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

Chris Evans Excerpts

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

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

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

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

I will come back to schedule 2 in a minute.

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

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

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

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

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

[Mr Jones]

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

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

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

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

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

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

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

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

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[Johnny Mercer]

Many cases have been raised, I agree, such as Snatch Land Rover and the Royal Marines individual who has been mentioned a number of times. However, as I have outlined a number of times, none of those would be affected by this Bill, because the period starts from the point of knowledge. We have had this conversation before. I encourage people who feel that they could be disadvantaged to come forward, to speak to the Department or speak to me, but I have to operate in reality, not saying things that are not true. I include any non-service person who believes that they have a meritorious claim against the MOD, because fundamentally, we are not trying to stop legitimate claims.

[Chris Evans]

Will the Minister give way?

[Johnny Mercer]

Not at the moment.

[Chris Evans]

It is just a quick question.

[Johnny Mercer]

Of course it is in the best interests of claimants to bring cases in a timely manner, when memories are fresh and access to evidence is easier. We should also remember that the current time limit for bringing claims is three years for personal injury or death and one year for Human Rights Act claims. While the courts have discretion to extend those timelines indefinitely, claimants must persuade them that it is equitable in all the circumstances to do so.

[Chris Evans]

A quick question for the Minister: last week, in The Sun on Sunday, he said he would make it his personal mission to help to ensure that cases that might fall out after six years are brought within six years. Will he clarify how he would do that in action?

[Johnny Mercer]

Of course. Part of this Bill is a huge education campaign to get people to understand what their rights are. While we have drawn the line at six years, we have a duty to make sure all the people who are in our employment and who served with us understand what the rules are and where the boundaries are, and at the same time are protected from the vexatious sort of claims we have seen over the years. I genuinely believe it is a fair line to be drawn, and I reiterate that lots of cases have been raised, but when we have looked into them, none would have been precluded under the Bill.

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[Stephen Morgan]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Clause 9 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 10 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 11 ordered to stand part of the Bill.

Clause 12

Duty to consider derogation from Convention

[Chris Evans]

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

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

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

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

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

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

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

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

[Mr Jones]

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

[Chris Evans]

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

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

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

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

In its briefing on the Bill, Redress said:

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

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

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

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

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

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

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

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

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

and the relationship with Northern Ireland

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

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

Amnesty has said that, as it stands, the Bill

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

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

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

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

“would undermine this well-deserved reputation”.

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

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

[Mr Jones]

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

[Chris Evans]

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

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

[Mr Jones]

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

[Chris Evans]

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

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

[Mr Jones]

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

[Chris Evans]

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

[Johnny Mercer]

So have I, absolutely.

[Chris Evans]

Sometimes I am not sure.

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

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

[Mr Jones]

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

[Chris Evans]

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

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

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

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

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

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[The Chair]

The hon. Member for Islwyn has concluded his remarks.

[Chris Evans]

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

[Mr Jones]

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

[Chris Evans]

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

[Mr Jones]

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

[Chris Evans]

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

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

[Mr Jones]

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

[Chris Evans]

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

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

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