Overseas Operations (Service Personnel and Veterans) Bill

Baroness Laing of Elderslie Excerpts

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

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

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dame Eleanor Laing)]

With this it will be convenient to discuss the following:

New clause 2—Limitation of time for minor offences—

“No proceedings shall be brought against any person in relation to a relevant offence, where—

(a) the condition set out in subsection 3 of section 1 is satisfied,

(b) the offence is subject to summary conviction only, or is one in the commission of which no serious, permanent or lasting psychological or physical injury has been caused, and

(c) a period of six months has passed from the time the offence was committed or discovered.”

This new clause would dispose of minor allegations of misconduct by imposing a time limit similar to that which exists in relation to summary only matters in Magistrates’ Courts.

New clause 3—Access to justice for service personnel—

“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation comparing—

(a) access to justice for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, in relation to legal proceedings in connection with operations of the armed forces outside the British Islands, with

(b) access to justice for asylum seekers and prisoners seeking to bring an action against the Crown.”

New clause 4—Ability to conduct a fair trial—

“The principle referred to in section 1(1) is that a relevant prosecutor making a decision to which that section applies may determine that proceedings should be brought against the person for the offence, or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”

This new clause is intended to replace Clause 2 of the Bill. It replaces the presumption against prosecution with a requirement on a prosecutor deciding whether to bring or continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.

New clause 5—Restrictions on time limits: actions brought against the Crown by service personnel—

“Nothing in this Part applies to any action brought against the Crown by a person who is a member or former member of the regular or reserve forces, or of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies.”

This new clause amends Part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the Part imposes in respect of actions relating to overseas operations.

New clause 6—Duty of care to service personnel—

“(1) The Secretary of State shall establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.

(2) The Secretary of State shall lay a copy of this standard before Parliament within six months of the date on which this Act receives Royal Assent.

(3) The Secretary of State shall thereafter in each calendar year—

(a) prepare a duty of care report; and

(b) lay a copy of the report before Parliament.

(4) The duty of care report is a report about the continuous process of review and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—

(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;

(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;

(c) judicial reviews and inquiries into allegations of misconduct by service personnel;

(d) in such other fields as the Secretary of State may determine.

(5) In preparing a duty of care report the Secretary of State must have regard to, and publish relevant data in relation to (in respect of overseas operations)—

(a) the adequacy of legal, welfare and mental health support services provided to service personnel who are accused of crimes;

(b) complaints made by service personnel and, or their legal representation when in the process of bringing or attempting to bring civil claims against the Ministry of Defence for negligence and personal injury;

(c) complaints made by service personnel and, or their legal representation when in the process of investigation or litigation for an accusation of misconduct;

(d) meeting national care standards and safeguarding to families of service personnel, where relevant.

(6) In section (1) “service personnel” means—

(a) members of the regular forces and the reserve forces;

(b) members of British Overseas Territory forces who are subject to service law;

(c) former members of any of Her Majesty‘s forces who are ordinarily resident in the United Kingdom; and

(d) where relevant, family members of any person meeting the definition within (a), (b) or (c).

(7) In subsection (1) “Duty of Care” means both the legal and moral obligation of the Ministry of Defence to ensure the well-being of service personnel.

(8) None of the provisions contained within this clause shall be used to alter the principle of Combat Immunity.”

This new clause will require the Ministry of Defence to identify a new duty of care to create a new standard for policy, services and training in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigations arising from overseas operations, and to report annually on their application of this standard.

New clause 7—Duty of care to service personnel—

“(1) This section applies where—

(a) a person has been acquitted of an offence relating to conduct on overseas operations; or

(b) a determination has been made that an investigation into an offence relating to such conduct should cease under section (Judicial oversight of investigations).

(2) No further investigation into the alleged conduct shall be commenced unless—

(a) compelling new evidence has become available; and

(b) an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong.”

This new clause would require a judge advocate of the armed services to determine if new evidence is sufficient to grant reinvestigation of armed forces personnel for alleged offences in which they have been acquitted or the original investigation was ceased.

Amendment 11, page 1, line 4, leave out clause 1.

Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.

Amendment 18, in clause 1, page 2, line 2, leave out “5” and insert “10”.

This amendment is one of two providing that the presumption against prosecution should apply after 10 years (instead of 5 years).

Amendment 19, in clause 1, page 2, line 4, leave out “5” and insert “10”.

This amendment is one of two providing that the presumption against prosecution should apply after 10 years (instead of 5 years).

Amendment 64, page 2, line 12, leave out clause 2.

This amendment, which would remove Clause 2 from the Bill, should be read together with NC4, which replaces the presumption against prosecution with a requirement on a prosecutor to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.

Amendment 13, page 2, line 18, leave out clause 3.

Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.

Amendment 24, in clause 3, page 2, line 20, leave out

“(so far as they tend to reduce the person’s culpability or otherwise tend against prosecution)”.

This amendment would ensure that, in giving particular weight to the matters in subsection (2), a prosecutor may consider whether any matter tends to reduce or increase culpability, tending against or in favour of prosecution respectively.

Amendment 21, in clause 3, page 2, leave out lines 23 to 29.

This amendment is one of two that together would delete the requirement for a prosecutor to give “particular weight” in a prosecution decision after 5 years to the adverse effect on a person of the conditions the person was exposed to during deployment.

Amendment 25, in clause 3, page 2, line 33, at end insert—

“(ba) the thoroughness, promptness and efficacy of any ongoing investigation into the alleged conduct or any relevant previous investigation, and the reasons for any delays in such investigations;”.

This amendment would ensure that the adequacy of any investigative process to date is given particular weight by a relevant prosecutor.

Amendment 26, in clause 3, page 2, line 33, at end insert—

“(bb) the public interest in maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces;”.

This amendment would ensure that a relevant prosecutor gives particular weight to maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces.

Amendment 27, in clause 3, page 2, line 33, at end insert—

“(bc) the nature of the alleged conduct, in particular whether it engaged the obligations of the United Kingdom under Articles 2, 3, 4 or 5 of the European Convention on Human Rights;”.

This amendment would ensure that particular weight is given by a prosecutor where the alleged conduct engages the UK’s obligations under Article 2 (right to life), Article 3 (prohibition on torture and inhuman or degrading treatment, Article 4 (prohibition of slavery and forced labour) or Article 5 (prohibition of arbitrary detention) ECHR.

Amendment 28, in clause 3, page 2, line 33, at end insert—

“(bd) whether the person had command responsibility for the alleged conduct, and to what extent;”.

This amendment would ensure that particular weight is given by a relevant prosecutor where the person had command responsibility for the alleged conduct.

Amendment 38, in clause 3, page 2, line 33, after subsection (2)(b), insert—

“(c) the quality and duration of relevant investigations.”

This amendment would require prosecutors to give weight to the quality and duration of relevant investigations when deciding whether to bring or continue proceedings against a person relating to alleged conduct during overseas operations.

Amendment 22, in clause 3, page 2, leave out lines 34 to 43.

This amendment is one of two that together would delete the requirement for a prosecutor to give “particular weight” in a prosecution decision after 5 years to the adverse effect on a person of the conditions the person was exposed to during deployment.

Amendment 14, page 3, line 1, leave out clause 4.

Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.

Amendment 15, page 3, line 15, leave out clause 5.

Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.

Amendment 31, in clause 5, page 3, line 29, at end insert—

“(c) where the offence is punishable with a criminal penalty by the law of Scotland, except with the consent of the Lord Advocate.”

Amendment 39, in clause 5, page 3, line 29, at end insert—

“(3A) Where the consent of the Attorney General is sought under subsection (2) or (3) above, the Attorney General must prepare a report containing his reasons for granting or withholding consent, as the case may be, with reference to sections 1 to 3 of this Act, and must lay a copy of this report before Parliament.”

This amendment requires the Attorney General to lay out their evidence and assessment as to why they granted or refused consent to prosecute.

Amendment 16, page 3, line 40, leave out clause 6.

Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.

Amendment 20, in clause 6, page 4, line 13, at end insert—

“(2A) An offence is not a “relevant offence” if it amounts to—

(a) torture, within the meaning of section 134 Criminal Justice Act 1988; or

(b) genocide, a crime against humanity or a war crime as defined in section 50 of the International Criminal Court Act 2001.”

This amendment provides that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide or torture.

Amendment 32, in clause 6, page 4, line 13, at end insert—

“(3A) A service offence is not a “relevant offence” if it is an offence whose prosecution is required under the United Kingdom’s international treaty obligations.”

This amendment would exclude the prosecution of serious international crimes (such as torture, genocide, crimes against humanity, and certain war crimes) from the limitations otherwise imposed by the Bill.

Amendment 17, page 4, line 27, leave out clause 7.

Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.

Amendment 33, page 6, line 4, leave out clause 8.

Amendment 34, page 6, line 15, leave out clause 9.

Amendment 35, page 6, line 26, leave out clause 10.

Amendment 23, page 6, line 38, leave out clause 11.

This clause would introduce a hard deadline for human rights claims and also includes detailed provision around the impact of proceedings on the mental health of Armed Forces witnesses. This amendment deletes this clause from the bill.

Amendment 60, in clause 11, page 7, line 23, at end insert—

“(c) the importance of the proceedings in securing the rights of the claimant.”

This amendment adds a further consideration to which UK courts must have particular regard when determining whether to disapply the standard HRA limitation period of one year so as to ensure that the claimant’s interest in having their claim proceed is not subordinated.

Amendment 46, in clause 11, page 7, line 30, leave out from “before” to the end of line 34 and insert

“the end of the period of 6 years beginning with the date of knowledge.”

This amendment is one of a series that change the relevant date from which the six-year longstop starts to run so as to account for legitimate and explicable delays commonly experienced by persons bringing claims under the HRA arising out of overseas operations.

Amendment 41, in clause 11, page 7, line 34, at end insert—

“(4A) The court may disapply the rule in subsection (1) (b) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—

(a) the nature of the injuries;

(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or

(c) any other reasons outside the control of the person bringing the claim.”

This amendment introduces a discretion for UK courts to allow a Human Rights Act claim arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.

Amendment 29, in clause 11, page 7, line 36, leave out

“first ought to have known”.

Amendment 47, in clause 11, page 7, line 40, at end insert—

“(c) of the manifestation of the harm resulting from that act which is the subject of the claim; and

(d) that they were eligible to bring a claim under the Human Rights Act 1998 against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”

This amendment is one of a series that change the relevant date from which the six-year longstop starts to run so as to account for legitimate and explicable delays commonly experienced by persons bringing claims under the HRA arising out of overseas operations.

Amendment 40, page 8, line 14, leave out clause 12.

Clause 12 would require the Secretary of State to consider making a derogation under Article 15(1) ECHR in respect of any significant overseas operations. This amendment would remove this requirement.

Amendment 37, 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.

Amendment 66, page 11, line 1, leave out schedule 1.

This amendment is consequential on Amendment 16.

Amendment 1, in schedule 1, page 12, line 6, at end insert—

“(13A) An offence under section 134 of the Criminal Justice Act 1988 (torture).”

This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.

Amendment 2, in schedule 1, page 12, line 40, leave out “or” and insert—

“(b) a crime against humanity within article 7.1(f),

(c) a crime against humanity within article 7.1(i)

(d) a crime against humanity within article 7.1(k), or”.

This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.

Amendment 3, in schedule 1, page 12, line 42, leave out “or” and insert—

“(ii) article 8.2(a)(ii) (which relates to international conflict),

(iii) article 8.2(b)(xxi) (which relates to international conflict), or”.

This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.

Amendment 4, in schedule 1, page 13, line 2, at end insert “, or

(iv) article 8.2(c)(i) (which relates to armed conflicts not of an international character) insofar as it relates to the offences of cruel treatment and torture,

(v) article 8.2(c)(ii) (which relates to armed conflicts not of an international character).”

This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.

Amendment 5, in schedule 1, page 13, line 14, leave out “or” and insert—

“(b) a crime against humanity within article 7.1(f),

(c) a crime against humanity within article 7.1(i),

(d) a crime against humanity within article 7.1(k), or”.

This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.

Amendment 6, in schedule 1, page 13, line 16, leave out “or” and insert—

“(ii) article 8.2(a)(ii) ((which relates to international conflict),

(iii) article 8.2(b)(xxi) (which relates to international conflict), or”.

This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.

Amendment 7, in schedule 1, page 13, line 18, at end insert—

“(iii) article 8.2(c)(i) (which relates to armed conflicts not of an international character) insofar as it relates to the offences of cruel treatment and torture,

(iv) article 8.2(c)(ii) (which relates to armed conflicts not of an international character).”

This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.

Amendment 8, in schedule 1, page 14, line 8, leave out “or” and insert—

“(b) a crime against humanity within article 7.1(f),

(c) a crime against humanity within article 7.1(i),

(d) a crime against humanity within article 7.1(k), or”.

This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.

Amendment 9, in schedule 1, page 14, line 10, leave out “or” and insert—

“(iii) article 8.2(a)(ii) ((which relates to international conflict),

(iv) article 8.2(b)(xxi) (which relates to international conflict), or”.

This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.

Amendment 10, in schedule 1, page 14, line 12, at end insert—

“(iii) article 8.2(c)(i) (which relates to armed conflicts not of an international character) insofar as it relates to the offences of cruel treatment and torture, or

(iv) article 8.2(c)(ii) (which relates to armed conflicts not of an international character).”

This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.

Amendment 67, page 15, line 33, leave out schedule 2.

This amendment is consequential on Amendment 33.

Amendment 48, in schedule 2, page 16, line 5, leave out

“the section 11 relevant date”

and insert “the date of knowledge”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.

Amendment 30, in schedule 2, page 16, line 5, at end insert

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

Amendment 42, in schedule 2, page 16, line 5, at end insert—

“(1ZAi) The court may disapply the rule in subsection (1ZA) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—

(a) the nature of the injuries;

(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or

(c) any other reasons outside the control of the person bringing the claim.”

This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for personal injury arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.

Amendment 49, in schedule 2, page 16, line 30, leave out

“the section 11 relevant date (ignoring, for this purpose, the reference to section 11 (5) in paragraph (a) of the definition of that term)”

and insert “the date of knowledge.”

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.

Amendment 50, in schedule 2, page 16, line 35, leave out

“the section 12 relevant date”

and insert “the date of knowledge”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.

Amendment 43, schedule 2, page 16, line 36, at end insert—

“(2Bi) The court may disapply the rules in subsections (2A) and (2B) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—

(a) the nature of the injuries;

(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or

(c) any other reasons outside the control of the person bringing the claim.”

This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.

Amendment 61, in schedule 2, page 17, line 5, at end insert—

“(c) the court must also have particular regard to the importance of the proceedings in securing the rights of the claimant.”

This amendment adds a further consideration to which the courts of England and Wales must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not illegitimately subordinated.

Amendment 51, in schedule 2, page 17, leave out from beginning of line 35 to end of line 5 on page 18, and insert—

“‘the date of knowledge’ means the date on which the person bringing the proceedings first knew, or first ought to have known—

(a) of the act complained of;

(b) that it was an act of the Ministry of Defence or the Secretary of State for Defence;

(c) of the manifestation of the injury resulting from that act which is the subject of the claim, and

(d) that they were eligible to bring a claim against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury and wrongful death arising out of overseas operations.

Amendment 68, page 20, line 1, leave out schedule 3.

This amendment is consequential on Amendment 34.

Amendment 62, in schedule 3, page 20, line 32, at end insert—

“(c) the importance of the proceedings in securing the rights of the claimant.”

This amendment adds a further consideration to which the courts of Scotland must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not subordinated.

Amendment 52, in schedule 3, page 20, line 41, leave out

“the section 17 relevant date”

and insert

“the date of knowledge (see subsection (13))”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.

Amendment 53, in schedule 3, page 21, line 4, leave out

“the section 18 relevant date”

and insert

“the date of knowledge (see subsection (13))”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.

Amendment 54, in schedule 3, page 21, line 9, leave out

“the section 17 relevant date”

and insert

“the date of knowledge (see subsection (13))”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.

Amendment 44, in schedule 3, page 21, line 9, at end insert—

“(7A) The court may disapply the rules in subsections (5) to (7) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—

(a) the nature of the injuries;

(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or

(c) any other reasons outside the control of the person bringing the claim.”

This amendment introduces a discretion for the courts of Scotland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.

Amendment 55, in schedule 3, page 22, leave out lines 12 to 17 and insert—

“‘the date of knowledge’ means the date on which the person bringing the proceedings first knew, or first ought to have known—

(a) of the act complained of;

(b) that it was an act of the Ministry of Defence or the Secretary of State for Defence;

(c) of the manifestation of the injury resulting from that act which is the subject of the claim, and

(d) that they were eligible to bring a claim against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury and wrongful death arising out of overseas operations.

Amendment 69, page 23, line 38, leave out schedule 4.

This amendment is consequential on Amendment 35.

Amendment 56, in schedule 4, page 24, line 5, leave out

“the Article 7 relevant date”

and insert “the date of knowledge”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.

Amendment 45, in schedule 4, page 24, line 5, at end insert—

“(1Ai) The court may disapply the rule in paragraph (1A) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—

(a) the nature of the injuries;

(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or

(c) any other reasons outside the control of the person bringing the claim.”

This amendment introduces a discretion for the courts of Northern Ireland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.

Amendment 57, in schedule 4, page 24, line 29, leave out

“the Article 7 relevant date (ignoring, for this purpose, the reference to Article 7(5) in paragraph (a) of the definition of that term)”

and insert “the date of knowledge”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury out of overseas operations.

Amendment 58, in schedule 4, page 24, line 34, leave out

“the Article 9 relevant date”

and insert “the date of knowledge”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.

Amendment 63, in schedule 4, page 25, line 5, at end insert—

“(c) the court must also have particular regard to the importance of the proceedings in securing the rights of the claimant.”

This amendment adds a further consideration to which the courts of Northern Ireland must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not subordinated.

Amendment 59, in schedule 4, page 25, leave out lines 25 to 43 and insert—

“‘the date of knowledge’ means the date on which the person bringing the proceedings first knew, or first ought to have known—

(a) of the act complained of;

(b) that it was an act of the Ministry of Defence or the Secretary of State for Defence;

(c) of the manifestation of the injury resulting from that act which is the subject of the claim, and

(d) that they were eligible to bring a claim against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury and wrongful death arising out of overseas operations.

[Mr Jones]

For the sake of time, I will not speak to every single amendment.

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[Johnny Mercer]

I just wish to intervene briefly. It is a litany of accusations and they are complete rubbish. Where have I ever said that I wanted to stop investigations in this Bill? That is what I would like the right hon. Gentleman to indicate to me.

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. That is a perfectly reasonable question, but, although it is not exactly unparliamentary language, perhaps the Minister, speaking as he does with dignity from the Front Bench, might use a different phrase than “complete rubbish”—just something a little bit different.

[Mr Jones]

It is better than he did in Committee when he called me a hypocrite, Madam Deputy Speaker, but if he listens to what I am saying, he will know that I am not saying that. I know that his attention span is not very good, and he does not tend to listen. What he tends to do is just stick to what he has in front of him and his view of the world, rather than hearing what people are saying. The issue is—[Interruption.] Well, he can say “brilliant” and chunter as much as he likes, but this is the issue—the delays that are taking place because of the investigations.

I have referred to Judge Blackett, and the Minister was there when the evidence was taken. Judge Blackett is a just-retired senior judge of the service justice system, and he said:

“The Bill is effectively looking at the wrong end of the telescope. It is looking at the prosecution end, and you have got to remember that you do not prosecute until you investigate—and you have got to investigate. This will not stop people being investigated and it will not stop people being re-investigated and investigated again. Lots of investigations do not go anywhere, but the people who are investigated do not see that.”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 120.]

That came up when we took evidence from Major Campbell. I will put it on record again that his case was a disgrace, because it took 17 years, but this Bill will do nothing to speed up such cases or to ensure that reinvestigations do not occur. That is the key problem. The problem is not the prosecutions, because their number is very small.

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[Mr Jones]

I defer to the hon. Gentleman’s knowledge of Northern Ireland politics, but I will say that this will not be solved by the promise that has been made. That again is not the issue.

I turn to new clause 3. It relates to the point that was raised on part 2 and is covered by an amendment tabled by Members on the Labour Front Bench. The issue is the stripping away of rights from veterans. I find it absolutely astonishing that, in this week of remembrance, we have a Government who have introduced a Bill that will actually take rights away from veterans. The longstop of six years will mean that veterans—and families—will not have access to section 33 of the Limitation Act, which allows people to bring cases out of time.

In Committee there was a lot of discussion about how many people would be affected. The Royal British Legion was very clear in its opposition to part 2 because, as Charles Byrne said in response to the Minister:

“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 said that the Royal British Legion thought it did breach the armed forces covenant. I agree, because the covenant states:

“Those who serve in the Armed Forces, whether Regular or Reserve, those who have served in the past, and their families, should face no disadvantage compared to other citizens in the provision of public…services”

and so on. I agree with that, but this strips away their rights under section 33, which means that if somebody brings forward a case after the six-year longstop, they cannot have recourse to section 33 of the Limitation Act, because the Bill will take those rights away. Those rights are open to every single Member in the House today, and to prisoners and asylum seekers—anybody who wants to bring a case.

The Minister said that 94% of cases were brought within the time limits anyway. That is irrelevant to me, because 6% clearly are not, and it is those 6% that will then possibly use the Limitation Act.

May I put this on record, as I did in Committee? Bringing forward a section 33 case is by no means easy. It pertains to a very small number of individuals who could not bring their case within the time limit because their circumstances were unique; and they have to go before a court and argue out the reasons. I have done it myself when I worked for a trade union on injury or disease cases that were out of time—although you would not take on such a case in the first instance if you thought you would not get anywhere. However, there are those important cases that you can take, and which do make a difference.

The case that was mentioned time and again in Committee was the Snatch Land Rover decision in 2016. The families took forward the case under the Human Rights Act, which I will come on to in a minute, on the basis that their loved ones had been killed and injured in Iraq because of negligence on behalf of the MOD.

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. Just for clarification, in the silent exchange that the right hon. Gentleman and I have just had, I was trying to indicate to him that it would be helpful to the House if he concluded his remarks quite soon. I know it seems that he has not been speaking for very long, but it has been 22 minutes. I appreciate that he has taken a lot of interventions and this is important. I am requiring not that he finishes now but that he takes into consideration that there are many points of view on this Bill and that there are many people who wish to speak and, although we have a long time, we do not have long enough for everyone to take more than 20 minutes. He has some serious points to make, and I trust he will make them as quickly as possible.

[Mr Jones]

On one occasion, I spoke in Committee for an hour and 10 minutes.

[Miss Sarah Dines (Derbyshire Dales) (Con)]

Could the right hon. Gentleman take a moment to reflect on what he said in his opening remarks, when he said there was near silence from Conservative Members in Committee? I was there, and I did not hear silence, but his contributions probably put us to sleep. With respect, could he think about it again for one moment?

On our side, we had valuable contributions from Members of Parliament who have served this great country of ours, like my hon. Friends the Members for Wrexham (Sarah Atherton) and for Wolverhampton South West (Stuart Anderson). They know what they are talking about. Would the right hon. Gentleman care to think again about saying they were silent?

[Madam Deputy Speaker]

Order. Let us get this straight. Interventions will also be brief this afternoon. We want interventions because there is a serious debate to be had. As I look around the Chamber, I see experienced parliamentarians and others who understand that this is a very important Bill, and much of it is very sensitive, so let us try to behave with sensitivity and consideration for others.

[Mr Jones]

I made a mistake this morning, because I was going to count the number of interventions. There were no speeches from Conservative Members in Committee, although I think there were six interventions.

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[Madam Deputy Speaker]

Order. I do not care how many interventions there were in Committee. This debate is not about Committee; it is about the important matters before us, and that is what we will stick to.

[Mr Jones]

Sorry, Madam Deputy Speaker, but I was being polite in replying to the hon. Member for Derbyshire Dales (Miss Dines).

The families took the case against the MOD on the basis that they did not know about the Snatch Land Rovers until the Chilcot inquiry reported. That was way past any time limit.

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[Mr Jones]

It does. The Bill’s provisions will also mean that prisoners will have more right to sue the MOJ, for example, than armed forces personnel. The Minister said in Committee, “That’s terrible because you’re comparing armed service personnel with veterans”; no, I am not. I am saying that if the Bill goes through, prisoners will have more rights than armed forces personnel. That cannot be right. The Minister mentioned the 6%; I am sorry, but if even one veteran loses their rights under this Bill, I am not prepared to support that.

My next point is about the Human Rights Act. I support the amendments tabled by my hon. Friend the Member for Barnsley Central (Dan Jarvis) and the right hon. Member for Haltemprice and Howden (Mr Davis), because it is about how this looks in terms of our international reputation. There is derogation in the Bill; I accept that there cannot be derogation for torture, but it can and will be used to stop claims by MOD personnel against the MOD itself. The Snatch Land Rover case was brought under the Human Rights Act. Some people have the idea that the Human Rights Act is there to protect nasty foreigners and people we do not like; no, it is not. It is there to protect us all, including armed forces personnel. I am sure that that derogation will be used again by the MOD to deny the rights of individuals to take cases.

People should look at the Smith judgment on that case. What were the Government arguing? They were arguing that combat immunity, which is covered and was reinforced by the Supreme Court judgment, applied in that case because it happened in Iraq. No, that was not the case; the case was actually about the design and the decision to procure those Land Rovers and put them into theatre. The derogation will clearly be used in such a way.

I wish to make one final point, about our standing in the world. I am a supporter of the service justice system—it works well and we should be proud of it—but the problem with the Bill is this: do I want to see British servicemen and women tried in the International Criminal Court? No, I do not. I want them to be tried by their peers in a court in this country. As the Judge Advocate General, Judge Blackett, said in Committee, under this Bill there is a danger that if we have a presumption against prosecution and the issue around torture, we will get a situation whereby individuals will be tried not here but elsewhere. That would be terrible, not just for those individuals but for this country’s international reputation.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I had been hoping to manage this afternoon’s proceedings without a time limit, but I do not think that is going to work; therefore, I am now obliged, in order to try to get a fair and equitable debate, to start with a time limit of eight minutes, but that will be significantly reduced later in the debate. If hon. Members who have eight minutes choose in an honourable way to speak for less than eight minutes, that would be remarkable.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

The right hon. Member for North Durham (Mr Jones) set me a target of 30 minutes, Madam Deputy Speaker, and you have reduced it to eight. It is a crying shame.

The Bill’s importance comes down to the penultimate points that the right hon. Gentleman was talking about. The importance of the Bill is all about the Human Rights Act. It is all about the defence not just of British service personnel—which is absolutely right—but of these islands, this nation and our citizens. The point about this Bill is that the law not only interferes inappropriately in the way that the combat forces of our country conduct themselves, but it actually weakens the defence of our realm. Let me break down what I mean by that and explain clearly why this is a problem.

We are seeing today armies being stopped from deploying in certain areas and individual personnel being asked to stop operations because the law is geared to a civilian environment. We have seen legal action brought against the MOD to protect the rights of an individual on operations who has volunteered and specifically stepped up to serve in a risky environment, knowing the dangers and the consequences. The important difference between the civilian environment and the military one and between, to use the jargon, international humanitarian law and international human rights law—or the Geneva convention and civilian law, if you like—is that the law is geared to the environment. If it is not, we end up doing something most unfortunate that nobody in the House wants to do: we end up giving ammunition to the enemy and power to those who would seek to take power from us.