Overseas Operations (Service Personnel And Veterans) Bill

Julian Lewis Excerpts

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

[Mr Wallace]

I fully agree with my right hon. Friend: torture is not an acceptable part of what any soldier or any citizen of this country should take part in. Where former Governments, of all colours, have been found to have not upheld those standards, they have either been prosecuted or faced the consequences. No one is excluding that and no one is decriminalising it.

[Dr Julian Lewis (New Forest East) (Ind)]

Does the Secretary of State accept that the primary problem is not repeated prosecution, but repeated reinvestigation? The Bill does little to rule that out. With the sorts of cases that he has outlined, the problem has been the innumerable investigations. They are what were so traumatic for the troops, not the tiny number of prosecutions. As the former Attorney General for Northern Ireland says:

“Nothing in the Bill limits the investigation of offences—even outside the period of five years…The Bill impliedly contemplates the possibility of multiple investigations.”

That, I am afraid, is where the Bill falls down.

[Mr Wallace]

First, the Bill deals with two parts of why often people are investigated. One is under civil proceedings, where they are investigated or interviewed, or involved in the inquest. Many of those personnel find themselves repeatedly interviewed, either as a suspect or, indeed, through constant summonses as a witness in an inquest. As we know from a number of cases, that has happened on multiple occasions. That is why the second part of the Bill deals with the civil route and the first part deals with the criminal bit.

On the criminal bit, one change is the requirement after five years for a number of thresholds to be gone through before a decision to prosecute is progressed. We think those thresholds are enough to make sure that investigators, or the prosecutor, before perhaps embarking on a repeat investigation—for example, if there has already been one—have to have regard that this is important new evidence. In my experience, investigators do not just investigate for investigation’s sake; they investigate to reach a point of prosecution. If they feel that a prosecution is unlikely, they will not pursue it. I feel that will therefore reduce the number of investigations.

My right hon. Friend also makes the point, in regard to the critics, that the Bill does not prevent prosecution in certain circumstances of egregious crimes committed either against humanity or our treaty obligations at all. That is really important. We will never prevent new evidence from producing a prosecution if a crime has been committed.

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[Dr Julian Lewis (New Forest East) (Ind)]

I greatly admire and respect the hon. and gallant Member for Barnsley Central (Dan Jarvis), but I fear that it would require rather more than just an improvement to the way in which service authorities investigate allegations to solve this problem, because the problem derives in large part from the application of the Human Rights Act abroad.

The purpose of this Bill should not be to stop sound cases being prosecuted, and it does not do so. Its purpose should be to stop unsound cases being repeatedly investigated, and that, I fear, it fails to do. The hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) seized on this point in his earlier intervention, in which he referred to intimidation by reinvestigation, and he is right; that is the nub of the problem. The Secretary of State conceded that only a small proportion of these many cases—most of them spurious—end up in a prosecution. He suggested that, if it were known that there would be less likelihood of a prosecution, there might be fewer rounds of investigation and reinvestigation, but I am afraid I do not find that wholly or, indeed, at all convincing. Something must be done to stop the repeated reinvestigations, which, in large part, happen because of the application of the Human Rights Act abroad.

I first became aware of the scale of this problem several years ago when I heard speeches from my hon. and gallant Friends the Members for Beckenham (Bob Stewart) and for Filton and Bradley Stoke (Jack Lopresti). The effect of that was to interest me in trying to take the matter further during the two periods for which I chaired the Defence Committee. In those two periods, we produced three reports. The first inquiry was carried out by the sub-Committee under the chairmanship of my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), now the Minister for Defence People and Veterans. That inquiry dealt with Iraq and reported in February 2017. The second one dealt with Northern Ireland and reported in April 2017.

The third one, dealing with the whole panorama of all these scenarios, reported in July 2019. That report warned that the European Court of Human Rights

“has gone far beyond the original understanding of the European Convention on Human Rights, and… its rulings have stretched the temporal and territorial scope of the Human Rights Act beyond Parliament’s original intentions”.

The report examined proposals by Professor Richard Ekins, now professor of law and constitutional government at Oxford University, in which he proposed to restore the former scope of the HRA and the application of the ECHR. As long as that legislation, which was never intended to be applied abroad when it was enacted by this House in 1998, persists in its extended application, we will not solve this problem.

[Tom Tugendhat]

Is my right hon. Friend aware that it is not only the United Kingdom facing an issue with the extraterritoriality of the ECHR? The French Conseil d’État —in which I must declare an interest, as my wife is a member—has also been investigating this, as has the German court, because this extraterritoriality was never envisioned by the signatories in the ’50s, nor was it envisioned by the then Prime Minister in the ’90s.

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[Dr Lewis]

I absolutely accept that this is not a problem confined to us. It is something that has crept into the international scene. Law-observing democracies are finding themselves hamstrung because of the misapplication of what is essentially civil law to the battlefield. That is wrong. It was never intended to be the case, and until it is put right, we will not solve this problem.

It is true that the Government, in this Bill, are considering derogating from the ECHR; clause 12 encourages, but does not require, such derogations. That would help, but according to Professor Ekins, whose work with Policy Exchange I acknowledge, that would be no substitute for amending the Human Rights Act and providing that it should not apply outside the UK, or at least that it should apply only in strictly limited circumstances. Parliament should go back to what it intended in 1998. It would also be much better for Parliament to require the Government to derogate in relation to overseas operations and to amend the Human Rights Act so that it does not apply abroad.

With good will on both sides, the Bill can be improved, and I urge those on both Front Benches to work together in pursuit of an improved outcome.

Overseas Operations (Service Personnel and Veterans) Bill

Julian Lewis Excerpts

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

[Mr Jones]

It is better than he did in Committee when he called me a hypocrite, Madam Deputy Speaker, but if he listens to what I am saying, he will know that I am not saying that. I know that his attention span is not very good, and he does not tend to listen. What he tends to do is just stick to what he has in front of him and his view of the world, rather than hearing what people are saying. The issue is—[Interruption.] Well, he can say “brilliant” and chunter as much as he likes, but this is the issue—the delays that are taking place because of the investigations.

I have referred to Judge Blackett, and the Minister was there when the evidence was taken. Judge Blackett is a just-retired senior judge of the service justice system, and he said:

“The Bill is effectively looking at the wrong end of the telescope. It is looking at the prosecution end, and you have got to remember that you do not prosecute until you investigate—and you have got to investigate. This will not stop people being investigated and it will not stop people being re-investigated and investigated again. Lots of investigations do not go anywhere, but the people who are investigated do not see that.”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 120.]

That came up when we took evidence from Major Campbell. I will put it on record again that his case was a disgrace, because it took 17 years, but this Bill will do nothing to speed up such cases or to ensure that reinvestigations do not occur. That is the key problem. The problem is not the prosecutions, because their number is very small.

[Dr Julian Lewis (New Forest East) (Ind)]

I have put in three written questions about this Bill, and yesterday I had answers to them. Two of the answers were helpful, but one, on the point that the right hon. Gentleman is making, was not. I was trying to establish how many investigations had not resulted in prosecutions, and I could not seem to get an answer, yet that is central to the whole problem. The core of the problem is not the small number who get prosecuted but the large number who get investigated.

[Mr Jones]

The right hon. Gentleman is correct. That came out in evidence that we took throughout the Committee. The issue is not the number of prosecutions but the number of investigations and how we can speed up the length of time they take.

The problem is that the Ministry seems to have a deaf ear when it comes to recognising that we need to address the issue around investigations, which is what new clause 1 would do. It would ensure that we had judicial oversight of the investigations. We can see what we have at the moment from the example of Major Campbell’s case, which went on and on. New clause 1 states that after a certain period of time, the evidence should be put before a judge to see whether there was a case to answer. Clearly, if the evidence did not meet the test and the case was going nowhere, it would get thrown out there and then. Alternatively, it could be decided that the case needed further investigation, but at least that would ensure that, after six months, there was some judicial oversight of the investigation. That would be a way of ensuring that these investigations did not go on for a long time.

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[Dan Jarvis]

I thank the hon. Gentleman for the comments towards the end of his remarks. There is a weight of expert opinion. I am reassured about the strength of the case that I and other hon. Members are seeking to make today by the contacts I have had with my former colleagues who are still serving in our armed forces. There is a genuine debate still to be had about this. I am sure that the Minister will want to engage with the substance of the debate. Let us keep talking about it.

[Dr Julian Lewis]

When the Defence Committee was looking at the matter in the previous two Parliaments, it recommended a Bill of this sort provided that the time limit was qualified by the absence of compelling new evidence. Is the hon. and gallant Gentleman saying that he does not feel that that proviso is in the Bill? If that proviso is in the Bill, if there were compelling new evidence that had not come forward in the first five years but came forward afterwards, then indeed a prosecution could proceed.

[Dan Jarvis]

The right hon. Gentleman makes a very important point. I certainly assume that all of us attend this debate and seek to make contributions in good faith, and I think there is a genuine desire from Members from all parts of the House to improve this Bill. The Minister has indicated on a number of occasions that in good faith he wants to have that continuing conversation with Members about how we can improve the Bill. There is still time to do so, and I very much hope that we will not miss out on that opportunity.

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[Mr Davis]

My hon. and gallant Friend is exactly right, and I want to see the reputation that comes from that preserved after this Bill becomes law.

I will briefly address the weaknesses of two parts of the Bill separately—this addresses directly my hon. Friend’s comments: first, the criminal prosecutions and then the civil cases.

Prosecutions against armed forces personnel are not brought by just any lawyer. They are brought by the Service Prosecuting Authority, which is part of the Ministry of Defence. As it stands, a prosecution can be brought only where there is sufficient evidence that the accused committed the offence and where it is in the public interest that the prosecution should be made. There is therefore already a high threshold for prosecution. As a result, since 2000, there have been 27 prosecutions. Given how many thousands of members of our armed forces have been in operations in difficult circumstances—in close quarters with the civilian population, fighting against an asymmetric enemy—that is an astonishingly low number. That is not a prosecution system that is out of control. That alone shows that the system is not slanted against soldiers.

[Dr Julian Lewis]

I agree with my right hon. Friend that the prosecution system is not out of control, but does he agree that the investigatory system is? To answer my own intervention on the hon. and gallant Member for Barnsley Central (Dan Jarvis), is my right hon. Friend aware that clause 3(2)(b) says that the five-year limit will not apply unless

“compelling new evidence has become available”?

Why is he not reassured by that?

[Mr Davis]

I will tell my right hon. Friend in a moment exactly why I am not reassured by that, but he is quite right that the issue is the repeated investigation of people who are innocent, in most cases. That is a harassing and destructive thing. The best known case is that of Major Campbell, who underwent eight investigations. I am afraid that the real blame lay with the Ministry of Defence for at least four of them. That is what we should address.

As I say, the prosecution system is not slanted against soldiers. I will give the rather gruesome, well known example of Baha Mousa, a 26-year-old Iraqi man who, in 2003, was dragged from his desk while working as a hotel receptionist by British soldiers, handcuffed and taken to a detention facility in Basra. Thirty-six hours later, he had been beaten to death, having suffered 93 separate injuries while in the custody of British forces. The number of solders convicted of murder as a result: zero. The number convicted of manslaughter: zero. There was a single conviction of one soldier, who confessed to inhumane treatment and got one year in prison.

It is difficult for prosecuting and other authorities to make out a clear-cut case of torture, inhumane treatment or even manslaughter, so I do not believe that the system operates against the interests of the armed forces. Indeed, on the several occasions on which the Government have been asked to produce a case of vexatious prosecution—not investigation, but prosecution—they have never been able to name one. That is not surprising. The Service Prosecuting Authority—the body that brings prosecutions—already dismisses claims that it believes are vexatious. In evidence to the Joint Committee on Human Rights, Nicholas Mercer, the former Command Legal Adviser in Iraq, said:

“Before I left the army, I gave legal advice on a number of prominent cases…I found a case that was without merit and I closed it. It was as simple as that. I do not need legislation to do that. It happens already.” That is a good reflection on our system, and we should not be ashamed of it.

The area of contention, which has been mentioned by the hon. and gallant Member for Barnsley Central, is the triple lock against prosecutions. The Government’s own stated aim is to raise the bar for prosecutions after five years. In its scrutiny of the Bill, the Joint Committee on Human Rights concluded:

“a limitation period that would prevent prosecutions is unlawful under international law if it prevents investigations and prosecutions in relation to torture, war crimes, crimes against humanity and genocide.”

The Government state that the measure is not a statute of limitations. The Law Society, which some may dismiss, agrees with the JCHR, and concludes that the presumption against prosecution creates a “quasi-statute of limitation” that is “unprecedented” in criminal law, and represents

“a significant barrier to justice.”

Rather more importantly, the Judge Advocate General, whom I described earlier, has said:

“In my view, what this Bill does is exactly the opposite of what it is trying to do. What it is trying to do is to stop ambulance-chasing solicitors and vexatious and unmeritorious claims. The Minister quite rightly said we want rigour and integrity. What it actually does is increase the risk of service personnel appearing before the International Criminal Court. That is why I said it was ill conceived.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c.117-18, Q234.]

That is the Judge Advocate General, the most expert person in the country on this subject. He also described, incidentally, the Bill as bringing

“the UK armed forces into disrepute”.

If the Government really think that schedule 1 does not make justice more difficult, they would not have excluded sexual offences from the remit of the Bill. If it is not difficult to get a prosecution, why exclude any category? It was right to exclude sexual offences, and the Government should exclude torture on exactly the same grounds. That is the point of the amendment in my name and in that of many others.

I have a couple of minutes, so I will deal briefly with the issue of civil claims. There have been 1,000 civil claims, according to the Ministry of Defence, all of them against the Ministry, not against individual soldiers—as far as I can tell. Surprise, surprise, someone trying to get money goes to the Ministry, not to a poverty-stricken soldier. However, that does not help veterans; it actually hinders veterans.

The point has been made by other Members, so I will press it no further, except to quote the British Legion director-general:

“it protects the Ministry of Defence from civil action—from someone bringing a case. That longstop does not protect the armed forces personnel.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q161.]

Of course, what the Bill could stop are the sorts of cases that exposed Snatch Land Rover, the lack of provision of body armour and a number of other scandals, which quite properly improved the operation the MOD.

The Bill does the same for torture cases. All the stories about torture and rendition came in the first instance from civil cases—all of them. That is what brought them into the public domain; there was not a single criminal prosecution in the first instance. It is difficult to bring a torture case. In most, only two people know about the torture: the victim and the oppressor—the torturer, or torturers. Typically, no other evidence is available in the public domain. A case is difficult. Even in the case of Belhaj, the most famous torture case—we delivered Mr Belhaj and his pregnant wife to the Libyans, for heaven’s sake—it took 10 years, essentially, to get to court, and of course he got an apology from the Prime Minister. That is why the issue of torture is almost impossible to bring to court.

Time is running out, so I will finish by quoting the questions that the Judge Advocate General put to the Minister in Committee. He said that

“six Royal Military Police were killed…in 2003”,

and asked:

“would we accept that there would be a presumption against… prosecution”

of their murderers? Would we expect special arrangements—