Overseas Operations (Service Personnel and Veterans) Bill

Debate between David Davis and John Healey

Wednesday 21st April 2021 Commons Chamber

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

I congratulate and warmly welcome the Minister for Defence People and Veterans to this, his first—and, I am sure, not the last—Front-Bench role. It is at this point that, as the departmental Whip, he might have wished he had paid more attention to the content of the debates on the Bill than to winning the votes, but he brings a wealth of expertise to his post from six years in the Scots Guards and from serving as the Member of Parliament for Aldershot, and I think the House has already heard this afternoon that he will make a very good fist of his new role. We wish him well.

We will miss the hon. Member for Plymouth, Moor View (Johnny Mercer) in a mixed sort of way. He has been a roadblock to reason during the passage of the Bill through Parliament, but no one can fault his passion or his sense of mission. His letter of resignation last night to the Prime Minister lays bare the failings of the Government, not just across the breadth of veterans’ concerns, but in the very character of the Prime Minister and his Government. In it, the hon. Gentleman said:

“we continue to say all the right things”

yet

“fail to match that with what we deliver”.

I am glad to have heard the new Minister say today that the Government promise legislation on Northern Ireland shortly. We will look hard at that, but when it comes to dealing with the legacy of the past in Northern Ireland, we remain committed to the only way forward, which must be based on the Good Friday agreement, and in particular on the broad consensus reached at Stormont House with victims at its heart.

The Minister was probably responsible for this as the Whip, but I am delighted to say that, unlike the previous stages of the Bill in this House, we have plenty of time this afternoon to deal with the Lords amendments. I pay tribute to the peers who led on each of the four amendments before us: Lord Robertson of Port Ellen on Lords amendment 1; Lord Dannatt on Lords amendment 5; Lord Thomas of Gresford on Lords amendment 2; and Lord Faulkner and Lord Tunnicliffe on Lords amendment 4. Each of the amendments had strong Crossbench backing, each had the most senior military members of the Lords signed up and each was passed with a big majority in the other place. I say to Government Members that not a single Conservative peer spoke in favour of the Government or against these four amendments during the last stage in the House of Lords. I hope that gives them pause for thought about just how isolated their Ministers are on these amendments and how they have failed to convince an ever-widening group of distinguished individuals, experts and specialist groups about the Bill.

[Mr David Davis]

Am I correct in believing that Lord Mackay—an ex-Law Officer in a Conservative Government—actually supported the amendment?

[John Healey]

I believe that if the right hon. Gentleman consults Lords Hansard, he will see that Lord Mackay was speaking to another amendment. I am talking about the four main amendments that are before us today.

I know there has been a long-running problem. The Labour party accepts and recognises the problem of baseless allegations and legal claims arising from Iraq and Afghanistan under both Labour and Conservative Governments. But the Bill, unamended, is not the solution, even though we have worked hard from the outset to forge consensus on the changes needed to make the Bill into legislation that best serves the interests of British troops, British justice and British military standing in the world. I take a perhaps old-fashioned view that it is our duty in this House and the other place to make this legislation fit for purpose, and ensure that it is a new legal framework for this country when we have in future to commit our servicemen and women to conflict overseas.

I thank and pay tribute to the work of the organisations that have been most active in helping parliamentarians in both Houses during the passage of this Bill with their expertise and views. Those organisations include Freedom from Torture, Reprieve, the Royal British Legion, the Centre for Military Justice and the Association of Personal Injury Lawyers. I also pay tribute to Members on both sides of this House, particularly the 15 who served with our Front-Bench colleagues on the Public Bill Committee and who have contributed so fully to the debates that we have had so far.

Let me turn to the Lords amendments on which I will concentrate. The reason that no Tory peers spoke in support of the Government on these amendments is because the Bill just does not do what it says on the tin—that is, protect British forces personnel serving overseas from vexatious legal claims and from repeat investigations.

I turn to Lords amendment 2. More than 99% of the 4,000-plus allegations against our troops arising from Iraq and Afghanistan would not have been affected at all by this Bill, because it relates only to the prosecution’s process and the prosecutorial system. That is why Lord Boyce, former Chief of the Defence Staff, said:

“The Bill’s significant emphasis on presumption against prosecution as a way of relieving some of the stress of legal proceedings”

is misplaced, and that,

“it is the investigation and reinvestigation process that…so…wears people down.”—[Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1170.]

I turn to Lords amendment 4. Part 2 of the Bill strips forces and forces’ families of their current rights to civil justice and compensation if they suffer injury or even death as a result of MOD negligence. That is why Lord Stirrup, also a former Chief of the Defence Staff, said:

“It seems strange to me that a Bill with the avowed purpose of providing government reassurance to service personnel seems intent on preventing those very personnel from seeking redress from that same Government.”—[Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1222.]

I turn to Lords amendment 1. The presumption against prosecution after five years increases the risk of British service personnel being dragged before the International Criminal Court. That is why the former Judge Advocate General—the military’s most senior legal figure—said in evidence to the Bill Committee itself:

“What it actually does is increase the risk of service personnel appearing before the International Criminal Court.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 117-18, Q234.]

Of course, the ICC’s chief prosecutor has indeed written to the Defence Secretary while the Bill has been in Parliament

“to ensure that the exemption clause extends to all crimes within the jurisdiction of the Court”.

Otherwise it would “render such cases admissible” before the International Criminal Court.

I turn to Lords amendment 3. I am pleased that the Government have accepted the case for removing clause 12, which would have required Ministers to consider derogating from the European convention on human rights before committing British troops to overseas conflicts. We challenged this with a Labour amendment at the very earliest stage of the Bill’s passage through the Commons. The decision to drop the clause reasserts the UK’s commitment to an important treaty that Britain played a leading role in drafting. It is important too in allowing an avenue of justice for both British forces personnel and for victims.

Let me turn to the core of the debate and concern in the House of Lords, which is Lords amendment 1 and the Government’s counter-proposals before the House this afternoon. The Secretary of State’s decision to accept parts of Lord Robertson’s amendment to exclude torture, genocide and war crimes from the presumptions is welcome, and it is testament to the efforts of Lord Robertson, many other groups and, indeed, Members of this House. I pay particular tribute to the right hon. Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Barnsley Central (Dan Jarvis), who together have banged the drum about the importance of torture not being carved out from provisions in the future.

The acts that Lord Robertson and so many Members of the upper House were concerned about are illegal and immoral. Under all circumstances, they must be investigated and, if there are grounds for the allegations, there must be prosecutions and punishment. The Minister talked about rectifying an omission with the Government’s amendments in lieu of Lords amendment 1. However, the Government are still picking and choosing some of the crimes that are covered by the Geneva conventions. Today they have picked out torture and genocide, but they are excluding the more general case of war crimes.

Torture and genocide should never have been included as offences within this Bill. Like sexual offences, there is no justification—there can never be justification—for them, so the decision now to exclude them is certainly a good step forward, and we welcome it and will support the Government’s amendments in lieu of Lords amendment 1. But can I urge the Minister, in the time between the consideration of these Lords amendments in this House and their being discussed again in the other place, to accept in full those crimes specified in Lord Robertson’s amendment 1, including war crimes, as excluded offences?

[John Healey]

Indeed, my right hon. Friend makes an important point. I have touched already on the risk that this will undermine Britain’s international reputation for fully upholding and adhering to many of the international rules and laws that we were instrumental in drafting and creating after the second world war. The Minister describes torture and genocide as omissions from the provisions of the Bill, and he rectifies that with his proposed amendments in lieu of Lords amendment 1, but it is not clear, as my right hon. Friend says, why other crimes covered by the Geneva conventions, particularly war crimes, are still omitted, because exactly the same arguments apply to those as to the ones the Government have rightly conceded on and reflected in their amendments in lieu.

Let me spell it out for the Minister. Article 8 of the Rome statute says that war crimes are:

“Grave breaches of the Geneva Conventions”.

This dates back to 1949, just after the second world war. These grave breaches include:

“Wilful killing… Wilfully causing great suffering, or serious injury… Compelling a prisoner of war or other…to serve in the forces of a hostile Power”.

That is important because, as both the Judge Advocate General and the chief prosecutor of the International Criminal Court, and Members on both sides of the House this afternoon, have made clear, not excluding these offences makes it more likely that British soldiers risk being prosecuted and pursued in the ICC.

As my right hon. Friend rightly said, it is also about our adherence to and respect for international law. If we ourselves meet the highest standard of legal military conduct, we can hold other countries to account when their forces fall short. If we do otherwise, it compromises our country’s proud reputation for upholding the rules-based international order that Britain itself has helped to construct since the days of Churchill and Attlee.

I ask the Minister and his colleagues in the MOD, when the Bill returns to the other place, to include war crimes as excluded offences, along with the other exclusions that he lists in his amendments in lieu of Lords amendment 1.

[Mr David Davis]

I think the right hon. Gentleman thought I was trying to trick him when I said that Lord Mackay had voted for Lords amendment 1. The point I was making is that Lord Mackay is a previous Law Officer—a very senior Law Officer in a Tory Government —and he voted for George Robertson’s amendment, reinforcing its force, not undermining it.

--- Later in debate ---

[John Healey]

My right hon. Friend says that he cannot see why the Government are pursuing this, but the director general of the Royal British Legion could. When he spoke to the Public Bill Committee, he said:

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

He is right. When my hon. Friend the Member for Portsmouth South (Stephen Morgan) pressed him and asked whether it would breach the armed forces covenant in his view, he said:

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

I turn to the last of the four main amendments at hand today, Lords amendment 5, which was moved in the other place by Lord Dannatt and is on the duty of care. One of the things that struck me most when talking to troops and their families who have been through the trauma of these long-running investigations is that they felt cut adrift—cut adrift from their chain of command and from the Ministry of Defence. The Public Bill Committee heard really clearly from Major Campbell. He gave dramatic evidence, and I am sure that the Minister has followed this; in fact, he was on the Committee, so he will have been there. When Major Campbell was asked what support the MOD gave him, he simply replied: “there was none.”

Of course, for veterans, it is even worse. For them, there is nothing—not even the chain of command—there for them. Although some of the previous decisions that the Government have taken—for instance, to cover the legal costs of those involved in the Iraq Historic Allegations Team investigations—were welcome, there should be and there can be a higher standard to reach for us in this regard.

When Lord Dannatt moved this amendment successfully in the Lords, he said:

“Defence priorities change; the fortunes of military charities fluctuate; Ministers come and go; but the law does not change. Amendment 14 would bring into law the good ideas and intentions of well-meaning Ministers and officials with whom we are currently united in common cause but who are strangely reluctant to enshrine the fruits of their endeavours in a Bill which will become an Act of Parliament and thus part of our law—a law to protect our people for all time from vexatious investigations and prosecutions.”—[Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1244.]

The former Veterans Minister wrote in his resignation letter last night:

“I remain genuinely appalled by the experiences of some of the Nation's finest people who have served in the Armed Forces.”

I say to the Minister, we can do better than this duty of care, particularly when the MOD has forces personnel and veterans subject to investigation or prosecution. I hope he will now accept this, so that we can establish a new duty of care standard and that legal, pastoral and mental health support is made available as a matter of course and a matter of duty by the MOD for those who are put under pressure and under investigation or prosecution.

I am coming to my conclusion, Madam Deputy Speaker. We are now legislating for the future. The Bill is not a framework that is fit for that future point when we must again commit our forces to conflict overseas. The Government are still getting important parts of the Bill badly wrong. I continue to believe strongly that, ultimately, the Government, Labour and the armed forces all want the same thing: we want to protect British troops and we want to protect British values. That is not, and should not be, a matter of party politics.

I end today as I ended our debates on Report back in November by saying this: it is late, but it is still not too late for Ministers to think again about the best way both to protect service personnel from vexatious litigation and to ensure that those who do commit serious crimes on operations abroad are properly prosecuted and punished. I urge the Minister and the Government to do just that in the very final stages of this Bill in Parliament.

[Mr David Davis]

May I declare an interest as a trustee of a regimental association? Let me reinforce my congratulations to the Minister at the Dispatch Box. I, too, in my time, have gone from the omertà of the Whips Office to the garrulousness of the Dispatch Box. It is not an easy transition, and he has carried it off with aplomb and class, and I look forward to a great future for him. What he has not been able to do for himself is manufacture time between his appointment and the consideration of these matters.

I will speak solely to Lords amendment 1—Lord Robertson’s amendment. I will broadly support the Government today with some caveats that the Minister will hear in a minute, but on the other amendments—in fact on all the amendments—I recommend right here and now to the Lords that, when we send them back, they send them back modified to take on board some of the intelligent comments that we have heard from across the House. The Minister then should look very hard at accepting them, because, next time around, I would be inclined to support the Lords amendments, as they have been very considerate in the way that they have presented them.

I also know from my experience as a Minister quite how difficult it is to undertake a 180 degree turn on a massively central point in a Bill. I commend the Government for doing almost exactly that on Lords amendment 1, because it reflects very closely what I and the hon. Member for Barnsley East (Stephanie Peacock) put forward on Report. However, it is an almost 180 degree turn, but it is one that was plainly needed. As the right hon. Member for Wentworth and Dearne (John Healey) has said, it was supported by the most august panel of people in the Lords that one could possibly pick for a subject such as this: six Chiefs of the Defence staff—people who do not willingly vote against the Government of the day; an ex-Secretary-General of NATO; a former head of MI5; two former independent reviewers of terrorism legislation; a former National Security Adviser; and several other senior military figures.

[John Healey]

And bishops.

[Mr Davis]

The bishops often vote against the Government. This is something where the military securitat—as it were—do not vote against the Government. They are people whose patriotism is unquestionable and whose knowledge is unparalleled in this area, so the Minister should pay great attention to them and take notice.

The aim of the Bill, as we have heard several times, is to shield our military personnel from being pursued by vexatious claims—I was going to say something rude about lawyers. It is a proper and worthwhile ambition and one that we should fully support. The Government have rightly made it clear—and this is the point on which I support them—that torture and genocide can never be acceptable and have excluded them from a five-year presumption against prosecution.

However, even with these concessions, there remains a fundamental problem. The Government have failed to exclude war crimes from the list of offences, as has been made clear by the Opposition spokesman. I asked the Minister whether he would clarify for me how he distinguishes between war crimes, torture, and genocide as subjects properly excluded from the Bill. Although he made a very skilful response he could not do it and I do not think anybody could do it. As my right hon. and gallant Friend the Member for Beckenham (Bob Stewart) made plain, war crimes include wilful killing: in the case he raised, the wilful killing of prisoners; the wilful killing of innocent civilians; and wilfully putting people through miserable pain or suffering. All those things are, quite properly, war crimes. They are, quite properly, things we would be held to account for by the rest of the world, let alone our soldiers being held to account by our courts and our judicial procedure.

I firmly believe that we cannot protect our own soldiers without correcting that exclusion. That is not just my opinion; it is the opinion of many of our experienced military leaders. Take Lord Robertson, the former Labour Minister—he was both Defence Secretary and NATO Secretary-General—who authored the amendment. He argued that the Bill would create

“a two-tier justice system in which troops acting for us abroad would be treated differently from other civilians in society.”—[Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1190.]

That cannot be right and that cannot be just. Indeed, it is not what our troops stand up for. It is not what they fight for. When they go abroad to fight, they do so because they stand up for our civilised values, and this is one of them. There is a certain quirk to that.

The Bill must give confidence to military personnel, complainants and other countries that the United Kingdom remains a stalwart upholder of the rule of law. There can be no greater test of our national character and no more important measure of our moral fibre than maintaining the highest of standards in this most difficult of tasks. We must get this right. If we get it wrong, we will be in the shameful position—this was made clear several times by the Labour party spokesman, the right hon. Member for Wentworth and Dearne—of putting our troops at risk of being summoned before the International Criminal Court. The chief prosecutor of that court wrote to the Secretary of State for Defence. When I saw the account of that, I wrote to the chief prosecutor and received a clarification. War crimes are plainly in the court’s sights. If somebody is alleged to have been guilty of a war crime and we exercise the presumption against prosecution as stated in the Bill, they will end up in front of the ICC. That is quite clear to me. That is not a risk, but a certainty.