Afghan Resettlement Update

Debate between Johnny Mercer and Kevan Jones

Wednesday 13th December 2023 Commons Chamber

[Johnny Mercer]

I reiterate what I said earlier: it is a clear red line for me, as it is for this Government. For those who are eligible for those schemes and who are entitled to be in the United Kingdom in settled accommodation, it will happen. We will keep going until we achieve that objective. We stood here in the summer looking to get 8,500 Afghans out of hotels and into settled accommodation. That was a significant challenge, but we achieved that, and I fully intend to achieve this task, too.

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

I thank the Minister for his statement, but the system is still shambolic. I had a constituent who was a member of the special forces who arrived here, but trying to get his family here was complete chaos. We were being bounced between the Home Office, Foreign Office and Ministry of Defence. We finally succeeded, but the process was not easy. Who is actually in charge of this? The frustration in this case—it was clear that they were eligible for the scheme—was that without my intervention, it perhaps would not have been solved.

May I pick up on what the Minister just said to my hon. Friend the Member for Barnsley Central (Dan Jarvis)? Is the Minister actually saying, in contradiction to what the Minister for Armed Forces said on Monday, that this scheme does apply to the Triples? The Minister for Armed Forces clearly said that it did not.

[Johnny Mercer]

The two things that the Minister for Armed Forces was saying on Monday are correct. Being in a taskforce does not automatically entitle someone to be in the United Kingdom, because while that might initially get them through the eligibility criteria, there may be well-founded reasons why that individual does not settle into accommodation in the UK, including many different national security reasons that have been outlined. He was correct to say that, and he is correct to say that the Afghan taskforce had an Afghan command reporting chain. I am clear about the criteria for ARAP entitlement, and the vast majority of triple-three and triple-four operators should fit within those criteria. If they meet the criteria and deserve to be in the United Kingdom, I will do everything I can to get them here. This is a Government effort; it is not led by a single Department. This is a cross-Government issue for the Home Office, the Department for Levelling Up, Housing and Communities and the Ministry of Defence. I have been asked by the Prime Minister to oversee it, and that is what I am doing at the moment.

Armed Forces Bill

Debate between Johnny Mercer and Kevan Jones

Consideration of Lords amendments
Monday 6th December 2021 Commons Chamber

[Johnny Mercer]

I do agree with those observations. To be honest, when I came into my role as the Veterans Minister, I knew that the experience of females in the military was totally unacceptable. When my hon. Friend the Member for Wrexham published her report, a lot of what she wrote was not a surprise to me. I have daughters who want to join the military. It is something that we absolutely have to sort out.

I wish the Secretary of State was in his place. He has clearly laid his position on the line on this issue. Last week, he said that in 2020 1.6% of rapes reported to the civilian police made it to court, compared with 50% of those reported to military police. I cannot see how that can possibly be true, unless the numbers are so incomparably small as to be totally misleading. The trouble is that our lack of honesty in this place tonight—

[Mr Kevan Jones]

What?

[Johnny Mercer]

Not in here but in what is coming forward from the Department. It places my hon. Friend the Member for Wrexham in an absolutely invidious position. It is a straightforward integrity check for her.

[Mr Jones]

Unbelievable.

[Johnny Mercer]

Sorry—does the right hon. Gentleman have an intervention to make?

[Mr Jones]

The hon. Gentleman was the Minister who took the Bill through Committee; if he felt so strongly about this, what did he do about it? He is saying that since he is no longer a Minister he is now passionate about these issues, but he did nothing when he was a Minister.

[Johnny Mercer]

The right hon. Gentleman will understand that he was nowhere near the Department when I was a Minister. He has absolutely not a clue as to what I did to try to change this. He has no clue whatever.

[Mr Jones]

You are just rewriting history.

[Johnny Mercer]

The right hon. Gentleman is more than welcome to make a freedom of information request to the Ministry of Defence and go and look at all the ministerial submissions on this issue, but that would require his dealing in the realms of fact rather than his rather pointless rhetoric. I am more than happy to have a conversation with him outside this place but this is a serious issue that frankly deserves better contributions than that—

[Mr Jones]

rose—

[Johnny Mercer]

I am not going to give way. I am absolutely not going to give way for another interlude like that.

My hon. Friend the Member for Wrexham has done her work on this issue. It is a serious point. She has found the evidence and that evidence has been backed up by professionals, but in the Department there is one individual who is refusing to back down from the alleyway he has found himself in. My hon. Friend’s is a really valuable voice: she is the first female from the ranks to make it to this place. She has an extraordinarily valuable and powerful voice. For her to lose her position tonight because she has that integrity is not what we do. It is not teamwork and it is not the way this Government should operate. I support her wholeheartedly.

Strength of the UK’s Armed Forces

Debate between Johnny Mercer and Kevan Jones

Wednesday 14th April 2021 Commons Chamber

[Johnny Mercer]

No, I am not going to give way. [Interruption.] No, no, no.

[Mr Kevan Jones]

On a point of order, Mr Deputy Speaker. I will take your advice, but is it in order to call a Member disingenuous?

[Mr Deputy Speaker (Mr Nigel Evans)]

If I had heard anything that was out of order, I would certainly have called it into order. It is part of the debate.

Armed Forces Bill (Second sitting)

Debate between Johnny Mercer and Kevan Jones

Wednesday 31st March 2021 Public Bill Committees

[Johnny Mercer]

No, the hon. Gentleman said that matelots and pongoes, the lower ranks, do not get to use the fund, which is factually incorrect. I am sorry; I do not mean to be obtuse with Members, but I have come into this role to serve members of the armed forces and I will not stand idly by if people make things up. If someone is going to debate these issues and bring forward things that are not true, which I am afraid largely emanate from the Scottish nationalist party, it will be very difficult to engage. However, I will address the other points.

The new clauses seek to create through primary legislation a representative body for the armed forces that is similar in many respects to the Police Federation. New clause 19 proposes that details of how such a federation would operate would be set out in regulations. Of course the Government understand that Members from all parties in the House wish to support our armed forces and protect their interests; that is at the heart of what we do and I believe our actions show that. However, we are not persuaded that there is a requirement or indeed a groundswell of support for a federation along the lines that have been suggested. The interests of our armed forces personnel are already represented through a range of mechanisms, not least the chain of command.

On matters of pay, the Armed Forces Pay Review Body and the Senior Salaries Review Body provide annual recommendations on pay for the armed forces to the Prime Minister. Evidence is gathered from a number of sources, including the bodies commissioning their own independent analysis of pay comparability and taking written and oral evidence from the MOD and from service families federations, as well as spending a significant amount of time visiting military establishments within the UK and overseas.

Staying on the subject of pay, I should highlight that the X-Factor addition to basic military pay, which is currently at 14.5%, recognises the special conditions of military life, including limits on the ability of service personnel to negotiate on this issue.

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

Will the Minister give way?

[Johnny Mercer]

I would be delighted to give way.

[Mr Jones]

The Minister is making various claims about the Armed Forces Pay Review Body, and he is correct that it does great work in assessing the different effects of armed forces life, but it depends on Ministers and the Treasury accepting its recommendations. There was not a problem until 2010, but there has been since. How do ordinary members of the armed forces ensure that their pay issues are taken into account if the Government, who have ignored the recommendations of the Armed Forces Pay Review Body on numerous occasions since 2010, ignore those recommendations?

--- Later in debate ---

[Johnny Mercer]

They have not ignored them. I sat on the last one, and I advocated for the pay of the armed forces. The Government have a clear role when it comes to pay across the public sector. They work hard to maintain the independence of these bodies, which are robust in challenging the Government to make sure our people are paid fairly. My right hon. Friend will have seen that the integrated review talks about a new way of operating, which will have to be reflected in a new reward and recognition scheme that looks at pay across the ranks, across the trades and across employment, to make sure that people are remunerated and recognised in line with what we are asking them to do. I understand the point he is making, but I do not accept that the Government have turned down these recommendations and are cracking on willy-nilly with pay.

[Mr Jones]

I accept that the Minister might accept the pay review body’s recommendations, but he does not implement them. In 2013 the Government refused to reappoint Professor Alasdair Smith when he recommended things they did not like. There was not a problem until 2010, but since 2010, although the Conservative party says it stands for the armed forces, the Government have not implemented the pay review body’s recommendations. As we heard earlier, it would be okay not to have a representative body if the Government automatically accepted the pay review body’s recommendations, which I am proud that the last Labour Government did, but this Government have not done that.

[Johnny Mercer]

Okay. Staying with the subject of pay, I should highlight that the X-factor addition to basic military pay, which is currently at 14.5%, recognises the special conditions of military life, including limits on the ability of service personnel to negotiate on this issue.

Importantly, the service complaints ombudsman provides independent and impartial scrutiny of the handling of service complaints made by members of the UK armed forces regarding any aspect of their service life. Improvements to the service complaints process are being progressed, and those do not require primary legislation, although there is one small measure in the Bill that seeks to change the legislation in certain circumstances.

I should also mention that there are provisions in the service complaints system and the service justice system for support to be provided to those who make complaints or allegations, and to those who are the subject of such actions. There is also legal aid for those facing charges in the service courts, and there are assisting officers at summary hearings.

The Committee can be assured that individuals are not left without support and assistance. On many other issues, the Soldiers, Sailors, Airmen and Families Association, the Royal Naval Association, the Royal Air Forces Association, Veterans UK and a great many more regimental associations and groups throughout the country have regular access to the chain of command and Ministers to represent their members’ interests. As I mentioned, the chain of command remains an important route through which personnel can make representations about matters of interest and concern.

In addition, there are a range of other mechanisms for service personnel to have a voice on matters that concern them. The annual armed forces continuous attitude survey asks personnel about all aspects of their service life, and the results are used to inform the development of policy and to measure the impact of decisions affecting personnel, including major programmes and the armed forces covenant. The survey results are published. I should add that service personnel play an active role in the development of policies that affect them, and I see that every day in the work that goes on under the Chief of Defence People, Lieutenant General James Swift.

The Committee might not be aware that the Chiefs of Staff Committee, chaired by the Chief of the Defence Staff, has a WO1, Mr Haughton, as its senior enlisted adviser, and he has a voice on all the matters that come before that committee. As a further example of our commitment to improving diversity, all Army officers at two-star and above have a reverse mentor, which supports diversity of thought across all areas of the service.

Finally, Ministers and senior officers hold regular town hall meetings for all staff—service and civilians—to brief them on developments and issues and provide an opportunity for everyone to ask questions about those developments.

--- Later in debate ---

[Mr Jones]

My experience, like the Minister’s, is that there is support within the military for individuals; I think I was the one who changed the policy around zero tolerance of drug use. May I ask about the support for such individuals? There will be individuals who have to leave the armed services because of drug and alcohol issues. What support is given to them? Transition for those individuals to get support in civilian life is important. Is there a specific pathway for people who have to leave because of drug and alcohol problems in the armed services, or are they just left to their own devices? That would be a way to stop some of those individuals falling further into the addictions that have grasped them.

[Johnny Mercer]

They are not left to their own devices. There is now something called the Defence Transition Services, which were set up last year. They are specifically tailored to put our arms around all those individuals who are leaving service. They are not specifically tailored to those who suffer from addiction. The service is agile enough to deal with all our vulnerable service leavers, particularly those coming out of care and things like that. They can now access Defence Medical Services up to six months after they leave, but there is always more to do in this space. That is why I am keen to see my hon. Friend the Member for Liverpool, Walton at Tom Harrison House.

[Mr Jones]

I welcome what the Minister says, but if he is looking at the broader issue around veterans, could he perhaps also look at the support that he has given to individuals who have to leave because of addiction problems? I accept that there is a transition process, but some more work could be done to look at specific support for those who have to leave because of drug and alcohol-related issues.

[Johnny Mercer]

Yes, of course I will. I give a commitment to the Committee to work with my hon. Friend the Member for Liverpool, Walton to design the pathways and report back in future on what we can do better. With those assurances, I hope he will agree to withdraw the motion.

--- Later in debate ---

[Johnny Mercer]

I will address new clauses 7 and 15 together. I enjoyed the contributions.

There are some serious points here about the recognition of veterans—particularly our Northern Ireland veterans—which I have worked very hard on over the last couple of years. There is no tiered system of veterans. We are as proud of our Northern Ireland veterans as we are of those who served in Iraq and Afghanistan. Operation Banner was a deeply challenging environment. When I came to this House, I came here with a mandate to improve veterans’ care and the experiences of those who serve. There is perhaps no greater symptom of the betrayal of our veterans by Governments over the past 40 years than prosecuting or going after those who served in Northern Ireland when no new evidence exists and it is simply a question of the politics having changed. There is no other country in the world that endures these issues among its veteran population. The more people who speak on this matter and who become aware of it, the more that the individuals going through these processes will feel support.

The Prime Minister has made commitments to end this disgrace. I have made commitments to end this disgrace. Those commitments stand. It is an incredibly difficult environment and space in which to operate. At no stage have I just cast this matter off to the Northern Ireland Office, as has been alleged by my right hon. Friend the Member for North Durham. I work on this every day in the Department. Unlike my predecessors, I will achieve a result for those people who served in Northern Ireland. We will slowly make progress towards that.

Let me turn to the matter of welfare for those who supported on Op Banner. The creation of the Office for Veterans’ Affairs in 2019 is a marker of this Government’s commitment to her veterans. That never existed before; in previous Governments, under previous Ministers, there was never an Office for Veterans’ Affairs that took responsibility for these issues. We continue to demonstrate our commitment to supporting veterans and making the United Kingdom the best place in the world to be a veteran.

In the strategy for our veterans, the Government committed to improve the collection and analysis of data on veterans’ needs and experiences to inform future policy. I accept that we have poor data on veterans. If we had changed that—perhaps 10 years ago—we would be in a far better position now to calibrate programmes and understand the nuanced challenges in the transition from service life into the community. But we did not do that 10 years ago. We are doing it now. The first money that came into the Office for Veterans’ Affairs went into data and studies to try to understand the scale of the problem, so that we can implement evidence-based policies that genuinely affect and improve the lives of our veterans.

We are going to publish an annual veterans report, which will set out the progress made each year on delivering these objectives so that we can be held to account. As part of this data strategy that will improve collection and analysis of information across a wide range of topics—including veterans’ health and wellbeing; mental health; the frequency of the tragedy that is suicide; employment; housing; and relationships—we are working with stakeholders, other Departments and the devolved Administrations to understand what data already exists, where there are gaps in knowledge and how the gaps could be mitigated, including, where relevant, by adding new veteran markers to datasets. That is happening.

The 2021 census in England and Wales also represented a key opportunity. Using the expertise of the Office for National Statistics, we will be able to use anonymised data provided by the census to better understand the veteran population in England and Wales as a whole, and the huge range of topics affecting their lives, including their health and wellbeing.

New clause 15 seeks to

“place a duty on all public services to include a question on whether the respondent is a veteran, has previously served in the Armed Forces or is a reservist to all new service users.”

This would place an undue and unnecessary burden on public bodies. In keeping with the initial action plan of the January 2020 UK Government’s strategy for our veterans and the New Decade, New Approach agreement, my Department is currently conducting a review of welfare services provided to all veterans living in Northern Ireland.

The Ulster Defence Regiment and the Royal Irish Regiment (Home Service) Aftercare Service was established in 2007 to provide welfare support for Op Banner veterans and their families from within an established service delivery network. My Department recognises that the delivery of veterans’ welfare support in Northern Ireland has grown in a specific way. However, I can provide assurance that a review of the aftercare service has commenced and will establish the potential of the aftercare service to support better our veterans UK-wide in the welfare structure. For that reason, it is imperative that, before further commitments are made, the review is allowed to conclude and bring forward its recommendations on long-term service delivery for veterans in Northern Ireland.

To support our veterans living in Northern Ireland further, we have, for the first time, appointed a Northern Ireland Veterans Commissioner to act as an independent voice and point of contact to support and enhance outcomes for all veterans. I hope that, following those assurances, the right hon. Member for North Durham will agree not to press the new clause.

[Mr Jones]

I accept that the Minister does not see veterans in tiers, but he should read the Forces in Mind Trust’s research on the way in which Northern Ireland veterans are perceived by the public. I do not accept that somehow because people served in Northern Ireland they are less of a veteran than those who served in any other sphere. I agree with the Minister that they should be treated similarly, but they are a unique group of individuals who need more attention.

The Minister talks about the aftercare service in Northern Ireland. I have visited that service and accept that it is good, but most Northern Ireland veterans do not live in Northern Ireland. I certainly commend the aftercare service’s work with not only veterans, but their families on the ongoing psychological problems that many family members experience. However, in terms of progress and getting the research, although the Minister says that the Office for Veterans’ Affairs was a first, I am sorry, but it was not. The last Labour Government started the Veterans Agency and had a veterans Minister. I could go on at length about what was put in place for veterans. It is all right for him to champion the new Office for Veterans’ Affairs, but he is cutting its budget at present, which cannot be right.

This area does need more research. Those facing prosecutions do not receive the recognition they deserve. I think that, in the way in which they are being dealt with, they are going through torture. In addition, other Northern Ireland veterans who are not currently being pursued for prosecutions fear that they may well be in future. That must be an awful feeling for those individuals who, if they committed a crime, it was serving bravely their Queen and country and being asked to do a very difficult job on behalf of us all. That is totally unacceptable.

Given the concentration on these veterans, commissioning the report would give a clear indication that we are taking them seriously. I understand what the Minister says about his commitment to the issue of Northern Ireland prosecutions, but frankly those are words that we have heard from both him and the Prime Minister. What the veterans need now is firm action. Without that, they will continue to feel let down. I would therefore like to press the new clause to a vote to ensure that the MOD does the research and gives the recognition and support to those brave servicemen and women who served on behalf of our country in Operation Banner.

[Johnny Mercer]

I recognise what happened last time on the Armed Forces Bill. My hon. Friend the Member for North Durham attempts to leverage this in and follows it up with a press release to make out that he is standing up for Northern Ireland veterans. I want to place on the record that, yes, I am the first veterans Minister and this is the first Prime Minister to commit to end this intolerable process for our veterans. There was a time when I stood alone on this issue and although I welcome his support now, people are not as forgetful or as dim as he would like to think. He was the armed forces Minister. He was in Government for a considerable period of time when absolutely nothing was done on this issue.

[Mr Jones]

That is not true and the Minister knows it.

[Johnny Mercer]

This issue has been put on the political spectrum by myself and by this Prime Minister. We will bring forward legislation to protect these people. I will not accept lessons from people for whom I served—right? I was a veteran when the right hon. Gentleman was a Minister in the Department and I know exactly what it was like, so—

[Mr Jones]

The Minister should be proud of what the last Labour Government did; we did not cut armed forces numbers.

--- Later in debate ---

[Johnny Mercer]

It is a total joke, because I would not be here if veteran support was as good as the right hon. Gentleman likes to think. So he can push the new clause to a vote, he can do his press release, but ultimately he will never change anything unless he actually contributes—

[Mr Jones]

Well, I think that if the Minister looked at my record and the record of the last Labour Government in office, we did—[Interruption.]

[The Chair]

Order. Can I ask whether it is Kevan Jones’s intention to proceed with pressing the new clause to a vote?

[Johnny Mercer]

Of course it is—he has got his press release ready to go.

[Mr Jones]

Can I just respond to that, Chair? No, I do not do press releases on this. And if the Minister actually cares to look and do some research instead of doing his lazy thing of just reading out civil service briefs, he might know that I have been committed to this issue for a long time. And in terms of the last Labour Government—

[Johnny Mercer]

Why didn’t you do anything about it?

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[Johnny Mercer]

On a point of order, Mr Sunderland. I seek your guidance on what I should do as the Minister when I am sat here and facts are presented to the Committee that are fundamentally untrue. The officials from the Department have just come back to me on the continuity of education allowance, which the hon. Member for Glasgow North West raised. The allegation is that it is predominantly used by officers, but the figures do not show that. I have informed her that that is the case, but she still does not wish to correct the record. What do you suggest that I do when dealing with misinformation on this scale?

[Mr Jones]

Know your subject, rather than just read the brief out.

[Johnny Mercer]

There seems to be some distortion on the line, Mr Sunderland. I can’t quite hear you.

--- Later in debate ---

[Johnny Mercer]

Thank you.

New Clause 8

Terms and Conditions of Service

“(1) The Armed Forces Act 2006 is amended as follows.

(2) Section 343A, after subsection (5) insert—

‘(5A) An armed forces covenant report must include—

(a) a comparison of the terms and conditions of service for service people with other public sector employees, and

(b) an assessment as to whether service personnel face no financial disadvantage through their employment.’”—(Mr Jones.)

This new clause will ensure that the principles of the Armed Forces Covenant extend to matters relating to the financial disadvantages subjected to UK serving personnel and veterans, as a result of their time in the Armed Forces.

Brought up, and read the First time.

[Mr Jones]

I beg to move, That the clause be read a Second time.

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[Johnny Mercer]

These new clauses, as I understand them, are linked by a desire to broaden the kinds of issues that the Government are required to report on annually to Parliament in respect of delivery against the armed forces covenant. I will take each new clause in turn and explain why the Government do not believe that proposed additional reporting obligations will work.

New clause 8 would require the armed forces covenant annual report to include comparative data on the terms and conditions of service personnel versus other public sector employees, and an assessment of whether service personnel experience financial disadvantage because of their service. I assure the right hon. Member for North Durham that the Government are committed to ensuring that the terms and conditions of service personnel remain attractive and competitive, and that service personnel do not face financial disadvantage.

The overall remuneration package for service personnel ensures that they are compensated for the additional costs of service life. Whether based in the UK or deployed overseas, service personnel receive additional pay enhancements that recognise the unique challenges of service life, and they are further rewarded with annual pay increments, recognising their development and commitment. On top of that, service personnel continue to be rewarded with one of the most generous non-contributory pension schemes in the country.

I recognise the importance of ensuring that terms and conditions are reviewed regularly. That is the role of the independent Armed Forces Pay Review Body, which we have talked about already this morning. It provides advice to the Prime Minister and the Secretary of State on the remuneration of service personnel, and its remit compels it to consider the need for armed forces pay to be broadly comparable with pay levels in civilian life. The Armed Forces Pay Review Body already submits an annual report on its work to the Prime Minister and the Secretary of State, who then present it to Parliament for the Government to respond to. The recommendations of the AFPRB have always been accepted by the Government. We therefore consider that the additional reporting requirement proposed by this new clause would not provide to Parliament any information that is not already received in the annual AFPRB report.

I move on to new clause 10. I interpret subsections (1) and (2) as requiring all public bodies, particularly Government Departments and Ministers, to have due regard to the principle of the covenant when making policy. If my interpretation is correct, I refer my right hon. Friend the Member for North Durham to answers that I have given elsewhere about extending the scope of the duty to include central Government Departments. Broadly, central Government are already held to account in our delivery of the covenant by the statutory requirement to report annually to Parliament on progress against the covenant. I reiterate that this will remain a legal obligation.

Clause 3 would appear to require the Secretary of State to report annually to Parliament on how other Government Departments have demonstrated due regard to the covenant principles when making policy. Quite apart from the fact that that would impose a disproportionately large administrative burden on Departments—especially the MOD in having to write such a report—the Government consider that the salient information required by Parliament to monitor Government Departments’ progress in delivering the covenant is already contained in the covenant annual report.

Finally, new clause 14 would require the covenant annual report to include new statistics on veterans in several areas, including the number of veterans contacting the Office for Veterans’ Affairs and Veterans UK each year. The Government absolutely recognise the importance of measuring the progress we are making in delivering support for veterans and remain committed to continuous improvement. In terms of both the number and quality of the metrics reported against annually in the covenant report to Parliament, the OVA is working across Government to develop a framework of measures to track progress against the outcomes set out in the strategy for our veterans. We already intend to publish an annual veterans report, setting out our progress in delivering against our objectives. We anticipate that that would also include statistics reflecting the key initiatives, such as the veterans railcard, which my hon. Friend the Member for Washington and Sunderland West mentioned.

In the light of our plans for an annual veterans report, the Government are of the view that these additional reporting requirements for the covenant and the report are not necessary. I hope that, following these assurances, Members will agree to withdraw, or will not press, their new clauses.

[Mr Jones]

The Minister says that the Government are committed to armed forces personnel facing no financial disadvantage, but they will if the Government accept the Armed Forces Pay Review Body’s recommendations but do not actually implement them. It is important to notice that although the armed forces do have good pensions—they are an outlier in that respect—armed forces personnel do pay for them, because those pensions are taken into account when service pay is calculated by the Armed Forces Pay Review Body.

I would accept what the Minister says, and we would have no problem with this, if we had a Government who implemented the Armed Forces Pay Review Body’s recommendations, but we have not; since 2010 we have had a Government who have not implemented those. I will therefore press the new clause to a vote, because I think an extra level of reporting is needed to show that armed forces personnel are not being disadvantaged in this case by a Government who do not implement the recommendations of the Armed Forces Pay Review Body.

Question put, That the clause be read a Second time.

Armed Forces Bill (First sitting)

Debate between Johnny Mercer and Kevan Jones

Thursday 25th March 2021 Public Bill Committees

[Johnny Mercer]

I appreciate that point, but the outcome that we are trying to achieve will be similar. The clause was drafted in consultation with the Scottish Government and the Crown Office and Procurator Fiscal Service. The role of the Lord Advocate in agreeing the protocol reflects those comments prior to its introduction. We have been around the houses and got those people’s views.

On the involvement of the Scottish Government in developing the protocol, the Lord Advocate is of course a member of the Scottish Government, so there is no question of the Scottish Government not being involved in the creation of the protocol in Scotland. In addition, new section 320B(8) of the 2006 Act provides that the Lord Advocate and the Director of Public Prosecutions may also consult anyone else thought appropriate.

I hope that helps to explain how we have designed the clause in a way that is sympathetic to the differing constitutional arrangements across the UK, and I hope that hon. Members will withdraw their amendments.

[Mr Jones]

May I begin by thanking Justice Lyons for his review? In his evidence to the Committee, he clearly outlined why amendment 19 is needed. I am a veteran of the 2006 Bill Committee, and it is quite clear, as Judge Lyons said in evidence, that when this amendment was made to that Bill, the intention was not for the wholesale movement towards serious crimes being heard in courts martial in the UK. They were for exceptional circumstances in which, for example, one crime had been committed overseas and one in the UK, given the ability of the court martial to deal with such cases. That was a sensible way forward because the service police would clearly be the lead authority in the investigation of such serious crimes committed abroad as murder, rape or manslaughter,.

The problem, which my hon. Friend the Member for Washington and Sunderland West outlined eloquently, is to do with confidence in the system. When the system was outlined, I do not think courts martial were meant to deal with these serious crimes. I support the military justice system, and I do not think the amendment would do anything to damage it. I think it would boost confidence in it.

The problem with the current system has been outlined. The conviction rate for rape is not satisfactory—I accept there are problems not just in the military system but in civilian life as well—and one of the key issues is investigation. The Minister said he was confident that the service police have the capacity to investigate such serious crimes. I would not want to criticise professional individuals, but, as with anything, the more specialism someone has and the more cases they deal with, the more expertise they get in gathering evidence and in supporting victims.

Clearly, the service police deal with a limited number of serious cases, so I would have thought that, when such alleged crimes are committed in the UK, it would be important to involve the local civilian police, who deal with serious sexual assaults, rapes, manslaughter and murder more often. Because of that experience not only in gathering evidence but in dealing with victims, they should have primacy. I am old enough to remember the Deepcut inquiry undertaken by Lord Justice Blake and know those cases in detail. I accept that is going back a number of years, but the clear problem there was the way in which evidence was not gathered—in some cases it was ignored or destroyed—and the assumption, without rigorous investigation, that suicide was the main cause of death in all cases.

The amendment is really about the system’s integrity and getting confidence for victims as well. As we saw in evidence from Forward Assist and retired Lieutenant Colonel Diane Allen, there is an issue in ensuring that, first, those who complain think they will be listened to as victims, and secondly, the armed forces’ hierarchical structure is not an impediment to the proper investigation of serious accusations. I can see the reason for courts martial dealing with cases in exceptional circumstances, as outlined in the 2006 Act, such as those that take place overseas and in this country, but I cannot see why routine cases in the UK are not dealt with by the civilian courts. I therefore support the amendment.

The Minister said it is a policy decision, but I am not sure. The intention was there, and I do not think much has changed in the past 15 years. What we need to do now is to ensure that, as was outlined in evidence we heard from the Victims’ Commissioner and other witnesses, the victim is at the centre of any system we put in place.

--- Later in debate ---

[Johnny Mercer]

In answer to the Opposition’s veterans spokesperson, I can say that that option is being considered as well as judicial review, not instead of. But these options are being considered at the moment as we try to find a way forward. Clause 10 and schedule 3 are part of wider reforms to support service personnel through the complaints system and to increase efficiency and reduce delays within the service complaints process.

This clause will be complemented by a programme of other changes that do not require primary legislation. The Wigston review into inappropriate behaviours highlighted a lack of confidence in the current system. The previous service complaints ombudsman for the armed forces has also made an assessment in her annual reports that the service complaints system is not yet efficient, effective or fair. It is crucial that our service personnel feel confident that complaining will not adversely impact them. Therefore, complaints must be dealt with appropriately and in a timely fashion to build that trust further.

It is key then that legislative changes are implemented to ensure that the service complaints system is more efficient. Ensuring that complaints are resolved in an appropriate timescale is part of a wider package of reform to increase trust. Clause 10 changes the minimum time limit that can be set out in regulations for submitting an appeal against a first level decision or for making an application to the service complaints ombudsman to two weeks. I should point out that bringing the minimum time limit down to two weeks does not mean that all appeal applications will be limited to two weeks regardless of the circumstance. Where a serviceperson’s duties mean that this will not be appropriate, additional time will be provided.

Clause 10 also provides the ability to set out in regulations the grounds on which appeals can be brought, for example where correct process has not been followed or where new evidence has come to light which may have had a significant impact on the original decision. At present, an appeal can be brought against a decision body where the complainant does not agree with its decision for any reason, with no limits on what that reason can be. This legislation will ensure that an appeal can be brought only where there are procedural errors or where new evidence is provided.

Schedule 3 makes a consequential amendment to equality legislation to make sure that procedural requirements remain consistent with the changes in this clause. Service personnel will not be penalised by this clause and mechanisms will be in place to ensure that individuals requiring extra time to submit an appeal will be able to do so where appropriate. We must ensure that we modernise and reduce delay in the service complaints system, creating, where we can, a consistent experience across defence and following best practice from other parts of the public sector.

[Mr Jones]

The important thing to say is that everyone wants the complaints system to be efficient. It is in the interest of the complainant. It is in the interest of someone who is accused that they get a swift resolution. The evidence, as my hon. Friend the Member for Washington and Sunderland West highlighted, is that the delay does not help anyone. Part of it is due to not only the complexity of some of the cases but, in some cases, the inefficient way in which the armed services, particularly the Army, deal with them.

--- Later in debate ---

[The Chair]

The question is—

[Mr Jones]

Chair, wait a minute. I asked some questions —I’d expect the Minister to reply to at least some of them.

[Johnny Mercer]

I think that the questions you asked have been answered in the speaking note that I just went through.

[Mr Jones]

With the greatest of respect, they haven’t.

[Johnny Mercer]

Which one do you feel hasn’t been answered?

[Mr Jones]

The issue around civilians, in terms of the jurisdiction and families being able to complain. I know you’re just reading the notes out, but it might be worthwhile just thinking, when you’re reading them, that some people might want to scrutinise this, rather than have to listen to you reading what the civil servants have told you.

[Johnny Mercer]

The reality is that that question around jurisdiction has been answered. I am happy to repeat the answer, but it has been answered already.

[Mr Jones]

I don’t think it has.

[Johnny Mercer]

Okay. Would the Clerks like to come in and confirm whether or not it has been answered?

[Mr Jones]

It is not for the Clerks to do that.

[Leo Docherty (Aldershot) (Con)]

Beg to move formally.

[Johnny Mercer]

I beg to move formally, Chair.

[Mr Jones]

No—could I have an answer?

[The Chair]

Minister, are you happy to wrap up?

--- Later in debate ---

[Johnny Mercer]

I will wrap up there. Thank you very much.

[Mr Jones]

Chair, can I make a suggestion to help the Minister? If he does not know the answer to that question now, could he possibly write to Committee members to answer the points that I have raised? They are perfectly legitimate points. We are not hostile in any way; it is just that the Minister is clearly not on top of his brief.

[Johnny Mercer]

As ever, I am hugely appreciative of the advice from Mr Jones. I am more than happy to write another letter on any of these issues. I am more than happy for him to have a copy of everything I have said today, and if he still has questions, I would be more than happy to sit down with him and go through them.

--- Later in debate ---

[The Chair]

Thank you for that point of order, Minister, which is on the record.

[Mr Jones]

Further to that point of order, Mr Sunderland. If the Minister had listened to the speeches, he might have got the questions.

[Johnny Mercer]

I do not think that is a point of order; it is a personal opinion.

[Mr Jones]

It’s not for you but for the Chair to decide that.

[The Chair]

Order.

Clause 18

Posthumous pardons in relation to certain abolished service offences

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

--- Later in debate ---

[Johnny Mercer]

Clause 19 confirms that a British overseas territory can rely on section 357 of the Armed Forces Act 2006 to apply the UK service justice system to a British overseas territory force even if the section does not extend to that territory. The clause is necessary as the UK Government and the Government of Gibraltar have been working on Gibraltar legislation, which would bring the Royal Gibraltar Regiment into the UK service justice system in reliance on section 357.

[Mr Jones]

Chair, can the Minister slow down? He is going at a rate of knots here.

[Johnny Mercer]

Sorry—was that an intervention, or a complaint?

[Mr Jones]

It is a complaint to the Chair, asking the Minister to slow down; he is rabbiting on at such a rapid rate of knots that I cannot hear a word.

[Johnny Mercer]

I do not think that is rabbiting on. I think that is a very personal insult, Chair. Is there a point of order or an intervention, or shall I carry on?

[Johnny Mercer]

I will of course slow down my speaking to make sure my hon. Friend can clearly understand what I am saying.

[Mr Jones]

Right hon. Friend, actually.

[Johnny Mercer]

I am terribly sorry—my right hon. Friend, with emphasis on the friend.

The clause is necessary because the UK Government and the Government of Gibraltar have been working on Gibraltar legislation, which would bring the Royal Gibraltar Regiment into the UK service justice system in reliance on section 357. This is the first time that a British overseas territory has made use of section 357.

Unlike other British overseas territories, as a result of amendments made in 2011 and 2016, the Armed Forces Act 2006 no longer extends to Gibraltar. This clause therefore confirms that the Government of Gibraltar can make use of section 357 of the Armed Forces Act 2006 to apply the service justice system contained in the Act, with or without amendment, to the Royal Gibraltar Regiment.

[Mr Jones]

I have a question about the circumstances under which the Royal Gibraltar Regiment would use the powers and on what occasions. How many times is it envisaged that it will do so?

[Johnny Mercer]

Is my right hon. Friend asking me to predict the future? Is he asking how many times they are going to use this power?

[Mr Jones]

I want to know on what type of occasions they will use the power and whether the Department has done any estimates of how often it will be used.

--- Later in debate ---

[Johnny Mercer]

The clause simply brings the Royal Gibraltar Regiment and the use of section 357 of the Armed Forces Act into line with our other overseas territories. It is simply about aligning what happened when the 2006 Act came in. The amendments that were made in 2011 and 2016 no longer extend to Gibraltar, because of changes in the overseas territory. We are simply realigning Gibraltar with the rest of the overseas territories at this time.

[Mr Jones]

Will the Minister write and explain on what occasions it would be applied and if any number of cases have been envisaged?

[Johnny Mercer]

I would be delighted to write to my right hon. Friend.

Question put and agreed to.

Clause 19 accordingly ordered to stand part of the Bill.

Clauses 20 to 26 ordered to stand part of the Bill.

New Clause 1

Age of Recruitment

“(1) The Armed Forces Act 2006 is amended as follows.

(2) Section 328, subsection 2(c): leave out “without the consent of prescribed persons.”—(Carol Monaghan.)

This new clause would raise the age of recruitment into the Armed Forces to 18, in line with NATO allies and UN standards.

Brought up, and read the First time.

Oral Answers to Questions

Debate between Johnny Mercer and Kevan Jones

Monday 15th March 2021 Commons Chamber

[Johnny Mercer]

I am aligned with my right hon. Friend’s views. The Secretary of State has worked tirelessly on this issue to try to correct the historic injustice of war widows’ pensions. We continue to examine all possibilities, including the ex gratia scheme and all the other ideas that my right hon. Friend has come up with in his tireless campaigning. We will arrive at a solution. Like I said, the Secretary of State is committed to resolving it, and we will get there in the end.

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

The Government maintain that every F-35 built has 15% UK content, but I understand that the MOD’s definition of “content” includes work carried out for UK companies by US subsidiaries. Will the Minister therefore publish how he defines UK content in the programme, so that I can decide what is done in the UK and what is done in the US?

Armed Forces Bill

Debate between Johnny Mercer and Kevan Jones

2nd reading & 2nd reading: House of Commons
Monday 8th February 2021 Commons Chamber

[Johnny Mercer]

I thank my right hon. Friend for his question, and it is a fair point. However, I would just say that we have had 18 months since that election, but this challenge has existed for 40 years—for 40 years—and our predecessors have not dealt with it. It is unrealistic to expect the Northern Ireland Office and the Prime Minister to have delivered on this by now, but they have made that commitment. I would slightly push back on this idea that the Northern Ireland Secretary is the roadblock, as my right hon. Friend has put to me before. That is not my experience, and I am engaged in this every day and I think on this matter every day. That is not fact; what is fact is that this is extremely difficult, but this Government will get it over the line. I am going to make progress now.

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

Will the Minister give way?

[Johnny Mercer]

No, I will not give way. I will make progress now.

The service justice system remains a fair and effective system, but no system, as we know, should remain static. The service justice system review underlined that we must do more to strengthen it so that our people and their families have confidence that they will receive fair treatment. That is why clauses 2 to 7, along with clause 11, implement important recommendations of the service justice system review. In the interests of time, I will focus today on only the most salient measures.

Clause 7 deals with the notion of concurrent jurisdiction. For offences committed by service personnel in the UK, justice can be delivered through the civilian criminal justice system or the service justice system. The service justice system review of 2020 found the system to be fair, robust and ECHR-compliant, but it also proposed that some of the most serious offences should not be prosecuted at court martial when they are committed by service personnel in the UK, except where the consent of the Attorney General is given. To be clear, the review was not saying that the service justice system should stop dealing with certain categories of cases that occur in the United Kingdom; it was saying that, when such cases come up, controls should be introduced if they are to be tried in the service justice system. Meanwhile, jurisdiction would remain to deal with such cases overseas.

The Government have considered this recommendation fully and carefully, but we have concluded that the concurrency of jurisdictions must remain. We are confident that the service justice system is capable of dealing with all offences, whatever their seriousness and wherever they occur, though there are important improvements that can and should be made to ensure the system is as resilient, robust and transparent as it possibly can be. However, we do agree that the current non-statutory protocols and guidance about jurisdiction must be clearer, so clause 7 of the Bill places a duty on the heads of the service and civilian prosecutors in England and Wales, Scotland and Northern Ireland to agree protocols regarding the exercise of concurrent jurisdiction. We believe that such decisions on jurisdiction are best left to the independent service justice and UK civilian prosecutors, using guidance agreed between them. The Bill ensures that civilian prosecutors will have the final say should a disagreement on jurisdiction between the prosecutors remain unresolved. I want to be clear: this is not about seeking to direct more cases into the service justice system and away from the civilian criminal justice system, or vice versa; it is about guaranteeing that both systems can handle all offending and are equally equipped to deliver justice for victims.

Moving on from clause 7, clause 11 is the first step in creating an independent body to oversee complaints against the service police. To support our world-class armed forces, we need a highly skilled and capable service police, and we are always looking for improvements. Once again, the service justice system review has provided several important recommendations. These include the creation of a defence serious crime capability, something we are pursuing separately since it does not require legislation, but it is the report’s proposal for an independent service police complaints system, modelled on the system in place for civilian police in England and Wales, that we will take further today.

The rules governing oversight of the civilian constabulary are set out in part 2 of the Police Reform Act 2002, which is overseen by the director general of the Independent Office for Police Conduct. We are, in essence, replicating that system, by establishing an independent service police complaints commissioner. They will have the power to investigate serious and sensitive matters involving the service police, including those relating to conduct, serious injury and death. They will also set the standards by which the service police should handle complaints. As in the case of civilian police, provision will be made to handle both whistleblowing and super-complaints—those issues raised by designated organisations on behalf of the public about harmful patterns or trends in policing.

--- Later in debate ---

[Johnny Mercer]

We bring out a report every year that attempts to pull together everybody’s different experiences of the covenant. We are clear that we will not prescribe specific outcomes. We want local authorities to adhere to the principles of the armed forces covenant and, because of the way that local authorities deliver their services, to have a due regard in law to consider the covenant but not to prescribe outcomes. That is reflected in the covenant report, which gives us a good firm idea of how the covenant is going down in communities such as Barnsley.

In this clause, we tackle those problems head-on. We are placing a duty to have due regard to the covenant principles on public bodies responsible for the delivery of key functions in housing, education and healthcare. We have chosen those three areas because they are the bedrock of a stable and secure life. Unsurprisingly, they are also raised by members of the armed forces community as areas of greatest concern.

[Mr Kevan Jones]

Will the Minister give way?

[Johnny Mercer]

Not at this time.

The legislation does not mandate specific delivery outcomes or advantageous treatment of the armed forces community, not least because it is important that relevant public bodies retain the flexibility required to tailor decisions on service delivery to local circumstances. But the Bill will legally oblige relevant public bodies to consider the principles of the covenant when carrying out specified functions in these three areas. To support its delivery, we are also making sure that public bodies are supported by statutory guidance explaining the principles of the covenant as well as, for example, how and why members of the armed forces may experience disadvantage as a result of their service. Some will say that we are going too far, others that we have not gone far enough, but my colleagues and I carefully weighed up a number of options before devising this response.

Critically, this is just the first step. This legislation will provide the Government with the power to widen the scope of the duty to apply to additional public bodies and include other functions should it be felt beneficial in future; in other words, we are turning the covenant into a minimum requirement—a tangible tool that our service personnel and veterans can use to hold their service providers to account, a tool that has the capacity to deliver today as well as evolve and adapt as society changes.

--- Later in debate ---

[Mr Kevan Jones]

Will the Minister give way?

[Johnny Mercer]

Not at this time.

By cementing the covenant in the minds of the public, we are not lowering the ceiling but are raising the floor of our collective expectations. For example, my own constituency of Plymouth, Moor View has undertaken many good initiatives to support the local service community. I want others to view their efforts not as exceptional, but rather as a new normal, just as I want my constituents to see their successes merely as a springboard to better and bigger things.

In conclusion, I began by saying that an Armed Forces Bill is always an historic moment, but, by augmenting service justice, by improving our service police and by finally enshrining the covenant into law a decade on, we are cementing its standing further still. Our armed forces people are our nation’s first and last line of defence. We depend on them, but they also depend on us, and that is why it is incumbent not just on those of us in Government but on everyone in this House to work in partnership with our counterparts in the devolved Administrations to ensure that this nation does right by those who serve, so that decades from now our future personnel will look back on this period and say, “This was the moment”—the moment when our nation finally awoke and delivered on its promise to the incredible men and women who serve our country without question or quibble and defend this proud nation and act on the will of this House; the moment when incremental strategic and irreversible change was delivered in law for our service personnel and veterans and their families. I commend this Bill to the House.

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Johnny Mercer and Kevan Jones

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

[Mr Jones]

I am, and I will come onto part 2 in a minute. The hon. Gentleman has hit on an issue relating to the Government’s approach to this Bill. The Minister is saying that it is standing up for members of the armed forces. It is doing nothing of the sort. In part 2, it is actually taking away rights.

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

Will the right hon. Gentleman give way?

[Mr Jones]

I will let the Minister intervene, even though he is very reluctant to give way to me. I asked him if I could intervene on numerous occasions in Committee, but he would not tear himself away from the civil service briefing in front of him.

[Johnny Mercer]

I just wish to intervene briefly. It is a litany of accusations and they are complete rubbish. Where have I ever said that I wanted to stop investigations in this Bill? That is what I would like the right hon. Gentleman to indicate to me.

--- Later in debate ---

[Johnny Mercer]

No, I am not giving way—I have suffered enough. The House has suffered enough at the hands of the hon. Gentleman. I have listened to all the points about the amendments, but I did not ,write them. I wrote the Bill and the Bill as it stands deals with the problem that we are trying to fix, and hon. Members fully know that. Imagine my surprise—the Al-Sweady inquiry has been picked out by Opposition Members, but they would not believe who was the Minister at the time of the Al-Sweady inquiry: the right hon. Member for North Durham (Mr Jones). If Members are really going to contribute honestly with a debate that they know the answers to, it has to be done with the sort of standards, values and ethos that we expect our people to adhere to.

[Mr Kevan Jones]

Actually, it was the Minister of State who was dealing with the Al-Sweady inquiry. As I told the Minister in Committee, it was not the Labour party that set up the IHAT committee or Northmoor—it was his Government—so he should not start lecturing people when Members on the Government Benches at the time were calling for investigations.

[Johnny Mercer]

I appreciate the intervention, but the fact is that when the Al-Sweady inquiry took place, the right hon. Gentleman was a Minister in the Department. The claimants in the Al-Sweady case were supported by Leigh Day. Leigh Day gave £18,000 to the Labour party. This stuff is quite transparent ,and it is all on the record.

Look, at some point, hon. Members have to make a decision as to whether they are just going to speak very warm words, feel very strongly and think that our armed forces are the best of us, or actually do something that will change their lives, improve their lives, protect them from this new pernicious nature of lawfare and vote with the Government to get things done. I commend the Bill to the House.

[Mr Kevan Jones]

My right hon. Friend the Member for Wentworth and Dearne (John Healey) and others have tried to improve this Bill. The Minister is just not listening. He throws cheap shots. I am sorry, but I stand up for members of our armed forces and veterans. I do not need to get paid £85,000 a year, as he did as a Back Bencher, to support veterans. I do it for nothing because I believe in them, so do not give us lectures about people who take money to support veterans for their own pockets, rather than just supporting our veterans.

The problem is that the Bill has gone through Committee and today’s debate and it is not going to be amended. The Minister is not listening at all. He said that actions are what matter. Yes, they do, because what we are going to have is a Bill passed here tonight that does not address the main issue, which is investigations, because the Minister will just not accept it. Part 2 means that veterans and members of the armed forces will have fewer rights than anybody in this House—fewer rights than prisoners—and he cannot say, in the lead-up to Remembrance Sunday, that taking fundamental rights away from members of our armed forces is right. But that is exactly what he is—

[Johnny Mercer]

Will the right hon. Gentleman give way?

[Mr Jones]

No, I am not going to take an intervention. I am sorry; the Minister, both in Committee and tonight, is one thing if one thing only—consistent. He sits there, chunters from a sedentary position, never takes interventions, reads his civil service brief and will just not listen to anyone because he thinks he is right. I am sorry; he is wrong on this.

I will not press my new clauses and amendments to a vote, but I will end with this point. The Bill is flawed. It could have been improved in Committee and it could be improved here tonight. It will not be, because the Minister stubbornly refuses to accept it. He will then use the parliamentary majority in this House to ram it through. This Bill will do nothing to protect veterans. They will still be investigated. They will still be prosecuted, possibly before the International Criminal Court, and their basic rights, which we should all have under section 33 of the Limitation Act, will be taken away from them. That is shameful.

I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

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

Debate between Johnny Mercer and Kevan Jones

Committee stage & Committee Debate: 9th sitting: House of Commons
Thursday 22nd October 2020 Public Bill Committees

[Mr Jones]

The Minister says he has seen no evidence, but he quotes the figure of 94% being brought in time. What is the number of cases that have been brought under the Limitation Act against the MOD? He says the limit gives certainty; well, it does give certainty to people—certainty that after those six years, they will not be able to take any claims at all.

[Johnny Mercer]

Many cases have been raised, I agree, such as Snatch Land Rover and the Royal Marines individual who has been mentioned a number of times. However, as I have outlined a number of times, none of those would be affected by this Bill, because the period starts from the point of knowledge. We have had this conversation before. I encourage people who feel that they could be disadvantaged to come forward, to speak to the Department or speak to me, but I have to operate in reality, not saying things that are not true. I include any non-service person who believes that they have a meritorious claim against the MOD, because fundamentally, we are not trying to stop legitimate claims.

--- Later in debate ---

[Johnny Mercer]

Of course. Part of this Bill is a huge education campaign to get people to understand what their rights are. While we have drawn the line at six years, we have a duty to make sure all the people who are in our employment and who served with us understand what the rules are and where the boundaries are, and at the same time are protected from the vexatious sort of claims we have seen over the years. I genuinely believe it is a fair line to be drawn, and I reiterate that lots of cases have been raised, but when we have looked into them, none would have been precluded under the Bill.

[Mr Jones]

The Minister is not answering my hon. Friend’s question. I accept that there are good reasons for time limits; I have no problems with time limits on civil litigation and other things. I asked him earlier about the number of cases that have fallen outside the limitation period that the MOD has defended. I do not for one minute question the Minister’s commitment, but remember that he and I will not be here when this comes into force. I tell him now that the MOD will use this as a way to stop claims.

[Johnny Mercer]

I accept the right hon. Gentleman’s point that there is a risk of any legislation being interpreted in different ways by different Administrations over a period of time. That is the reality of life in this place, but I cannot accept the repeated regurgitation of cases. We have looked into individual cases. When these cases are raised, I write them down and go back to the Department to look into them. They are not affected by this legislation. Members can sigh and so on, but I cannot do anything other than operate within what is actually going on, rather than deal with stuff that is not true.

Members will remember that in one of the evidence sessions for the Bill, the representative of the Association of Personal Injury Lawyers, Mr Al-Nahhas, told us that he frequently rejects clients who want to bring claims that are out of time. Although I would urge everyone to bring meritorious claims as soon as they can, I know that sometimes the courts allow claims to proceed after the primary limitation period has expired. The Bill will not stop that happening. The courts will still be able to extend the primary limitation period for up to six years, but we are stopping claims—often unmeritorious—being brought many years down the track.

The amendments would effectively give the courts the same discretion that they currently have to extend the primary limitation periods indefinitely, but they are contrary to the intent behind the Bill and would reduce the certainty that we want to give to service personnel and veterans. Before I recommend that the amendments be withdrawn, I would love to give way to the right hon. Gentleman again.

[Mr Jones]

The Minister has raised something that is very complex for the courts. He said that the period will be six years from the date of knowledge, and the courts will be able to give discretion within the six-year period. Is he not expecting—some people will—to take this to court, in terms of saying that it is unjust if a case falls outside the six years? This will end up with a lot more confusion than just keeping what is there at the moment: section 33 of the Limitation Act 1980.

[Johnny Mercer]

I completely disagree; it is the current situation that we has produced the chaos we are trying to bring order to with the Bill.

[Mr Jones]

It has not.

[Johnny Mercer]

The right hon. Gentleman can say it has not, but people such as Bob Campbell, to whom he has alluded a number of times, would strongly disagree. We are trying to bring certainty for our veterans and service personnel going forward. That has been a strong Government commitment from the start of this Government, and I support it. I therefore recommend that the amendments be withdrawn.

--- Later in debate ---

[Johnny Mercer]

Does the right hon. Member understand—I am sure he does—that he is fundamentally wrong to say that the Bill would not have had an impact in the Major Campbell case, which he keeps referring to? He talks about the investigations taking so long. Those investigations are driven by bringing civil or criminal claims. Bringing in the longstop would mean that the worst Major Campbell could have had was going through to 2009; he has repeatedly said that. Those are the facts of the matter, and it is important to bear that in mind going forward. The Campbell case is a very emotional case; however, we have to stick with the facts, and the facts are that this measure would have limited the experiences to 2009, as he has said, and as we have laid out on a number of occasions.

[Mr Jones]

I am sorry; I totally disagree with the Minister. He is wrong. It was not the claims that drove that case. As Hilary Meredith said in her evidence to the Committee, part of the problem was that the MOD started to pay out large amounts of compensation to individuals. I think I explained the reason why that was done at the time; it was partly to follow a little bit what the Americans were doing, and it was partly a cultural thing in Iraq—for example, if there was a car accident, a certain amount of money was paid and that was that. It even got to where we might call it brutal. I remember sitting once in Basra with a claims officer, dealing with claims. They were everything from a car accident, “My goat’s been shot” and “You’ve run over my dog” right up to, “You’ve ruined my crop landing a helicopter, or flying something into it.” They were paid out, and it even got to a point, which we might find quite cold, that somebody’s death was covered by making a payment—blood money, I think, is how the Americans referred to it. That might seem harsh and callous, but we did the same things, just with a legal process. That led to others.

The Minister and I totally agree about people like Phil Shiner. There is no defence there. However, in Campbell’s case, if an accusation had been made to the MOD, not from a civil case but because someone came forward to say, “This happened,” it was not, then, the claim that kicked it off—it was the accusation. I accept that Shiner, in some cases, was trying to put forward things that were false, or encouraging people—I think there were even cases where he paid people—but the Bill would not stop that case coming forward, because when an accusation is made to the MOD, it will have to investigate it.

That is the problem for the Minister. He has focused in, with something of a gut reaction, against people such as Phil Shiner, and I sympathise with him—I have lots of sympathy with him on that. I have no time for those things, but the MOD created part of the problem itself, in the compensation culture that it engendered. Then it made it worse—I know the Minister was trying to be party political the other day, but I am not going to be, shudder the thought—by setting up the IHAT investigation in 2010, under a Conservative Government. That just fuelled things.

I still plead with the Minister to do now in the Bill what Campbell’s case needed, though I accept his officials will say, “Minister, we must wait until next year’s armed forces Bill.” No, put it in now. If he includes issues to do with controls over investigations, he will have my 100% support, because that is what will drive down cases such as the Campbell one. It was completely unacceptable that that happened. Yes, political decisions were made about Iraq and Afghanistan about paying compensation. A Conservative Government set up IHAT, and, as happens with a lot of these things, it became like a licking lollipop, in terms of the way they keep growing. However, if the suggestions of the Judge Advocate General, Judge Blackett, about looking at investigations were put in the Bill, that would stop the Major Campbell cases. Just introducing a limitation period will not stop cases. They will still be investigated.

Let us be honest, it is a proud testament to the professionalism of our armed forces that, in the horrendous situations that they have been involved in over the past few years, in Iraq and Afghanistan, we have had small numbers of disciplinary cases. That is testament not only to their courage but to the system of discipline in our armed forces. We have a set of regulations, laws and training that ensure that people know what they are doing, and that they follow. As to the cases that have been brought, such as Marine A, that was not started by an ambulance-chasing lawyer. It happened because someone took a video of Marine A shooting a wounded Taliban fighter, which was clearly contrary to all his training. The Bill would not stop that. In that and other relevant cases—I am racking my brain to think of them—the investigations were complete within two years. That was quite quick, so I think it can work. It is about case management.

There is another point to be made about that. When the service man or woman gets to court, do they get a fair hearing? In that case, he did. My question is why on earth the legal representatives did not argue—quite rightly—at the first hearing that he had suffered mental trauma and other things. He was found guilty by a military court—not a civil court—of murder on the first count. But when it went to appeal, it was reduced to manslaughter, which was quite right, taking into account the circumstances in which the incident occurred, as well as credible evidence from mental health professionals about his mental state at that time. That does not excuse what he did, but it puts context around it.

That is why, as I said before, I am a supporter of the military justice system, because cases are dealt with by people who understand that system. Putting a time limit on cases will disadvantage members of the armed forces by taking them out of section 33 of the Limitation Act, and for what? For something that will not reduce the number of cases.

There is another point we could deal with very easily. I ask the Minister again, how many limitation cases have there been from civilians or anybody else? I suggest there would be very few, but that is not the point. The point is that servicemen and women have a right to go outside of that time if there are exceptional circumstances. Having taken limitation cases—not personally—I know that they are done only in exceptional circumstances, because the threshold is so high. That is why when the Minister said the personal injury lawyers said they sometimes advise clients not to take these cases on limitation, he is quite right. I have done that myself, because I know there is not a cat in hell’s chance of the court ever saying that the reasons are justifiable in terms of the Limitation Act.

The Limitation Act is there for a good reason. It is not—I think this is what the Minister has in mind—a green light for everybody to come out of the woodwork after a huge period of time and say, “Yes, I want to put my case.” It is not like that; it is very difficult. I support that, because there must be time limits for cases, for the reason the Minister gave—I agree with what my hon. Friend the Member for Portsmouth South said—which is that we have to try, if possible, to get cases done as speedily as we can. That is fair for the victim and fair for the accused. But this Bill will not do that.

The other thing that is said is that the Bill will stop investigations. It will not stop investigations at all, and they could go on a long time. As I said in a previous sitting, that must be horrible. We cannot imagine being accused of some of the horrendous crimes that Major Campbell was accused of and having that hanging over us for a long time. That is not fair to that individual.

[Johnny Mercer]

It has never been the Government’s stated position to stop investigations. I think the right hon. Member knows that. We cannot run a Department and refuse to investigate allegations that people bring forward.

[Mr Jones]

No, I am not suggesting for one minute that it is. I am suggesting to the Minister—this is what Judge Blackett came forward with—that we need a way of managing those investigations, to ensure that they are speedily done and that there is judicial oversight of the process, not oversight from the MOD or the chain of command, which could lead to accusations. I came forward with three suggestions of how to do that. Get rid of all the minor cases in the system. That is just good case management, and it also helps the individual who has been accused. If the judge thinks there is no evidence, they should throw the case out. That can be done in magistrates courts; why can we not do it in this system? That is a huge missing bit of the Bill.

To reiterate, I am not for one minute accusing the Minister or the MOD of turning a blind eye to serious allegations. If an allegation is made, it has to be investigated.

The issue is the way it is investigated and the time it takes to investigate it. The idea is that the time limit process will somehow reduce the number of claims. I do not think it will, because people will bring a claim within six years, it will have to be investigated, and someone will have to ensure that it is case-managed through the system.

--- Later in debate ---

[Johnny Mercer]

I have listened at length and for many hours to a lot of the points that have been made, and I fear we are beginning to reach a point where we are repeating ourselves to a large degree.

[Mr Jones]

There is more to come this afternoon.

[Johnny Mercer]

Fantastic, fantastic. With any such legislation, I understand that there will be people with fears or concerns, and there will be an element of risk. I cannot honestly stand here and say that the Bill disadvantages troops or service personnel. I accept that there is a difference of opinion here, but I would not even think about introducing legislation that disadvantaged them.

Looked at in the round—and as I have said many times—this is a good, fair and proportionate Bill. I will defend it. I have already outlined that Government are creating new factors to ensure that the courts are directed to consider the uniquely challenging context of overseas military operations when deciding whether to extend the primary limitation periods for personal injury and death payments, and Human Rights Act claims. Amendments 88 to 91 are therefore unnecessary. They introduce a further factor to which the UK courts must have particular regard when determining whether to allow claims beyond the primary limitation periods of one year for Human Rights Act claims and three years for personal injury and death claims. Their stated intention is to ensure that the claimant’s interest in having their civil claim proceed is not subordinated to the additional factors being introduced by this Bill, but the courts already take into account the interests of the claimant in having their claim proceed when determining whether it is equitable to allow a case to proceed beyond the primary time limit.

For personal injury and death claims in England and Wales, section 33(1)(a) of the Limitation Act 1980 states that the courts should have regard to any prejudice that might be caused to the claimant if the case is not allowed to proceed beyond three years. Prejudice would include the impact on the claimant’s ability to secure their rights through legal proceedings. For personal injury and death claims in Northern Ireland, article 50(1)(a) of the Limitation (Northern Ireland) Order 1989 has the same provisions. For personal injury and death claims in Scotland, section 19A(1) of the Prescription and Limitation Act Scotland 1973 sets out the equitable tests in more general terms, but that still includes considering the interests of the claimant in securing their rights through legal proceedings.

For Human Rights Act claims, section 7(5)(b) sets out that the court may allow claims to be brought beyond the primary 12-month period if it considers it equitable to do so, having regard to all the circumstances, which would include considering the interests of the claimant in vindicating their human rights through legal proceedings. The factors introduced in clause 11 do not replace the tests set out in section 7(5)(b) of the Human Rights Act; they just outline considerations that reflect the unique context of overseas military operations.

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

Debate between Johnny Mercer and Kevan Jones

Committee stage & Committee Debate: 10th sitting: House of Commons
Thursday 22nd October 2020 Public Bill Committees

[Mr Jones]

It is, because it sets a standard that I do not think many British people could disagree with. Article 2 enshrines the right to life; I do not think that most people would disagree with that. Article 3 relates to freedom from torture, again I am not sure that anyone would disagree with that. People may say that that is self-evidently accepted these days, but not that long ago in Iraq, one of our closest allies, the United States, did commit acts of torture. I did not see any evidence that UK servicemen and women were involved in that when I was part of the rendition report produced by the Intelligence and Security Committee, but there were occasions when UK servicemen and women, and our intelligence agents, were present. Perhaps we all take it for granted that we should be against torture, but there were such cases in Iraq in living memory.

Article 4 relates to freedom from slavery. Again, a few years ago we may have thought about slavery in terms of historical cases and the transportation of slaves from Africa to America and the West Indies. But today, in all our constituencies, slavery is, sadly, alive and kicking, even in my constituency of North Durham, where we had a case of modern slavery about 12 months ago. It exists in modern society.

Article 7 relates to the right to a fair trial, and that comes to the heart of the Bill.

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

The right hon. Gentleman has talked about articles 2, 3 and 4, and is about to discuss article 7. Is he aware that we cannot derogate from those articles, and nor would we seek to?

[Mr Jones]

If the Minister is patient, I am coming on to that.

[Johnny Mercer]

Sorry—I get excited.

[Mr Jones]

I know. If he is patient, I have a full description of what we cannot derogate from. If he sits back and just enjoys it, he might learn something as well.

We have already discussed how the Bill is removing veterans and armed forces personnel from section 33 of the Limitation Act 1980, and I believe that that does not allow people access to a fair trial. But we would all agree that the right to a fair trial is a basic right. Article 8— Minister, do not worry, I am not going to read out the entire list of articles in the Human Rights Act, but I want to concentrate on those that may come within of the Bill’s remit and may be subject to derogation—relates to respect for family and private life. No one should disagree with article 9—freedom of thought, belief and religion. A normal society should have no problems with such a freedom.

The Minister intervened to point out that any derogations are subject to limitation. That leads on to the important question about why such a derogation is included in clause 12. It has always been accepted that the rights given to us under the Human Rights Act should be considered in law according to their hierarchy in the convention. In terms of the Bill and warfare, people have focused on the idea that somehow that Act and the convention on human rights stop a country like ours, or members of the armed forces, using lethal force.

To come to the issue that the Minister just raised, I should say that, yes, there are some absolutes that cannot be derogated from. For example, article 15(2) of the convention states:

“No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.”

That was upheld by the Supreme Court in the Smith case. It held steady—Hilary Meredith mentioned this point—in saying that lawful conduct cannot be questioned in terms of the use of the other ones, which the Minister referred to; this comes on to the rights that are absolute and cannot be impaired in any way. There is article 2, about the protection of the right to life, apart from the qualification that I have just given. Article 3 is about the prohibition of torture—something that the Bill could not derogate from.

I should say to the Minister that I disagree with some of my colleagues who said on Second Reading that the Bill gave carte blanche for torture. I simply said that, no, it does not, as would be clear if they read the Bill. Alas, these days many people hold forth in the Chamber without ever having read the relevant Bill—a bit of a disadvantage, I always think, if someone wants to make a useful contribution.

Article 4 is about the prohibition of slavery and forced labour. We cannot derogate from those issues. Article 7 is about punishment without law. One right that some might think we should be able to derogate from is in article 12—the right to marriage. We could not derogate from any of those rights. My issues with the Bill are not about the headlines that some have grabbed in saying that it gives carte blanche for torture. It does not, because of the limitations on derogations.

I then ask myself why the derogation that we are discussing is needed. All my hon. Friend the Member for Islwyn was trying to do—and I asked about this earlier—is establish what we can define about what derogations are actually needed, and why. Is this a way of trying to protect the MOD from civilian claims, as I was saying earlier?

--- Later in debate ---

[Mr Jones]

I do. I do not know why it is in the Bill, without an explanation about why one would want to use it. As my hon. Friend the Member for Islwyn said, there are perfectly good reasons why there are derogations in the Human Rights Act, for example in times of emergency. But for this area? I just do not see it, because as I say, lawful combat is covered. Torture and other things are proscribed anyway, so nobody can get derogations for those. For what other purpose would it be in the Bill? That is what I find very difficult to understand, and that is why I have a problem with some of this Bill.

The situation we are in is possibly due to the fact that the Human Rights Act 1998 has been portrayed by a lot of people as this horrible piece of socialist, human rights-hugging legislation brought in by a nasty Labour Government. It was not: all it did was incorporate the European convention on human rights into UK law. Previously, if claimants wanted to raise a case under the ECHR, they had to take that case to Strasbourg. Because of the Human Rights Act, those cases were able to be looked at in UK courts and decided by UK judges, which I think was a lot better than the previous scenario. It made it easier, but that is possibly why the focus and attention has been on human rights cases, or the uses of them.

The other thing about human rights cases, which gets into the mythology around those cases, is that the Human Rights Act is often quoted by lawyers and given as a reason why a case should go forward. It is often just struck out, because those lawyers are sometimes just flying a kite and seeing if they get anywhere, but it is quite a robust piece of legislation. It also gives us a lot of protections: it protects individual citizens, but more importantly, it protects individual servicemen and servicewomen when they are bringing cases against the MOD. That is the problem we have had with some of the optics around this, rather than what the facts themselves are. I have had these discussions with constituents, and when I tell them that the Human Rights Act has nothing to do with the EU and that it was actually Winston Churchill’s invention, they look at me agog.

The point is that, as my hon. Friend the Member for Islwyn said this morning, these are the standards that we apply when we are arguing the moral case, both in foreign policy and in anything else. These are the things we want people to follow, and if we are just loosely throwing derogations into this Bill, we are going to be quite rightly accused of not holding ourselves to the same high standards, or somehow trying to wriggle out of our basic commitments under the Human Rights Act, which is very difficult for me. As I say, I do not understand why this is in the Bill.

The other issue, which I have raised before and was also raised by Hilary Meredith, is the time limits under the Human Rights Act. There is a one-year limit on Human Rights Act cases, but what we are saying is that there should be a longstop, because they are covered by the Limitation Act 1980. We are arguing for a separation of that, in terms of the six-year longstop, and I think Hilary Meredith said in her evidence to us that it would be interesting to know how that fits with the EHCR and its incorporations. I am quite happy for the Minister to write to me on this topic, but he did say that the Bill complies with the Human Rights Act, and I would like to see the explanation from the lawyers about the implementation of the time limits, because I am not sure whether that is something we would have to run by the secretary-general of the Council of Europe. What we are saying, in effect, is that we are limiting someone’s access to human rights. That is the use of human rights legislation, so I think that is the important point.

The other issue is, as the Minister said, the growth in the areas for these cases. I admit that, in some of the Phil Shiner cases, the Human Rights Act was just flying a kite, basically. Those cases should have been knocked down very quickly, and it should have been said that they were nothing to do with the Human Rights Act.

The Defence Committee did a very good report—I think the Minister was on the Committee at the time—called “Who guards the guardians? MoD support for former and serving personnel”. It is worth reading—I have read it, and it is a good report. The main issue in it is investigations, which we have been talking about throughout this Committee. It is very critical of the £60 million spent on IHAT, for example. There was no mention of it being anything to do with the Human Rights Act. It outlines in detail the chaos when IHAT was set up in 2010 by—I reiterate yet again—the coalition Government.

I would like to know what the justification is for having this measure in the Bill. As my hon. Friend the Member for Islwyn said this morning, it potentially has huge implications for us.

[Johnny Mercer]

Clause 11 introduces new factors that the court must consider when deciding whether to allow human rights claims relating to overseas military operations to be brought in the normal time—[Hon. Members: “We are on clause 12!] I am sorry; I got carried away. Hon. Members are right—it is clause 12.

The measures in this Bill about derogation are not intended to change the existing and very robust processes that the Government and Parliament follow if and when a decision to derogate has been made. The requirement to consider derogation merely ensures that all future Governments are compelled to consider derogating from the ECHR for the purpose of the specific military operation. It is worth saying that the only change that we are bringing about in this Bill is the requirement to consider, rather than leaving it as an option. It is not actually a derogation; it is a requirement to consider a derogation and prove that it has been considered, not a derogation itself. That will ensure that operational effectiveness can be maintained by, for example, enabling detention where appropriate for imperative reasons of security. It is worth noting that the vast majority of the challenge that we face around lawfare has come from issues relating to detention.

Appropriate parliamentary oversight over derogation is already built into the Human Rights Act 1998. For the benefit of the Committee, I will spell out the existing obligations on the Government once they have made the decisions to derogate from any aspect of the European convention on human rights. The Human Rights Act requires that the Secretary of State must make an order designating any derogation by the UK from an article of the ECHR or a protocol thereof. The Secretary of State must also make an order amending schedule 3 of the Human Rights Act to reflect the designation order or any amendment to, replacement of or withdrawal of the designation order. A designation order ceases to have effect if a resolution approving the order is not passed by each House of Parliament 40 days after it is made, or five years from the date of the designation order, unless extended by order under section 16(2) of the Human Rights Act, or if it is withdrawn, or if it is amended or replaced.

[Johnny Mercer]

The practical difference is that instead of it being optional to consider derogation from the ECHR, it becomes mandatory for Governments to demonstrate why they have derogated from the ECHR. It is much like in the prosecution setting, where we talk about factors to consider. Previously, people have said, “Well, they consider those anyway.” All we are doing is making it mandatory to prove that they have been considered, in order to demonstrate that the correct process has been gone through.

[Mr Jones]

My hon. Friend the Member for South Shields is right. This will have no effect whatsoever. I suspect it has just been put in the Bill for a bit of window-dressing—to suggest that the Government are feeding red meat to those who want to be against the entire Human Rights Act. The Minister is feeding the bogeyman around the Human Rights Act.

[Johnny Mercer]

Of course it is not.

In addition to the requirements laid out in the Human Rights Act 1998, the Government must communicate a decision to derogate to the secretary-general of the Council of Europe, including details of measures taken and the reasons for taking those measures, and inform the secretary-general when derogations have ceased. Those existing measures provide for an appropriate level of parliamentary debate of a decision to derogate. Requiring a parliamentary debate on decisions to derogate ahead of time could undermine operational effectiveness.

[Mr Jones]

Why?

[Johnny Mercer]

The Government may have to make decisions quickly, meaning there simply will not be time for a debate.

[Mr Jones]

Why?

--- Later in debate ---

[Johnny Mercer]

Requiring a debate before an order is made may also result in discussion of operations that rely on an element of surprise. That would defeat the purpose of derogation in relation to overseas military operations, which should enhance operational effectiveness. I therefore strongly recommend that the amendment is withdrawn.

[Mr Jones]

Will the Minister give way?

[Johnny Mercer]

Next time.

[Chris Evans]

I am not going to go on forever and I will withdraw the amendment.

[Mr Jones]

I thank my hon. Friend for giving way. It is interesting that the Minister has read his speech into the record like he used to, and his Whip told him to sit down. Can my hon. Friend think of an example that was so urgent for operational reasons that it would have to be rushed through on this basis? The Minister clearly did not want to give one.

[Johnny Mercer]

I can—

--- Later in debate ---

[Chris Evans]

Does anyone else want to intervene now? I feel like a post box at the moment. With the amount of whys coming over my left shoulder, it was just like my four-year-old son asking me why all the time—I do not mean to offend my right hon. Friend the Member for North Durham.

I hope this matter is revisited on Report. I believe the derogation is very important and, as my right hon. Friend mentioned, article 15 is so important. It is usually in states of emergency that derogation is asked for. That means it needs to be scrutinised in both Houses. I will withdraw the amendment at this stage, but I hope that we will revisit the issue on Report, when the Bill comes back to the Floor of the House. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clause 13

Power to make consequential provision

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

[Mr Jones]

We are moving in the direction of a lot of things in this House being done by regulation. Here again:

“The Secretary of State or the Lord Chancellor may by regulations make provision that is consequential on any provision made by this Act.”

We have just had a discussion about the Human Rights Act, and I am less than convinced. The other issue—because, again, this is a contentious area—is the statutory instruments that will be used, and how the provisions will be amended. Once the Bill is passed, it will, I think, lead to a lot of problems, so I would just like to understand a bit more about how the powers will be used.

[Johnny Mercer]

I have little to add to what I previously said. The point of these provisions is simply to formalise our position and make sure that where we should have derogated previously to prevent the abuses that we have seen, and we have not, we simply bring forward legislation to make it mandatory to consider that derogation and prove the workings thereof.

Question put and agreed to.

Clause 13 accordingly ordered to stand part of the Bill.

Clause 14 ordered to stand part of the Bill.

Clause 15

Commencement and application

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

[Mr Jones]

Again, I want clarification about clause 15, because there is hype around the Bill somehow righting all past wrongs, and giving rights. Northern Ireland, which we spoke about this morning, is not covered by the Bill, but there is also the question of cases that are currently going on, or those that have been. I just want the Minister to give a response to the fact that the Bill will not apply to past cases relating to Iraq and Afghanistan, and there will not be any fast resolution. I want to get clear parameters from the Minister for which cases will fall within the Bill’s scope, because I think—there has been press comment on this—things have been a bit confused, perhaps intentionally and perhaps unintentionally.

[Johnny Mercer]

I am more than happy to answer that. If the Bill receives Royal Assent, it will apply immediately. It will not apply to any cases where an external, independent decision from the prosecutor on whether to prosecute is awaited, but it will apply from Royal Assent, and there is therefore an element of retrospection to it in that if further things come from Afghanistan, Iraq or wherever it may be, the Bill will apply and provide that certainty. We have been clear all along on the Northern Ireland issue. I have been clear that we will not leave Northern Ireland veterans behind. It was an important concession to achieve—that veterans who served in Northern Ireland will receive equal treatment to those who are covered by the Bill.

[Mr Jones]

indicated dissent.

[Johnny Mercer]

The right hon. Gentleman can say no, but that is the reality of the position. The Northern Ireland Secretary has spoken before about how he intends to bring forward legislation before Christmas to do that, but it is an issue for the Northern Ireland Office, and I think the right hon. Gentleman knows that.

[Mr Jones]

I do, and having dealt with the Northern Ireland Secretary, I wish him luck, because he is going to come up against huge problems with that. Is the Minister saying that whatever happens in Northern Ireland will be a mirror image of the Bill?

--- Later in debate ---

[Johnny Mercer]

Sorry. New clauses 3 and 4 would require the Defence Secretary to commission and publish an independent evaluation of access to legal advice and legal aid for service personnel and veterans in relation to the legal proceedings covered by the Bill. The MOD has a long-standing policy that, where a service person or veteran faces criminal allegations in relation to incidents arising from his or her duty, they may receive full public funding for legal support, as well as pastoral support for as long as they are serving. That was not the case when I first came here, and Bob Campbell indicated to us his experiences. The situation changed when I was running the inquiry into the Iraq Historic Allegations Team. Clearly, my views on that are well known, and they have not changed just because I have become a Minister.

[Mr Jones]

Is the Minister saying that, in the future and now, that will include families’ legal costs?

[Johnny Mercer]

Yes. There is full pastoral support and full legal support, paid for by the MOD, for everybody swept up in these investigations. My right hon. Friend is absolutely right. It was not like that until about two years ago, so that is a very fair point to raise.

We do that because we should look after our armed forces, both on the battlefield, where they face the traditional risks of death or injury, and in the courts, where they face the risk of a conviction and a prison sentence. We therefore aim to provide legal aid case management and funding for those who are, or were at the time of an alleged incident, subject to service law.

Because of the risks our service personnel and veterans face, our legal support offer is now very thorough. For the benefit of the Committee, I will set out some if its provisions. The legal aid provided by the armed forces legal aid scheme provides publicly funded financial assistance in respect of some or all of the costs of legal representation for defendants and appellants who appeal against findings and/or a punishment following summary hearings at unit level. That includes applications for extensions of the appeal period by the summary appeal court, for leave to appeal out of time, or to have a case referred to the Director of Service Prosecutions for a decision on whether the charges will result in a prosecution. That includes offences under schedule 2 of the Armed Forces Act 2006, which are referred directly to the Director of Service Prosecutions by the service police, as well as matters referred to the Director of Service Prosecutions by the commanding officer. It also includes those who are to be tried in a court martial or the service civilian court; those who wish to appeal in the court martial against the finding and/or sentence after trial; and those who are entitled to be tried in a criminal court outside the UK.

The legal aid scheme applies equally to all members of the armed forces, including the reserve forces when they are subject to service law, as well as to civilians who are, or were at the time of an alleged incident, subject to service discipline.

[Mr Jones]

The Minister calls it a legal aid system, but does it mirror that system? Unfortunately, over the last few years the cutbacks in the legal aid system have made it difficult for many people who we—including myself, the Minister and you, Mr Stringer—would not think of as having access to a lot of resources, and they are finding that they have no recourse at all. Does it mirror the national legal aid system, or is it a bespoke system without the financial constraints?

[Johnny Mercer]

It is a bespoke system for military personnel. It is now used extensively by veterans in particular, who previously have not been supported. For example, Government legal services were provided in the al-Sweady inquiry. The challenges came when these investigations got to the case of, for example, Major Bob Campbell. They were not being funded at the time, but they are now. It is based on the same principles as the civilian criminal legal aid scheme. They are the same principles but it is bespoke for the military. It makes necessary adjustments to take into account the specific circumstances and needs of defendants and appellants in the service justice system. As a result, I am confident that we are already ensuring that service personnel veterans are now properly supported when they are affected by criminal legal proceedings.

[Mr Jones]

An issue I have always felt very passionate about is the representation of families at coroners’ inquiries. Does it also cover that? Many service men and women, and many families, felt daunted that they were up against legal representation, when they were there on their own in many cases.

[Johnny Mercer]

I am happy to write to the right hon. Gentleman on that subject. As I understand it, a coroner’s court is different. There is support for service personnel or for bereaved families in those cases. These are often not criminal proceedings so the requirement for legal aid is not there, but they are supported and I am happy to outline that in a letter.

I am now confident that service personnel and veterans are properly supported when they are affected by criminal legal proceedings. The armed forces legal aid scheme does not provide legal aid funding for civil proceedings, but we are content that the funding available for service personnel and veterans through the legal aid regimes in different parts of the UK is now sufficient. If a service person or veteran brings a claim against the MOD, we obviously cannot fund that claim as there would be a conflict of interest. We have heard from a number of law firms, as well as the Royal British Legion, that may be prepared to support those cases if they see merit in them. If veterans or service personnel need to access the legal aid scheme, they would be doing so on the same terms as a civilian would. However, in the first instance—before considering whether to bring a claim—I would encourage any service person or veteran to consider the armed forces compensation scheme, which the right hon. Member for Durham North mentioned. It provides compensation irrespective of fault across the full range of circumstances in which illness, injury or death may arise as a result of service, and it avoids the need for claimants to go to court.

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

Debate between Johnny Mercer and Kevan Jones

Committee stage & Committee Debate: 7th sitting: House of Commons
Tuesday 20th October 2020 Public Bill Committees

[Mr Jones]

It does not, and that comes to one of the other problems with the Bill: it combines both criminal and civil. As I think Ms Meredith said, that is the problem, in terms of what we are trying to achieve. If we keep the longstop for six years on civil claims, a situation would arise whereby they would not go forward, although potentially they could even after six years under clause 4.

The other thing put forward by the Bill’s supporters is that it will somehow stop investigation of our servicemen and women for cases that they do not think have substance. However, it does nothing of the sort. I learned a long time ago in politics that the worst thing we can do is promise things and then not deliver after raising people’s hopes. The problem with the entire Bill, especially on investigations, is that people will think that we could never get another case like Major Campbell’s. I am sorry, but we can. A lot of the veterans believe what is being said—that the Bill will stop investigations—but it will not. It will not stop investigations within the six-year period. It will not even do so afterwards, because, as we have already heard, cases will go to the International Criminal Court and others.

Clause 4(1) states:

“For the purposes of section 3(2)(b), where there has been at least one relevant previous investigation in relation to the alleged conduct, evidence—

(a) is not “new” if it has been taken into account in the relevant previous investigation (or in any of them);

(b) otherwise, is “new”.”

Again, we get to dancing on the head of a pin about what is new evidence. There have been some complex cases, certainly from Iraq. If a witness comes forward many years later with a piece of evidence saying that they were there, who makes the determination on what is new evidence? That will make the investigation more difficult, because what will be deemed as new evidence? Who makes that judgment call?

We are not dealing with house burglars, are we? We are dealing with very complex cases in other countries, where there are cultural and language difficulties. Sometimes, six years might have passed. The passage of time can not only affect the securing of evidence; it would also affect judgments about people’s memory, which has always been the case with civil cases in this country, let alone in a war zone.

I understand what clause 4 is trying to do, but, like a lot of things in the Bill, it leaves a lot of loose ends. As I said, it will lead to a lot of disappointment on the part of veterans who think that somehow reinvestigation will not happen. Likewise, victims will perhaps feel that new evidence or evidence that they have put forward is not being taken seriously.

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

Thank you, Mr Stringer, for chairing the Committee so well.

Again, there were a lot of inaccuracies in what the right hon. Member for North Durham said. The Department can never be in a position whereby, if allegations were made, it could not investigate them. That is not a lawful position, so the idea that we can legislate to stop investigations is entirely false. We have heard Bob Campbell give evidence in this Committee: his case, in the worst-case scenario, would have ended in 2009.

[Mr Jones]

Will the Minister give way?

[Johnny Mercer]

I will in a minute, because both I and Bob Campbell have really got into the weeds of this legislation. I am interested in how the right hon. Gentleman has a different view and thinks that it would not have helped Bob Campbell in any way. I would love him to explain how he arrives at that position.

[Mr Jones]

Major Campbell is in a very different situation. He has lost all faith in the system and actually wants cases to go direct to the International Criminal Court, which I do not agree with. But I did suggest, if the Minister was listening on the new clauses that I tabled for the last sitting—new clauses 6 and 7—that we need a system of both case management and judicial oversight. That would actually speed up the process and ensure that justice was being done. This is not about stopping investigation; it is about timely investigation.

[The Chair]

Order. Before I call the Minister, it now seems timely to remind people that interventions should be short and to the point.

--- Later in debate ---

[Johnny Mercer]

That is very simply because there is no way, at the moment, that I have been presented with anything that is legal, within the art of the possible or within the strategic aims of the Bill that would actually improve it. It is as simple as that.

[Mr Jones]

rose—

[Johnny Mercer]

Yes, I would love to give way.

[Mr Jones]

But that is not the case, is it? One issue that has come out, both in evidence and in amendments that I have tabled, is about investigations, and that is not covered in the Bill. I accept that the amendments that I tabled may not have been perfect, but if the Minister had at least given an indication that the issue would be looked at, that would have been a movement forward. But he has completely deaf ears on this.

[Johnny Mercer]

Again, that is completely untrue, because I have repeatedly spoken, years before anybody else in this House, about the standard of investigations—investigations that were going on under the right hon. Gentleman’s watch when he was an Armed Forces Minister. Those investigations, I said—this has been quoted to me time and again—had not been up to standard, but that is not part of this legislation; it is part of an armed forces Bill that is coming forward next year. I have been absolutely ruthless in terms of dealing with the Department on its standard of investigations, which I reiterate were under the right hon. Gentleman’s watch.

[Mr Jones]

rose—

[Johnny Mercer]

I will not give way again. I cannot take in people saying, “We would like to see these pieces in the legislation,” when the whole point of this legislation is dealing with the abuses that we have seen over the years; it is not about investigations. People saw an announcement last week that we are having a judge-led review of how the Department does that. We will get the investigations right, but this Bill is very clearly about overseas operations and the situations in which we found ourselves, which actually resulted from when the right hon. Gentleman was a Minister in the Department.

[Mr Jones]

I was not actually in government. It was under the coalition Government, so the Minister should get his facts right.

[Johnny Mercer]

No, it was not.

--- Later in debate ---

[Mr Jones]

I want to clarify something. It is easy to blame the previous Labour Government, but I think I was right to say that IHAT started in November 2010 under the coalition Government and not the previous Labour Government.

[Johnny Mercer]

That inquiry started in 2010, but the al-Sweady inquiry and others started before then. I am not blaming any Government. I am just pointing out the hypocrisy of the right hon. Gentleman’s intervention. Anyway, I beg to move that clause 4 stand part of the Bill.

[Mr Jones]

On a point of order, Mr Stringer. Is it in order to accuse a Member of hypocrisy?

[The Chair]

I was just coming to that. Minister, will you withdraw the accusation of hypocrisy?

--- Later in debate ---

[Johnny Mercer]

I thank the hon. Member for Islwyn for his very thoughtful contribution. I will address some of those points.

First, let me come to the points raised by the SNP. I will not call it “hypocritical”, because that would be out of order, but the irony of being lectured about behaviour in debates by the hon. Member for Glasgow North West, who has repeatedly screamed at me at the Dispatch Box, is not lost on me in any way. I have no ribs left from laughing at the SNP’s position on defence matters. The idea that it is possible to have a constructive debate from such a false position is ridiculous, but I will address some of those points in my comments.

Dominic Grieve and Nicholas Mercer are people who have contributed. I do not know whether Members expected those who had overseen the disaster of things such as IHAT, who had overseen those processes, to come in and say, “This was a good idea.” I never expected that. Nicholas Mercer was not some senior legal adviser; he was a brigade LEGAD, and there were many brigades in Iraq. His evidence, a number of times, has been called into question. Dominic Grieve was a Member of this House. I have huge respect for him. But he, as Attorney General, oversaw some of these horrendous experiences that some of our people went through. Of course they are not going to be supportive of changing that scenario, because they did not do that when they were in charge. I respect that that was their decision, but we have come in on a very clear promise to end the unfair nature of this process.

I understand that it is combative; I understand that it is contested, but it is about time that someone came here with the voice of those who actually go through the process and was at the head of this debate, rather than those who are managing it and ultimately, in my view, have no real idea what it is like to walk in the shoes of those who serve on operations or who are dragged through these investigations.

When it comes to the Attorney General’s consent—

[Mr Jones]

I accept what the Minister is saying, but let us be honest: it was not just Dominic Grieve as Attorney General; the Government oversaw the IHAT system. As for the point the Minister makes, I do not for one minute question his intent in trying to do the right thing, and I support him in that. The only problem I have is that, in proposing what he does, he has a deaf ear to things that could actually improve the situation and get the Bill right so that it does what he is trying to achieve.

[Johnny Mercer]

It is not a deaf ear if I disagree. I am allowed to disagree.

[Mr Jones]

But you’re wrong.

[Johnny Mercer]

That is a matter for debate, and that is the whole point of why we are here.

Clause 5 requires the consent of the Attorney General for England and Wales or the Attorney General for Northern Ireland before a case of an alleged offence committed by a serviceperson more than five years prior on an overseas operation can proceed to prosecution. We introduced the consent function because we believe it is important for service personnel and veterans to be confident that their case will be considered at the highest levels of our justice system. In relation to amendment 22, the consent function does not need to extend to Scotland, as all prosecution decisions in Scotland are already taken in the public interest by, or on behalf of, the Lord Advocate.

Requiring the consent of the Attorney General for a prosecution is not unusual. The Attorney General already has to give consent to prosecute war crimes, as has been said, and for veterans to be prosecuted more than six months after they left service. Who introduced that legislation? The Labour party, in 2001. The Attorney General already has numerous other consent functions, but that does not mean that the Government have any role to play in decisions on consent; it is simply a safety check on fairness.

On amendments 10 and 11, in deciding whether to grant consent to prosecutions, the Attorney General acts quasi-judicially and independently of Government, applying the well-established prosecution principles of evidential sufficiency and public interest. This means that the Government will play no role in the decision taken by the Attorney General or Attorney General of Northern Ireland on consent—no role. Amendment 24 seeks to require the Attorney General to report to Parliament with the reasons for granting or withholding consent. There is no statutory requirement anywhere else for the AG report on individual casework decisions, and we do not believe that it would be appropriate to introduce such a requirement in the Bill. I therefore ask that the amendments be withdrawn.

--- Later in debate ---

[Mr Jones]

Paragraph 46 of the explanatory notes states:

“Schedule 1 details the sexual offences excluded from the scope of the requirements of clauses 2, 3 and 5”.

We have touched already on the fact that sexual offences are not included in the Bill. I have not yet had a good explanation of why that category is the only one identified in the Bill. I think we all agree, and there is no dispute, that sexual offences play no part whatever of the conduct of our armed forces.  If they are committed, they should be investigated and prosecuted and the perpetrator taken before court. The problem is how to separate sexual offences from other criminal activity. There are situations in which the sexual offence is committed along with other crimes, such as torture, that are not on the face of this Bill. Why exclude sexual offences?

The argument could be, as has been said, that this should never be part of the conduct of forces personnel—I agree, but that should not mean it is singled out. The problem I have with this is that when cases come forward, if there is a sexual offence as part of the accusations then this will be prosecuted, but something else of equal severity might not be prosecuted despite being part of the same event.

The obvious way around this is to leave it in and add other items as well, but I have yet to understand why sexual offences have been singled out, and I think we need an explanation because it draws attention to the fact that other things are not also mentioned. If there were clear-cut, one-off sexual offences then it is understandable, but I can imagine situations that may include other offences. If you look at some of the accusations, not necessarily against UK service personnel, but others such as those involved in peacekeeping operations, sexual offence was part of other crimes that were committed against individuals. It says in the schedule that we will exclude the sexual offence but the rest, frankly, is not part of it. I do not think it is as simple as to divide the two as clearly as this. I would like an explanation as to why and how sexual offences would be separated from other offences.

[Johnny Mercer]

It is a fair argument from the right hon. Member for North Durham; there is a difference of opinion on this issue. We are very clear as to why sexual offences are on there—schedule 1lists the offences that are not relevant for the purposes of clause 6. The only offences contained in schedule 1 are sexual offences. This means that in cases involving alleged sexual offences on overseas operations more than five years ago, a prosecutor does not need to apply the statutory presumption and the matter is to be given particular weight when considering whether to prosecute.

Further, the prosecutor does not need the consent of the Attorney General for a case to get a prosecution; they will simply follow the usual procedures for determining whether or not to prosecute. For clarity, it should be noted that conflict-related sexual violence is classified as a war crime and is recognised as torture, a crime against humanity and genocide in international criminal law. These offences are referenced in paragraph 13 of part 1 and are listed in parts 2 and 3 of schedule 1.

Part 1 of schedule 1 lists sexual offences as criminal conduct offences under armed forces legislation, the Armed Forces Act 2006, and the corresponding offences under the law of England and Wales, including repeals provision. Part 2 of schedule 1 lists the sexual offences contained in the International Criminal Court Act 2001, under the law of England and Wales and the law of Northern Ireland. Part 3 of schedule 1 lists the sexual offences contained in the International Criminal Court Act 2001 under the law of Scotland. Part 4 of schedule 1 contains the provisions extending jurisdiction in respect of certain sexual offences. I reiterate to the Committee the reason for the exclusion of sexual offences.

--- Later in debate ---

[Johnny Mercer]

The reality is that the word “torture” and allegations of torture have been used as a vehicle to generate thousands of claims against our service personnel. There have been arguments around why we have not packed investigations and so on into the Bill, but the Bill is trying to deal with very specific problems, which are the ones we have faced over the last 15 or 20 years relating to claims of this nature. In the discharge of your military duties, you can expect to be accused of assault, unlawful killing, murder and torture when using violence. There is no scenario in which our people will be asked to operate in which they can legitimately commit sexual offences. This country has a strong commitment against the use of sexual violence as a weapon of war, and that is why it is in the Bill.

[Mr Jones]

I agree that it should play no part whatever, and it does not in terms of the ethos of our armed forces. Will the Minister answer the point that there will not, in many cases, be a situation in which sexual violence takes place by itself? What happens if it involves violence and other things? How can the other issues be looked at if it is taken out? He is saying that the only reason for it is because torture is seen as a reason for a lot of the claims coming forward. Is that the only justification?

[Johnny Mercer]

Putting sexual offences in the Bill in no way denigrates our commitments against torture. We have to deal with the world as we find it, not as we would like it to be. When allegations of torture are mass-generated, as they have been, to produce these claims we have a duty to act to protect our service men and women from that.

--- Later in debate ---

[Mr Jones]

I will come back to asbestos. The aircraftman could not walk because the paint had attacked his nervous system, and his case was able to be taken forward only because of scientific evidence about exposure to that paint. However, if the Bill goes through, such an individual would not be able to make a case because it would be way out of the six-year limit. A lawyer friend of mine took that case to court and argued successfully before a judge that the individual was only able to bring the case then because of the scientific evidence, and that allowed them to take the case forward.

[Johnny Mercer]

A series of examples have been given where the Bill would not prevent action from being taken. On the Snatch Land Rover incident, the inquiry findings is the point of knowledge from which people had six years to make a claim. On the paint issue, when a connection is made with service and evidence can be produced, that is the point of knowledge from which there are six years. I do not know whether the point of knowledge piece is clearly understood, but when evidence comes together that clearly shows what has happened, that is when the six years begin. The Bill would not prevent such cases.

[Mr Jones]

I have heard the Minister say that before. I accept what he is saying, but he is wrong. I will come to asbestos, because in a previous life I used to press asbestos cases, but I will first address the Minister’s point and why he is wrong. I would agree with him about the date of knowledge if it were he and I dealing with the Bill. However, the dealings will be with MOD lawyers and not with the Minister or with me. If it said in the Bill that the date of knowledge were that date, that would be fine, but it does not. The Minister is putting an awful lot of trust in MOD lawyers. I would not do that, because they will argue straight away in such a case that it is time barred because of the legislation. They use that now, for example in the paint case I just mentioned. I hear what the Minister says and he might be technically right, but we heard in evidence that the MOD lawyers are experienced and will use that in their armoury as a way of stopping claims going forward.

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

Debate between Johnny Mercer and Kevan Jones

Committee stage & Committee Debate: 8th sitting: House of Commons
Tuesday 20th October 2020 Public Bill Committees

[Johnny Mercer]

I will get to my point. There were 552 employer liability claims from what happened in Iraq and Afghanistan. Today’s Daily Mirror had sounded familiar to a couple of the speeches: it mentioned “21,000 claims”. It is total nonsense. That is the total number of claims that people have made against the MOD in the period from 2004 to 2017. They are claims in a civilian workplace environment, where there are civil liabilities claims, claims regarding exercises and so on in the UK, and breach of contract claims. In the Bill, we are talking specifically about overseas operations. Whoever is providing these figures is demonstrating a pretty basic misunderstanding of what is going on—or it is a deliberate attempt to mislead, but I am sure it is not. The two things are not comparable in any way.

[Mr Jones]

To me, that does not matter. Why should armed forces personnel be treated differently when something happens in this country, as opposed to overseas? It might not be in combat; it might be on a training mission, or something like that. As I said, if one veteran is disadvantaged, that is one veteran too many.

[Johnny Mercer]

It does matter. Facts do matter in this debate; figures do, too.

--- Later in debate ---

[Johnny Mercer]

I disagree, and this is why. Operational service overseas is fundamentally different from life in the UK, and from what we ask our people to do. The hon. Lady is absolutely right: we have a duty in this country to protect those overseas, whether it is against improvised explosive devices, bombs, electronic warfare, or indeed legal systems used to bring warfare by another means. That is what this Bill is trying to do.

I understand the assertion that if someone from the Royal British Legion was deployed on an operation, the six-year limit comes down. Viewed on its own, that is something that will happen to serviceperson, but not a civilian. Disadvantage is a comparable term. Disadvantage to who? The Government argue—this I am clear on—that these people are seriously disadvantaged by having no legal protection against these thousands of claims that we have seen come in over the last 15 or 20 years. What the Royal British Legion would like us to do is to put that to one side—[Interruption.] No, it is, because I have engaged with it extensively. It would like us to apply that to one side of the argument, which, again, is not legal. Under European human rights law, people are being disadvantaged and discriminated against based on the claimant, which is not legal. This cannot be brought in on one side.

[Mr Jones]

The Minister is taking rights away from servicemen and women. He talked about overseas operations, but let us say, for example, someone is in British Army Training Unit Suffield in northern Canada on a training exercise. If that is classed as an overseas operation, or a peacekeeping operation—

[Johnny Mercer]

It is not.

[Mr Jones]

A peacekeeping operation?

[Johnny Mercer]

No.

[Mr Jones]

Right. Nevertheless, there have been times—the Snatch Land Rover cases, for example—where there was quite a good reason why the case should have been argued out. Why is the Minister so determined to take that right away from people?

[Johnny Mercer]

Because what the right hon. Gentleman says—I have a lot of respect for him—is simply not true. BATUS is not an operational environment. It is not a peacekeeping mission. It is a training unit mission. As I said this morning, and speaking from a point of knowledge, when it came out in the inquiry about the Snatch Land Rover cases, that is when the six-year thing started. That would not have been affected by this legislation.

We could keep raising these points, but I am not going to change my view, because it is based on the truth. I cannot suddenly say, “Yes, BATUS is a war-fighting operation, so this stuff applies.” I cannot say, “These people would be affected in the Snatch Land Rover case,” because that is simply not the case.

[Mr Jones]

rose—

[Johnny Mercer]

I will come back to the right hon. Gentleman in a minute. He talks about taking rights away from our service personnel. They have a right to be protected on the battlefield in all these areas. One area where they have a right to be protected is the use of lawfare to progress, and change the outcome of, a conflict through other means.

There were lots of wild sentiments thrown around—“lawyers don’t make things up,” and all the rest of it. Again, that does not collide with reality. Phil Shiner has been struck off. The reality—the world as we find it—is what this Bill is designed to deal with.

--- Later in debate ---

[Johnny Mercer]

Absolutely; it is right to take note of it, and I have engaged with it extensively on this issue, but the legion does not own the covenant—nobody does. It belongs to the nation. The covenant was designed to ensure that when a service person and a civilian are in a comparable situation, the service person is at no disadvantage. It was never designed to ensure no disadvantage whatsoever. We send our people away from their families for six or seven months of a year—that is a disadvantage. We send them away to undertake dangerous work—that is a disadvantage.

The covenant was meant to mean that when two people are in the same situation, the service person is not disadvantaged, and that is why the Bill says that it applies to a civilian in these environments in exactly the same way. I heard the right hon. Member for North Durham say again this morning that civilians were not covered by this Bill. Well, they are. It is in the Bill.

[Mr Jones]

The Minister said these rights protect people, but the covenant is not about taking rights away from people. I know we fixate on the date of knowledge, but when he is no longer a Minister and none of us are here anymore, the Ministry of Defence lawyers will not use this provision to say that a case is time-barred. There is nothing in this Bill that says that. That is the problem he has. I do not for one minute think that he is suggesting otherwise, and he is perhaps well intentioned, but he is just wrong on this, and is trusting the MOD too much.

[Johnny Mercer]

I accept the right hon. Gentleman’s point. He will not find many Ministers who will say that half is the Department’s problem in terms of how it has investigated and so on. I have a healthy interrogation of any advice I am given. I accept his point that there is a danger of abuse, but we have written into the Bill that point of knowledge. I am not fixated on it; it is just there in black and white.

[Mr Jones]

rose—

[Johnny Mercer]

I will come back to the right hon. Gentleman. I want to finish what I am saying—I do not want to repeat myself and bore everybody—and then I will take more interventions.

Clause 8, in conjunction with schedule 2, introduces new factors that the courts must consider when deciding whether to allow certain claims relating to overseas military operations to be brought after the normal time limit, and sets the maximum time limit for such claims at six years. The Government intend to ensure that claims for compensation for personal injuries or deaths arising from overseas military operations are assessed fairly and achieve a fair outcome for victims, for the service personnel and veterans called upon to give evidence, and for the taxpayer.

Section 2 of the Limitation Act 1980 sets an absolute time limit of six years for compensation in claims relating to most types of tort. Although sections 11 and 12 set a three-year limit for claims for personal injury or death, the three-year limit is not absolute. Section 33 of the Act gives the court discretion to allow claims to be brought beyond the time limit if it considers it fair to do so. Section 33 identifies six factors to which the court must have a particular regard when assessing fairness. In broad terms, those relate to the steps taken by the claimant to bring the claim, the reasons for delay and the effect of delay on the quality of the evidence. Those factors do not adequately recognise or reflect the uniquely challenging context of overseas military operations. The Government are concerned that unless the court is directed to consider relevant factors, it might wrongly conclude that it is fair to allow older claims to proceed. The clause, in conjunction with schedule 2, introduces three new factors that the Government consider properly reflect the operational context to which the court must have particular regard.

[Mr Jones]

Is it not for a lawyer, when they are arguing a limitations case, to make the case for special circumstances? They can do that now in law. If the measure goes through unamended—I accept that this is not the Minister’s intention—the MOD will use it as a way of blocking cases. We only have to look at the nuclear test veterans case of 2009 and Judge Foskett’s summing up. The MOD’s argument in the limitations hearing was that the case was out of time, but it was successfully argued that new evidence had come forward. That was possible because it was before a court of law. This measure stops that.

[Johnny Mercer]

I will address that point in my final remarks on the clause. The factors that have to be considered are the extent to which assessment of the claim will depend on the memories of service personnel and veterans, the impact of the operational context on their ability to recall the specific incident, and the impact of doing so on their mental health. The new factors reflect the reality of overseas military operations—the fact that opportunities to make detailed records at the time might be limited; that increased reliance might have to be placed on the memories of the personnel involved; and that as some of them might be suffering from mental health illnesses owing to their service, there is a human cost in doing so. The human cost obviously goes beyond that of the service person and will be felt just as much by their families and friends. Families of the military community are a core aspect of the armed forces covenant and must not be overlooked when we consider the measures in the Bill.

Clause 8, in conjunction with schedule 2, also introduces an absolute limit of six years for claims for personal injury or death arising from overseas military operations. This change brings the absolute time limit for personal injury or death claims in line with other claims for other torts that might occur on operations, such as false imprisonment. It also gives service personnel and veterans certainty that they will not be called upon indefinitely to recall often traumatic incidents that they have understandably sought to put behind them.

Finally, this clause, in conjunction with schedule 2, amends the Foreign Limitation Periods Act 1984, so that claimants cannot benefit from more generous time limits under foreign law. This change is needed for consistency and will ensure that no claim is brought after six years. I must emphasise that the Government are not seeking to stop meritorious claims or to avoid judicial scrutiny, nor are we seeking to put the armed forces or the Government generally in a more favourable position compared with their position as regards other defendants.

The changes that this clause and schedule 2 introduce go only as far as is necessary to ensure a fair outcome. They do not affect the way in which the time period is calculated or those provisions that suspend time in appropriate circumstances. They are also consistent with court rulings that claimants do not need to be provided with an indefinite opportunity to obtain a remedy. The courts have recognised that limitation periods have an important role to play in ensuring legal certainty and finality and in preventing injustice. The changes that this clause, in conjunction with schedule 2, introduces are a reasonable and proportionate solution to the problem of historical claims.

I will not repeat the same arguments for clauses 9 and 10, which amend the legislation in Scotland and Northern Ireland, but I will just add that the Limitation Act 1980 only covers claims brought in England and Wales. It is therefore necessary to extend similar provisions across the whole of the UK to prevent forum shopping. It would be deeply unsatisfactory if changes that the Government are introducing to achieve a fairer outcome in relation to claims brought in England and Wales could be circumvented by a claimant’s bringing their claim in Scotland or Northern Ireland instead.

Turning our attention to new clause 2, none of the measures in part 2 of the Bill will prevent service personnel, veterans or their families from bringing claims against the MOD in connection with overseas operations within a reasonable timeframe, as historically most have done anyway. The purpose of the limitation longstops is to stop historical and often vexatious claims being brought against the military on overseas operations, which put our service personnel at the mercy of being called to provide evidence long after the alleged events in question, with all the harm and anxiety that might cause them.

To ensure fairness between claimants, we have not excluded service personnel from those provisions. They will apply equally to service personnel and veterans as they will to any other person bringing a claim against the MOD in connection with overseas operations. I am confident that these measures do not break the armed forces covenant. The new factors and limitation longstops only apply to claims in connection with overseas operations and will apply to all claimants in the same way. The court’s discretion to extend the three-year time limit for death or personal injury claims and the one-year time limit for human rights claims remains unchanged in respect of any other claims, that is, those not connected to overseas operations brought against the MOD.

Additionally, our evidence suggests that 94% of those claims from service personnel are already brought within six years. We would expect that figure to rise in future, as we ensure that the armed forces community is made aware of the new measures and the relevant dates for bringing claims, including what is meant by the date of knowledge. That should encourage personnel to bring claims within six years, or earlier if possible, as after the primary time limit of three years for personal injury and death and one year for human rights claims expires, claimants must rely on persuading the courts to exercise their discretion to extend the time limit.

In summary, clauses 8 to 10, as they stand, do not breach the armed forces covenant and do not disadvantage service personnel or veterans. Let me make this clear point: on operations and in the area of modern warfare, we cannot lift human rights legislation and apply it to the battlefield. I accept that some people want to do that and think that is the right thing to do, but I respectfully disagree. The idea that people can go to court and argue for an extension produces exactly the position we find ourselves in now, where individuals such as Phil Shiner, who the right hon. Member for North Durham mentioned, have sought extensions under those situations, in order to bring thousands and thousands of claims against the MOD.

We are stuck in a position where we have to do something. In that scenario, I cannot apply something to one side, as I have indicated already, although the Legion would like me to. Similarly, we cannot take away all time limits, because that would defeat the entire purpose of the Bill, which is to provide some certainty for veterans. I accept what some hon. Members have said about people’s ability to sue within that timeframe if they are serving overseas. If they were in the UK on exercise or in Canada, it would be different, but that is because the unique nature of operations is different.

We have a duty to protect those people, as I said, both physically, from what is on the battlefield, and in the court of law. We have seen some horrendous experiences over the years. We can say, “It’s all too difficult”, and that we need to walk away—the reason why, for 40 years, no Government have done this is that it is really difficult—but we are in a position where we have to make choices: either we choose to leave the situation as it is now, letting it continue with no time limit, or we bring forward legislation to give certainty to our veterans.

[Mr Jones]

I am sorry—I do not agree with that. There is a way to improve the Bill, as with the issue of investigations raised earlier. We have talked about the Human Rights Act 1998, but if the Minister reads the judgment in the Smith case, he will see that the Supreme Court was clear about the Act’s limitations. Will the Minister explain the proposal to have a one-year time limit on human rights cases? Will he explain how he will limit appeal if section 33 does not apply to human rights cases, which it will not if the Bill goes through? How does that fit with our obligations under the convention?

[Johnny Mercer]

Our obligations under the European convention on human rights are not changed in any way. We have to design an investigative framework that is resilient and robust in the face of challenge under the convention. I have to disagree with the right hon. Gentleman—clearly, there is a difference of opinion here. That is allowed, that is what this place is all about, but the reality is that those on the Government Benches have a different view, which is that we cannot let the situation that has persisted for the past 40 years continue ad infinitum. We have to bring in fair and proportionate legislation to go beyond saying nice things about our people, or, “Isn’t it terrible that these people get dragged through the courts?”, while being prepared to do absolutely nothing about it. I am afraid that those days have come to an end. We have to legislate to protect our people. I will give way once more, and then I will finish.

[Mr Jones]

There is nothing fair about taking rights away from veterans. On the Human Rights Act, the one-year limit to bring a claim is clearly still there, but at present someone could bring a late claim under section 33 if at the time they thought it was not there. The Minister said that we would be abiding by the convention. Will he point to where in the convention—on our side, in the Human Rights Act—it says that time limits and out-of-time claims are applicable? I cannot see that.

[Johnny Mercer]

As the right hon. Gentleman will remember from his time in government, all legislation has to be signed off as ECHR compliant. The Department has done that, recognising our responsibilities under the legislation and meeting its requirements. He talks about rights, but people such as Bob Campbell have a right to be protected from experiences such as his over the past 17 years, and the soldiers who went through al-Sweady have a right to be protected as well. This is not all in one direction—it is not a one-way street—and we are clear that those people have a right to be protected in the jobs that we asked them to do. That is what the clause is all about, so I ask that it stand part of the Bill.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Schedule 2

International Criminal Court Act 2001

--- Later in debate ---

[Johnny Mercer]

I wanted to address a couple of points about the limitation period. In the Stubbings ruling that we looked at, limitation periods are okay under ECHR regulation as long as there is compatibility with article 6, the right to a fair trial. That is the test that has been undertaken in this exercise and that is the advice that the Government have received. The right hon. Member for North Durham may well disagree with that, and is well entitled to.

[Mr Jones]

Will the Minister give way?

[Johnny Mercer]

Not at the moment. I have literally just stood up. I will get through a couple of points, if I may.

As to the idea that I have not engaged in the process, and that it is just “head down, drive on”, I should like to know whether there has been a Bill that has gone through this place in the past five years when the Minister has been more ready to say a number of times that he was willing to work cross-party to improve the Bill; but I have to deal—[Interruption.]

--- Later in debate ---

[Johnny Mercer]

As for the idea that we must withdraw part 2, the whole point of the Bill is to bring in time limits to provide certainty for veterans, so if colleagues take it away, what is the point of the Bill? Why are we here in the first place, if we will just continue as we currently are?

[Mr Jones]

Will the Minister give way?

[Johnny Mercer]

Not at the moment.

The six-year longstop for personal injury and death claims is an important part of the Bill. The measure will help to provide greater certainty for service personnel and veterans by requiring civil claims arising from overseas operations to be brought promptly. Effectively, service personnel will not have to worry about having to give evidence on what would have been very distressing events many years in the future.

The public consultation launched in 2019 sought views on the length of time for such a longstop, and asked whether 10 years was appropriate. Many respondents supported a period of less than 10 years, so we decided to reduce the time limit for the longstop. Six years was chosen because it aligns with the limitation period for some other tort claims. That decision was further informed by the case of Stubbings v. the UK, in a judgment that has been repeatedly confirmed. The European Court of Human Rights upheld an absolute six-year limitation period. The Court noted the need in civil litigation for limitation periods because they ensure legal certainty and finality and the avoidance of stale claims, and prevent injustice where adjudication upon the events in the distant past involves unreliable and incomplete evidence due to the passage of time.

--- Later in debate ---

[Mr Jones]

Will the Minister give way?

[Johnny Mercer]

Is there going to be a new point? I have given way a lot and we seem to be repeating the same points.

[Mr Jones]

The Minister is going backwards and forwards just reading out what he has in front of him—[Interruption.] I am sorry, but he is. He is not answering any questions at all. Can I ask the Minister this? He says the reason for the longstop, which disadvantages veterans, is to stop all these vexatious claims. In terms of the Shiner case, for example, how many of those cases were actually time-limited cases and argued in terms of this limitation? If that is the case and there were thousands of them—I would be very surprised if there were—I would imagine in most cases the Limitation Act would weed out most of those that were vexatious. To actually introduce this to solve that part of the problem is going to have a massive impact on servicemen and women who wish to bring claims against the MOD.

--- Later in debate ---

[Johnny Mercer]

Of Phil Shiner’s claims through Public Interest Lawyers, 62% were brought more than six years after the date of the incident. The Bill imposes a six-year limit, meaning that 62% of those claims would have been out of time. This legislation is designed to redress the balance. We are operating in a very difficult area, I accept that. Doing nothing has been the easy option that this House has pursued for 40 years and it is an approach I disagree with.

[Mr Jones]

rose—

[Johnny Mercer]

I am not going to give way again, there will be plenty of opportunity for the right hon. Gentleman to speak further. I recommend that the amendment be withdrawn.

--- Later in debate ---

[Chris Evans]

I thank the Minister for that.

[Mr Jones]

I am not sure that that is the case, because those veterans brought quite a successful case. The Minister just said that it was not an operation, but it was: Operation Grapple, I think. If it was called an operation—the MOD loves giving deployments various—

[Johnny Mercer]

It doesn’t work like that.

--- Later in debate ---

[Mr Jones]

Yes, but that can lead to other problems, such mental health issues. I think I referred to the 1902 situation when submarines were first invented, and there were issues with pressure that had an effect on people’s bodies, which led to further issues. I accept that it does not affect everyone.

Under the Bill, how can people disaggregate when their hearing loss took place? If a certain proportion of someone’s life was spent in overseas operations, are we saying that that part of the hearing claim cannot go forward as it is exempt, as it is beyond the six years? That is where it gets very complicated, which is why I think the clear system that we have at the moment, in which if people make a claim after the time limit, they have the possibility of taking the claim under section 33 and are able to argue their case. I reiterate the point that that is not an easy process.

When I asked the Minister how many of Phil Shiner’s cases were time-limited—could have been struck out due to the time limits—and how many he actually argued in court—the Minister did not say. It would be interesting to know—

[Johnny Mercer]

I said clearly it was 62.7%.

[Mr Jones]

Is the Minister saying that that 62.7% were all cases that went before a judge under the Limitation Act 1980 and were deemed to have enough evidence and special circumstance to take them forward? If he is, I find that remarkable, because in my experience of the Limitation Act, trying to get cases under it is very difficult. That is what was said by the Association of Personal Injury Lawyers—they are unique cases and specialists are needed. I would be surprised if the figure was as high as that, so that of the 4,000 cases, more than half were out of time and went before a judge. If so, why did the MOD not just strike the cases out straight away, so that they were out of time? It would be interesting to know if they all went before a judge, because that suggests that the judge clearly thought that there was enough evidence to progress them. Perhaps the Minister will write to me about that—I am happy to accept that he cannot have all such figures to hand.

I am interested to know the number of those so-called vexatious claims because, I tell the Committee now, in my experience, someone who takes a vexatious case to a limitations hearing will not get very far, because of the high bar. People have to argue not only the reasons why a case should be brought out of time, but the case itself and its possibilities of success later in the litigation. For 60-odd per cent., there must have been a very soft judge allowing cases through under the Limitation Act. But I will wait to hear clarification from the Minister.

Something we have not mentioned is sight loss. I accept that in some cases people wake up and have lost their sight overnight, because of blood clots and so on, but more commonly sight is lost incrementally over time. That can sometimes take up to 10 years. If so, the veteran or serviceman or woman might have thought, “Well, I’m losing my sight”, but did not get a diagnosis, or have thought only after 10 years that they might be able to take a case, because the sight loss was related to service. They might not have thought it was but, if it was, 10 years later the Bill would not allow them to take a case. At present, they can get the diagnosis, the medical evidence, the reasons and the arguments for a limitations hearing on why they need to take a case out of time. That will not be the case if the Bill goes through.

Another example is respiratory issues, some of which may lie dormant for a long time and be the result of a whole host of conditions. I remember that in Iraq and, in particular, in Afghanistan, we had a lot of respiratory problems to do with bacteria, because the air was full of pathogens and other things. People might not have had a hacking cough but, a year or so later when they got home, they started to have such symptoms. Again, they might not have related that to their service straightaway, or with certainty, but it was later shown that, because of the use of animal manure, especially in some rural areas of Afghanistan and Iraq, people breathed in pathogens when the dust got into the air. That got into people’s lungs but did not affect their health until many years later—again it was a direct result of service, because they were there to serve their country.

The other issue, which we have touched on a little bit, is how this affects families. I raised the issue earlier of various cancers and other diseases from which people die. People think, “Why has this cancer appeared?” or “Why has this individual suddenly died?” Usually, the causes can only be identified at death. The individual will not have the date of knowledge, but the family will.

--- Later in debate ---

[Mr Jones]

The Minister says not. It will be interesting to see whether we can have definite clarification. That case was taken against the MOD in the mid-2000s for events that took place in the 1950s and 1960s, so it was clearly time-expired by anyone’s standards.

I am not arguing that we should not have time limits, which are there for very good reasons, but there need to be exceptions to allow for people who fall outside them. In that case in 2009, the MOD refused the case based on time limits, but it went before Judge Foskett who ruled that it should go forward because of new evidence from a study in New Zealand—I am racking my brains for what the study was, as I read the huge scientific document at the time. Subsequently, it failed, which shows that getting past the Limitation Act does not mean that a case is somehow a dead-cert. The facts of the case must still be argued in court and can be resisted, as they were in this case. However, people were given a right.

If that work had been classed as an overseas operation under the Bill, those people would not have had any right to get their day before a judge to argue the case. That could apply to other similar group litigation—there is such litigation from more than one person or a number of individuals—or to individuals. We have been dancing on the head of a pin about the numbers, with the Minister saying that 94% of cases are brought within time. That is fine, and I have no problem with that, but that leaves 6% that are not. If that affects one person, as I said, that is one person too many. With that brief contribution, I commend the amendment to the Committee.

[Johnny Mercer]

The amendments propose changing technical parts of the Bill, so I hope hon. Members will bear with me as I try to address them in turn. These amendments are aimed at making changes to the point from which the clock starts running for both personal injury and death claims, as well as Human Rights Act claims relating to overseas operations. The amendments mean that for these types of claims the longstop clock would run from the claimant’s date of knowledge only and will not also run from the date of the relevant incident or act.

Taking amendments 76 to 87 first, in relation to the personal injury longstops contained in schedules 2, 3 and 4, there are several problems with this effect. The longstop is already able to run from the claimant’s date of knowledge under the existing law. This Bill does not change that position. We consider that the definition of the date of knowledge in section 14 of the Limitation Act 1980, and its Scottish and Northern Irish counterparts, is satisfactory and works well in practice. There is no reason why the date of knowledge for overseas operations claims should be defined differently. It is therefore not necessary to replace this definition with a new one.

--- Later in debate ---

[Johnny Mercer]

I am more than happy to slow down. The date of knowledge provision in this Bill is new for Human Rights Act claims relating to overseas operations, the primary time limit for which currently runs only from the date of the act. We introduced the date of knowledge to mitigate the risk of any unfairness that might be experienced by claimants as a result of the new absolute longstop.

We chose 12 months for the relevant time period because this aligns with the primary limitation period in the Human Rights Act, which requires claimants to bring their claims within one year of the relevant act. We therefore consider 12 months to be a reasonable period for claimants to gather the necessary evidence to bring their claim.

Amendments 74 and 75 aim to change the definition for the new date of knowledge set out in clause 11. We consider that the definition in clause 11 is comprehensive and fair to both claimants and the MOD. It does not replicate section 14 of the Limitation Act 1980, for example, because parts of that definition do not make sense in the context of Human Rights Act claims. Similarly, amendment 75 proposes new parts for the date of knowledge definition that do not work in the context of Human Rights Act claims.

Lastly, amendment 92 removes an important part of the date of knowledge definition, which adds an objective element to the test. This ensures that claims cannot be brought indefinitely if a victim has failed to take reasonable steps to gain the relevant knowledge.

These amendments are simply not necessary. The existing definitions of the date of knowledge are comprehensive and fair, and there is no good reason why the longstops cannot run from both the date of the incident or the act, as well as the date of knowledge. These amendments will unnecessarily complicate the Bill and cause confusion.

I will address two of the points raised by the hon. Member for Islwyn about education for those who are in the armed forces. Running alongside and in tandem with this Bill, if it becomes law, will be a significant education effort through a series of annual tests that we will give to our service personnel. I am more than happy to write to the hon. Gentleman about that.

I understand the points made by the right hon. Member for North Durham, but they are not within the scope of the Bill. The nuclear test veterans and the other pre-1987 cases that he talked about are not covered by the Bill. A lot of today’s debate has been outside the context of the Bill. I do not know what the point is of continuing to bring up cases that are unaffected by the legislation that we are discussing. I have huge sympathy for nuclear test veterans and for others. Indeed, I lobby hard for the recognition that I think we all want to see for those people, but none of that is covered by this legislation. That is worth remembering.

[Mr Jones]

Will the Minister give way?

[Johnny Mercer]

No, not at this stage. I therefore recommend that these amendments are withdrawn.

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

Debate between Johnny Mercer and Kevan Jones

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.]

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

Debate between Johnny Mercer and Kevan Jones

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

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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?

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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

Debate between Johnny Mercer and Kevan Jones

Thursday 8th October 2020 Public Bill Committees

[Johnny Mercer]

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

[Johnny Mercer]

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

Debate between Johnny Mercer and Kevan Jones

Committee stage & Committee Debate: 4th sitting: House of Commons
Thursday 8th October 2020 Public Bill Committees

[Johnny Mercer]

Q Of course, and that that is why we have built in there that it is the point of knowledge, rather than when the incident took place. Therefore, if you had PTSD 24 years later, your six-year clock would start from that 24-year point.

Lieutenant Colonel Parker: Understood. It is great to hear that clarification.

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

No, it would not.

[Johnny Mercer]

Yes, it would. You have no idea what you are talking about.

Lieutenant Colonel Parker: You can understand the problem that the military community have. It is hard enough for someone like me, as a master’s graduate, to understand it, but also trying to get this understood by a large body of quite unqualified people who fought bravely is difficult enough.

The only other qualification that I would add is to do not with the question that you have directly asked but with a broader question, which you may want to touch on later. It is very difficult to separate, in the view of the veteran, operations from one theatre and operations from another theatre. Obviously, you probably know straight away that I am referring to Northern Ireland. I understand, and we understand, that it is not part of this Bill, but I think there has to be a measure by the Government to say—and I think they have—that other measures will be taken ahead to deal with that. That is something that I know is a concern, and it is something that is of prime concern.

Broadly—I have to say this broadly because, again, we have to remember that we do not get people scrutinising the Bill itself; they hear the broad terms of it—it is welcomed by the community and there is no major feedback of negativity other than the points we have registered about claims, which you have clarified very helpfully.

Overseas Operations (Service Personnel And Veterans) Bill

Debate between Johnny Mercer and Kevan Jones

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

[Johnny Mercer]

Absolutely not; I am not giving way.

It is very clear to me that this is the first Government to come to this House and not to say, “What a difficult problem this is, but we will hand all our soldiers off to the human rights lawyers.” This is the first Government who are actually going to do something to protect our servicemen and women. I am proud of that and I make no apology for it at all. [Interruption.] There really is no point in whingeing on at me because I am not going to give way.

I came to this place because I loathed the way it treated cheaply my generation of servicemen and women as we fought for the freedoms and privileges that Members of this House enjoy every day. Summer after summer, I served with what was and is this nation’s finest product—our fighting men and women—in some of the most testing circumstances that this House has deployed for generations. Yet when they came home, this House was not there for them. In those heady days, Members will remember the pain of our veterans’ families as they fought for decent prosthetics or effective mental health care. We are light years away from where we were—

[Mr Kevan Jones]

Absolute rubbish.

[Johnny Mercer]

“Absolute rubbish”, the Labour party says—amazing.

I still cannot describe what it was like sitting with the family of a young man who could not cope with the trauma that he suffered as a result of what we asked him to do on our behalf and who took his life. I cannot describe what it is like to visit the parents of a soldier who died in your arms 48 hours earlier, thousands of miles from home, and tell them that it is pointless. This Bill is different. It is fair, it is proportionate and it is balanced. It is good legislation. Members can match words with actions and vote for this Bill tonight.

Question put, That the Bill be now read a Second time.

UK Amphibious Capability

Debate between Johnny Mercer and Kevan Jones

Tuesday 21st November 2017 Westminster Hall

[Johnny Mercer]

I am so sorry; I am half asleep. It is only a matter of time.

I want to make three really clear points to the House, to the Minister and to the Government. I have made my views on this clear. I am grateful for all the support that we have had from across the House because this is an issue of singular importance. However, it is very important that we do not dictate tactically what we ask our professionals to do in this country. What I mean by that is that our job here is to hold the Government’s feet to the fire, and to ensure that what they do is consistent with what they say. I do not think it is our responsibility to say, “You can never change this or that capability.” My attempts with the letter that has been signed by so many are simply a first stage in drawing a line in that battle.

What I am saying, though, is that I hope the Government, the Department and, critically, the Treasury and the Prime Minister now understand that there is a resilient cohort of Government MPs who will hold the Government to account on defence spending. Whatever our party or priorities, above all we are patriots, and it is not right to allow the Government to say something about defence on the one hand and yet under-resource it on the other. They cannot always say that defence is the primary duty of Government and yet hold their hands behind their back.

[Mr Kevan Jones]

So why are you a Tory then?

[Johnny Mercer]

That is an interesting intervention —in fact, I am just going to ignore it because it was pretty childish.

We must get our priorities right when it comes to defence. Over the weekend the Government announced that £2.3 billion would be put into artificial intelligence and driverless cars. Fantastic—great stuff—but when it comes to social policies such as those we cut our cloth according to what we can afford. When it comes to defence, we listen to the professionals who we ask to go and do the job for us and to wear the uniform. We ask them what we need and we provide them with what they need to keep us safe. As has been alluded to by my right hon. Friend the Member for New Forest East (Dr Lewis) time and again, the idea that we can come to this place and say, or sell it to the general public, that threats have intensified, diversified and increased so much that another security review needs to be conducted, and yet reduce the budget or capability for our armed forces to do that, is simply not credible. It will not be worn by the British public and it will not be worn by Back-Bench Conservative MPs.

Finally, all that I am asking for, and all that the MPs who have signed my letter, and MPs across the Conservative party, are asking for—we are the party of defence—is that we meet our manifesto commitment of a 2% of GDP spend and a 0.5% above inflation increase in the defence budget. That is the platform on which I stood at the general election, and I fully expect that commitment to be realised. We must get to a stage where we are being realistic about defence, and if the threats have increased, that must be met by a commensurate increase in money, commitment and willpower from both No. 11 and No. 10.

Armed Forces Pay

Debate between Johnny Mercer and Kevan Jones

Wednesday 1st November 2017 Commons Chamber

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

The Government are nothing if not consistent, as Conservative Governments have been throughout history, in that in opposition they call for more expenditure on the armed forces and argue that they are proud supporters of the armed forces, but when they get into power the first thing they do is cut the defence budget and show no respect for the men and women of the armed forces in terms of their pay and conditions. We have heard some remarkable things today. Conservative Back Benchers—including the hon. Member for Plymouth, Moor View (Johnny Mercer), who must have quite a few members of the armed forces in his constituency—have been suggesting that pay is not important. Well, I am sure that will be news to those members of the armed forces, when they get that message.

[Johnny Mercer]

The hon. Gentleman knows full well that what I was trying to say—and what I did say—was that pay was not the No. 1 issue for service. It would be disingenuous to suggest that it was. There are a number of reasons why people serve, and a great experience is on offer to the people of this country who serve. Pay is important, but it is not as important as this debate suggests.

[Mr Jones]

I find that remarkable. The hon. Gentleman is letting down his constituents by not supporting what we are arguing for, which is a fair deal on pay for members of our armed forces. If I were in his shoes, I would be making sure that I did.

The last Labour Government, during which I served in the Ministry of Defence, had a proud record of accepting the recommendations of the pay review body every single year. For example, the increase was 3.7% in 2001 and 2002 and 3.2% in 2003, and that goes right up to 2010, when the increase was 2%. However, this Government have put in an artificial cap, completely ignoring the pay review body, and it was remarkable to hear the Minister say that that does not matter because people are receiving increments. I am sorry—this may be the trade union official in me coming out here—but where someone starts affects where they end up. A 2% incremental increase may mean an increase in pay, but a 2% increase on the basic level of pay is a damn sight bigger, and we need to recognise that.

Something else that cannot be forgotten is this idea that armed forces pensions are, as I think someone said, gold plated and generous. However, people do not recognise that that is taken into account by the pay review body. I also want to remind the Conservatives that if I had sacked armed forces personnel or made them compulsorily redundant weeks away from their retirement date when I was in charge, I would have been rightly condemned. That is just another example of a Conservative Government saying one thing, but doing another. Making people compulsorily redundant is astounding.

As for the independence of the pay review body, it is clear that the Government have completely ignored its recommendation, but things are even worse than that. The previous Prime Minister David Cameron sacked the head of independent pay review body in 2013 because he did not like what it said about the X factor and pay increases. The Government have not just ignored the pay review body; they have interfered in the independent process. Conservative Members may say that pay is not important, but I am yet to meet anyone in life who does not think that getting a decent reward for their efforts is important to them.

Alongside that, we have seen declining morale. One of the Conservative Government’s betrayals is that they say, “We stand up for the armed forces.” Well, the armed forces stood at 191,710 personnel in 2010, but that is now down to 149,366. The situation is worse than that, however, because there are artificial caps on numbers in the individual services, including the Navy, which is leading to real deployability problems. Ships are not sailing because they do not have the crews. As I said, the Conservatives say that they stand up for the armed forces, but if they genuinely want to do that, they should pay people accordingly and recognise the efforts and sacrifices that individuals make on our behalf. Empty words are fine, but actions in government are different. I am proud that the Labour party—not just in the last Labour Government, but throughout its history—has always stood up for our armed forces by supporting personnel and by ensuring that our country is defended.

--- Later in debate ---

[Johnny Mercer (Plymouth, Moor View) (Con)]

Thank you for squeezing me in, Madam Deputy Speaker. I was not going to speak today but I felt compelled to come to the Chamber and give my two pence-worth. I very much enjoyed the contribution of the hon. Member for North Durham (Mr Jones), but it would be remiss of me not to point out how narrowly he danced on the line between delusion and fiction. He was veterans Minister in 2008-09, when I was fighting those campaigns. This is not about me or about anybody’s personal service; this is about truth and fact, and the fact is that the equipment with which we fought those campaigns and the care for veterans were simply appalling. I cannot stand here and allow Opposition Members to say that Labour’s record on defence is so—

[Mr Kevan Jones]

rose—

[Johnny Mercer]

No, I will not give way at this moment.

I cannot say that the Labour party’s record on defence is so superior to the Conservative party’s.

[Mr Kevan Jones]

On a point of order, Madam Deputy Speaker. Is it in order for one Member to accuse another Member of something that is not true and then not allow that Member to respond to it?

[Madam Deputy Speaker (Dame Rosie Winterton)]

I am sure the hon. Member for Plymouth, Moor View (Johnny Mercer) will feel that if he has referred to another hon. Member in that way, he might like to take an intervention.

[Johnny Mercer]

Am I alleged to have said something that is not true? What have I said that is not true?

[Mr Kevan Jones]

I am not going to get into a discussion. What is not true is what the hon. Gentleman just said about cutting support for veterans.

[Johnny Mercer]

I didn’t say that.

[Madam Deputy Speaker]

Order. Can we not have conversation across the Chamber? This is an intervention and the hon. Member for Plymouth, Moor View will then respond to it.

[Mr Jones]

I was proud to introduce the Army Recovery Capability, which made sure we supported the armed forces coming back from Afghanistan and Iraq with severe injuries. I was proud to be a part of a Labour Government who introduced the Armed Forces (Pensions and Compensation) Act 2004, which for the first time brought in lump sum payments for those severely injured. The track record of our Administration on support for veterans will stand up to any scrutiny in comparison with what the Conservative Government have done since.

[Johnny Mercer]

It may be worth the hon. Gentleman putting that debate on our offer to our veterans and service personnel to the court of public opinion. The time between 2003 and 2015 saw the biggest explosion of military charities this country has ever seen because of the lack of provision that he presided over. It would be a good thing to put that into the public domain and to see whether his argument bears out the facts.

It is important that this debate is grounded in fact. This should not be a partisan issue. We should not be talking about what Labour did or what the Conservative Government did. There are areas—[Interruption.] I have to talk about it, because of the fiction coming from the Opposition. We need to work harder on some serious elements of defence—mental health, veterans’ care, what we want our armed forces to stand for, and, crucially, what we do not want from our armed forces as we move forward to the period post-Brexit—but we must ground this debate in credibility and reality.

Yes, when it comes to pay everybody would like to be paid more. I could not find a single serviceman or woman in the UK armed forces today who would not like more money, but it would be disingenuous in the extreme if I were to stand here and say that that is the single blanket issue that drives down recruitment and reduces our ability to retain skilled men and women, or to say that a career in the armed forces is not worth it or completely constrained by appalling terms and conditions. That is not the case.

I want to address what is one of the most frustrating things about this place. We have a world-class military. Of all the things I can be accused of, of which there are many, being a Government lackey on defence is not one of them. If Members look at my record on the Iraq Historic Allegations Team and defence spending, or have a brief conversation with the Minister for the Armed Forces, who recoils at the very mention of my name, they will know that I am not a defence lackey. On our capability, yes, we had more ships in the Falklands and more tanks and so on, but in the Falklands a lot of the guns and the ships did not work. The Type 26 frigate is one of the world’s most capable combat ships. Members can shake their heads and say, “Well, it doesn’t employ millions of people and the steel did not come from exactly where I wanted it to,” but we have a world-class military. It is therefore extremely disingenuous to the people of this country to constantly use this as a political football between the Labour party and the Conservative party over who is doing better on defence. We have deep challenges, but I gently suggest that pay is not one of them.