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

Chris Evans Excerpts

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

[The Chair]

Thank you. We are expecting a vote in the House imminently; I will have to suspend proceedings for about 15 minutes in that event. We will begin the questioning with Chris Evans.

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

Q Welcome to you both. Mr Baldwin can answer first and Ms Spurrier second, so that you are not crossing over each other, but I will address questions to both of you. The reason I have picked Mr Baldwin is that he is a sitting above you on my screen, Ms Spurrier—there is no discrimination, I promise you.

Given that the Government have managed to exclude sexual offences from the Bill, do you see any reason why torture should not similarly be excluded?

Clive Baldwin: No, there should be no reason. Not just torture but other international crimes should not be excluded, particularly war crimes, crimes against humanity and, indeed, any other international crimes, such as enforced disappearances that the UK is obliged to investigate and prosecute. For the reasons given by the Secretary of State, sexual offences have no place in armed conflict, and neither does torture or war crimes. The exemption should be very clear. Even in international crimes, particularly war crimes, it is a very clear principle of international armed conflict law that there should be no statute of limitations on war crimes, because of the difficulties in investigating them. Anything that starts to look like a statute of limitations on war crimes risks the UK violating its international obligations.

Martha Spurrier: I entirely agree. I cannot see any legal or moral justification for not including torture and other war crimes in that schedule.

[Chris Evans]

Q Could we talk a bit about the triple lock? Obviously, the Bill would apply the same triple lock against prosecutions for war crimes or crimes against humanity that took place more than five years ago. I have had a number of lobby groups write to me about this situation. What is your view on the triple lock? Does it need to state intent?

Clive Baldwin: The triple lock, as it is set out, is quite worrying, particularly for those international crimes, because it seems to be creating a block to prosecution. The first element is the five-year limit, together with the presumption against prosecution, which is quite unique. I am not aware of any other country having something similar, especially for those international crimes.

The third part of it—the increase in the powers of the Attorney General—is a position that we at Human Rights Watch have objected to for some time. The Attorney General is an unreformed legal position that essentially remains a member of the Government and should therefore have no role in determining individual decisions on prosecutions, although of course the Attorney General still has some of those powers. The increase in the power to effectively block prosecutions gives the risk of all this appearing to be a political attempt to make it extremely difficult in an exceptional situation—as the draft Bill says—for war crimes, torture and other international crimes to be prosecuted.

The second element in the triple lock is the taking of facts into account. Those are relevant factors—the situation on the ground and the situation of forces personnel—but those are situations that should be taken into account anyway, particularly when prosecuting war crimes, as war crimes are designed to be crimes that apply on the battlefield and in situations of armed occupation. There are many other issues that should be taken into account as well, not least the need for justice, the seriousness of the offence and the seniority of the person responsible.

Martha Spurrier: On the stated intent and whether the triple lock is a rational answer to that stated intent, as far as I understand it the stated intent of this Bill as a whole is to deal with so-called vexatious claims. It is clear from the statistics that it is not a significant number of civil claims that are, in fact, properly termed as vexatious. Of course, it is also important not to conflate civil and criminal cases. There is not really such a thing as a vexatious criminal case. That would bring suggestion that the state was abusing its powers in prosecuting something, and I do not understand that that is being suggested.

The way to meet that stated intent is to deal with the inefficacy of investigations as they currently stand; it is not to impose a triple lock on dealing with very serious crimes committed by military personnel. That deals with an entirely different proposition, one that we say is deeply problematic—that there is no justification for the five-year time limit, no justification for a list of factors to be taken into account by a prosecutor, which exclude things like the public interest in upholding the accountability of the military and the public interest in victims having their voices heard, and there is no public interest in there being an Attorney General’s veto in what is often a very highly politicised context.

The triple lock does not meet the stated intent, but in and of itself it is not something that Liberty and other organisations can stand by, because it amounts to a chilling effect on prosecutions for serious crimes and effectively a culture of impunity in the armed forces.

[Chris Evans]

Q Ms Spurrier, can I follow that up? Are you saying that this Bill could deny justice to victims of serious crimes?

Martha Spurrier: Absolutely. If you have a triple lock on prosecution, it must be right that your intention is to make prosecutions harder to bring. If you have been the victim of an injustice, whether that is because you are a civilian victim abroad or you are a serving man or woman who has been the victim of an abuse of justice by the UK military, those three locks on you getting justice could very easily act as a bar. They are an additional three hurdles that an ordinary, if you like, victim of crime would not have to cross in order to seek justice, accountability and punishment for what they have suffered.

[Chris Evans]

Q 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.

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[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 As my right hon. Friend the Member for North Durham (Mr Jones) said, the Attorney General is obviously a political appointment. Equally, the Secretary of State is a political appointment. The Bill gives the Secretary of State the power to make regulations in order to amend schedule 1 and to add or delete excluded offences at any date in the future. Do you envisage a situation where this could be used, and what sort of offences do you envisage?

The Bill obviously extends beyond the traditional battlefield. Are you thinking of areas where we have deployed UK troops on peacekeeping missions and they may or may not have committed offences there? That is just an example.

Clive Baldwin: It is difficult to say; I have not seen any indication from the Government of where they would intend this. Of course, if the Government made a very specific commitment to exclude all international crimes, they could exclude new international crimes. Enforced disappearances would be one, and perhaps others that might arise and that the UK may sign up to. However, I worked for several years in Kosovo on justice issues during the peacekeeping operations and, as you mentioned, in situations of peacekeeping many issues arise about day-to-day crimes—traffic offences, even, and elsewhere—that the Government may or may not choose to exclude, depending on the nature of the peacekeeping mission.

If a peacekeeping force is part of building a justice system and there is a functioning justice system in the country, it may be that the Government may choose to make some of those crimes part of it. On a wider picture, giving that power to the Secretary of State, when it is done on an ad hoc basis, mission by mission, will produce uncertainty and lack of clarity about what crimes will be prosecuted. That is something it is quite important to be really clear on, because if anything is amended in the Bill now, it is a very clear and simple statement that no international crimes are part of this Bill; they are all excluded.

Martha Spurrier: The danger of secondary legislation for lawyers is, of course, that, as the Committee will be aware, it simply does not receive the parliamentary scrutiny that primary legislation would. The very real concern with this delegated power is that, as Clive said, you could end up taking away or adding really serious international crimes; you could also conceivably say that the Minister might, by secondary legislation, make changes to the Human Rights Act. That would be pretty unprecedented in parliamentary terms. We have seen over the past few months with the coronavirus regulations how much the state can do without parliamentary authority. We are deeply concerned about the extension of the use of secondary legislation to make such substantive changes that will impact on people’s rights.

[Chris Evans]

Q 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.]

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[The Chair]

We are formally resuming proceedings. I ask Chris Evans to continue his line of questioning. When Mr Jones comes back, I will ask him whether he wants to resubmit the question that he asked before the suspension.

[Chris Evans]

Q As I said before we left for the vote, I want to finish off with a few more questions about the criminal side, and then move on to the civil side. As the Bill stands, it affects future conflicts. Is there a case to make it retrospective to protect veterans from other foreign conflicts, such as Iraq and Afghanistan?

Clive Baldwin: If the Bill were made retrospective, and I think it is not quite clear whether it would be for existing investigations that have not proceeded to prosecutions, but even if it were, I think that creates even more problems. With the ICC, there is currently a preliminary examination, which might then proceed to an investigation, for the reasons previously stated. More broadly, we would say that the Bill does not fix any of the problems about criminal investigations, because part 1 is trying to limit prosecutions, and there have been so few prosecutions in any event. We would say the problem recently in Iraq and Afghanistan lies with the lack of prosecutions dealing with the evidence that some more crimes—limited, but some—were committed. That has been the problem.

Martha Spurrier: I agree with Clive. The Bill is a huge barrier to victims, as I have said, whether they are civilian or service personnel seeking justice. It has no bearing on the problem that it is purporting to solve and it will make accountability for human rights violations and serious crimes harder. To make it retrospective would simply enlarge the scope of what is already going to be a bad law.

[Chris Evans]

Q The huge issue for veterans groups is that repeat investigations are placing a huge strain on our service personnel. I think that is really the intention of the Bill—to remove the stress and tension that they feel, once they have served the country. In your view, is the Bill getting to the heart of that problem?

Clive Baldwin: Not at all. We have been following and looking at the issues in Iraq, particularly, and in Afghanistan, and not just with the UK, but also with other countries. The problem on the criminal side is that the military criminal justice system has not shown itself fit for purpose in these particular situations of overseas investigations, which are very complex. We need a system that is fair, speedy for size, transparent, effective and independent. We would say that you start with trying to look at the problem and fixing that, so that there are investigations on the criminal side first that are as speedy as possible and fair. Once you fix that, you can look at what other measures might be needed. This problem starts with the prosecution side, which, as I said, has not in itself been the issue, because there have been so few prosecutions.

Martha Spurrier: That is absolutely right. The answer to the stress faced by service personnel is to deal with investigations: to make them thorough, to make them independent, to make them fast, to get them done to a high standard, and also to offer proper support to service personnel and victims. You heard from Major Campbell today, and he has been clear in his public statements that he does not feel that the Ministry of Defence supported him through the repeated investigations he faced. Presenting the Bill as a solution to what people like Major Campbell have faced is, frankly, offensive to the trials he has been through. It is not an answer to that problem. Nowhere on the face of the Bill does it deal with investigations.

[Chris Evans]

Q There are two questions that come up there: first, in the light of what you just said, how could the Bill be improved? Secondly, as the likelihood of a prosecution is, as you said, not very high anyway but is now less likely with the Bill, what are the chances that the rule of the law of armed conflict could be pushed to the limit with the Bill?

Clive Baldwin: To answer the second question on the law of armed conflict, you say “pushed to the limit”, and, as I said on one particular element, if it starts to look like or resemble a statute of limitations on war crimes, that does violate a basic principle of the law of armed conflict. If you are suggesting that anyone would then feel that they could push any other crimes, or commit crimes with impunity, that may or may not be the case, but it would certainly encourage people to delay investigations to cover up, which is something that we have seen in Iraq and Afghanistan.

Also, the UK has a fairly poor record in actually prosecuting crimes committed overseas, despite there being public inquiries and investigations. Only when you have some of the clear cases of torture being prosecuted do people become aware of what is or what is not torture. One example from Iraq relates to torture practices, such as sensory deprivation and hooding, that the UK said in Northern Ireland 40—then 40, now 50—years ago were unacceptable, and should not recur. They started recurring in Iraq. You might say that that was because there has not been a clear prosecution of such cases as torture. It took an English judge in one of those civil claims in the past few years to say that these practices should have no place in the 21st century. That is why you need some litigation. Of course, the innocent and the accused who have not committed any crimes also get tarred with the same brush if these investigations go on and nobody gets prosecuted. You need a prosecution to clearly identify the few people responsible for war crimes, and to make sure that those individuals are held responsible and not the armed forces as a whole.

Martha Spurrier: Clive has covered the second question, so I will take the first one. When you start with a Bill that does not deal with the problem you are trying to solve, it is quite difficult to answer the question of how to make it deal with that problem. There are lots of practical things that the Government could do to try to make investigations better. The recommendations from the Service Justice System review would be a good place to start: issues about things such as independence and fast pace, and doing basic investigative things like taking witness statements promptly, gathering forensic evidence effectively, and so on. All of those things can and should be done, and they should be a matter of priority. The Bill cannot and will not do any of those things.

You could amend the Bill to knock off some of its most egregious aspects. You could include torture, war crimes and crimes against humanity in the schedules. You could remove the triple lock by taking away Attorney General consent, by removing the presumption against prosecution in relation to the time limit, and by balancing out the factors that a prosecutor would have to consider before proceeding with a prosecution. That would not cure the Bill and would not make it a good piece of legislation, either from the perspective of accountability, justice and human rights, or from the perspective of trying to solve the problem that the Government purport to be wanting to solve.

[Stuart Anderson]

Q Mr Baldwin, you said that the legislation could encourage soldiers to commit crime with impunity. Will you clarify that it is a piece of legislation that you think will then encourage soldiers on operations to commit crimes?

Clive Baldwin: To clarify, I was not saying that it would encourage it. I am responding to the question that seemed to be saying, “Would it lead to anyone trying to stretch the law of armed conflict?”. If a law creates impunity for offences and makes sure no one gets prosecuted, it may make those offences more likely. I would repeat that torture was admitted but never prosecuted in Northern Ireland in the 1970s, and the same techniques—the same type of torture—was repeated in Iraq in the 2000s. That is because you need prosecutions. You need people to be aware that they will face prosecutions for an offence. If they perceive that an offence will not be prosecuted after five years, it will make it more likely even for the investigations to be delayed to that moment and for offences not to be seen as, very clearly, “This is criminalised. This is unacceptable. These are crimes that will be prosecuted.”

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[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.

[Chris Evans]

Q Would it be fair to say a civilian has more rights than a veteran or service personnel if they want to bring civil cases against the Ministry of Defence?

Martha Spurrier: Sorry, could you say that again?

[Chris Evans]

Q I have a very thick accent, as you can tell. Would you say it is fair to say that a civilian has more rights, because of the six-year time limit, than a member of the forces in bringing a civil case against the Ministry of Defence?

Martha Spurrier: Yes, in the sense that at the moment, everyone is equal before the law, and that is how it works. You can pitch up and argue that a case should be struck out because it is out of time, or that it should not be struck out because it is out of time. There is no weighting according to whether you are a civilian, a claimant, a defendant or a member of the armed forces. Of course, the proposal in the Bill is that civilians will be disadvantaged more greatly than service personnel by the longstop. That is an unjustifiable weighting in favour of service personnel, in the same way that the weighting works on the criminal side, where presumption goes all in favour of military personnel and all against victims of military crimes.

[Chris Evans]

Mr Baldwin, do you have a view on that?

Clive Baldwin: I have nothing to add to what Martha said.

[Chris Evans]

Q Who does the six-year time limit benefit, then, in your view, Ms Spurrier?

Martha Spurrier: If the six-year time limit came in, it would benefit the Ministry of Defence and the Government, because these claims are, by and large, being brought against the Ministry of Defence, either as an employer or as a detaining official, or against the Government as a policy maker. It is absolutely critical that the forces of the state—again, I have acted for countless individuals and families where bringing a claim against the state is no mean feat. You are usually against a range of senior and powerful lawyers, and any additional disadvantage that you face makes it incredibly difficult to seek justice. So, unquestionably, this is a power that plays in favour of the state, and state agencies, and plays against individuals, whether those individuals are service personnel or civilians.

Clive Baldwin: To add to that, it is so clear, when it comes to civil claims, because they are public claims, that the beneficiary of any limit to those powers would be the British Government and normally the Ministry of Defence, because that is what the claims are made against. That includes service personnel bringing claims; it includes people in other countries bringing claims who in some cases have been the subject of abuses. That is the beneficiary. Of course, you still have to have a fair trial, but in most cases it is going to be the MOD.

When it comes to the investigations, the Government, when it is a civil claim, which is not against individual personnel, have a duty of care towards their personnel and ex-personnel. Those are not investigations and claims against those individuals; they may have to give evidence and that has its own degree of severe stress, but it is not a claim against individuals. That is why it is so important to separate the public law issues, the civil claim issues, and the criminal law issues.

[Chris Evans]

Q Mr Mundell has indulged me somewhat—I think over-indulged me—so this will be my final question. Clause 12 of the Bill seeks to amend the Human Rights Act 1998 to require the Secretary of State to consider derogation from the European Court of Human Rights. What is your view on that clause in particular, given your background? We will hear from Mr Baldwin and then Ms Spurrier.

Clive Baldwin: On the broader issue of derogation from human rights, that is part of human rights law; that is part of the European convention. It is actually something I proposed in Kosovo 20 years ago—that there would be a derogation then to reflect the realities of the situation and still be able to detain people according to the law. It is also important to realise that derogation is not exempting anyone from human rights law; it is just modifying it to deal with emergency situations. That is the case particularly on detention: it does not remove the need for detention according to law. It does not remove the need for habeas corpus, to bring someone before a judge. It could mean that someone is before a judge within weeks rather than days, perhaps. This does not mean that human rights law does not apply.

[Chris Evans]

Could I just—

Clive Baldwin: Sorry, it is extremely complex.

[Chris Evans]

Q Could I just come in with one word there? The phrase is “consider” derogation. Do you think it is significant that that has been written into the Bill? Sorry to interrupt there; I could see that you were in full flow.

Clive Baldwin: Effectively, Governments always have to consider derogation, so I do not think that legally it changes anything. Human Rights Watch proposed some years ago to Government that they should consider this when dealing with the issue of detention overseas. You have to prepare it—I do not know of any situation where a Government has actively declared a state of emergency, which is what you need for derogation, in another country, and a lot of these situations are multinational peacekeeping and other operations, so you cannot really have one rule for the UK armed forces and one for others, normally.

So it is quite a complex situation. Also, derogation changes the law; it changes the law that applies, so again, it should not be done by just a secondary declaration by a Minister or Secretary of State. It would need a change in law. But we would say that preparing for these situations, preparing for detention in armed conflict or peacekeeping, and having a law that is clear is something that people have been saying that the armed forces need for the last 20 years. The armed forces I know say that they want clarity when they go to detain, which means knowing what law they should apply, how they detain and to whom they should apply. Giving them that clarity in advance would be of great interest. Derogation, when applied properly, is a strengthening of human rights law. It is not an exclusion of human rights law, but only when it is applied carefully, properly and not by just some ministerial fiat, as it could risk becoming.

Martha Spurrier: As Clive says, the power to derogate is a really critical part of the human rights framework; it is the power to suspend rights or to restore rights, and that is why it is tied to a state of emergency. Writing that requirement to consider into the Bill, on a narrow view, changes very little in relation to the legal position.

The concern, of course, is when you take a wider view and look at this Bill as a whole, which very much signals the desire to water down the human rights arrangements; and then you look at the wider agenda more generally, which is a Government with a manifesto commitment to update the Human Rights Act and an ongoing process to look at access to judicial review, and whether certain Government decisions should be shielded from that mechanism of accountability.

So, our concern is not so much about the narrow wording of that clause, but about a culture of watering down Executive accountability that crops up manifestly in this Bill but also in other places in the Government’s agenda, which we would say overall will make it very much more difficult for ordinary people—be they soldiers or civilians—to hold powerful people to account.

[Chris Evans]

Thank you both. No further questions from me, Mr Mundell.

[The Chair]

I will call Carol Monaghan, because we can go on until 5.15 pm, and I want Carol to have the opportunity of asking her questions.