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

Lord Beamish Excerpts

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

[The Chair]

I remind the Committee that with this we are discussing the following:

Amendment 3, in clause 3, page 2, line 33, at end insert—

‘(bb) the public interest in maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces;’.

This amendment would 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.

Amendment 4, in clause 3, page 2, line 33, at end insert—

‘(bc) the nature of the alleged conduct, in particular whether it engaged the obligations of the United Kingdom under Articles 2, 3, 4 or 5 of the European Convention on Human Rights;’.

This amendment would ensure that particular weight is given by a prosecutor where the alleged conduct engages the UK’s obligations under Article 2 (right to life), Article 3 (prohibition on torture and inhuman or degrading treatment, Article 4 (prohibition of slavery and forced labour) or Article 5 (prohibition of arbitrary detention) ECHR.

Amendment 5, in clause 3, page 2, line 33, at end insert—

‘(bd) whether the person had command responsibility for the alleged conduct, and to what extent;’.

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

Amendment 13, in clause 6, page 4, line 13, at end insert—

‘(3A) A service offence is not a “relevant offence” if it is an offence whose prosecution is required under the United Kingdom’s international treaty obligations.’.

This amendment would exclude the prosecution of serious international crimes (such as torture, genocide, crimes against humanity, and certain war crimes) from the limitations otherwise imposed by the Bill.

Amendment 58, in schedule 1, page 12, line 6, at end insert—

‘13A An offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Geneva Conventions).

13B An offence under section 134 of the Criminal Justice Act 1988 (torture).’.

This amendment adds to Schedule 1 specific reference to existing domestic offences in relation to torture, genocide, crimes against humanity, and grave breaches of the Geneva Conventions, in a similar way to the treatment of sexual offences.

Amendment 6, in schedule 1, page 12, line 38, leave out paragraph 17 and insert—

‘17 An offence under Part 5 (Offences under domestic law) of the International Criminal Court Act 2001 as it relates to the law of England and Wales.’.

This amendment would mean that all offences listed in Part 1 of the International Criminal Courts Act 2001 as they related to the law of England and Wales would be excluded offences, without restriction.

Amendment 59, in schedule 1, page 12, line 39, at end insert—

‘(za) an act of genocide under article 6, or’.

This amendment would ensure that acts of genocide are also excluded from the Bill, alongside sexual offences.

Amendment 60, in schedule 1, page 12, line 40, leave out

‘a crime against humanity within article 7.1(g)’

and insert

‘a crime against humanity within article 7.1(a)-(k)’.

This amendment would ensure that crimes against humanity are also excluded from the Bill, alongside sexual offences.

Amendment 61, in schedule 1,page 12, line 41, leave out from beginning to end of line 2 on page 13 and insert—

‘(b) a war crime within article 8.2(a) (which relates to grave breaches of the Geneva Conventions).’.

This amendment would ensure that grave breaches of the Geneva Conventions are also excluded from the Bill, alongside sexual offences.

Amendment 7, in schedule 1, page 13, line 12, leave out paragraph 20 and insert–

‘20 An offence under Part 5 (Offences under domestic law) of the International Criminal Court Act 2001 as it relates to the law of Northern Ireland.’.

This amendment would mean that all offences listed in Part 1 of the International Criminal Courts Act 2001 as they related to the law of Northern Ireland would be excluded offences, without restriction.

Amendment 62, in schedule 1, page 13, line 13, at end insert—

‘(za) an act of genocide under article 6, or’.

This amendment would ensure that acts of genocide are also excluded from the Bill, alongside sexual offences.

Amendment 63, in schedule 1, page 13, line 14, leave out

‘a crime against humanity within article 7.1(g)’

and insert

‘a crime against humanity within article 7.1(a)-(k)’.

This amendment would ensure that crimes against humanity are also excluded from the Bill, alongside sexual offences.

Amendment 64, page 13 [Schedule 1], leave out lines 15 to 18 and insert—

‘(b) a war crime within article 8.2(a) (which relates to grave breaches of the Geneva Conventions).’.

This amendment would ensure that grave breaches of the Geneva Conventions are also excluded from the Bill, alongside sexual offences.

Amendment 8, in schedule 1, page 13, line 28, leave out paragraph 23.

This amendment is consequential on amendments 6 and 7.

Amendment 9, in schedule 1, page 14, line 5, leave out paragraphs 27 to 30 and insert—

‘27 An offence under Part 1 (Offences) of the International Criminal Court (Scotland) Act 2001.’.

This amendment would mean that all offences listed in Part 1 of the International Criminal Courts Act (Scotland) 2001 would be excluded offences, without restriction.

Amendment 65, in schedule 1, page 14, line 7, at end insert—

‘(za) an act of genocide under article 6, or’.

This amendment would ensure that acts of genocide are also excluded from the Bill, alongside sexual offences.

Amendment 66, in schedule 1, page 14, line 8, leave out

‘a crime against humanity within article 7.1(g)’

and insert

‘a crime against humanity within article 7.1(a)-(k)’.

This amendment would ensure that crimes against humanity are also excluded from the Bill, alongside sexual offences.

Amendment 67, in schedule 1, page 14, leave out lines 9 to 12 and insert—

‘(b) a war crime within article 8.2(a) (which relates to grave breaches of the Geneva Conventions).’.

This amendment would ensure that grave breaches of the Geneva Conventions are also excluded from the Bill, alongside sexual offences.

Amendment 12, in clause 15, page 9, line 21, at end insert—

‘subject to subsection (2A).

(2A) Before making regulations under subsection (2), the Secretary of State or Lord Chancellor must lay before Parliament the report of an independent review confirming that the Act is in full compliance with the United Kingdom’s international treaty obligations with respect to the prosecution of war crimes and other crimes committed during overseas operations.

(2B) This Act shall cease to have effect at the end of the period of five years beginning with the day on which it is brought into force, unless the Secretary of State or Lord Chancellor has, not fewer than four years after this Act has come into force, laid before Parliament the report of a further independent review confirming that the Act remains in full compliance with the United Kingdom’s international treaty obligations with respect to the prosecution of war crimes and other crimes committed during overseas operations.’.

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

I have nothing further to add, Mr Stringer, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4

Section 3: supplementary

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

[Mr Jones]

This clause goes to what we heard in the evidence session is the missing part of the Bill: investigation and what warrants particular types of investigation. We heard from numerous witnesses, including Judge Blackett and General Nick Parker, that what is missing from the Bill is any scope of investigation. I have tabled new clauses to limit and have control over investigations, because, as Judge Blackett said, the problem with the Bill is that it looks at the process from

“the wrong end of the telescope.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 120, Q246.]

It looks at the prosecution end, rather than the investigation end.

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[Chris Evans (Islwyn) (Lab/Co-op)]

As my right hon. Friend was speaking, I thought of an anomaly. The Bill now strikes out claims on the Ministry of Defence after six years. However, if new evidence comes to light and there is a criminal conviction for the same offence, there could be a situation in which a criminal court imposes compensation when the MOD has already struck the claims out. How does my right hon. Friend see clause 4 squaring that circle?

[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.

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[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.

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[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?

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[Carol Monaghan]

I will speak to all three of the amendments in my name and that of my hon. Friend the Member for West Dunbartonshire. Amendments 10, 11 and 22 address the issue of the independence of the decision to grant or withhold consent to prosecution. The Attorney General is, by the nature of the position, a political appointment. Therefore, tying in the prosecution of potentially serious incidents to a politically motivated individual is at least unethical and at worst dangerous.

If we are the healthy democracy that we boast of being, there has to be independent oversight of these investigations. To maintain justice and continue to uphold the rule of law, those decisions cannot be made by the Attorney General. That role should be carried out in England by the Director of Public Prosecutions and in Scotland by the Lord Advocate.

In effect, with these amendments, we are asking the Minister to decide whether the actions of the MOD itself require further investigation. To give an example, that would be like asking the Health Secretary to decide whether a patient had grounds to seek redress for cases of medical negligence. Are the Government really in the business of marking their own homework?

Of course, we all understand why the Government have chosen to press ahead with this Bill. I think we all, regardless of the robust debate that has taken place, have sympathy with the purpose of this Bill, but the manner in which it is progressing is concerning a lot of us. Many parts of this Bill would not address the issues faced by our service personnel. However, having the Attorney General preside over decisions to prosecute will potentially leave a shadow of doubt hanging over some service personnel. Is that really what we want?

I watched the previous exchange; for anybody watching Parliament just now, it was rather unedifying, to say the least. At the start of this process, the Minister said he wanted—[Interruption.] Even as I am saying that, and trying to say it in a generous spirit, the Minister mumbles to himself and makes comments. I was a teacher by profession, and I can tell hon. Members that I would be taking the Minister to task if he behaved like that in my class. He could at least have the decency to listen while a point is being made.

At the start of this process, the Minister said he wanted to listen and that he was happy to take on good ideas. I have yet to see any evidence of that. I am at a loss as to how we actually improve this Bill. Is the Minister so confident in the absolute perfection of this Bill that not only will he not accept any amendments from the Opposition, but he has not tabled any amendments from his own colleagues? I have never seen this in a Bill before. It is unheard of.

Going back to my amendments, there must be independence in the decision-making process. That would give clarity and increase public confidence in the process that is undertaken. Surely, if this Bill is so good, the Minister has nothing to fear from a politically unbiased head considering the evidence and making decisions on whether to prosecute.

[Mr Jones]

I thank the hon. Member for Glasgow North West for the amendment. I am not sure that I totally agree with it, although I agree with the spirt of it. The hon. Lady is trying to ensure judicial oversight of these decisions. Her recommended route is the Crown Prosecution Service, and she is right, in that that is at least a judicial process that is separate from the Attorney General, who is a political figure.

Coming back to my remarks about clause 4, the reason the CPS was set up in the first place is because it was the police who investigated and then also took the decision to prosecute, so the CPS was brought in, quite rightly. Has it improved the system? Yes, it has. Do we always agree with what the CPS comes up with? No, we do not, and I doubt whether we always would in every legal case. However, as the hon. Lady said, that does not mean that the process is weak in any way. It means that it is legally robust.

The hon. Lady is suggesting the CPS, but my concern relates to the service justice system. I would rather the Advocate General decided, although I say that in the same spirit as the amendment. The other concern, which a number of witnesses raised, is about the role of the Attorney General as a political appointee. I think Judge Blackett mentioned that in its recent judicial reforms Kenya has made its Attorney General politically independent for that exact reason: so that the position is seen as being above politics.

That is important, because in the case Marine A, which has been raised before, there was a lot of publicity at the time in the newspapers and campaigning about why that person was being prosecuted, often without knowing what had occurred or having seen the video or other evidence that was put forward. If the Attorney General had been the final arbiter of whether to prosecute in that case, they would have come under huge political pressure not to prosecute, and that would not be right.

The other side to this is our standing in the world. If we are to have a system where we properly investigate alleged crimes and have a fair process to decide who to prosecute, then ultimately, although there are other issues in the Bill that raise problems, if it is down to a political appointee whether someone is prosecuted, the International Criminal Court and others would take a dim of that, in the sense that it would be a political decision, not a judicial decision.

It is interesting to look at it from the angle of someone who has been through the process. When Major Campbell gave evidence to the Committee, the hon. Member for Wolverhampton South West asked him:

“Thank you, Major Campbell. It is an absolute disgrace…Will you confirm whether you welcome the Bill or whether you are against it?”

Major Campbell went on to say:

“I fully welcome the Bill, both in its intent and in its content. Again, in my amateur legal opinion, there may be a legitimate argument to be had over whether the Attorney General is the correct address in terms of being the final arbiter of further prosecutions, due to the advice he gives to the armed forces on the legality of a conflict.”

He then went on to be quite disparaging, because of his frustration, which I think we all understand:

“My other slight concern is that previous Attorneys General have done us no favours...Lord Goldsmith had a lot on his shoulders…When I appealed to Jeremy Wright, and when he gave evidence to the Defence Sub-Committee…he took the view that this was an entirely fair process”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 24, Q54.]

He was concerned about the role of the Attorney General.

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[Mr Jones]

Does my hon. Friend agree that this Government and the previous one have been reluctant to allow Parliament to see that advice and have had to be brought kicking and screaming to produce it for our scrutiny of the decisions?

[Chris Evans]

The decision not to present the rationale, what advice was taken and how the Government arrived at their decision have eroded trust in politics and have been a problem for as long as I have been in the House. We have an opportunity with the Bill to start to rebuild trust in the decisions that the Government make. I hope that that Government will take that on board.

The Attorney General should be required to publish a report on the findings to reassure Parliament and the public that a decision has not been a political one. Many of the issues we have had in the past few years—the north-south divide and Brexit and remain—would have been avoided if the advice had been published and made transparent and fair. When we are making decisions, especially about our service personnel—some of the bravest people in this country—we must ensure that the public interest is at the heart of decision making. Dominic Grieve believes that the fact that the courts can review a decision by the Attorney General may create more litigation rather than reduce it and simplify the process. There is already a backlog of court cases, and we do not want to add to it.

[Chris Evans]

The hon. Gentleman has a lot of experience in this area. If I was Chair of the Backbench Business Committee, he would just have talked himself into a debate on the Floor of the House. If he will forgive me, I shall stick to the amendment, because as I said earlier, we should have at least a 90-minute debate in Westminster Hall on that point.

The concerns expressed by Dominic Grieve have been echoed by His Honour Judge Jeffrey Blackett, who stated that

“the decision of the Attorney General to prosecute or not prosecute certain cases is likely to lead to judicial reviews and, as Mr Grieve stated, more litigation.”

In the Bill’s evidence sessions we heard from the most recent Advocate General of the Armed Forces. He expressed deep concern that this decision should be taken away from the Director of Public Prosecutions:

“My concern about the Attorney General’s consent is that it undermines the Director Service Prosecutions. If I were he, I would be most upset that I could not make a decision in these circumstances.” ––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 125, Q267.]

It is quite clear that by taking this responsibility away from the Director Service Prosecutions the Government intend to assert a certain level of political control over these decisions. I hope that when the Minister responds he will give us a full explanation.

This is a risky decision from the Government. If they do not comply with the Geneva convention in making such decisions, that could add to the reputation, which they appear to be determined to establish around the world, that the UK no longer respects international law.

[Mr Jones]

Does my hon. Friend agree that by inserting, as the Bill does, a politician into that prosecutorial process, questions will be raised about our obligations under international treaties where there should be independent judicial oversight, not political decisions?

[Chris Evans]

That goes back to my earlier point. As my right hon. Friend says, inserting a politician would mean only more cases where the courts are asked to review the decision of the Attorney General, which would have the knock-on effect of clogging up the courts when we do not need that. It could be nipped in the bud simply by producing a report.

Disregard for international law is not only wrong but sends the wrong message to the British public and the rest of the world. Some have argued that it will even put our service personnel in more danger. Sir Malcolm Rifkind, QC, an ex-Defence Secretary, warned that the Bill will put soldiers at greater risk if Britain is seen to ignore international law. In a letter to Downing Street, he wrote:

“It would increase the danger to British soldiers if Britain is perceived as reluctant to act in accordance with long established international law.”

Similarly, Lieutenant Colonel Nicholas Mercer, who was a senior military adviser, said that the Bill

“undermines international humanitarian law while shielding the government”.

While the Government may be able to shield themselves from blame, soldiers may find themselves in the International Criminal Court, whose jurisdiction will be triggered if the Government chooses to avoid prosecuting. In fact, Judge Blackett raised that concern with the Committee. He said that

“the Attorney General has to consent to prosecuting any International Criminal Court Act 2001 offence—that is, genocide, crimes against humanity or war crimes. Under section 1A(3) of the Geneva Conventions Act 1957, he has to consent to prosecuting any grave breaches of that Act, and under section 61 of the Armed Forces Act 2006, he has to consent if a prosecution is to be brought outside of time limits.”––[Official Report, Overseas Operations (Service Personnel) Public Bill Committee, 8 October 2020; c. 125, Q267.]

If the Attorney General must consent in those circumstances, what is the need for a political appointee to be involved in the decision making? Why not allow the Director of Public Prosecutions or the Advocate General in Scotland to make the decision?

That leads to concerns that the Government intend to break international law and politicise prosecutions. If that is the Government’s plan, it must be scrutinised by the House so that we can understand the reasoning. Ultimately, the public deserve to know why the Government would deem it fit to break international law and damage the reputation of our troops serving abroad.

Another voice we were grateful to hear from in our evidence sessions was that of General Sir Nick Parker. He added a further concern about the damage to Britain’s reputation if we are not seen as a country that respects international law, which will not only damage the reputation of and endanger our troops serving abroad but have more complex results. He said:

“If there is some doubt about this—”

the willingness of the UK to break international law and the Geneva convention—

“and we are viewed in the international community as being prepared to operate outside norms, there is an implication for the people who will have to command in the international community.”— [Official Report, Overseas Operations (Service Personnel) Public Bill Committee, 8 October 2020; c. 99, Q203.]

He expressed concern about not knowing whether that would affect the willingness of other countries to work with the UK armed forces. If other countries are less willing to work with our forces, that creates additional problems for our troops. He later said

“I believe that we need to be consistent with our coalition partners. All I would add is that you cannot predict who your coalition partner will be, because we do not know whom we will be fighting with in the future.” [Official Report, Overseas Operations (Service Personnel) Public Bill Committee, 8 October 2020; c. 100, Q206.]

Today’s friend is quickly tomorrow’s enemy. Therefore, there must be that certain consistency provided by international norms.

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[Chris Evans]

I am glad the Minister nods in assent.

The present Attorney General has been accused of advising on legal matters from a political standpoint. The Scottish National party’s Attorney General spokesman, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), has accused our Attorney General of putting her political loyalties ahead of her loyalty to the rule of law when it should be the other way round. If the role of the Attorney General is seen as a political one, involving them in this Bill politicises—

[Mr Jones]

Does my hon. Friend agree that if we have the Attorney General involved in this, matters will end up in the courts? Again, it raises a false flag to servicemen and women that somehow this will stop prosecutions. If something is overturned by the Supreme Court or whatever, the prosecution will still go ahead, so the longstop is not achieved.

[Chris Evans]

It is not. I would like the Minister to answer this conundrum that I came up with when I was listening to my right hon. Friend’s very good speech earlier. The trouble that I see with the Attorney General being involved is that if we have a civil case that is ruled out after six years, according to the Bill, and we have new evidence that emerges from the previous case—this is an important point—the Attorney General then decides to prosecute. That person is then found guilty of a crime and damages are given out. We have a situation where we have a criminal court giving compensation for a case that has already been struck out. That is an anomaly in the Bill that I hope the Minister will address because it is a concern. Given the mixed opinions on the role of the Attorney General, and the general cloudiness of what their role and priorities ought to be, the requirement to produce reports on their decisions to prosecute or not seems entirely sensible.

[Mr Jones]

Would it not also be the case that we would not know how the Attorney General made a decision in terms of legal thresholds and suchlike? There will be a political decision, and there is no guidance in the Bill on what the important factors would be for an Attorney General to make his or her decisions.

[Chris Evans]

From a legal perspective, it is really important that when an Attorney General gives their advice, they do that through the process of legal precedent, statutory interpretation or whatever we want to call it. It is extremely important that when the Attorney General arrives at Parliament with their advice, they have a very strong legal argument. They have consulted academics or leading lawyers, presumably in the area of human rights, and they have crossed all the t’s and dotted all the i’s, and when they come before Parliament, they are confident in their decision. That is why it is extremely important that a report is presented, because at least they can cross-reference how they arrived at the decision. It also gives confidence in the decision. If the case does end up in court, they are standing in a stronger legal position than they would be if they had not released that advice.

As there is a long-standing worry about the balance between law and politics in the role of the Attorney General, it surely makes sense that the Attorney General, if they are to be involved in this Bill at all, is required to publicise the decision. That would ensure that prosecutions covered by the Bill continued to be legal matters or could be at least scrutinised by other bodies to regulate them. It would ensure that party politics was not placed above the law.

It is a judicial process that the Government are concerned with. It should not be politicised or manipulated by party politics in any way, shape or form. If the Government feel the need to grant the power of decision over prosecution to the Attorney General rather than an independent legal body such as the Director of Public Prosecutions, the process must be entirely transparent, so that all those involved can clearly see the thinking behind the decisions. There is no reason why that information cannot be shared. It should and must be subject to parliamentary scrutiny.

[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.

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Question proposed, That the schedule be the First schedule to the Bill.

[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.

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[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.

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[Mr Jones]

I want to speak to clause 8 and my new clause 9. Does the Minister want to do the right thing by our armed forces personnel? I think he does. I have never questioned his determination to do that. Again, the problem with the Bill is its unintended consequences.

Part 2 is a key part of the Bill. As my hon. Friend the Member for Portsmouth South said, it cannot be right that we will pass legislation that will mean that our servicemen, women and veterans have fewer rights than prisoners. The Limitation Act 1980 is there for a good reason. In the Minister’s comments in The Sun newspaper on Sunday, he said he will give a guarantee that servicemen and women will not lose out in part 2. I would be interested to know how he will do that, given the six-year longstop.

I do not doubt the Minister’s commitment to what he said in that newspaper article, but—to use the old Robin Day quote from his famous interview with John Nott—the Minister, like us all, is a “here today, gone tomorrow” politician. It is important to ensure this legislation is future-proofed. Irrespective of what the Minister says in his article, which is well intentioned, he cannot give that guarantee. Again, I do not question his motives for saying what he did.

The Minister has a higher trust in the MOD than I do when it comes to protecting servicemen and women. The Limitation Act, section 33, is very clear: it sets out the exceptional circumstances. In our evidence, we heard that although they are exceptional circumstances, they are not uncommon.

The Committee heard evidence of one example; I will give another, which, having spoken to a friend of mine who deals with personal injury, I think falls within the scope of this, too—of the Snatch Land Rovers in Iraq. The families of the individuals killed in the Snatch Land Rovers were not aware of the failings—not failings of the chain of command, but of the procurement—until the Iraq inquiry took place. They then sought legal redress against the MOD, because they thought a decision had been taken that had put their loved-ones in jeopardy. It was many years later, so it was outside of time, but they were able to use section 33 of the Limitation Act to bring a case, which, according to the evidence we heard, they then settled.

My other concern with the MOD—again, referred to in the evidence sessions—is that it employs clever lawyers. It will use the provision as a way of stopping any case that comes forward, as a first hurdle for the claimant to get over. That means that there will be no right of appeal for those individuals. If the Bill had been in force during the case of the Snatch Land Rovers, those families would have had no redress at all. At the end of the day, the measures protect only the MOD; they do not protect our servicemen and women, as the Minister would like. Again, we come back to the Bill’s problem of conflating civil and criminal cases.

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[Chris Evans]

As my right hon. Friend has been speaking, I have been thinking in particular of the people serving in the Royal Navy who were affected by asbestos. In the 1950s and 1960s, asbestos was this magic formula—used everywhere from schools to garden sheds. Then, years later, it was found to cause tumours in the lungs. That caused serious problems to our servicepeople, but the evidence did not emerge for 30 years. People may be using chemicals now that we do not understand. How would the MOD be held responsible, and families be properly compensated?

[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.

[Carol Monaghan]

This is exposing an ambiguity right here, right now. Up until this point, the Minister has talked about the point of knowledge of the injury or the disablement. Now, he is talking about the point of knowledge of the issue with the equipment. What are we talking about and where in the Bill is that differentiated? If there is no clarity, we will have a situation with lawyers because of that ambiguity.

[Mr Jones]

Yes, and the lawyers will use it to protect the MOD. Like I say, if the Minister and I had to judge, we both would say “Yes, give the benefit of the doubt to the veteran.” I certainly would. However, neither he nor I will be there. It will be down to some Minister in the future and some lawyer to do that.

Coming on to asbestos, let me give an example. The issue in the early test cases on asbestos that I dealt with was about the date of knowledge. As my hon. Friend the Member for Islwyn just said, the issue with asbestos and asbestos-related diseases is that they can lie dormant for 20 or 30 years. It is an indiscriminate issue. I have met men who worked with asbestos and have what they call asbestos scars—asbestos in their skin—with no symptoms whatsoever and no health effects at all. I have also dealt with cases where a doctor and a nurse, who were just walking through a tunnel where an asbestos pipe was broken and were being covered in asbestos every day, developed mesothelioma, which we all know is a death sentence within 18 months to two years.

The MOD used to have a get-out because of Crown immunity; it could not be sued. As such, we are bringing back time-barred Crown immunity and saying to people that they cannot take cases against the MOD. Would cases around asbestos be time barred? I do not know. Again, why change it? I accept what the Minister is saying—we do not want frivolous and vexatious cases—but if they are time barred, there is a perfectly legitimate system in place at the moment called the Limitation Act, which allows people to take a case forward, if they wish to or their legal representatives feel there is a case.

[Chris Evans]

My right hon. Friend has, like me, worked with many constituents on this issue. Plural plaques may or may not develop into full-on asbestosis, but if someone develops the plaques within six years and then goes on to develop—God forbid—the worst kind of asbestosis, how does he see the MOD addressing that anomaly with the Bill?

[Mr Jones]

That is the point. I do not want to go off piste and explain the issues around pleural plaques, but I am a little bit of a sceptic on this. Although pleural plaques are lung scarring, I have not yet been convinced of any evidence that every case turns into something asbestos-related. It can be an indicator but it does not always go on to that.

Again, the MOD used to have Crown immunity, which used to mean that a case could not be brought against the MOD; that is what we are doing. Certainly in cases involving submariners who worked in submarines—as my hon. Friend the Member for Islwyn said, they threw asbestos around like confetti, as it was the great wonder material at the time—they would be time barred under the Bill. Again, coming back to what the Minister said, were it he and I then yes, I would agree, but lawyers will use that.

I do not understand why part 2 is there. Why would the Government want to put veterans and servicemen and women at a disadvantage? The Limitation Act is there for a perfectly good reason; it acts as a sieve because the person involved has to go before a judge and argue an exceptional reason as to why that case has not been brought within that period of time. From my experience in dealing with limitation cases for industrial diseases, for example, they are hard to prove, so it does act as a sieve.

If the Government are wanting to ensure that we are not getting huge amounts of unwarranted claims, the Limitation Act, as it stands at the moment, acts as that protection because the bar is high. In the cases where it does apply—with Snatch Land Rovers for example, the paint case I mentioned, or other cases, including those on hearing loss—it is very important, and I cannot support anything which means that our servicemen and women will be at a disadvantage.

In the evidence we took, Hilary Meredith said:

“I think that part 2, on the time limit, should be taken out and scrapped completely. It is the time limit for the procedure. It went on too long”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 19.]

She then referred back to investigations, which we come back to all the time. The other issue that she and a few other witnesses raised was the Human Rights Act 1998. I know that a lot of people start frothing at the mouth and gnashing their teeth whenever we mention the Human Rights Act, because it always applies to those that do not deserve justice—the ne’er do wells, asylum seekers and everyone else—but it is actually there to protect us all.

There are cases where servicemen and women will bring cases against the MOD under the Human Rights Act. One of the arguments—and I think the reason why, in this Bill, the Human Rights Act is a bit of a bogeyman—is that somehow the Act will impinge on the ability of servicemen and women to do their work. I do not accept that because, looking at the Smith case, the Human Rights Act was not an impediment; it clearly separated out combat immunity—that is, that lethal force must be used on occasions. Putting a time limit on the ability for servicemen and women to bring a case under the Human Rights Act would be a disadvantage to them.

Hilary Meredith says in her evidence that:

“There is a difficulty putting a time limit on the Human Rights Act…For civil claims against the Ministry when people are injured or killed in service overseas, I do not think a longstop should be applied. There are tremendous difficulties in placing people in a worse position than civilians. In latent disease cases—diseases that do not come to light until much further down the line, such as asbestosis, PTSD, hearing loss—it is not just about the diagnosis. Many people are diagnosed at death.”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 06 October 2020; c. 18, Q30.]

Again, that is something that I dealt with when I dealt with asbestos cases. The only time that a lot of people knew about them was when there was a death certificate. On more than one occasion, I stopped funerals to ensure that we had done the proper post-mortems.