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

Emma Lewell-Buck Excerpts

Committee stage & Committee Debate: 6th sitting: House of Commons
Wednesday 14th October 2020 Public Bill Committees

[Johnny Mercer]

Not at this stage.

However, this does not need further clauses that seek to fetter that discourse. It needs the lightest touch, which is achieved through the balanced and established relationship between police and prosecutor.

[Mrs Emma Lewell-Buck (South Shields) (Lab)]

Obviously, the Minister is probably more familiar with the Bill than I am. I just getting a little bit lost on his comments here. Is he saying that the only time that new evidence comes to light is through an investigation? That is just not the case. Sometimes evidence appears when there is not an ongoing investigation. Also, is he saying that, in that case, when new evidence comes to light, an investigation should not happen? For my benefit and perhaps that of other members of the Committee who are not as familiar with the Bill as he is, could he please explain where in the Bill there is a limit on reinvestigation at this moment?

[Johnny Mercer]

I am happy to address the point about reinvestigation, because there are no circumstances in which anybody could arrive at the Ministry of Defence with an allegation of criminality or whatever it might be and we could not investigate it. There is a difference between investigations and where those investigations start impacting the lives of veterans, which is what the Bill seeks to deal with and which is why we have drawn the line where we have. We are not saying that new evidence comes only from investigation, but, as I have outlined, new clause 7 introduces an element of oversight that is simply not practicable to what we are trying to do. I have outlined that the 3,500 cases in Iraq and 1,000 in Afghanistan, and it is not practicable to do that and to ensure there is a speedy resolution, that evidence is preserved, that if people have done wrong we can prosecute them in a timely manner and so on. I am happy to have a further conversation with the hon. Lady about that later.

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

I rise to speak briefly to new clause 1. As a new Member, I find the quality of the new clause disappointing. It does a disservice to the intentions of those who tabled it, so I invite them to withdraw it. The wording is far too vague and subjective. It is without guidelines and substance. Its incredible vagueness would make for a very unworkable piece of legislation. I believe in proper scrutiny in Committee, and the quality of the new clause is not good. It is a lawyer’s gift and would be subject to countless legal challenges and much litigation, which is exactly what the Bill is meant to stop.

[Mrs Lewell-Buck]

Will the hon. Lady give way?

[Miss Dines]

I am just finishing. I respectfully ask for the new clause to be withdrawn.

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[Johnny Mercer]

We have already published a response to our consultation, which was widely available for everybody to see. We have also published a response that contains a lot of the conversations around this. As I have indicated, we have engaged with a number of different parties and have arrived at the decision that this was a fair and proportionate line to tread in order to achieve the effects that we are trying to achieve.

[Mrs Lewell-Buck]

Will the Minister give way?

[Johnny Mercer]

I am going to speak to new clause 1, and then I will happily give way.

Our intention with the measures that we have introduced in part 1 of the Bill was to ensure that we could provide the utmost reassurance to our service personnel and veterans in relation to the threat of repeated scrutiny and potential prosecution for alleged offences occurring many years ago on overseas operations. This has meant seeking to have a balance in introducing protective measures that would set a high threshold for a prosecutor to determine that a case should be prosecuted, as well as ensuring that the adverse impact of overseas operations would be given particular weight in favour of the service person or veteran, but which would not act as an amnesty or statute of limitations, would not fetter the prosecutor’s discretion in making a decision to prosecute, and would be compliant with international law. We have achieved that balance in the combination of clauses 2 and 3. We are providing the additional protection that our service personnel and veterans so greatly deserve, while ensuring that, in exceptional circumstances, individuals can still be prosecuted for alleged offences.

New clause 1 would effectively replace the presumption against prosecution with a requirement in clause 1 that the prosecutor should consider only whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial when coming to a decision on whether to prosecute. This not only removes the high threshold of the presumption, but seeks to replace it with a consideration—whether the passage of time would prejudice the chance of a fair trial—which is likely to already be considered by the prosecutor when applying the existing public interest test. We have never suggested that service personnel or veterans have been subject to unfair trials. We have sought instead to highlight not only the difficulties, but the adverse impacts on our personnel, of pursuing allegations of historical criminal offences. Justice delayed is often justice denied, for defendants and for victims. I believe that clauses 2 and 3 provide the appropriate balance between victims’ rights and access to justice, and the requirement to provide a fair and deserved level of protection for our service personnel and veterans. Removing the presumption in the way the new clause proposes would simply remove that balance.

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[Johnny Mercer]

I am answering the hon. Gentleman’s question. However, we welcomed the Judge Advocate General’s interest in the Bill: an offer was made for the project team to engage with him at a convenient time, and I subsequently met him. I respect the hon. Gentleman’s views on who would be consulted if the Bill were drafted in a civilian context, but I am entirely comfortable that the Department spoke to the right people to gauge their views on how we should deal with the current system, which is difficult and ultimately unfair to veterans.

I respect all the views that we heard last week—of course I do—but I am allowed to disagree with them. Having worked on this for seven years, it is possible to hear other people’s views on the matter and disagree with them. The Department has taken a balanced and proportionate view, and indeed, it has incorporated a lot of views from other stakeholders throughout the process.

[Mrs Lewell-Buck]

Will the Minister give way?

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[Johnny Mercer]

Not at the moment. Although that should therefore help to reduce the likelihood of investigations being reopened without new and compelling evidence, it does not create an absolute bar to investigations or prosecutions, as a statute of limitations or an amnesty would. Rather, the presumption is rebuttal, with the prosecutor retaining the discretion to prosecute where they determine that it would be appropriate to do so. That may include cases in which there is evidence that a serious offence has been committed.

In contrast, an amnesty or a statute of limitations for service personnel would be a breach of our international legal obligations and would pose significant challenges and risks. That includes the risk that, in the absence of a domestic system for the prosecution of international criminal offences, the International Criminal Court would assert its jurisdiction and bring prosecutions against members of the UK armed forces. The presumption against prosecution, however, is consistent with our international legal obligations, as it would not affect the UK’s willingness or ability to investigate or prosecute alleged offences committed by our service personnel.

Finally, the statutory presumption and the measures in clauses 3 and 5 will apply only to proceedings that start after the Bill has become law. Although alleged criminal offences relating to operations in Iraq and Afghanistan occurred more than five years ago, meaning that the presumption could be applied in any relevant prosecutorial decisions, it is likely that any remaining investigations of those allegations will be complete before the Bill becomes law. If any new credible allegations relating to Iraq and Afghanistan should arise, however, they will obviously be subject to investigation and, where appropriate, consideration by a prosecutor. Any decision to prosecute such a case after the Bill has become law must, in accordance with the presumption, be exceptional.

[Mrs Lewell-Buck]

I thank the Minister for giving way—[Interruption.]

[The Chair]

Order. The Committee is suspended for 15 minutes.

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[The Chair]

Mrs Lewell-Buck was intervening on the Minister.

[Mrs Lewell-Buck]

It was remiss of me not to mention what a pleasure it is to serve under your chairmanship, Mr Stringer. It has been a pleasure all day, and hopefully all week.

Has clause 2 been given approval by the CPS? The Minister mentioned that it does not breach international humanitarian law. Can he explain which organisations and professionals have said that? I give him some gentle advice, which I hope he will take in the way that it is intended: legislation made purely on one’s own views, against the advice of experts and others who know exactly what they are talking about, is not the right way to go. It is playing fast and loose with our armed forces and is going to have serious, unintended consequences.

[Johnny Mercer]

On the idea that the Department does anything other than seek the views of experts to bring through this difficult legislation, in evidence the hon. Lady has seen a set of views given by campaign groups, but those are not the only views available. This is difficult legislation that, of course, will be contested, but the idea that we have just come up with some idea after a public consultation lasting many months—[Interruption.]