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

Johnny Mercer Excerpts

Committee stage & Committee Debate: 5th sitting: House of Commons
Wednesday 14th October 2020 Public Bill Committees

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

It is a pleasure to serve under your chairmanship, Mr Stringer.

The principle is that part 1 should cover personnel in circumstances in which they may

“come under attack or face the threat of attack or violent resistance”

in the course of an overseas operation, as detailed in clause 1(6). When developing our policy, we considered whether we should extend the coverage of part 1 to include UK-based drone operators when the systems that they are operating are involved in operations outside the British islands. However, we determined that although the UK-based drone pilots would be considered part of an overseas operation, they could not be said to be at risk of personal attack or violence, or face the threat of attack or violence, as would be the case for an individual deployed in the theatre of operations. We therefore determined that as the personal threat circumstances would not arise in a UK-based role, the personnel in those roles would not warrant the additional protection provided by the measures in part 1. I therefore ask that the amendment be withdrawn.

[Mr Jones]

I see the logic of how the Bill is structured, and I accept that somebody sitting in Waddington is not going to be attacked by an enemy, but if the purpose of the Bill is to give them legal protection for their actions, they are not immune from being attacked in a legal process for something that they do on overseas operations.

[Johnny Mercer]

Some really important points have been made, particularly about mental health provision and the protection of those who operate these systems, but the Bill is clearly there to provide the additional protections that particularly apply to those who face the threat of violence and attack at the time, so I disagree on this point. I therefore ask that the amendment be withdrawn.

[Martin Docherty-Hughes]

I take on board what the Minister says, but we may disagree on an overall element of the Bill. It is the Overseas Operations Bill, and the persons we are speaking of are involved in an overseas operation. Surely the security given to those in the physicality of the arena of military activity should not be just about geography or about those who are physically participating in the overall operations.

[Johnny Mercer]

The clauses that deal with special consideration for the circumstances of what is going on at the time are there precisely to take account of the unique physical and mental demands of being in close combat; that is what they are designed for. To suggest that drone operators operating from UK shores would face the same pressures is not the same thing. I therefore ask that the amendment be withdrawn.

[Chris Evans]

This was a probing amendment. I am happy to withdraw it, but I hope that the Minister will revisit the matter as soon as we know more from research about the effects of post-traumatic stress disorder on drone operators and—as we move towards the integrated review—technology starts to dominate the battlefield. I hope that he will give a commitment that the MOD will revisit that in the near future. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Mr Jones]

It is clarity for the individuals, so that they can be dealt with swiftly. If Judge Blackett had been consulted on this Bill, that might have been included.

I will not try your patience, Mr Stringer, because I might need it when I come to new clauses 6 and 7 on the broader issues around investigation, which I notice the MOD is now moving on and possibly recognising that it has missed a trick in the Bill. The new clause would give the court powers. We are not talking about serious offences or common assault. We did a similar thing in the Armed Forces Act 2006. We gave commanding officers the powers to deal with minor offences, because the old system was taking an inordinate amount of time to deal with them. We are basically setting up a de minimis case. As the hon. Gentleman just said, it would deal with the bureaucracy and make sure that we concentrate on the most serious offences.

People might say, “How does this get into ambulance-chasing solicitors?” With IHAT and Northmoor, some of the cases put forward were to do with such things as slaps and assaults, which would actually meet this criteria. Why did it take years to investigate whether somebody was slapped if it was on a Saturday night in a pub and classed as a common assault? Why did it take years to investigate or in some cases re-investigate? We could argue that it happened in Iraq or Afghanistan or somewhere else and it might be more difficult to gather evidence and witnesses, but it should not be beyond the wit of the legal system to look at the evidence initially and say, “To be honest, the threshold for this would not be very high.” Why were they brought? We know: in some cases, clearly, Phil Shiner was trying to get some compensation out of an alleged fault, but the pressure was put on those individuals who were accused of things that were minor and would have been dealt with normally. The new clause frees up the criminal justice system and the investigators to concentrate on the things that we want to concentrate on, which are the more serious cases.

Would that protect our armed forces? Yes, I think it would, because we would have a sense of fairness for them—they would be getting speedy justice, they would not go through reinvestigation and they would not have to wait an inordinate length of time for things dealt with as a matter of course in a magistrates court. It is a way to give protection to servicemen and women, while also—as the hon. Member for West Dunbartonshire said—making the system more effective.

The important thing, however, is the judicial oversight—this is not just deciding to stop prosecution; the evidence is looked at, the de minimis test is applied and only then would that be ended. That would be a huge improvement. The Minister said he was looking for improvement of the Bill and, to me, this is an obvious way to do it.

[Johnny Mercer]

Amendments 25 to 28 seek to change the time at which the presumption comes into effect from five to 10 years. The proposal in the public consultation that we ran last year was for a 10-year timeframe for the statutory presumption. It was not fixed policy, because we were seeking the public’s views.

In the consultation, we asked the following questions: whether 10 years was appropriate as a qualifying time, and whether the measure should apply regardless of how long ago the relevant events occurred. As we set out in our published response to the consultation, there was support for a 10-year timeframe, but equally there was support for presumption to apply without a timeframe at all. We also considered the written responses, which clearly indicated the concerns that a 10-year timeframe was too long—memories can fade, evidence tends to deteriorate and the context of events changes. There were also concerns that 10 years was too long to have the threat of prosecution hanging over a serviceperson’s head.

Respondents suggested time periods of less than 10 years, with the most popular timeframe being five years. As the issue that we seek to address relates to historical alleged offences, we did not feel able to apply the presumption without a timeframe. However, given the strength of the views expressed, we felt that a timeframe of less than 10 years would be more appropriate, and five years was the most popular alternative.

[Mr Jones]

Will the Minister say what the numbers were for the responses to the consultation? What was the basic divide between those who wanted 10 years and those who wanted none or five years?

[Johnny Mercer]

I am more than happy to write to the right hon. Gentleman with the exact responses. They are in the House of Commons Library, in the impact assessment. The numbers were clear, and I have just outlined the general findings—[Interruption.] I will not give way again. Some people want 10 years and some five years—

[Mr Jones]

It is not in your notes.

[The Chair]

Order. Continue, Minister.

[Johnny Mercer]

Thank you, Mr Stringer.

New clause 8 seeks to limit to six months the period between an offence being committed or discovered and any proceedings being brought, where a number of conditions can be satisfied. First, the offence must be a relevant offence, committed on overseas operations by a serviceperson. Importantly, the bar to proceedings only applies if the offence being prosecuted is subject to summary conviction only, or is one where no serious, permanent or lasting psychological or physical injury has been caused.

During an investigation, it is not always clear what the charge will be, but this is made harder for investigations on overseas operations where the injured person is a local national. It will not always be possible to get information regarding the incident, or on the permanence or lasting nature of an injury, in the timeframe demanded by the amendment.

Investigations on overseas operations inevitably rely to some degree on actions by others in theatre. Delays in such investigations are a fact of the operational environment and placing a time limit on investigations runs the risk that others may be able to affect the outcome of a service police investigation. The service police cannot have any barriers placed in the way that fetter their investigative decision making. A time limit in these circumstances would do just that.

Even the most minor offences take on a greater significance in an operational environment. A minor offence is not necessarily a simple matter that could be dealt with quickly by a commanding officer. Placing a barrier in the way of investigations for minor offences does not take account of the disproportionate effect of poor discipline directed towards local nationals in an operational setting.

The amendment is modelled on the provisions that exist in relation to summary-only matters in the Magistrates’ Courts Act 1980. That is where the problem lies. That Act codifies the procedures applicable in the magistrates courts of England and Wales. It is not legislation written to accommodate the extraordinary demands made of a system operating in an operational context.

[Mr Jones]

Will the Minister give way on that point?

[Johnny Mercer]

I will not give way.

Delays are inevitable and applying civilian standards to an operational context is inappropriate. If this is something that might be considered for the service justice system, it would seem more appropriate for an armed forces Bill, but with an exemption to account—

[Mr Jones]

On a point of order, Mr Stringer. This is a very strange Committee. Basically, the Minister is reading his civil service brief into the record, rather than actually answering the points. It is going to be very difficult to scrutinise the Bill properly if he will not take interventions, even though I accept he might be at a disadvantage if it is not in his briefing notes.

[The Chair]

The right hon. Gentleman knows that is not a point of order. The Minister is entitled to give way as he chooses.

[Johnny Mercer]

If this measure is something that might be considered for the service justice system, it would be more appropriate for an armed forces Bill, but with an exemption to account for the complexity of overseas operations. This Bill is not the correct legislative vehicle for the measure. I therefore ask that the amendment be withdrawn.

[Mr Jones]

I just find this remarkable, Mr Stringer. We have a Minister who has come in here to read his civil service brief into the record. He is not taking account of anything that is being said, by myself or by other hon. Members. When he wants to be questioned on it, he will not take interventions. It is a strange way of doing this. He possibly thinks that doing a Committee is just about reading the civil service brief the night before and then reading it into the record. I am sorry, but that is not how we do scrutiny in this House.

With regard to the Minister’s comment that this measure would be more appropriate in an armed forces Bill, that may well be the case, but he has an opportunity to put it in here. He can sit there and smile but, frankly, he is doing himself no favours. He has said that he wants co-operation on the Bill, but he is doing nothing. He is going to try to plough through with what he has got, irrespective of whether it damages our armed forces personnel. That makes me very angry.

The Minister said that the Magistrates’ Court Act provisions would not cross over to this Bill. We could draw up a protocol around that, which would fit in the Bill. If the Bill is supposed to be the all-singing, all-dancing, huge protection that we are going to give to our servicemen and servicewomen, then that should have been in the Bill.

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[Martin Docherty-Hughes]

I rise to speak to the amendment for a very specific reason. It concerns the word “alleged” in the Bill. The Government, in bringing forward the Bill, have sought to provide clarity to members of the armed forces and veterans against some elements of the legal profession, which is the constant narrative during our debates—although, I have to say that there are many members of the legal profession who are not only members of the armed forces, but veterans too. We need to be very much aware of the rule of law.

The clarity that I and my party require, which is why we have tabled this amendment, is to remove that word “alleged”, because it causes ambiguity, whereas I think the Government’s intention in introducing the Bill is to give clarity. Whether or not I disagree with various parts of it, if not the vast majority, we are seeking to work here in a coherent and collegiate fashion, because I think that, not only for the accused but for the accuser, we need to be clear about the point at which we start, which is the day on which the first investigation takes place. 

The word “alleged” creates ambiguity in the law and ambiguity for members of the armed forces and veterans, which is why we have brought forward this specific amendment.

[Johnny Mercer]

Mr Stringer, do you want me to speak only to amendment 14?

[The Chair]

I want to give you the opportunity to comment on amendment 14 and the associated amendments and new clauses.

[Johnny Mercer]

The other associated amendments as well?

[The Chair]

Yes.

[Johnny Mercer]

I thought so.

[Mr Jones]

Mr Stringer, are you going to move the other clauses? Are you taking them as a group?

[The Chair]

What is being debated is amendment 14 to clause 1. We are also debating amendments 2 and 56, and new clauses 6 and 7. If hon. Members wish to vote at the end, we will vote on amendment 14. However, it is in order to discuss the other amendments and new clauses.

[Johnny Mercer]

One of the main purposes of introducing the presumption against prosecution is to provide greater certainty for veterans in relation to the threat of repeat investigations and the possible prosecution for events that happened many years ago. Amendment 14 would undermine that objective by extending the starting point for the presumption and, in some cases, creating even more uncertainty. However, I want to reassure Members that the presumption measure is not an attempt to cover up past events as it does not prevent an investigation to credible allegations of wrongdoing in the past, and neither does it prevent the independent prosecutor from determining that a case should go forward to prosecution.

[Martin Docherty-Hughes]

Does the Minister not accept that the very word “alleged” creates ambiguity within the law and, if anything, creates a barrier? Our amendment would give the clarity that he and his Government are seeking.

[Johnny Mercer]

I do not accept that. The wording about the “alleged conduct” is clear. We have dealt with a number of allegations: 3,500 from the Iraq Historical Allegations Team alone, and another 1,000 from Afghanistan. They are alleged offences and it is right to leave those in there. I request that the amendment be withdrawn.

--- Later in debate ---

[The Chair]

Does the Minister wish to say something generally about clause 1? If not, I will open it up to the floor so that the amendments in the previous group, or any other issue relating to the clause, can be debated.

[Johnny Mercer]

Not at this stage, Mr Stringer.

[Mr Jones]

I say again what a pleasure it is to serve under your chairmanship, Mr Stringer.

On clause 1, we heard last week that one problem the Bill does not address relates to investigations. If that had been included, the Bill would be more effective in stopping the unfair distress of individuals. We heard from Major Campbell, who was quite graphic about his 17 years of investigations. The clause is clear about trying to clear up the system and we have heard about the system being made more efficient, which would not only ensure that armed forces personnel get a fair hearing but speed up the processes where they face distress.

It is not surprising that investigations are not being considered. Let us look at General Nick Parker’s evidence last week. I know him well—he has had a distinguished career—and I certainly know his son, who was injured in Afghanistan. Those of us on the Opposition Benches might say, “It’s yet another general rather than a squaddie,” but I have a huge amount of respect for him. He not only has the Army running through his veins but stands up for the armed forces and the men and women who served under him, having their best interests at heart. He would be supportive of any legislation or anything done to try to improve their lot. Having had a few heated arguments with him over the years—he is no shrinking violet—I know that if he thought the Bill was perfect or would improve things, he would say that. What he says about investigations is therefore important. He said:

“On the effectiveness side, it appears as if part 1 of the Bill focuses entirely on the process of prosecution, whereas for me the big issue here is the process of investigation and, critically in that process, ensuring that the chain of command is deeply connected with what goes on from the very outset. I do not think there is any serviceman or woman who would not accept that bad behaviour on the frontline must be treated quickly and efficiently. Nobody would want anything in the process that somehow allows people who have behaved badly on the frontline to get away with it. But all of us would believe that the process has to be quick, efficient and effective to remove the suspicion of a malicious allegation as quickly as possible. I cannot see how this Bill does that.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 94, Q188.]

The Minister referred to next year’s armed forces Bill as being appropriate for that, but I am aghast. If this Bill is supposed to be the Rolls-Royce legislation to protect our servicemen and women, why on earth does it not include investigation?

I note that, ironically, since we took evidence, a written ministerial statement was made yesterday in which the Defence Secretary announced that investigations will be looked at. He said:

“The Overseas Operations (Service Personnel and Veterans) Bill currently before this House will provide reassurance to service personnel that we have taken steps to help protect them from the threat of repeated investigations and potential prosecution in connection with historical operations…However, we are also clear that there should be timely consideration of serious and credible allegations and, where appropriate, a swift and effective investigation followed by prosecution, if warranted. In the rare cases of real wrongdoing, the culprits should be swiftly and appropriately dealt with. In doing so, this will provide greater certainty to all parties that the justice system processes will deliver an appropriate outcome without undue delay.”—[Official Report, 13 October 2020; Vol. 682, c. 9WS.]

Even the Defence Secretary recognises that one of the issues is the length of investigations. Could I disagree with any of what he said? No. As I said in speaking to new clause 8, the issue is effectiveness in making sure not only that the service is protected from malicious allegations, but that individuals are. We must always think about that, because at the end of the day the individual is important.

The Defence Secretary’s statement goes on to say:

“I am therefore commissioning a review so that we can be sure that, for those complex and serious allegations of wrongdoing against UK forces which occur overseas on operations, we have the most up to date and future-proof framework, skills and processes in place and can make improvements where necessary. The review will be judge-led and forward looking and, whilst drawing on insights from the handling of allegations from recent operations, will not seek to reconsider past investigative or prosecutorial decisions or reopen historical cases. It will consider processes in the service police and Service Prosecuting Authority as well as considering the extent to which such investigations are hampered by potential barriers in the armed forces, for example, cultural issues or operational processes.”—[Official Report, 13 October 2020; Vol. 682, c. 9WS.]