Overseas Operations (Service Personnel And Veterans) Bill

John Healey Excerpts

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

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

I start by also paying tribute to the role, dedication and work of our armed forces. They face exceptional risks, give exceptional service and require exceptional skills. As we face as a nation a second covid crisis, they are likely to be called on again, more heavily, including overseas.

I am pleased that we have come to the Commons debate on this legislation. I thank the Secretary of State for the way he introduced the Bill. The first duty of any Government is to protect the nation and its citizens, and the first duty of any Defence Secretary is to protect the men and women who dedicate themselves to the service of their country. We have our own British way of doing this. Since the days of Churchill and Attlee, when Britain led the global efforts to establish the rules-based international order after the second world war, we have been the champions of democracy, freedom and universal human rights. Our British forces uphold, unequivocally, international law and conventions. By adhering to the highest standards of legal military conduct ourselves, we can hold other countries to account when their forces fall short. The Bill calls into question Britain’s proud commitment to the Geneva convention, our duty as a “permanent five” member of the United Nations to uphold international law, and our moral authority to require the conduct of other nations to meet the standards set by those international conventions.

Since the end of the 2000s, all parties in this House have upheld a strong commitment to the armed forces covenant, which declares that those from the armed forces and their families

“should face no disadvantage compared to other citizens in the provision of public and commercial services.”

The Bill breaches that covenant by denying troops who serve overseas the same employer liability rights as are held by the UK civilians they defend. Our aim with this Bill is, first, to protect British troops and their right to justice from the MOD, and secondly, to protect Britain’s reputation as a force for good in the world, upholding human rights and the rules-based international order. We will work to help forge a constructive consensus through the Commons and the Lords for the changes necessary to achieve that aim.

[Tom Tugendhat]

The right hon. Gentleman must recognise—I am sure he knows this well, having spoken to his opposite numbers in socialist or left-wing parties around Europe—that many other countries follow this system of derogation and have national caveats. France itself has a reserve of emergency powers it can use to defend its troops against vexatious or inappropriate litigation. Is he seriously suggesting that France is not a law-based state, or that it is in some way immoral and has no right to sit as one of the P5? Surely he is not suggesting that.

[John Healey]

No, I am very clear that we want to and must protect our British troops against vexatious claims and repeat investigations. Important parts of the Bill are wrong; we can get them right and that is what I want to do. There has been a problem—I get that—arising especially from the conflicts in Iraq and Afghanistan, as the Secretary of State said. The al-Sweady inquiry chairman, when he finally cleared the troops in 2014, spoke forcefully of the “most serious allegations”—of murder and mutilation—that

“have been hanging over these soldiers for the past 10 years”.

The family of an Iraqi boy, Ahmed Jabbar Kareem Ali, who drowned in a canal in 2003 with British soldiers directly implicated, had to wait until the Newman inquiry reported in 2016 before they got the truth and the MOD issued a full apology.

Long-running litigation, repeat investigations and judicial reviews are indeed the signs of a flawed system—a system that has failed British troops and failed victims under successive Governments. I get this problem, and it must be fixed, but it is important to see it in perspective, not least so that we can see clearly the problem that we are legislating in the Bill to fix.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

My right hon. Friend was touching on an important point that Members on the Government Benches have touched on as well. The problem is, as it stands, the long investigations and the repeated investigations that allow double jeopardy not via the courts, but by intimidation of investigation. The Bill does nothing whatever to deal with some of those issues. Is that not a reason for the Government to go away and rewrite parts of the Bill or even issue proper investigatory guidelines to stop that kind of thing happening?

[John Healey]

I sincerely trust that the Government will rethink and will be prepared to rewrite parts of the Bill. If they do so, I think they will find broad consensus for some of the changes that could be made to the Bill to help protect our troops and protect Britain’s reputation worldwide at the same time.

[Stuart Anderson (Wolverhampton South West) (Con)]

On that point, I have seen successive Governments overlook the armed forces, having been one of those people thrown on the pile to fend for myself. This Bill is a massive step forward for any veteran who has served on the frontlines. We are playing politics with this issue, and I plead for all Members to put that aside and focus on the massive step this Bill is for our armed forces.

[John Healey]

I will come on to that matter in a moment, because the Bill does nothing for those troops who have served, as the hon. Gentleman describes, on the frontline overseas. It does nothing to deal with the past cases and the past problems.

[Jim Shannon]

Will the right hon. Gentleman give way?

[John Healey]

I will give way one more time, then I will make some progress.

[Jim Shannon]

On that point, the right hon. Gentleman is right about the armed forces covenant and the ability of members of the armed forces community to bring a claim for injury or death after six years. There is some concern about the unique deviation of the Limitation Act 1980 in the Bill that will place members of the armed forces community at a disadvantage compared with civilians. After six years, civilians can register a civil claim, whereas soldiers and Army, Navy and RAF personnel cannot.

[John Healey]

In his typical way, the hon. Member puts his finger on an important point. He understates his argument, as there is more than just some concern; there are, for instance, according to the Royal British Legion, very clear grounds for concern that the provision breaches the armed forces covenant, and I will come on to that point.

Let me deal with getting this problem, which does exist and must be fixed, in a proper perspective. My right hon. Friend the Member for North Durham (Mr Jones) was absolutely right about how hard it is to get hard, clear information out of the Government. Over recent months, I have had to prise figures out of the MOD. There is a deep resistance to releasing full, open information. The first important figures to give a broad perspective are these: over the past 15 years, there have been 25 cases brought by injured British troops against the MOD for every one case brought by alleged victims against our troops. You can see why, Madam Deputy Speaker, some of the veterans I have talked to about this Bill reckon it is more about protecting the MOD than it is about protecting troops. Britain deployed 140,000 troops to Iraq over six years. The Government cite—the Secretary of State did so today—1,000 civil claims, all against the MOD, not individual service personnel, as evidence for the Bill to end vexatious legal claims. One third of those cases—330—have had the MOD pay compensation. Clearly, they were not vexatious as the MOD rightly insists on only settling cases in which it accepts liability. [Interruption.] The Secretary of State says, “No, we don’t,” but if he looks at the annual report on the cases that the Department publishes and takes, he will see exactly that commitment and clarification. It does not have the power to settle claims where it judges that it would not be found liable in a court. However, one fifth of the cases—217—have been withdrawn or struck out. They may well have been vexatious cases—they were certainly baseless. They may have taken too long, but the system, even as it stands, has dealt with them.

Two fifths of the cases—414—are ongoing, according to the MOD, although that definition could mean that those cases are settled and the MOD has agreed to pay compensation, but there may still be outstanding arguments over legal costs. Those cases may again be long-running, but they are hardly vexatious if they have not been struck out by now.

On the criminal side, the Government cite 3,400 allegations. The Secretary of State referred to the Iraq Historic Allegations Team that looked into them. Despite deep flaws in that investigation, 70% were ruled out as there was no case to answer or no proportionate grounds for a criminal investigation. In other words, those allegations did not warrant a full investigation so got nowhere near the point of decision about prosecution. They would have been wholly unaffected by the Bill if the measure had been in place because, as the right hon. Member for New Forest East (Dr Lewis) said, it does not deal with investigations—as it should—but only with prosecutorial decisions and process. By the way, just seven prosecutions have been brought against British soldiers from the remaining allegations and investigations, and all but one have now been dropped.

On Afghanistan and criminal cases, the Operation Northmoor investigation in 2014 examined 675 criminal allegations from 159 people. The investigation closed and no charges have followed. Indeed, the investigation concluded a year before the MOD confirmed in public in June that it had closed.

On judicial review, the Government have cited 1,400 JRs of civil and criminal Iraq and Afghanistan cases as justification for the Bill. I can only find evidence that two judicial reviews are continuing. The court gave the MOD permission to strike many of the others out three years ago. Yet in April, the Minister told me in answer to a written parliamentary question that the MOD had still only notified fewer than half—630—of the court’s decision not to take the investigations further.

To put the matter in perspective, certainly some vexatious claims have been lodged and the current system has taken too long to weed them out, but the bigger, more serious, more consistent problems lie in the system of investigations, which lacks speed, soundness, openness and a duty of care to alleged victims and to the forces personnel who may be in the frame. Those are the problems, which occur well before the point of decision about prosecution, which is the point at which the Bill starts to operate. They are what the Bill should and can deal with. Our aim during its passage through Parliament is to help ensure that it does.

To pick up on the point made by the hon. Member for Wolverhampton South West (Stuart Anderson), I must confess that when I first looked at the Bill, I thought that it was designed to draw a line under the cases still caught up in the problem of so-called lawfare. The first paragraph of the explanatory notes gives the same misleading impression. It says:

“This Bill aims to provide greater certainty for Service personnel and veterans in relation to vexatious claims and prosecution of historical events, that occurred in the uniquely complex environment of armed conflict overseas.”

But this legislation will have no impact on any past or any continuing cases, and clause 15 on commencement makes that clear, so it offers no hope and no help of faster resolution either for the troops or for the alleged victims, who may still be involved in long-running litigation or in repeat investigations. I want to make sure that no one in this House and, much more importantly, in the armed forces and the veterans community is misled by what they may have heard or may have understood before now.

Similarly, nothing in this Bill applies to Northern Ireland, despite the same commitment in the Conservative manifesto, similar concerns on the Government side about drawing a line for British troops who served in Northern Ireland and the Secretary of State’s letter to all MPs last week in which he confirmed his eagerness

“to ensure also the equivalent protections of our veterans who served in Northern Ireland.”

The Secretary of State’s speech looked back, but we now legislate for the future. The Bill is not a framework fit for the future point when Britain must again commit its forces to armed conflict overseas. The Government have got important parts of the Bill badly wrong, and I want to see Ministers work with all parties in both Houses and with groups beyond Parliament who have expertise to offer on this—from the British Legion to Liberty—to get this legislation right.

There are problems. The Bill is silent on the command responsibility and the role of commanders in some of these cases. There is a problem, I think, with the Attorney General’s consent, as it risks political factors coming into prosecutorial decisions. There is nothing on the disclosure rights, responsibilities and duties of the MOD. Let me summarise our biggest concerns about the Bill.

[Jonathan Edwards]

I agree with many of the points the shadow Secretary of State has made during his very valid contribution. Does he agree that one of the fundamental weaknesses with the Bill was put forward by the UK’s most senior military judge, who has argued that the consequence of the legislation is that UK military personnel are more likely to find themselves in front of the International Criminal Court?

[John Healey]

I am grateful to the hon. Gentleman for conceding that I am making some valid points. His point is certainly valid, and it will be a point of central argument, probably in the debate today, but certainly as the Bill passes through both Houses.

Let me return to the biggest problems in the Bill. Part 1, as the Secretary of State said, introduces what the Government have called their so-called triple lock to make prosecutions for the most serious crimes harder. The presumption against prosecution for all crimes except sexual violence clearly creates the risk that the very gravest crimes, including torture and other war crimes, go unpunished if an incident does not come to light for five years or if the investigations are drawn out beyond that deadline.

[Stephen Doughty]

My right hon. Friend is making an extremely constructive and compelling speech, and I hope that all Members on both sides will listen to what he is saying. On that specific point about torture, may I commend to him the article by our hon. and gallant Friend the Member for Barnsley Central (Dan Jarvis), who has very clearly set out today the objection he has, as I do, to vexatious claims and vexatious investigations? He is also very clear that the prohibition on torture is absolute: there are no exceptions. We as a country are a signatory to a whole series of international conventions on that very issue, and the derogations we talked about under the European convention make it very clear that we have to comply with those international obligations.

[John Healey]

I am grateful to my hon. Friend for a very succinct and spot-on point, and I look forward to the contribution that I hope my hon. Friend the Member for Barnsley Central (Dan Jarvis) will be able to make in the debate.

[John Redwood]

Will the changes the shadow Secretary of State wants to make overall give more protection to our veterans, or will they actually reduce the protections in this legislation?

[John Healey]

The changes will give protections that are fit for the future. They will give protections that are required, and they will avoid parts of the Bill that at the moment put at a disadvantage in a unique fashion those British troops who serve overseas, which is why we argue that it breaches the armed forces covenant.

To come back to the presumption against prosecution, in the explanatory notes the Government maintain:

“Nothing in this Bill will stop those guilty of committing serious criminal acts from being prosecuted.”

That is a point the Secretary of State made, but many legal experts disagree and say that the Bill, as it intends, will be a significant barrier to justice. The Law Society’s briefing on this debate says:

“The Bill creates…a limitation period for a select group of persons in specific circumstances, i.e. armed forces personnel alleged to have committed offences overseas.”

Alongside the extra factors for prosecutors to take into account and the requirement for the Attorney General to give the go-ahead for such prosecutions, that clearly risks breaching the Geneva convention, the convention against torture, the Rome statute, the European convention on human rights and other long-standing international legal obligations. Where the UK is unable or unwilling to prosecute, the International Criminal Court may well act. So rather than providing relief for the troops accused, the Bill also risks British service personnel being dragged to The Hague, the court of Milošević and Gaddafi, instead of being dealt with in our own British justice system.

Let us just step back a moment from the technical detail. This is the Government of Great Britain bringing in a legal presumption against prosecution for torture, for war crimes and for crimes against humanity. This is the Government of Great Britain saying sexual crimes are so serious they will be excluded from this presumption, but placing crimes outlawed by the Geneva convention on a less serious level and downgrading our unequivocal commitment to upholding international law that we in Britain ourselves, after the second world war, helped to establish.

[Mr Wallace]

What is appalling is the straw man being put up time and again by a Labour party half-funded by these ambulance-chasing lawyers. That is going to damage our reputation. No apology for the money they took from a number of them—no apology whatever. What we should recognise is that many of—[Interruption.]

[Mr Wallace]

Much of the mess we are having to come and clean up today is because of your illegal wars, your events in the past and the way you have run the safety of our forces. To put up straw men and make wild allegations that are wholly inaccurate, and disputed by people much more learned than the right hon. Gentleman, does a disservice to our troops and is all about making an excuse for not supporting the Bill. We will see tonight whether or not he supports the Bill.

[John Healey]

That is not worthy of the office of the Secretary of State for Defence. We are dealing with matters of torture, war crimes, MOD negligence, compensation for injured troops and compensation for the families who have lost their loved ones overseas. This is too important for party politics. It should be beneath the Secretary of State to reduce this to party politics. We on the Labour Benches will work with the Government to get the Bill right.

[The Minister for Defence People and Veterans (Johnny Mercer)]

This is embarrassing.

[Madam Deputy Speaker]

Order. When you speak, you speak standing up not sitting down. Now, we will just have a drop in temperature while we consider the facts of the Bill and let the emotions settle down somewhat.

[John Healey]

Thank you, Madam Deputy Speaker. The facts of the Bill are that it places torture and other war crimes on a different level to crimes of sexual violence. That is not embarrassing; that is unconscionable for a country with a proud record of upholding unequivocally the international conventions that we helped to draw up.

[Bob Stewart (Beckenham) (Con)]

Will the right hon. Gentleman give way?

[John Healey]

No, I will not at this point.

Ministers must think again. No wonder that the former Chief of the Defence Staff, Lord Guthrie, says that the Bill as it stands would be a stain on Britain’s standing in the world. Ministers must think again. They must remove torture and other war crimes from the Bill. There are better ways of protecting our troops and Britain’s good name.

Part 2 creates a higher hurdle for civil cases after three years, as the Secretary of State said, with extra factors that a prosecutor must take into account, and a hard block on any case after six years. For British troops serving overseas with claims to make against the MOD, that does breach the armed forces covenant—a point that I made to the Secretary of State early in the summer, reinforced today by the Royal British Legion in its briefing for this debate, which says that in removing “the ability of members of the armed forces community to bring a claim for injury or death after six years, the Government will create a unique deviation from the Limitation Act 1980.” It denies those who serve our country overseas the same employer liability rights as the rest of us enjoy at home. It creates circumstances that allow the MOD to avoid claims when it fails properly to equip our troops or makes serious errors that lead to the death or injury of British troops overseas.

It is plain wrong that those who put their lives on the line for Britain overseas should have less access to compensation than the UK civilians they defend, and, since 2007, there have been at least 195 cases of troops who would have been caught by the Bill. Ministers have tried to play that down by saying that the clock on that deadline starts only at the point of diagnosis, but that is misleading because diagnosis is not in the Bill and the point of knowledge is in the Bill. That is another important provision that we must put right.

ln conclusion, we believe, and I believe strongly, despite what the Minister for Defence People and Veterans is chuntering under his breath, that the Government, Labour and the armed forces ultimately all want the same thing: we want to protect British troops and we want to protect British values, and that should not be merely a matter of party politics.

I say to the Secretary of State, during the Bill’s passage through Parliament we want to help forge a constructive consensus on the changes needed to overhaul investigations, to set up safeguards against vexatious claims that are entirely consistent with our international obligations, and to guarantee troops the right to compensation claims when MOD failures lead to the death or injury of our forces overseas. It is not too late for Ministers to think again about the best way to protect service personnel from vexatious litigation while ensuring that those who do commit serious crimes during operations are properly prosecuted and punished. As the Bill begins its passage through Parliament, I urge the Secretary of State and his Minister to work with us to ensure that it does just that.

[Several hon. Members rose—]

--- Later in debate ---

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

It is a pleasure to see you in the Chair this afternoon, Madam Deputy Speaker, and to follow my friend, the hon. Member for Glasgow South (Stewart Malcolm McDonald), who made some interesting points, some of which—forgive me—I am going to disagree with. He will not be surprised to hear that, because we have often entered into many civilised, and sometimes lubricated, conversations on these very subjects. These issues affect the whole House and have been discussed by many Members in here and in other places, because they really matter.

I declare an interest; I got into politics on leaving the Army, after writing a paper for Policy Exchange in 2013 called “The Fog of Law”, which covered these very subjects and highlighted many of the issues raised in this debate. I appreciate that there are difficult decisions and that it is hard to balance what the right hon. Member for Wentworth and Dearne (John Healey) quite correctly said was the difference between the liability that a civilian employee could expect with their employer and that which a soldier on overseas operations could expect. I accept that that is different.

I accepted that it was different when I swore allegiance to Her Majesty and put on the uniform for the first time. I accepted it was different because the job that I had accepted to do was different; it was fundamentally different—different in every sense from any civilian job at all. Why? Because I promised, as the men and women of our armed forces still promise, to give everything even unto death. That is not something that any other employer asks of their team or their staff. Nobody who is not wearing the Queen’s uniform pledges to defend our people, our islands, our values, our country, our allies and our interests even up to their own life. That is different.

In recognising that that is what we need from our armed forces, we must also recognise that the law defending our troops and the law that applies to their terms of employment must also be different. It simply cannot be the case that civilian employment contracts are applicable to the invasion of Iraq or hard detention operations in Afghanistan, or even to training missions in other places that go wrong and become combat in ways that the people involved do not expect. Of course they must be different.

[John Healey]

Will the hon. Gentleman accept that this is a distinction not just between the armed forces serving overseas and civilians, but between armed forces serving overseas and armed forces serving and based in this country? To that extent, this legislation uniquely disadvantages the latter and reduces their rights.

[Tom Tugendhat]

I will accept that this is an overseas operations Bill and that being on patrol in Helmand is different from bringing on guard at Buckingham Palace, and therefore the rights that troops should accept in different places under different terms should of course be different.

I have served, as have many of my colleagues in all parts of the House. Indeed, my friend and former comrade in arms the hon. and gallant Member for Barnsley Central (Dan Jarvis) and I served in camps in places where the electricity could best be described as ropey and would fail any civilian investigation. We served in places where to walk outside the camp was to risk everything, from loss of life or limb to very real mental damage. We served in those places because the national security and the interests of our country—decided on by people here, by the way, not soldiers—was judged to be that important.

Overseas Operations (Service Personnel and Veterans) Bill

John Healey Excerpts

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

[Stewart Malcolm McDonald]

No, I am going to wind up.

The Minister has to take that into account, but he has failed, and the failure is his alone. I do not want him to think that, when he gets his way tonight, the job is done. The job is not done. He has promised the House legislation to fix the investigation system. My goodness, I hope he will do a better job on that than he has done on this Bill.

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

This is not a wind-up speech. We have had a good debate, with 23 Back-Bench contributions, some really good speeches and serious concerns about the Bill raised on both sides of the House. We are legislating, and I want to say to the Minister that it is wrong to see all criticism as opposition or all opposition as hostility. The Government never get everything right, especially with legislation, and no one has a monopoly on wisdom, especially Ministers. I say to him, it is wrong to dismiss anyone arguing for amendments to the Bill as ill informed or ill willed. There has never been a Bill brought to this House that could not be improved—this is certainly one of those. That is our job as legislators.

[Bob Stewart]

Will the right hon. Gentleman give way?

[John Healey]

I will not give way, if the hon. Gentleman does not mind. I am going to deal with some of the points made in the debate, despite this not being a wind-up speech.

From the outset, I have said that Labour wants to help build a consensus to convince the Government on the changes needed to make this legislation fit for purpose—that is, a new legal framework for this country when we have in future to commit our servicemen and women to conflict overseas. There has been a long-running problem, with baseless allegations and legal claims arising from Iraq and from Afghanistan under both Labour and Conservative Governments. But this Bill, as it stands, is not the solution.

The Public Bill Committee heard powerful evidence on a series of problems that our amendments on Report, and others on the amendment paper, are designed to fix. I want to stress the strength and depth of those criticisms. On investigations, the former Judge Advocate General, Geoff Blackett, said:

“The presumption against prosecution does not stop the investigation; the investigation happens.”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 127, Q275.]

The expert from Policy Exchange, Professor Richard Ekins, who originally published “Clearing the fog of war”, said:

“It certainly does not stop investigations. In fact, if one were to make a criticism of the Bill, one might say that it places no obstacle on continuing investigations”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 35, Q63.]

On criminal prosecutions, the former Commander Land Forces in the Army, General Sir Nick Carter, said:

“I do not understand why sexual acts have been excluded, but not murder and torture. I do not understand why that distinction has been made”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 96-97, Q196.]

The Judge Advocate General again, as the right hon. Member for Haltemprice and Howden (Mr Davis) stressed, said of the Bill:

“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. 117-118, Q234.]

On civil claims, the former chairman of the British Armed Forces Federation said:

“Imposing an absolute time limit places armed forces personnel claimants themselves at a disadvantage compared with civil claimants in ordinary life”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 9, Q6.]

The director for the Centre for Military Justice said that

“it is quite extraordinary that part 2 will only benefit the Ministry of Defence, and the Ministry of Defence is the defendant in all those claims.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 57, Q108.]

The director-general of the Royal British Legion said of the Bill:

“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.]

When my hon. Friend the Member for Portsmouth South (Stephen Morgan) pressed him—

“So it would breach the armed forces covenant, in your view?”—

he replied:

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

Our new clause 7 and our amendment 38 are designed to sit alongside the amendments of my right hon. Friend the Member for North Durham (Mr Jones). The answer to the right hon. Member for New Forest East (Dr Lewis) about the number of investigations is this: only 27 prosecutions have arisen from Iraq and Afghanistan, yet 3,400 allegations were considered by the Iraq Historic Allegations Team and 670 from Operation Northmoor. Therefore, less than 1% of allegations were prosecuted.

The problem here is investigations. The serious, consistent problems lie in a system of investigation that has proved to be lacking in speed, in soundness, in openness, and in a duty of care to alleged victims or to the troops involved. Those are all problems well before the point of decision about prosecution, which is the point at which the provisions of the Bill kick in.

That is a widely held criticism. It is a widely held conviction, one held by the Minister himself. Before he became a Minister last year, he declared that

“one of the biggest problems….was the military’s inability to investigate itself and the standard of those investigations…If those investigations were done properly…we probably would not be where we are today”.

He was right then; he is wrong now to resist using the Bill to correct those problems.

Another review, Minister? Look, there have been three reviews—and this one will be chaired by Richard Henriques—in the last five years. There are more than 80 recommendations on investigations that the Government could act on. For goodness’ sake, get on and do that! The amendments are in scope, workable and implementable. The Bill is an opportunity to fix long-standing problems. I hope the Government will start to see our proposals on investigations as being additional to what is in the Bill, not as a direct challenge.

Part 1 of the Bill restricts prosecutions of certain offences. The Bill’s purpose is to make it harder to prosecute British troops for some of the most serious crimes under the Geneva conventions. It does that by legislating for a presumption against prosecution after five years. Our new clause 4 deals with that presumption against prosecution; it replaces it with a requirement on the prosecutor, in coming to a decision, to take into account the passage of time, and whether it prejudices the prospect of a fair trial.

The Government say that sexual crimes, in all cases, are so serious that they will be excluded from this presumption, but they are placing crimes outlawed by the Geneva conventions—torture, war crimes, crimes against humanity—on a lower level, and downgrading our unequivocal British commitment to upholding international law. That poses the direct risk that the International Criminal Court will act to put British armed forces personnel on trial in The Hague if the UK justice system will not.

Let me dwell on that point. The contradiction that we are creating in the Bill is this: under clause 2, only exceptionally are proceedings defined in clause 1 to be brought, or continued, against a person. However, as the Red Cross has made clear,

“only in exceptional circumstances will the Prosecutor of the ICC conclude that an investigation or a prosecution may not serve the interests of justice.”

In other words, in the International Criminal Court, it is exceptional not to pursue a case; we are making it exceptional to pursue a case. That is the contradiction, the risk, and the jeopardy for our troops serving overseas in future.

If we adhere to the highest standards of legal military conduct, we can hold other countries to account when their forces fall short—a point made clearly by my hon. Friend the Member for Barnsley Central (Dan Jarvis). If we do otherwise, it compromises our country’s proud reputation for upholding the rules-based international order that Britain has helped to construct since the days of Churchill and Attlee.

On civil claims, new clause 5 would amend part 2 of the Bill so that claims by troops or former service personnel were not blocked in all circumstances, as they are under the Bill at present. It is simply wrong for those who put their life on the line serving Britain overseas to have less access to compensation and justice than the UK civilians whom they defend—or indeed than their comrades whose service is largely UK-based. There are already safeguards in the Limitations Act 1980, but part 2 penalises this group of people by applying to them a unique deviation from that Act. That clearly constitutes a disadvantage for those armed forces personnel, their families and veterans. It directly breaches the armed forces covenant, as the director general of the Royal British Legion has confirmed. Frankly, it beggars belief that Ministers are asking Members of this House to strip forces and their families of their right to justice—to penalise them, instead of protecting them. Our new clause 5 flatly rejects that.

On the duty of care and our new clause 6, 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 from their chain of command and from the Ministry of Defence. We heard that clearly from Major Campbell, who gave such dramatic evidence to the Committee. When he 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, as Hilary Meredith, the specialist solicitor told the Committee. I have to say to the Minister that although some of the previous decisions—for instance, to cover the legal costs of those who were involved in the Iraq Historic Allegations Team investigation—were welcome, there is a higher standard to reach for us in this regard. I hope that, as we move the Bill into the Lords, he will use new clause 6 as a model so that we can establish a new duty of care standard providing legal, pastoral and mental health support to those who are put under pressure and under investigation or prosecution. I hope that he will do the same with our amendments on derogation and on the Attorney General’s veto. We need greater transparency. We need some role for Parliament in both those areas, and I know the Lords will be keen to look at that.

--- Later in debate ---

[John Healey]

We all want the same thing—Labour, the Government, the public, the armed forces: we all want to protect British troops and British values, and that should not be a matter of party politics. It is simply wrong to make debate on the Bill divisive, or to brand those who challenge Ministers on the content of the Bill as somehow standing against British troops.

This is a Bill to deal with long-running problems that have arisen under successive Governments—Labour and Conservative—and the Minister in charge was right when he just said that we must do better, but we can do much better than this Bill as it stands. We want this to be a Bill that protects British troops and their right to justice and a Bill that protects Britain’s reputation as a force for good in the world, upholding universal human rights and a rules-based international order.

In truth, the closer people look at this legislation, the less they like it. Two things have become clear since Second Reading. First, this is a dishonest and damaging Bill that does not do what it says on the tin. It entirely fails to deal with the main problem, which is baseless and repeated investigations and, worse, it breaches the armed forces covenant, it risks British troops being dragged before the International Criminal Court, and it does more to protect the MOD that it does our armed forces personnel. Secondly, despite a growing cross-party concern and chorus of criticism, especially from those with military experience or connections, Ministers are in denial about the flaws in this Bill. With the arrogance of an 80-seat majority, they dismiss those who argue for amendment as disingenuous.

This demands a signal of how serious we see these flaws as being, which is why we will vote against Third Reading. We want our troops to be better protected. We want our British military to be held in the highest regard around the world. We want our British justice system to set standards that others follow. It is because we passionately believe in these values that we cannot accept this Bill as it stands.

Overseas Operations (Service Personnel and Veterans) Bill

John Healey Excerpts

Consideration of Lords message
Tuesday 27th April 2021 Commons Chamber

[Leo Docherty]

I am grateful for the hon. Member’s question. I can reassure him with confidence that we are aiming for a gold standard in welfare provision. It does not require legislation. It requires constant improvement and a deep interest across Government, and that is what the Ministry of Defence is committed to delivering alongside the Office for Veterans’ Affairs.

Additionally, we are deeply concerned about the potential unintended negative effects of Lords amendment 5B if it is included in the Bill. Notions of pastoral and moral duties are extremely difficult to adequately define, and there is a real risk that attempting to do so will lead to more, rather than less, litigation and greater uncertainty for our armed forces people. We are also concerned that, as investigations and allegations arise and often occur on operations, the amendment might have the unintended consequence of undermining our operational effectiveness.

The Government do agree with Lord Dannatt on the need to set out clearly the benefits of the Bill to the armed forces community. He has asked for a commitment that the Government will communicate the measures of the Bill down the chain of command. I am, of course, delighted to give that assurance now. We will ensure that all service personnel understand the positive effects of the Bill and the legal protection it affords them. We will explain how the measures in the Bill are beneficial to individual service personnel who have deployed or will deploy on overseas operations.

Part 1 of the Bill will reduce the number and length of criminal investigations, and our armed forces personnel should be reassured that the unique context of overseas operations will be taken into account when criminal allegations against them are being investigated. The longstop measures in part 2 of the Bill mean that we should never again see the industrial scale of civil claims that we saw in the wake of Iraq and Afghanistan. These measures are delivering on our manifesto commitment and our solemn pledge to protect our armed forces personnel and our veterans and to bring to an end the shameful cycle of vexatious legal claims brought against our finest asset—our defence people. Together, both parts of the Bill will give greater certainty to service personnel that they will not have the shadow of legal proceedings hanging over them for decades after they return from doing their duty on overseas operations.

We will be clear, of course, that the Bill will not stop service personnel being held to the highest standards that we would expect from all our armed forces, and that they will still be subject to domestic and international law when they deploy on overseas operations. Similar, we will make it clear that the limitation longstops will also apply to claims by them that are connected with overseas operations, and emphasise that they should bring any civil claims connected with overseas operations within six years of either the event or their date of knowledge. The vast majority have historically already done so, but it is important that this message is understood so that, in future, an even greater percentage of service personnel bring their claims in a timely manner.

In summary, the Bill delivers for our armed forces and protects our people, but I do not believe that setting a standard for the duty of care in the Bill is necessary or desirable, so I urge the House this afternoon to disagree with Lords amendment 5B.

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

Before turning to the amendments before us today, I want to place on record my thanks to all those who have worked so hard and so collaboratively on the Bill throughout its passage, although I have been dismayed at earlier stages when Ministers have tried to make the Bill a matter of party politics. I believed from the outset that Members on all sides in both Houses wanted the same thing from this legislation—that is, to protect British troops and British values.

The Lords have certainly approached the Bill in this constructive cross-party manner, and I want to thank in particular those on the Labour Lords Front Bench: Lords Tunnicliffe, Touhig and Falconer, and Lord Robertson for his tireless work on part 1 of the Bill, which the Minister has acknowledged. I also want to thank Lord Hope for his convincing arguments on the European convention on human rights, Lord Dannatt for his leadership of the duty of care amendment we are considering this afternoon, and Lords Stirrup and Boyce for their experience, their wisdom and their backing for all the Lords amendments that were sent to this House. I also want to thank the Minister’s colleague, Baroness Goldie, and indeed the new Minister himself for their similarly constructive approach.

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

I agree with my right hon. Friend’s comments about their lordships, but does he agree that if some of the amendments that were tabled in Committee had been adopted, the Lords would not have had to redo the work on the Bill? Is he as disappointed as I am that the Minister at the time would not take into consideration any amendments in Committee?

--- Later in debate ---

[John Healey]

My right hon. Friend is right. Last week when we debated the first set of Lords amendments, I described the Minister’s predecessor, the hon. Member for Plymouth, Moor View (Johnny Mercer), as a “roadblock to reason” on this Bill. Unfortunately, that has meant that more work was done in the Lords, and that the deep flaws in the Bill have not all yet been fixed. So this is a Bill that in many ways fails to do what it set out to do; it fails to do what it says on the tin. Finally, before I move on to talk about the amendments—which I am sure you wish me to do, Mr Deputy Speaker—I want to make sure that I thank the Bill team in the Ministry of Defence and the Bill teams and Officers of both Houses for their advice, their professionalism and their hard work on the Bill.

We welcome the Government’s acceptance of Lords amendment 1R, which excludes from the Bill’s five-year presumption against prosecution all war crimes covered by articles 6, 7 and 8 of the Rome statute, which of course set up the International Criminal Court and applies the Geneva conventions, which were very much Britain’s brainchild under Attlee and then Churchill after the second world war.

The Government have rightly followed through today on the principle that Ministers conceded last week on torture, genocide and crimes against humanity, because not excluding the full range of crimes falling within the jurisdiction of the International Criminal Court would damage Britain’s international standing, including that of our armed forces, and lay open our armed forces to the risk of being hauled before the ICC. The Government’s acceptance of that amendment and its consequentials, to give full effect to the Lords’ intent from last week, is welcome. We have worked hard for it, and I am sure that the move will be welcomed across the House.

--- Later in debate ---

[Mr Kevan Jones]

May I also say to my right hon. Friend that it will not in the future either, because it will not, as the Minister said, stop vexatious claims coming forward, because they will have to be investigated? There is a huge hole in this Bill, which the former Minister refused to accept in Committee, about trying to case manage investigations, so people will still be investigated. There is nothing in this Bill to say that they will not be investigated, so it does not do what it says on the tin and it would be dishonest to people to suggest otherwise.

[John Healey]

My right hon. Friend is right. I have described it as the big gap in this legislation. It is a big flaw in the Bill. We may not succeed this time around, but we will certainly return to it in the Armed Forces Bill, which I will come on to. The proposals before us in this amendment are simple, flexible, tried and tested in civilian law, and backed by all the leading military and legal experts in the other place.

I urge the Minister this afternoon to confirm what he hinted at last week, and what his colleague, Baroness Goldie, said she would not stand in the way of yesterday. The Secretary of State made an offer to me in conversation last week to formally ask Sir Richard Henriques to examine this proposal as part of his current review so that it can be considered alongside other recommendations from that review for incorporation into the Armed Forces Bill. The Minister’s predecessor said at the very outset of this Bill’s proceedings in this House, on Second Reading back in November:

“The right hon. Member for Wentworth and Dearne raises time and again the issue of the investigations, but he knows that they are for the forthcoming armed forces Bill and will be addressed there.”—[Official Report, 3 November 2020; Vol. 683, c. 258.]

Of course, they are not, but we will ensure that they are. I say to the Minister that I hope we will be able to work together constructively on that, in a way that proved so difficult with his predecessor.

[Mr Jones]

But it was not for lack of trying. I moved three amendments in Committee, and not only were they fiercely resisted by the hon. Member for Plymouth, Moor View (Johnny Mercer), but there was no explanation of how and when in future legislation anything around investigations would be addressed, even though my right hon. Friend is right that the former Minister had given a commitment that investigations would be addressed in the Armed Forces Bill.

[John Healey]

Yes indeed. My right hon. Friend has worked as hard as anyone in this House on this Bill and I am really grateful to him for that. He has been part of what the Opposition, certainly, are now set to do, which is to forge a consensus on the changes needed to the Bill so that it better serves the interests of British troops, British justice and Britain’s standing in the world. I believe that we, as the official Opposition, and we as a House, have a duty to try to make this Bill fit for purpose as the new legal framework for this country when we have in future to commit our servicemen and women to conflict overseas. It falls short of that test at present. We will not let those matters rest.

This is a classic case of a Government who will win their legislation but have lost the arguments. When that is the case, the Government will find that those arguments come back again, not just from the Opposition but from all parties, not just from this House but from both Houses, and not just from Parliament but from all the range of outside organisations that together have been the chorus of criticism about so much in this Bill that is still left undone but will be done in future.

[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.