Overseas Operations (Service Personnel and Veterans) Bill

David Davis Excerpts

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

[Mr Jones]

But it really does not matter, because if my hon. Friend wants to see the attitude of the Minister to the Royal British Legion, he has only to read the evidence that came before the Committee.

New clause 2 would provide a way of ensuring that minor offences were dealt with speedily. As Judge Blackett said, this could be done in a magistrates court, where, after a period of time had passed, the cases could be looked at judicially and ticked off and dismissed on the basis that the there was no evidence to go forward. That would deal with a lot of the smaller issues. People ask why that is important, but if we look at the Iraq Historic Allegations Team—IHAT—and Northmoor, some of those cases involved assault and other things that in normal circumstances could be dealt with very quickly in a magistrates court. At least if we had a judge looking at them, he or she could make a decision as to whether or not those cases had any merit. It is amazing that the Government fail to recognise that the problem is not prosecutions but actually the investigatory process.

Then, halfway through the Bill Committee, the MOD announced it was coming forward with a review of investigations, to feed into next year’s Armed Forces Act, when the obvious place to have put that would have been in this Bill. The reason for doing that was given away by the Minister in the evidence session: this Bill has nothing to do with making sure of these matters. There is no reason why what I am suggesting and other issues around investigations could not be put in the Bill now and improve it, yet for reasons of tidiness the MOD wants to do it next year.

I have some sympathy with the MOD on that, because perhaps the best way to do this is in those five-yearly reviews of the Armed Forces Acts—and I think I have been on the Committee for every single one for the past nearly 20 years as either a Minister or Back Bencher. But the reason this Bill is before us has nothing to do with that; the Minister let the cat out of the bag in Committee when he said he had to get this through now, because one of his general election pledges was to do it within 100 days. I am sorry, but that is not a good way of bringing in legislation—just trying to press it forward irrespective of whether or not it is flawed.

[Mr David Davis (Haltemprice and Howden) (Con)]

I have a lot of sympathy with what the right hon. Gentleman is saying, but may I drag him away from his politics for a second? Would it not be very simple to incorporate the recommendation in a 1960s magistrates Act of a judge advocate general, as that would deal with exactly what he is talking about?

[Mr Jones]

It would. That and judicial oversight would improve the Bill tremendously. It would then actually do what it is supposed to do, which is stop reinvestigation and stop the worry that these individuals have, but it does not do that; that is the big hole in the Bill.

It is not as though the Minister has not had a chance to look at this. I have raised it with him—I tabled amendments in Committee, which he pushed aside, and we are going to go ahead with what we have now, which will be a flawed Bill. Once it has passed, it will lead to a situation whereby a lot of people think that as a result they have protections when, frankly, it will do nothing of the sort, because it will not stop investigations and reinvestigations. One of the worst things we can do in politics is promise people things and give them the impression that we have done something when actually we have not, because once the penny drops and they see it is not actually the case, they rightly feel very bitter.

As the right hon. Member for Haltemprice and Howden (Mr Davis) has just said, there is time to put this in the Bill. If Ministers are not going to do it in this place, they should do it in the other place, because it will improve the situation.

There is another dishonesty with this process. From, again, using the MOD website, which I do not think is appropriate for political reasons, we see there is a promise about Northern Ireland. The Minister is on record as saying that similar legislation will be brought in to cover historical cases in Northern Ireland. Well, I am sorry, but it will not do so if it is like this Bill; if it is like this Bill then, frankly, it will do nothing at all on investigations. If it is a mirror image of this Bill, all those people who think that somehow they are going to get protection will find that they do not, and that is just not fair.

--- Later in debate ---

We must address the deficiencies of the investigative process and provide those who are under investigation with our full support, but we cannot use deeply regrettable instances of failure to renege on our legal and moral obligations. Let us show some leadership and lead by example. I very much hope that the Government will think again.

[Mr David Davis]

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

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

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

[Bob Stewart (Beckenham) (Con)]

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

[Mr Davis]

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

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

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

[Dr Julian Lewis]

I agree with my right hon. Friend that the prosecution system is not out of control, but does he agree that the investigatory system is? To answer my own intervention on the hon. and gallant Member for Barnsley Central (Dan Jarvis), is my right hon. Friend aware that clause 3(2)(b) says that the five-year limit will not apply unless

“compelling new evidence has become available”?

Why is he not reassured by that?

[Mr Davis]

I will tell my right hon. Friend in a moment exactly why I am not reassured by that, but he is quite right that the issue is the repeated investigation of people who are innocent, in most cases. That is a harassing and destructive thing. The best known case is that of Major Campbell, who underwent eight investigations. I am afraid that the real blame lay with the Ministry of Defence for at least four of them. That is what we should address.

As I say, the prosecution system is not slanted against soldiers. I will give the rather gruesome, well known example of Baha Mousa, a 26-year-old Iraqi man who, in 2003, was dragged from his desk while working as a hotel receptionist by British soldiers, handcuffed and taken to a detention facility in Basra. Thirty-six hours later, he had been beaten to death, having suffered 93 separate injuries while in the custody of British forces. The number of solders convicted of murder as a result: zero. The number convicted of manslaughter: zero. There was a single conviction of one soldier, who confessed to inhumane treatment and got one year in prison.

It is difficult for prosecuting and other authorities to make out a clear-cut case of torture, inhumane treatment or even manslaughter, so I do not believe that the system operates against the interests of the armed forces. Indeed, on the several occasions on which the Government have been asked to produce a case of vexatious prosecution—not investigation, but prosecution—they have never been able to name one. That is not surprising. The Service Prosecuting Authority—the body that brings prosecutions—already dismisses claims that it believes are vexatious. In evidence to the Joint Committee on Human Rights, Nicholas Mercer, the former Command Legal Adviser in Iraq, said:

“Before I left the army, I gave legal advice on a number of prominent cases…I found a case that was without merit and I closed it. It was as simple as that. I do not need legislation to do that. It happens already.” That is a good reflection on our system, and we should not be ashamed of it.

The area of contention, which has been mentioned by the hon. and gallant Member for Barnsley Central, is the triple lock against prosecutions. The Government’s own stated aim is to raise the bar for prosecutions after five years. In its scrutiny of the Bill, the Joint Committee on Human Rights concluded:

“a limitation period that would prevent prosecutions is unlawful under international law if it prevents investigations and prosecutions in relation to torture, war crimes, crimes against humanity and genocide.”

The Government state that the measure is not a statute of limitations. The Law Society, which some may dismiss, agrees with the JCHR, and concludes that the presumption against prosecution creates a “quasi-statute of limitation” that is “unprecedented” in criminal law, and represents

“a significant barrier to justice.”

Rather more importantly, the Judge Advocate General, whom I described earlier, has said:

“In my view, what this Bill does is exactly the opposite of what it is trying to do. What it is trying to do is to stop ambulance-chasing solicitors and vexatious and unmeritorious claims. The Minister quite rightly said we want rigour and integrity. What it actually does is increase the risk of service personnel appearing before the International Criminal Court. That is why I said it was ill conceived.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c.117-18, Q234.]

That is the Judge Advocate General, the most expert person in the country on this subject. He also described, incidentally, the Bill as bringing

“the UK armed forces into disrepute”.

If the Government really think that schedule 1 does not make justice more difficult, they would not have excluded sexual offences from the remit of the Bill. If it is not difficult to get a prosecution, why exclude any category? It was right to exclude sexual offences, and the Government should exclude torture on exactly the same grounds. That is the point of the amendment in my name and in that of many others.

I have a couple of minutes, so I will deal briefly with the issue of civil claims. There have been 1,000 civil claims, according to the Ministry of Defence, all of them against the Ministry, not against individual soldiers—as far as I can tell. Surprise, surprise, someone trying to get money goes to the Ministry, not to a poverty-stricken soldier. However, that does not help veterans; it actually hinders veterans.

The point has been made by other Members, so I will press it no further, except to quote the British Legion director-general:

“it protects the Ministry of Defence from civil action—from someone bringing a case. That longstop does not protect the armed forces personnel.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q161.]

Of course, what the Bill could stop are the sorts of cases that exposed Snatch Land Rover, the lack of provision of body armour and a number of other scandals, which quite properly improved the operation the MOD.

The Bill does the same for torture cases. All the stories about torture and rendition came in the first instance from civil cases—all of them. That is what brought them into the public domain; there was not a single criminal prosecution in the first instance. It is difficult to bring a torture case. In most, only two people know about the torture: the victim and the oppressor—the torturer, or torturers. Typically, no other evidence is available in the public domain. A case is difficult. Even in the case of Belhaj, the most famous torture case—we delivered Mr Belhaj and his pregnant wife to the Libyans, for heaven’s sake—it took 10 years, essentially, to get to court, and of course he got an apology from the Prime Minister. That is why the issue of torture is almost impossible to bring to court.

Time is running out, so I will finish by quoting the questions that the Judge Advocate General put to the Minister in Committee. He said that

“six Royal Military Police were killed…in 2003”,

and asked:

“would we accept that there would be a presumption against… prosecution”

of their murderers? Would we expect special arrangements—

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. I will let the right hon. Member read the quote before finishing.

[Mr Davis]

I will read the quote:

“Would we be content that a member of the Iraqi Government’s consent would be needed to prosecute? Would we accept a decision by that person not to prosecute? In my view, there would be outrage in this country if”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 128, Q278]—

the Iraqis behaved in that way. The Judge Advocate General said that we should always remember that the law should be “even-handed” to all people.

[Gavin Robinson (Belfast East) (DUP)]

It is a pleasure to contribute to the debate on Report, and to do so early, following the right hon. Member for Haltemprice and Howden (Mr Davis) and a number of other contributors. Time is tight on proceedings, but had the right hon. Member for North Durham (Mr Jones) spoken for the entirety of the Opposition, Members would have been largely content. I was clear on Second Reading that, while we support the Bill, many aspects of it could have been—and I regret were not—improved in Committee.

I will make this broader point at this stage: just because the Government have the strength of votes does not mean that they have a monopoly on wisdom, or that they should not engage more productively and proactively with some of the concerns that have been expressed. I do not say that belligerently or to cause difficulty; those who have served with me on the Defence Committee know that I approach such matters sincerely. I say it because we want to see the right outcome and the right protection for our service personnel. I am afraid that, following the Bill Committee, we are not quite there yet. We have the opportunity this evening to make necessary amendments.

I will repeat at this stage, although it is not part of the Bill, that I resent the fact that Northern Ireland provisions have not been brought forward. The Minister gave me a commitment on Second Reading—I am glad that he did—that the Government will not resile from the commitments that they have given to veterans who served in Northern Ireland. I accept that progress on those provisions is now, regrettably, outwith the Minister’s domain, but that commitment is still there from the Government and we look forward to seeing how they will honour it.

Overseas Operations (Service Personnel and Veterans) Bill

David Davis Excerpts

Consideration of Lords message
Tuesday 27th April 2021 Commons Chamber

[Mr Deputy Speaker (Mr Nigel Evans)]

I inform the House that the knife falls at 4.32 pm and we have nine speakers, plus the Minister to respond. That gives hardly any time, so can I implore those contributing either remotely or physically please to use self-discipline? With nobody specifically in mind, I call David Davis.

[Mr David Davis (Haltemprice and Howden) (Con) [V]]

Thank you for the hint, Mr Deputy Speaker. I will confine myself to issues around Lords amendment 1R in order to limit what I have to say.

Last week’s concessions from the Government on the matters relating to amendment 1R were long overdue. With their tabling of the amendments removing genocide, torture and crimes against humanity, some of the most egregious errors in the Bill were corrected, which is why I voted in favour of the Government amendment last week. However, as I warned on Wednesday, that amendment left one serious matter unresolved—war crimes are still subject to a presumption against prosecution. Thankfully, further representations from Lord Robertson and others have led the Government now to rectify this oversight with the amendment we are considering today. I welcome that further concession. In government, as I said last week, it is always difficult to change your mind once you set out on a specific course of action, but the Government are to be commended for doing just that in the case of this Bill. In particular, I again commend the new Minister for his extremely rational approach to this and using the time that ping-pong has given him to good effect.

The original drafting of the Bill created a situation whereby the UK’s standing on the international stage would have been threatened. Our reputation as an upholder of the rule of law would have been tarnished and we would have run the risk of potentially having our troops hauled before the International Criminal Court. That would have been a truly shameful outcome. The ICC is usually in the business of prosecuting tyrants and torturers, not the soldiers of law-abiding democracies, let alone one with the United Kingdom’s reputation. The concessions last week would still have left our soldiers open to charges of war crimes. To be clear, these are not theoretical concerns of myself or other Members either here or in the other place. When I asked the chief prosecutor of the ICC for her consideration of the Government’s concessions on this point, she said in her response to me last Friday that

“any gap between the scope of coverage in the excludable offences under the proposed legislation and conduct which might otherwise constitute a crime within the jurisdiction of the Court would risk…rendering relevant cases concerning such conduct admissible before the ICC.”

In other words, the Bill in its state last week would have still left our soldiers open to prosecution.

Today’s amendment means that torture, war crimes, crimes against humanity and genocide will all now, quite rightly, be excluded from the presumption against prosecution contained in the Bill. That is to be welcomed. On that basis, I am entirely supportive of the Government and they will get my vote today. However, I will just make a comment en passant relating to what the right hon. Members for Wentworth and Dearne (John Healey) and for North Durham (Mr Jones) said. The Ministry of Defence now needs to take the advice of people like former Judge Advocate General Blackett, and others, and improve its own investigation system to stop soldiers from going through the same problems again in future. The problem has always rested, in part, within the walls of the Ministry of Defence, so improvements to the investigation process must be made. Our troops need to be reassured that if they ever face allegations of wrongdoing they will be investigated fairly, rapidly, and without the threat of constant reinvestigation. Only then will our service personnel be properly protected from vexatious and damaging litigation, and only then will this Bill and its associated policy have properly achieved its aim.