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

Chris Evans Excerpts

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

I would prefer some clarity about who is making the decision about the new evidence because the key to stopping the abuse that has been going on is not prosecution—the way to do it is to stop the repeated reinvestigation that has taken place. We heard throughout the evidence sessions that, in the small number of cases that led to actual prosecutions, the timescale was very quick—I think Judge Blackett said that, in Marine A’s case, it was 18 months. I cannot remember the other case that Ms Meredith raised.

[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.

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The Attorney General of Kenya, for example, is now non-political, so if the Minister is really thinking about how to improve the Bill—although I do not think he is; he just wants to ram it through in its present form—he should consider small tweaks like that. He says, “We’ve got this Bill, and that’s it; we’re going to do all the investigation stuff later, in the armed forces Bill,” but I am sorry, there is no reason why he could not have insisted on it being in this Bill as well. This point is particularly problematic for our international reputation and also fairness, and it goes back to the point about the entire process, in that its strength comes from having independent judicial oversight.

[Chris Evans]

It is a pleasure to serve under your chairmanship, Mr Stringer. After the events of your beloved Manchester United’s visit to the north-east, I hope you had a very happy weekend—although I notice that we have a number of Members from the north-east here, so it probably upset them.

I rise to speak in support of amendment 24 in the name of my hon. Friend the Member for Portsmouth South. The amendment asks that any decisions to prosecute or not prosecute service personnel who are under investigation be explained by the Attorney General, by her presenting her reasoning in a report to Parliament. If the Government are unwilling to allow decisions to be made by the director of public prosecutions and insist on adding a political element to decisions, they must be scrutinised.

On several occasions, this Government have been charged with attempting to avoid necessary scrutiny and having a habit of waving things through. Amendment 24 simply asks them to do the right thing and allow Parliament to do its duty. In our constitution, Parliament has to play a full part in any legislative initiatives and any investigations. The former Attorney General for Northern Ireland says that the Attorney General is accountable to Parliament. If the Government agree that that is correct, they have a duty to explain decisions that the Attorney General makes on prosecution in order that Parliament fulfils its constitutional duty to scrutinise. If those decisions are to be politicised, let us do it properly. As the amendment suggests, it would be most appropriate that the decisions be explained by a report presented to Parliament, which should set out the full reasoning and rationale behind the decision that the Attorney General makes. That would ensure transparency of the entire process.

Legal academics and experts in the field, as well as previous Attorneys General, have voiced concerns over the role of the Attorney General in the Bill. They are worried that it is adding a political element to a judicial process in an entirely unnecessary way. The former Member for Beaconsfield, Dominic Grieve—I see his successor over there; I welcome the hon. Member for Beaconsfield to the Committee—who was the coalition’s Attorney General, has raised concerns over the Bill. He criticised the Bill for being

“an exercise in public relations rather than reasoned change”.

He gave a multifaceted critique of the Bill, including the role of the Attorney General. In his opinion, the way in which the role of the Attorney General has been written into the Bill is a politicised safeguard. It is hugely important that the Attorney General always acts independently of any political consideration and has only one thing in mind: the public interest.

I am sure that you, Mr Stringer, would call me to order if I began to debate the role of the Attorney General in the past, but, simply put, the Attorney General provides legal advice to the Government. If, however, the Government are reluctant to publish the advice, that is a huge concern to the public.

[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.

[Jack Lopresti (Filton and Bradley Stoke) (Con)]

Would the hon. Gentleman advocate the next Labour Government making the Attorney General’s position independent? Would he be convinced that any report produced by the Attorney General in Parliament and scrutinised by Parliament would not be looked at in a party political way by the Opposition?

[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.

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[The Chair]

Order. I did say in the introduction that if Members breached the social distancing rules, I would stop proceedings.

[Chris Evans]

It is important that we set an example, Mr Stringer.

The title and role of the Attorney General is often entwined with politics, which complicates the matters of transparency. By its very nature, the role of the Attorney General is controversial, and has been in the legal world for a long time. The Attorney General has a role both as a professional lawyer and as a political advisor. Although many Attorneys General have taken the view that political distance gave their legal advice more credibility, others have been involved in party politics. From the scrutiny of Attorneys General in the 1920s to our current Attorney General, the role has always been controversial. Our current Attorney General generated a lot of debate over advice given to the Government on Brexit, as did her predecessor over the proroguing of Parliament. Further back, it is not just a party political issue. I do not have to go into the whys and wherefores of what the Labour Government went through with the legal advice over Iraq and Afghanistan. Again, before anybody wants to intervene, that is a debate for another time.

[Johnny Mercer]

indicated assent.

[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—

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My hon. Friend the Member for Portsmouth South talked about hearing loss cases. There are also cases where evidence comes to light later, because it was not available at the time. Let us take the case of an aircraftman who painted aircraft and argued that, as a result, he had had a severe reaction, including an attack to his nervous system. He had to leave the service and could not work, but at that time he could not prove any link to his service. He went to a solicitor to see whether they could take the case, but at that time there was no research into the effects of these paints on the human body. It was only some 12 years later, when medical evidence had been published in scientific papers that exposure to certain paints was harmful and could lead to the condition this poor individual found himself in, that his lawyer could say, “Yes, we can try to argue a causal link in a case.”

[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.

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[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.