensuring that the values of decency and support for democracy, human rights and the rule of law prevail over those who are pursuing other agendas. At the same time, it is deeply troubling that the Government, and potentially this House, are willing to implement measures on torture in legislation that overturns centuries of precedent. That should be very troubling to us all.

[Bob Stewart]

I rise to oppose that comment. The Bill does not decriminalise torture. Torture remains a major crime, and I speak as someone who has given evidence in five war crimes trials at The Hague. Torture is torture, and it is still something that the Government deeply oppose. The Bill does not actually legitimise torture in any way.

[Stephen Farry]

I am grateful to the hon. Member for his comments. I very much respect his service, and his commitment in that service to upholding the rule of law and the highest standards of international humanitarian law. The point I am making, however, is that while on the surface the Bill does not do what he says, the fact that the triple lock and the additional prosecutorial hurdles in effect create that outcome is, I think, deeply troubling to us all.

There are just two other points I want to make in conclusion, to try to let someone else say a few words. First, anyone who opposes the Bill today should not be labelled as someone who is opposed to our armed forces. It can be viewed and construed as respecting our armed forces. Let us ask ourselves the question: what was it that they were actually fighting for, particularly when they were in Iraq and Afghanistan? I appreciate that both of those interventions were controversial in many respects, but surely it is about peace, upholding the rule of law in those countries and upholding international law? We therefore do ourselves a great disservice if, in recognising their contribution, we in turn undermine those very values in what we do in the Chamber today.

My final point relates to Northern Ireland. Members have made reference to potential legislation in that regard. I do not look forward to seeing similar legislation being put in place for Northern Ireland—

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[Stewart Malcolm McDonald]

That is exactly the slippery slope I fear we are on. I hate the phrase “the thin end of the wedge”, but I am afraid that it rather fits where we are with this Bill and this Government. We have those senior opinions in military, legal and political circles against the Bill. That is before we get to the recent damning report by the Joint Committee on Human Rights, which made clear the number of flaws in the Bill.

I am conscious of time, so I will conclude. The Chairman of the Foreign Affairs Committee, the hon. Member for Tonbridge and Malling (Tom Tugendhat), suggested that, were we to change our defence posture with regard to training or peacekeeping in supporting Ukraine, we could be subject to what he called “a Russian hand” trying to take legal action here—no doubt that Russian hand is a Tory donor. That is exactly the kind of thing that would see UK personnel further exposed to the International Criminal Court.

[Bob Stewart]

Will the hon. Gentleman give way?

[Stewart Malcolm McDonald]

No, I am going to wind up.

The Minister has to take that into account, but he has failed, and the failure is his alone. I do not want him to think that, when he gets his way tonight, the job is done. The job is not done. He has promised the House legislation to fix the investigation system. My goodness, I hope he will do a better job on that than he has done on this Bill.

[John Healey (Wentworth and Dearne) (Lab)]

This is not a wind-up speech. We have had a good debate, with 23 Back-Bench contributions, some really good speeches and serious concerns about the Bill raised on both sides of the House. We are legislating, and I want to say to the Minister that it is wrong to see all criticism as opposition or all opposition as hostility. The Government never get everything right, especially with legislation, and no one has a monopoly on wisdom, especially Ministers. I say to him, it is wrong to dismiss anyone arguing for amendments to the Bill as ill informed or ill willed. There has never been a Bill brought to this House that could not be improved—this is certainly one of those. That is our job as legislators.

[Bob Stewart]

Will the right hon. Gentleman give way?

[John Healey]

I will not give way, if the hon. Gentleman does not mind. I am going to deal with some of the points made in the debate, despite this not being a wind-up speech.

From the outset, I have said that Labour wants to help build a consensus to convince the Government on the changes needed to make this legislation fit for purpose—that is, a new legal framework for this country when we have in future to commit our servicemen and women to conflict overseas. There has been a long-running problem, with baseless allegations and legal claims arising from Iraq and from Afghanistan under both Labour and Conservative Governments. But this Bill, as it stands, is not the solution.

The Public Bill Committee heard powerful evidence on a series of problems that our amendments on Report, and others on the amendment paper, are designed to fix. I want to stress the strength and depth of those criticisms. On investigations, the former Judge Advocate General, Geoff Blackett, said:

“The presumption against prosecution does not stop the investigation; the investigation happens.”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 127, Q275.]

The expert from Policy Exchange, Professor Richard Ekins, who originally published “Clearing the fog of war”, said:

“It certainly does not stop investigations. In fact, if one were to make a criticism of the Bill, one might say that it places no obstacle on continuing investigations”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 35, Q63.]

On criminal prosecutions, the former Commander Land Forces in the Army, General Sir Nick Carter, said:

“I do not understand why sexual acts have been excluded, but not murder and torture. I do not understand why that distinction has been made”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 96-97, Q196.]

The Judge Advocate General again, as the right hon. Member for Haltemprice and Howden (Mr Davis) stressed, said of the Bill:

“What it actually does is increase the risk of service personnel appearing before the International Criminal Court.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 117-118, Q234.]

On civil claims, the former chairman of the British Armed Forces Federation said:

“Imposing an absolute time limit places armed forces personnel claimants themselves at a disadvantage compared with civil claimants in ordinary life”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 9, Q6.]

The director for the Centre for Military Justice said that

“it is quite extraordinary that part 2 will only benefit the Ministry of Defence, and the Ministry of Defence is the defendant in all those claims.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 57, Q108.]

The director-general of the Royal British Legion said of the Bill:

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

When my hon. Friend the Member for Portsmouth South (Stephen Morgan) pressed him—

“So it would breach the armed forces covenant, in your view?”—

he replied:

“That is what we think, yes.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 84, Q155.]

Our new clause 7 and our amendment 38 are designed to sit alongside the amendments of my right hon. Friend the Member for North Durham (Mr Jones). The answer to the right hon. Member for New Forest East (Dr Lewis) about the number of investigations is this: only 27 prosecutions have arisen from Iraq and Afghanistan, yet 3,400 allegations were considered by the Iraq Historic Allegations Team and 670 from Operation Northmoor. Therefore, less than 1% of allegations were prosecuted.

The problem here is investigations. The serious, consistent problems lie in a system of investigation that has proved to be lacking in speed, in soundness, in openness, and in a duty of care to alleged victims or to the troops involved. Those are all problems well before the point of decision about prosecution, which is the point at which the provisions of the Bill kick in.

That is a widely held criticism. It is a widely held conviction, one held by the Minister himself. Before he became a Minister last year, he declared that

“one of the biggest problems….was the military’s inability to investigate itself and the standard of those investigations…If those investigations were done properly…we probably would not be where we are today”.

He was right then; he is wrong now to resist using the Bill to correct those problems.

Another review, Minister? Look, there have been three reviews—and this one will be chaired by Richard Henriques—in the last five years. There are more than 80 recommendations on investigations that the Government could act on. For goodness’ sake, get on and do that! The amendments are in scope, workable and implementable. The Bill is an opportunity to fix long-standing problems. I hope the Government will start to see our proposals on investigations as being additional to what is in the Bill, not as a direct challenge.

Part 1 of the Bill restricts prosecutions of certain offences. The Bill’s purpose is to make it harder to prosecute British troops for some of the most serious crimes under the Geneva conventions. It does that by legislating for a presumption against prosecution after five years. Our new clause 4 deals with that presumption against prosecution; it replaces it with a requirement on the prosecutor, in coming to a decision, to take into account the passage of time, and whether it prejudices the prospect of a fair trial.

The Government say that sexual crimes, in all cases, are so serious that they will be excluded from this presumption, but they are placing crimes outlawed by the Geneva conventions—torture, war crimes, crimes against humanity—on a lower level, and downgrading our unequivocal British commitment to upholding international law. That poses the direct risk that the International Criminal Court will act to put British armed forces personnel on trial in The Hague if the UK justice system will not.

Let me dwell on that point. The contradiction that we are creating in the Bill is this: under clause 2, only exceptionally are proceedings defined in clause 1 to be brought, or continued, against a person. However, as the Red Cross has made clear,

“only in exceptional circumstances will the Prosecutor of the ICC conclude that an investigation or a prosecution may not serve the interests of justice.”

In other words, in the International Criminal Court, it is exceptional not to pursue a case; we are making it exceptional to pursue a case. That is the contradiction, the risk, and the jeopardy for our troops serving overseas in future.

If we adhere to the highest standards of legal military conduct, we can hold other countries to account when their forces fall short—a point made clearly by my hon. Friend the Member for Barnsley Central (Dan Jarvis). If we do otherwise, it compromises our country’s proud reputation for upholding the rules-based international order that Britain has helped to construct since the days of Churchill and Attlee.

On civil claims, new clause 5 would amend part 2 of the Bill so that claims by troops or former service personnel were not blocked in all circumstances, as they are under the Bill at present. It is simply wrong for those who put their life on the line serving Britain overseas to have less access to compensation and justice than the UK civilians whom they defend—or indeed than their comrades whose service is largely UK-based. There are already safeguards in the Limitations Act 1980, but part 2 penalises this group of people by applying to them a unique deviation from that Act. That clearly constitutes a disadvantage for those armed forces personnel, their families and veterans. It directly breaches the armed forces covenant, as the director general of the Royal British Legion has confirmed. Frankly, it beggars belief that Ministers are asking Members of this House to strip forces and their families of their right to justice—to penalise them, instead of protecting them. Our new clause 5 flatly rejects that.

On the duty of care and our new clause 6, one of the things that struck me most when talking to troops and their families who have been through the trauma of these long-running investigations is that they felt cut adrift from their chain of command and from the Ministry of Defence. We heard that clearly from Major Campbell, who gave such dramatic evidence to the Committee. When he was asked what support the MOD gave him, he simply replied, “there was none.” Of course, for veterans, it is even worse: for them, there is nothing, not even the chain of command, as Hilary Meredith, the specialist solicitor told the Committee. I have to say to the Minister that although some of the previous decisions—for instance, to cover the legal costs of those who were involved in the Iraq Historic Allegations Team investigation—were welcome, there is a higher standard to reach for us in this regard. I hope that, as we move the Bill into the Lords, he will use new clause 6 as a model so that we can establish a new duty of care standard providing legal, pastoral and mental health support to those who are put under pressure and under investigation or prosecution. I hope that he will do the same with our amendments on derogation and on the Attorney General’s veto. We need greater transparency. We need some role for Parliament in both those areas, and I know the Lords will be keen to look at that.