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

Johnny Mercer Excerpts

Committee stage & Committee Debate: 3rd sitting: House of Commons
Thursday 8th October 2020 Public Bill Committees

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

Q On the Bill’s breaching the armed forces covenant, I do not think there is any dispute that, if you bring in any time limit on anything, people will fall either side of that line. However, disadvantage in the armed forces covenant is very clearly about comparing those in a similar situation—those in service and civilians—which is why the Bill applies to both groups.

You argue that someone serving in the armed forces will have that limitation and will therefore be disadvantaged, breaking the armed forces covenant. Service personnel will of course be able to serve in operations, where they may get killed or lose limbs, and some would argue that that is a disadvantage. The Government would argue that that is a misapplication of the armed forces covenant, and that, actually, if you compare a service person with a civilian in the same situation, there is no breach of the armed forces covenant. What would you say to that?

Charles Byrne: You have always been very clear about welcoming our challenge as a constructive effort, so we have had this conversation before, Minister. Thank you for the chance today.

For me, it is fairly simple. In the armed forces covenant, the principle of no disadvantage is not caveated to say, “It must be no disadvantage in directly comparable situations.” It is a principle of no disadvantage much more generally than that. This Bill would effectively prevent a member of the armed forces from being able to bring a case against their employer, which would be different from a civilian—

[Johnny Mercer]

Q Of course, I understand that. But by extension of that, armed forces service—because you may well suffer the disadvantage of being killed—is, in fact, a breach of the armed forces covenant.

Charles Byrne: Not in quite the same way. I was looking at it much more generally—

[Johnny Mercer]

You do not think it is a disadvantage?

Charles Byrne: I think this Bill would be a breach of the armed forces covenant. If you look at the general principle, when we say that we do not want someone to be disadvantaged by their service, and think of a really straightforward example—one that you will well know—about people who move house regularly because of deployment, they therefore go to the back of the queue for dentistry or primary schools. That is where you are comparing somebody who works nearby—in a shop or a hospital—in a direct comparison, where we do not want the disadvantage. I think it does apply in very general terms.

[Johnny Mercer]

Q Okay, so the disadvantage of serving is, in your view, not applicable in the case of being killed, but in this case where we are trying to protect our people, it is applicable. Do you see that there is a disparity there that is not really fair? It seems to be translating it to your own intent.

Charles Byrne: No. The intent behind the armed forces covenant was that there should be no disadvantage, and it looks—

[Johnny Mercer]

But is being killed a disadvantage?

Charles Byrne: Is that an inherent risk of—

[Johnny Mercer]

Of military service—I think most people would argue that it is.

Charles Byrne: Exactly.

[Johnny Mercer]

Q So is lawfare an inherent risk of service?

[The Chair]

I think we have got to allow Mr Byrne to answer the question.

[Johnny Mercer]

Sorry.

Charles Byrne: What happens if this Bill goes through is that it protects the Ministry of Defence from civil action—from someone bringing a case. That longstop does not protect the armed forces personnel. Is not that the intent behind the armed forces covenant—not to protect the MOD, but to protect armed forces personnel?

[Johnny Mercer]

On overseas operations.

Charles Byrne: On overseas operations.

[Johnny Mercer]

Q Yes, and as we have heard, the vast majority of those claims—94% of them—are from people abroad—

Charles Byrne: Even that number is questionable, though, is it not?

[Johnny Mercer]

It is not questionable—it is the data.

Charles Byrne: No, it is based upon a sample. Of the 70 cases that fell outside of the six months, only 39 were investigated—not all of them. Of those 39, 17 were found to have—so those were 17 actual cases. There could be another 31 from that sample size, which is taken only from Afghanistan and Iraq, as you know. There is a whole area of exclusions within that. So that number is a little bit—

[Johnny Mercer]

Well, the numbers are the numbers. We cannot argue with them.

Charles Byrne: They are, but they are questionable numbers, potentially.

[Johnny Mercer]

Q Okay, but the idea that you can apply the armed forces covenant when it fits, and then not when it does not fit, I think is a misapplication of the armed forces covenant.

Charles Byrne: Is that not exactly what this Bill is potentially doing? It is choosing to apply it in some cases, and not in others.

[Johnny Mercer]

No, because what we are looking to do is to protect, and to ensure that our servicemen are not disadvantaged.

Charles Byrne: I think it is protecting the MOD, rather than the service personnel—that is the debate that we have had.

[Stephen Morgan]

Could we go back to constructive questions, rather than an interrogation?