Overseas Operations (Service Personnel And Veterans) Bill

Joanna Cherry Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 23rd September 2020 Commons Chamber

[Stewart Malcolm McDonald]

That is because I know what I am doing, Madam Deputy Speaker, as you well know.

Let me say this to the Minister for Defence People and Veterans. We always try to find the maximum consensus, but I rather suspect that we just cannot agree on this Bill. He is not willing to change it to the degree I would like to see it changed, which in essence would mean scrapping it and letting the review come forward. When we table amendments in Committee, it will be interesting to see what they say; I am sure the Minister will be interested to read them, and it will be interesting to see how the Government approach them. As I say, we all know what is going to happen: the Government have a huge majority and are not going to accept anything that they feel they do not have to. We do not agree with them that the Bill is moderate at all, which is why we will vote against its Second Reading tonight.

[Joanna Cherry (Edinburgh South West) (SNP)]

The Minister for Defence People and Veterans is keen that we look at the Bill itself. Does my hon. Friend agree that the Bill creates a presumption against prosecution for a class of defendants, placing one group above the other in the eyes of the law? Does he agree that that is unprecedented in our domestic legal systems, whether we speak of England and Wales or the separate and independent jurisdiction in Scotland? That is unprecedented and that is what is objectionable about the Bill: it does away with the idea of equality before the criminal law, and that is wrong.

[Stewart Malcolm McDonald]

My hon. and learned Friend is absolutely correct in saying that. I would go further and say that actually, in terms of the whole scope of the Bill and how it protects the Ministry of Defence from claims coming from members of the armed forces themselves, as brilliantly illustrated by the shadow Secretary of State in his speech earlier, it is not welcomed by those people who need protection. We all agree that they need protection, but we cannot agree with the Government that this Bill is the way to do it.

The context is this: this Parliament has no power to prevent the Government from entering a discretionary conflict. There is no war powers Act. When Tony Blair took the country to war—a war that, in an interesting contribution earlier, the Defence Secretary said he now accepts was illegal, but which his party supported at the time—he at least came to this Parliament and held a vote. When the airstrikes in Syria took place in Easter 2018 under the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), that was done away with; that discretion was used without any parliamentary consent.

On the issue of special forces oversight or lack thereof, we stand out as unusual, even by comparison with a country such as the United States with zero oversight of special forces operations. As my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) said earlier, this Bill creates two levels of playing field for people in this country. This is all unwelcome and highly unusual. There is a reason that no other country has a version of this Bill on its statute book or before its national legislature. Members of the armed forces are rightly expected to perform to a high standard and members of the armed forces are right to expect a high standard of us in this House, but for the reasons I have outlined we will vote against this legislation tonight. Members of the armed forces are entitled to a better standard than this.

--- Later in debate ---

[Joanna Cherry]

I am failing to follow this argument. Is the hon. and gallant Gentleman suggesting that torture is a crime that can be committed by error?

[Tom Tugendhat]

No.

[Joanna Cherry]

That seems to be what he is suggesting. But let us focus on what we are talking about here. We are talking about torture—[Interruption.]

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. We do not have time.

--- Later in debate ---

[Joanna Cherry (Edinburgh South West) (SNP)]

I will confine my comments to the presumption against prosecution for serious criminal offences contained in part 1 of the Bill. I believe that the way in which this is framed will make prosecutions close to impossible for some of the most serious crimes under international law. I am also concerned, as are many lawyers, that it will create a presumption against prosecution for a class of defendants, which is unprecedented in our domestic legal systems.

In cases where UK personnel have committed crimes such as torture, the triple lock will apply no matter how grave the conduct involved is or how detailed the evidence is. The Government claim that this measure is designed to protect soldiers, but in fact, it runs counter to everything that our military personnel stand for. I respectfully remind Government Members that many Opposition Members have family members who have served in the armed forces as well. My paternal grandfather served in the Royal Air Force.

After the second world war, our armed forces helped to update and expand the Geneva conventions, which protect captured personnel. Both the Army field manual and the Ministry of Defence doctrine explicitly forbid torture or cruel treatment. Torture has been prohibited in Scotland since the Treason Act 1708 and in England for more than 300 years, since the Long Parliament’s abolition of the Star Chamber. Even Margaret Thatcher—not somebody I am normally given to praising—fought to preserve the ban on torture, and in 1988 she made it a criminal offence, no matter who committed it or where it was committed. Right-thinking Conservative Members might wish to bear that in mind when considering the part of the Bill to do with the triple lock.

[Tom Tugendhat]

I know that the hon. and learned Lady has a much finer legal mind than mine, but I merely draw her attention to clause 3(2)(b), which refers to “no compelling new evidence”. Surely the Bill does envision the possibility that there could be compelling new evidence, and therefore this is not the absolute lock of which she speaks.

[Joanna Cherry]

I have not said that it is an absolute lock. It does envisage some possibilities. But the bottom line is that you do not create a triple lock against something if you are expecting to encourage it or to allow it in. It simply cannot be right not to prosecute criminal acts of a crime as serious as that of torture if there is strong evidence that it took place. Torture victims have a right to see their tormentors brought to account, and there should be no time limit on justice.

This is not just a matter of domestic law. As we have heard from other hon. Members, our international legal obligations under the UN convention against torture and the Rome statute consist of recognising prohibitions against torture, which are absolute. That was the point of my intervention on the hon. Member for Tonbridge and Malling (Tom Tugendhat). The prohibition against torture in international law is absolute, and it ill behoves us to pass a statute creating one class of defendants in the United Kingdom wherein there is a presumption against them being prosecuted for that crime.

I have no time for vexatious litigation. I can say, as somebody who practised at the Bar for many years, and also someone who prosecuted, that vexatious litigation is a pain in the neck. What I am concerned about is the international reputation of the United Kingdom, for so long as Scotland remains part of it. Indeed, I will be concerned about the international reputation of England even when Scotland is no longer in a union with it. International law may not mean much to this Government, but they forget at their peril that it keeps all of us safe. If this is what the Government meant by their manifesto promise to update human rights laws, then we should all be very concerned.

[Mr Deputy Speaker (Mr Nigel Evans)]

I remind Members that if they intend to press the Second Reading to a Division, it would be very useful if the Chair got the names of the Tellers in advance, please