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

Johnny Mercer Excerpts

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

We have not heard much from the Minister apart from his civil service brief.

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

Let’s not be personal, Kevan.

[Mr Jones]

I am not being personal, but a Minister usually does more than read what is in front of him; he takes notes and engages. My proposals should be looked at seriously, because they would improve the Bill. The Minister says he wants to work with everybody, but he seems to have deaf ears when people make suggestions that would not harm but improve the Bill. It is not just me saying that, as someone who is passionate about protecting the armed forces; that is the evidence we have taken through this process. As I said earlier, that is the good thing about the process.

What would be the argument against accepting the new clauses? The only one I can see is that the Government want to deal with this next year in the Armed Forces Bill. Fair enough, but put them in now. They can be done now. We will not end up with any additional costs of process—in fact, that will save money. I know we do not have a money resolution with this Bill, so we cannot propose things that cost money, but I doubt whether those proposals will. As the hon. Member for West Dunbartonshire said this morning, it is about making things efficient, and there are two wins here: one win with the process being slicker and quicker; and another win with the accused individual being dealt with fairly and robustly.

Turning to other parts of the clause, this morning we asked why five years, rather than 10, 15, 20 or whatever. I asked the Minister to justify that and I also asked about the numbers for who said what. He said they were in the impact assessment, but I could not find them when I looked at it at lunchtime in the Library, or where they are referred to. I would like the Minister to do what I thought he would do when he responded to my hon. Friend the Member for Portsmouth South, which is to say, “Well, five years has been put forward for X reasons and 10 years was seen as too long”—or something like that—“and these were the people who argued for each.”

On balance, I agree, that some such things are at the end of the day political decisions, but we did not get that sort of response. I would still like an explanation for the decision of five years. I do not think that is in the impact assessment, on which, likewise—I have raised this with the Minister on the Floor of the House—there is confusion on the number of claims and the potential of those claims. The figures vary from 900 to 1,000, but there is no breakdown at all of whether those claims are from civilians or from members of the armed forces making claims against the MOD.

The other thing that concerns me is the presumption not to prosecute. I know of no other system where the presumption is written into a Bill to state, before anything is done, that someone will not be prosecuted. Again, my fear about that is that it will be seen as interfering with process. I am sure some people in Committee are old enough to remember the time before the Crown Prosecution Service, many years ago—this is the reason why we had that in this country—when police investigated and did the prosecution as well. Anyone who wants to know the reasons why that system failed—for example, in the Horizon case to which I referred earlier—should read last week’s excellent report of the Justice Committee, which criticised the arrangement whereby someone was both investigator and prosecutor.

The presumption in this Bill is worse than that, because we are saying, “We will presume that we are not going to prosecute.” I know that Ministers have said, “This does not mean that cases will not be prosecuted”, and I accept that, but the decision on whether a case should be prosecuted should be down to an independent judicial process; it should not be in the hands of the Attorney General, a Minister or anyone else to decide whether a case goes forward.

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I support my right hon. Friend the Member for North Durham in his amendments and I hope that the Minister will think on what has been said this afternoon, and answer some of the questions that we have put to him.

[Johnny Mercer]

I am delighted to answer some of the questions that have been laid out. I have spoken at length about the “five to 10 years” issue in dealing with previous amendments, but I will look to answer some of the questions raised and then speak to clause 1 in general.

We ask a huge amount of our service police. Investigations on overseas operations are inherently dangerous, and the risk of gathering evidence on operations must always be balanced with the risk to the lives of our investigators. To suggest that the service police pursue unmeritorious or vexatious investigations in those circumstances is to do a huge injustice to those brave men and women who do this dangerous work, and we do not.

To understand new clause 6, it is necessary to go through it line by line. Proposed new subsection (1) seeks to apply the clause to,

“any investigation by a police force into alleged conduct as described in subsection 3 of section 1.”

Clause 1(3) applies—

[The Chair]

Order. I asked hon. Members at the beginning of the meeting to respect social distancing. I am sorry, Minister; please continue.

[Johnny Mercer]

Clause 1(3) applies where,

“the alleged conduct took place (outside the British Islands)”,

at a time when the person was “subject to service law” under the Armed Forces Act 2006, and “deployed on overseas operations.” There is no further limit on the remaining provisions of the proposed new clause, which means they must therefore apply to all investigations on overseas operations committed by service personnel. For context, there were in the region of 3,000 service police investigations in Iraq and 1,000 in Afghanistan. The majority of those will have been committed by persons subject to service law. It is not considered feasible for such numbers of investigations to be brought in front of a judge, and to do so would undoubtedly add further delays to the process.

Proposed new subsection (2) states:

“The police force investigating the conduct must place their preliminary findings before an allocated judge advocate as soon as possible, but no later than 6 months after the alleged offence was brought to their attention.”

The service police are independent. That independence is enshrined in law in section 115A of the Armed Forces Act 2006. It is common practice for them to consult prosecutors in the course of an investigation and for that discourse to shape an investigation, but this is discourse, not direction. Any obligation on the service police to police their investigation before a person who has control over the final determination of that matter seriously compromises the independence and is therefore contrary to section 115A.

New clause 6 states that the allocated judge advocate may order an investigation to cease should it be determined,

“that no serious, permanent or lasting psychological or physical injury has been caused”—

presumably by the alleged conduct. Again, it would be hard to determine whether that was the case without investigation, a matter complicated by being on overseas operations. Proposed new subsection (3)(b) gives the judge advocate the power to order that an investigation should cease if it is determined,

“that the evidence is of a tenuous character because of weakness or vagueness or because of inconsistencies with other evidence, and that it is not in the interests of justice to continue an investigation”.

That proposed new paragraph is equally problematic; only in the most clear-cut cases can the police produce evidence entirely without some area of weakness or vagueness. Difficult operational investigations are particularly prone to those problems, but the relationship with the prosecutor will allow them to be explored and the progression of the investigation adapted accordingly. Furthermore, inconsistency with other evidence is a factor in all investigations and is what the trial process is created to explore. For a judge advocate to be placed into such a process, rather than relying on the relationship between police and prosecutor, risks adding delay to the investigation, and for a judge to order the cessation of an investigation risks cutting it short where evidence has not yet been gathered due to the complex nature of operational inquiries.

Finally, proposed new subsection (3)(c) seeks to give the judge advocate the power to direct the timetable and extent of further investigation if it is determined that there is merit in the complaint. However, the clause does not specify whether the judge advocate would have continued oversight, or some ability to enforce the timetable and direction. Again, that would place an additional burden on police who, in an operational theatre, responding to operational events, would now have an added layer of bureaucracy placed on them by someone who is not deployed and cannot possibly understand the unique pressures experienced by the deployed police officer. That would remove the discretion that all police officers must have to carry out prompt, independent and effective investigations, and hamper their decision making. That is not the same as the police relationship with the prosecutor, and here I return to my point about discourse versus direction. Discourse allows the police to retain the discretion so vital to acting in response to events; direction fetters their decision making.

The proposed clause is based on the false premise that police carry out unmeritorious or vexatious investigations. It would undermine the relationship between the police and prosecutors and fetter the police in the conduct of investigations in difficult circumstances. It would place an additional and unnecessary cog in a system that does not need it.

New clause 7 fails to take account of the processes involved in investigations. It fails to make clear the difference between an investigation and a reinvestigation and it fails to understand the processes involved in gathering evidence. The proposed clause applies where a person has been acquitted of an offence relating to conduct on overseas operations. It is assumed that this envisages a situation in which a person is acquitted at court martial, but it should be noted that it could also apply to a matter that is heard at a summary hearing in front of a commanding officer, following on from an investigation that did not involve the police. It also applies where a determination has been made by a judge advocate that an investigation into an offence should cease, which, as I have already stated, risks prematurely cutting short an investigation whose progress is impacted by its being an operational investigation.

The new clause proposes that there be no further investigation into the alleged conduct unless compelling new evidence becomes available and an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong that there is a real possibility that it would support a conviction. I will take this step by step.

An investigation is a hard thing to define in law. It starts when inquiries begin, and its purpose is to determine whether what little information there is to start with is credible, and to gather more evidence in support of that. The process of finding out whether evidence is compelling is called an “investigation”. It is hard to see how, people having been told to cease an investigation, no further investigation—whether new or a continuation of the earlier investigation—can be commenced unless some form of compelling new evidence becomes available. The only way the police can determine whether the new evidence is compelling is by carrying out the investigation that they are not allowed to carry out. This becomes a circular issue.

Additionally, no further investigation into the alleged conduct may be carried out unless the allocated judge advocate determines that the totality of the evidence against an accused, which presumably has had to come from some sort of investigation that the police are not allowed to conduct, is sufficiently strong that there is a real possibility that it would support a conviction.

[Mr Jones]

Will the Minister give way?

[Johnny Mercer]

Not at this stage.

Where a person has been acquitted and new evidence comes to light, it would be necessary for there to be a further investigation before a prosecutor could determine whether a new prosecution could and should be brought. That is not a decision for the police; it is a decision for the prosecutor. To prevent the investigation would prevent a prosecutor from having the information that they need to make that determination.

Unfortunately, new clause 7 is not clear enough to allow a real debate on what it is seeking to achieve. The only way the police can determine whether new information is “compelling” or “sufficiently strong” to “support a conviction” is to carry out an investigation. A thorough investigation is important. As I said earlier, it can serve to exculpate, which is a good thing for the reputation of our armed forces, as well as to incriminate. The Bill should not, and does not, seek to fetter the police from carrying out investigations. It seeks to ensure that prosecutors are in a position to make prosecutorial decisions based on information that can be gleaned only through thorough investigations.

With the discourse between prosecutor and investigator, a balance must be struck between further investigation and the realistic prospect of conviction, and this includes the measures in the Bill that the prosecutor must take account of.

[Mr Jones]

Will the Minister give way?

[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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[Chris Evans]

I fully appreciate what the Minister says about being bound by criminal law in England and Wales. However, having gone through the process himself, is he confident that when someone is recruited into the armed forces, they are fully aware of their legal obligations and that the training meets those needs?

[Johnny Mercer]

I thank the hon. Gentleman for that pertinent question. Extensive efforts have gone down over the years to make sure our people understand the rules within which they should operate. There clearly have been challenges in some of the training regarding detentions and so on, as has been found out through various court cases. I have always talked, on Second Reading and even before the legislation came to the House, about how the it is one of a series of measures. One such measure is about investigatory standards, another is about education and how individuals’ lives are affected, because it is not in anybody’s interests for us to do the legislation and for people not to understand. I am more than happy to share with the hon. Gentleman how much work we have done in that space.

[Martin Docherty-Hughes]

Go on, give way.

[Johnny Mercer]

I will not. Repeat investigations of alleged historical offences or the emergence of new allegations of criminal offences relating to operations many years ago can make the delivery of timely justice extremely difficult. It can also leave our service personnel with the stress and mental strain of the threat of potential prosecution hanging over them for far too long. The measures in part 1 of the Bill are key to providing reassurance to our service personnel and veterans about the threat of repeated criminal investigations and potential prosecution for alleged offences occurring many years ago on overseas operations. The purpose and effect of clause 1 is to set the conditions for when the measures in clause 2 and 3 must be applied by a prosecutor in deciding whether to prosecute a criminal case or to continue with the proceedings in a case. It should be noted with reference to clause 1(2) that the measures do not affect the prosecutor’s decision as to whether there is sufficient evidence to justify prosecution. The first stage of the prosecutorial test will therefore remain unchanged. Clause 1 therefore details to whom and in what circumstances the measures will apply.

[Martin Docherty-Hughes]

I am very grateful to the Minister for giving way. When we consider his summing up, critically with reference to new clause 7(2)(a), does he not recognise that some of the evidence given by Judge Becket in response to his hon Friend the Member for Wrexham creates an ambiguity in terms of our partners in military activity? For example, Judge Becket referred to the murder of six Royal Military Police in Iraq and noted that if new evidence was brought forward, and the Government of Iraq had the same legislation, there is every possibility that the people responsible would not be prosecuted.

[Johnny Mercer]

I assume that the hon. Gentleman is talking about Judge Blackett, who is the Judge Advocate General. He made some keen points. I have met Judge Blackett and we have tried to incorporate his work in the Bill, where appropriate. The idea that new evidence is presented and we do not prosecute is simply not the case. With reference to the six individuals killed at Majar al-Kabir in 2003, if new evidence is presented in that case, we would expect the Iraqis to prosecute. If new evidence emerges in cases against servicemen and women, they can still be prosecuted beyond these timelines. The legislation is simply bringing integrity and rigour to the process.

[Mr Jones]

Will the Minister give way?

[Johnny Mercer]

No, I am going to make some progress.

Under the Bill, the first condition establishes that the measures will only apply to members of the armed forces, both regulars and reserves, and to members of British overseas territory forces operating as part of UK forces when deployed on operations outside the British Islands, as defined in clause 7. Although we do deploy other Crown servants and contractors on overseas operations, those individuals are not deployed on front-line military operations and are not ordinarily exposed to the same risks and dangers as service personnel. It is not therefore appropriate to extend the protection provided by the measures in part 1 for our service personnel and veterans to other Crown servants or contractors.

The first condition in the legislation also requires that the alleged conduct occurred while the person was deployed on an overseas operation during which personnel came under attack or faced the threat of attack or violent resistance. Operations conducted outside the UK are vastly different from those conducted inside the UK. Within the UK, the military only ever operate in support of the civil authorities. With the exception of Operation Banner, which was an absolutely unique circumstance, UK operations rarely, if ever, require our personnel to operate in the same sort of hostile, high-threat environments they face on overseas operations. Excluding Northern Ireland, there are no outstanding historical allegations relating to operations in the UK.

Be assured that we have not forgotten our Northern Ireland veterans. The Secretary of State for Northern Ireland will be bringing forward separate legislation to address the legacy of the past in a manner that focuses on reconciliation, delivers for victims and ends the cycle of re-investigations into the troubles in Northern Ireland, which has failed victims and veterans alike. That will deliver on our commitment to Northern Ireland veterans.

The second condition for the measures to apply is that the alleged offence must have occurred over five years ago, with the start date being the date of the offence. Where an alleged offence occurred over a period of days, the start date will be the last day of that period. It is vital that investigations into historical allegations are brought to resolution without undue delay. To provide greater assurance to our brave servicemen and women, we consider five years to be the most appropriate start point for the presumption.

[The Chair]

Just before I collect the voices of Members as they vote, if the clause is voted for, it means that the first clause is agreed to and then becomes part of the Bill to report to the House. The other new clauses and amendments that were grouped with it will be voted on when they are reached. I hope that is clear.

Question put, That the clause stand part of the Bill.

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[Mr Jones]

New clause 1 states:

“The principle referred to in section 1(1) is that a relevant prosecutor makes 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.”

We have already discussed this, but if a material time difference were to prevent someone from getting a fair trial, I do not think that anyone would deem it fair to prosecute them for a crime. That has been an issue in civil law. For instance, certain historical sexual abuse cases have been very difficult to determine. There is a balance between the case for the prosecution to, quite rightly, get justice for the victim, and for the accused to receive a fair trial given the lapse in time. The new clause makes a fair suggestion.

In the case of Major Campbell, the circumstances were very difficult. The differences between service justice and civilian life include the unique circumstances in which individuals operate and, as I have said, the fact that they serve overseas, where evidence and witnesses must be gathered. We must ensure that the accused gets a fair trial. I want this Bill to make the process fairer and more just for accused individuals in those unique circumstances. I keep coming back to that point: the circumstances are unique and very different.

I support new clause 1. I accept that it might not be expertly drafted, but if the Minister is sympathetic towards it, I urge him to at least ask a civil servant to redraft it so that it can be brought back as a Government amendment, or to suggest another way in which the proposal can be brought into effect. Judging by his attitude, I doubt he will do that for any of the proposed amendments.

[Johnny Mercer]

He’s a fan, isn’t he?

[Mr Jones]

I am not bad, actually. I am just trying to be helpful and to improve the Bill, but the Minister seems determined to push it through unamended. He might not like it, but this is the purpose of Parliament: it is about scrutinising legislation. I have tabled amendments that I do not necessarily agree with, but I have done so because we need to demonstrate to the public that all opinions have been aired in Committee. That is an important part of our democracy. Even with a Government majority of 80, a Minister cannot simply determine that their proposals go through on the nod. Likewise, just because something comes out of his lips, that does not necessarily make it right. Perhaps I can give the Minister some advice: he might be in a stronger position if he was prepared to stand up and argue, in a friendly way, some of the points made in the Bill. All he seems to be doing, however, is reading out a pre-prepared civil service brief. This is the first time I have seen that done in a Bill Committee.

On the presumption against prosecution, we have got things the wrong way around. As Judge Blackett said, by looking at prosecutions we are looking through the wrong end of the telescope. I think there are ways in which we can ensure that people do not have to face lengthy reinvestigations or an inordinately long wait before being taken trial, and, if they meet the threshold for prosecution, that they are not disadvantaged by the passage of time. It is worth exploring those issues. My hon. Friend the Member for Portsmouth South asks, through the new clause, a reasonable question about time limits. If this is not the way to do it, what is?

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[Johnny Mercer]

I will answer the point about the Judge Advocate General first. He is able to comment on all areas of policy that have a direct impact on his role within the service justice system and the management of the military court system, but the measures in part 1 of the Bill impact on the prosecutorial process. As such, we felt it was more important to focus on engagement with the independent prosecutors, the Crown Prosecution Service and the Service Prosecuting Authority, which were all engaged in the process.

As I have said already, I have met the JAG and have looked at his recommendations, and we continue to look at how we can take forward his suggestions in order to improve the process of service justice. More will come on that in due course.

[Mr Jones]

Will the Minister give way?

[Johnny Mercer]

I would absolutely love to.

[Mr Jones]

The Minister has referred to who he consulted when drawing the Bill. Can he expand on their comments, and is it possible to produce them as evidence for the Committee?

[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.

[Liz Twist]

I am sorry to interrupt the Minister’s flow, but clearly, ensuring that justice and fairness are done is crucial. We heard a number of comments from Judge Blackett on the process. I know the Minister has met Judge Blackett, but was that before or after the legislation was prepared?

[Johnny Mercer]

I did not meet Judge Blackett before the legislation was prepared, for the reasons I have outlined. We thought it far more important to focus on engagement with the independent prosecutors, the Service Prosecuting Authority and the Crown Prosecution Service. Like I said, I have met him and heard what he has to say, and we heard his evidence last week.

[Liz Twist]

Having subsequently met Judge Blackett and heard his evidence, did the Minister make any changes to the legislation as drafted, or does he propose to make any such changes?

[Johnny Mercer]

No, because that would be to pre-empt the judge-led review of how we protect the Department, configure ourselves and develop the capability to deal with lawfare. Judge Blackett gave his view, but in our judgment it was better to engage the independent prosecutors, the Crown Prosecution Service and the Service Prosecuting Authority. That is what we have done—we engaged in a wide public consultation—and I believe that where we have arrived is fair and proportionate.

[Martin Docherty-Hughes]

If the Bill were not legislation relating to the armed forces, it would have been given prior oversight by either the Attorney General for England and Wales, the Attorney General for Northern Ireland or, for Scotland, the Lord Advocate or the Advocate General. Will the Minister tell the Committee why the Judge Advocate General was excluded from that process for this legislation?

[Johnny Mercer]

The Secretary of State wrote to the Judge Advocate General on 14 May 2020 acknowledging that, because of the 100-day election commitment to introduce the Bill, it was not possible for the legal protections team to complete the usual level of stakeholder engagement that we would usually seek to undertake post-public consultation.

[Martin Docherty-Hughes]

rose—

[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]

I will not give way at the moment, because I have addressed that point a number of times.

Clause 2, which the new clause would replace, sets out the principle of the presumption against prosecution, but it is to be exceptional for a prosecutor to determine that proceedings should be brought for an alleged offence that occurred in operations more than five years ago, as set out in clause 1. We have not sought to define “exceptional”, as we do not think it necessary or possible to provide an exhaustive definition. We intend, however, that the effect of clause 2 will be that when a prosecutor considers whether criminal proceedings should be brought or continued in relevant cases, there will be a presumption against prosecution, and that the threshold for rebutting that presumption will be high.

We also expect that the concept of “exceptional” will develop over time as cases are considered by prosecutors. I reinforce the point in clause 1(2): the presumption against prosecution does not impact on the prosecutor’s assessment as to whether there is sufficient evidence to justify a prosecution. It focuses instead on setting a high threshold for a prosecutor to determine that it is in the public interest to bring or to continue criminal proceedings in respect of offences committed by service personnel on operations more than five years ago.

Although the presumption will not directly impact on investigations, allegations of wrongdoing must, and will, continue to be investigated. We accept that, over time, this is likely to have an indirect impact. As prosecutors become familiar with the presumption, they should be able to advise investigators earlier in the process on whether the higher threshold of the new statutory requirement would be met in a particular case.

[Mr Jones]

Will the Minister give way on that point?

[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.]

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[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.]

[The Chair]

Order.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Matters to be given particular weight

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[Liz Twist]

I want to speak briefly on torture, which is one of the issues that my constituents have brought to me. That is relevant, because it is about public perception of the legislation proposed.

Britain has a fine history with our armed forces of acting legally, morally and in the best interests and traditions of the armed forces. I believe that the Minister should consider the amendment that ensures that torture, war crimes and crimes against humanity are excluded from the Bill. Last Thursday, a number of witnesses said to us that they could see no reason why torture and war crimes should not be excluded too, as sexual offences rightly are. I urge the Government to consider the good name of our country and put those elements outside the scope of the Bill.

[Johnny Mercer]

We ask a huge amount of our service personnel. We send them to undertake high-threat and high-risk operations in defence of our country and its people. They do their duty in the clear knowledge that they may be injured, maimed or even killed.

This Government believe, therefore, that it is absolutely right and reasonable to require that in return we ensure that, in addition to the existing public interest test, a prosecutor has to give particular weight to the unique circumstances of overseas operations and the adverse impacts that those may have on a serviceperson’s capacity to make sound judgments and on their mental health at the time of an alleged offence when coming to a decision on whether to prosecute. That is not intended to excuse bad behaviour by service personnel, but to ensure that prosecutors give full recognition to the significant difference in the circumstances surrounding an alleged offence committed on operations overseas as compared, for example, to situations where the alleged criminal conduct occurs in a domestic civilian setting.

The prosecutor must consider the presumption against prosecution under clause 2 to determine whether a case meets the exceptional threshold. The prosecutor, as required by clause 3, must also give particular weight to matters that may, in effect, tip the balance in favour of not prosecuting. Clause 3 is therefore integral to supporting the high threshold set in clause 2 for a prosecutor to make a decision to prosecute.

There was a lot of discussion last week about the concerns over the impact on our personnel of repeated scrutiny and the mental burden placed on them by the threat of criminal prosecution occurring long after the events in question, particularly where there is no compelling new evidence to be considered. Clause 3 requires that prosecutors must also consider where there has been a previous investigation in relation to the alleged criminal conduct and no compelling new evidence has arisen. The public interest is in cases coming to a timely and final resolution.

In the responses to our public consultation, many service personnel expressed a lack of trust in prosecutors and others in the justice system. They were particularly concerned about whether prosecutors are able to understand the operational context in which the offence occurred and to adequately reflect this in determining the public interest. We fully accept that prosecutors may already take such matters into account. However, making that a statutory requirement provides greater certainty for service personnel that the unique context of overseas operations will be given particular and appropriate weight in the prosecutor’s deliberation.

By seeking to remove the benefit of the matters in clause 3 that tend towards reducing the culpability of a serviceperson and tend against prosecution, the amendments are designed to ensure that the prosecutor can also consider whether such matters increase the culpability of an individual and support a prosecution. The amendments undermine our reassurance to our service personnel that the operational context of an alleged offence will be taken into account, and in their favour, by the prosecutor. It would be a slap in the face for our armed forces personnel to suggest that the context of an overseas operation will be considered as a factor in support of their prosecution.

[Mr Jones]

At present, the service justice system understands the context and the public interest test is already there—whether it is in the public interest to prosecute. The service justice system is designed to take into account special circumstances, so what is the need for clause 3?

[Johnny Mercer]

The need is very clear. The fact is that the service justice system as it stands has facilitated an industrial level of claims against our people that has absolutely destroyed their lives.

[Mr Jones]

No, it has not.

[Johnny Mercer]

The right hon. Gentleman can sit there and say no, this did not happen and that did not happen. The rest of us live in the factual world, where these things actually did happen. They destroyed some of our finest people, which is why we are introducing this legislation. I have heard a lot from the right hon. Gentleman, and the vast majority is not correct. I respect him immensely, but it is not correct. I will therefore push on at this stage.

Amendments 3 to 5 seek to add additional factors to clause 3. In the light of amendment 1, I can assume only that the intention is somehow to bring in factors that would be seen by the prosecutor to increase a serviceperson’s culpability and make a prosecution more likely. I have already set out my arguments as to why amendment 1 should be withdrawn. Furthermore, I do not believe that amendments 3 to 5 are appropriate or needed.

Amendment 3 is designed to

“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.”

The independent prosecutor’s responsibility is to follow the principle set out in the code for crown prosecutors. That includes the principle that they will work

“to maintain public trust and to provide an efficient criminal justice system.”

The Bill does not place service personnel above the law or make them somehow less accountable. Allegations of offences must and will continue to be investigated. Where appropriate, a prosecutor can still make a decision to prosecute. On that basis, I do not believe that amendment 3 is warranted.

Amendment 4 is designed to

“ensure that particular weight is given by a prosecutor where the alleged conduct engages the UK’s obligations”

under articles 2, 3, 4 and 5 of the European convention on human rights. The prosecutor already has to apply the principles of the ECHR, in accordance with the Human Rights Act 1998, at each stage of the case, so amendment 4’s additional requirement would be totally unnecessary.

Amendment 5 is designed to

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

I can assume only that the amendment is meant to address the concerns raised last week about the chain of command being held accountable as well as individuals, but it misses the point. A decision taken by a serviceperson to use force during an overseas operation is an individual decision for which they, and not their commanding officer, may then be held personally accountable if their decision is deemed to have been in breach of criminal law. The circumstances of an incident would determine whether the involvement of a commander in the activities of their subordinates also merited a criminal prosecution. Separately, it should be noted that under the Armed Forces Act 2006, commanding officers may be investigated and prosecuted, including at court martial, for non-criminal conduct offences in relation to serious allegations of wrongdoing by personnel under their command. Non-criminal conduct offences are not covered by the Overseas Operations Bill.

On the proposed amendments to schedule 1, the Government are committed to providing reassurance to service personnel and veterans in relation to the threat of prosecution for alleged offences on overseas operations more than five years ago. The measures in part 1 of the Bill are key to delivering that reassurance. The fact that we have only excluded sexual offences in schedule 1 does not mean that we will not continue to take other offences, such as war crimes and torture, extremely seriously.

The presumption against prosecution will allow the prosecutor to continue to take decisions to prosecute these offences, and the severity of the crime and the circumstances in which it was allegedly committed will always be factors in their considerations. On a case-by-case basis, a prosecutor can determine that a case against an individual in relation to war crimes, torture or genocide is “exceptional”, and that a prosecution is therefore appropriate, subject to the approval of the Attorney General or the Advocate General in Northern Ireland. The decision to exclude only sexual offences reflects the Government’s strong stated belief that the use of sexual violence or sexual exploitation during overseas operations is never acceptable in any circumstances.

We have not excluded other offences, including torture, because in the course of their duties on overseas operations, we expect our service personnel to undertake activities that are intrinsically violent in nature. These activities can expose service personnel to the possibility that their actions may result in allegations of torture war crimes. By contrast, although allegations of sexual offences can still arise, the activities that we expect our service personnel to undertake on operations cannot possibly include those of a sexual nature.

We do not therefore believe it is appropriate to afford personnel the additional protection of the presumption in relation to allegations of sexual offences after five years. I am aware that many people have misinterpreted this decision, and have suggested that it somehow undermines the UK’s continuing commitment to upholding international humanitarian and human rights law, including the UN convention against torture. That is completely untrue. The UK does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law.

[Liz Twist]

Will the Minister give way?

[Johnny Mercer]

I will not, as I do not have time.

These amendments seek to ensure that all offences contained within the International Criminal Court Act 2001, as it applies in England, Wales, Northern Ireland and Scotland, should be excluded offences in schedule 1. Amendment 8 is consequential on amendments 6 and 7. These amendments would amount to such a comprehensive list of offences that they would considerably undermine the effectiveness and value of the measures in part 1 of the Bill. In doing so, they would prevent the Government from delivering on their commitment to provide reassurance to our service personnel and veterans in relation to the threat of prosecution for alleged historical offences, something that they so greatly deserve.

[Liz Twist]

Will the Minister give way on the issue of torture?

[Johnny Mercer]

I will not. Amendment 12 seeks to introduce a sunset clause where the Act will cease to have effect after five years unless the Secretary of State or Lord Chancellor lays before Parliament a report of an independent review confirming that the Act complies with the UK’s international obligations. I can assure the Committee that such a review is not required, as the measures in this Bill are consistent with our international legal obligations and do not undermine international humanitarian law as set out in the Geneva conventions.

[Liz Twist]

Will the Minister give way?

[Johnny Mercer]

I will not give way.

I therefore ask that these amendments be withdrawn.

Ordered, That the debate be now adjourned.—(Leo Docherty.)