Overseas Operations (Service Personnel and Veterans) Bill

Lord Beamish Excerpts

Wednesday 21st April 2021 Commons Chamber

Subsection (2) includes a requirement for referral of investigations to the service prosecuting authority and sets an arbitrary timeline for that. However, a referral threshold—the evidence sufficiency test—already exists in the Armed Forces Act 2006. Furthermore, section 116 of that Act contains a statutory obligation on the service police to consult the service prosecuting authority before deciding not to refer certain serious cases.

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

I welcome the Minister to his position—it is a long overdue promotion and a vast improvement on what went before. He said that the Henriques investigation will make recommendations. In Committee, I tabled a series of amendments that would get to the heart of the matter. The real issue in the Bill is the length of investigations. I accept that it should not be arbitrary. In Committee, I proposed that investigations would have to be brought before a judge to ensure that at least there were grounds for them to continue. If the idea is to let the Bill go through now and make changes later, surely we should make them in this Bill rather than miss that opportunity.

[Leo Docherty]

I am grateful for the right hon. Gentleman’s intervention and note his long-standing interest in the Bill and the issues more broadly. We must have confidence in the Henriques review. I do not believe that there is a tension between a good outcome for the review and the necessity of passing the Bill in good order. However, if the right hon. Gentleman writes to me with those concerns, I would be pleased to write to Justice Henriques to suggest that he include them in the scope of his inquiry.

[Mr Jones]

I am grateful for the Minister’s offer to do that, but the problem, which I will address later, with the Bill is that it is being done ad hoc. The Minister’s predecessor promised that investigation would be in the Armed Forces Bill. Lo and behold, it is not and has been kicked into the review. If we are really to address the issue of veterans being reinvestigated, the problem is the length of the investigations, not whether there should be prosecutions at the end. That is a judicial test. That is the mess that the Government have got into with the entire process.

[Mr Davis]

rose—

--- Later in debate ---

[Mr Kevan Jones]

The Minister has said he does not want to discriminate against people, but with this measure he is discriminating against members of the armed forces. He refers to claims being brought against the MOD, but a lot of those cases are actually brought by members of the armed forces. He says that 6% will potentially be discriminated against, and we heard evidence about that in Committee.

I will give the Minister one practical example. The Snatch Land Rover case came before the courts way after the fact, because it came out in the Chilcot review. Families were able to take those cases forward outside of the limitation time. There is an idea that somehow people can get a case out of limitation times without very good arguments, but that is difficult. What this measure is doing is taking the rights that we all share as individuals under the Limitation Act 1980 and saying that they do not apply to people who have served in our armed forces. That is wrong.

[Leo Docherty]

I do not share the right hon. Gentleman’s analysis. We have to bear in mind the fact that 6% is a small number. However, it is still too high, and we will work to get it down to zero.

It is worth reminding ourselves that the limitation longstops will cover only a small subset of the personal injury claims brought by current and former service personnel against the Ministry of Defence—those connected with overseas operations. Additionally, personnel will continue to have access to the armed forces compensation scheme. Let me conclude by confirming that part 2 of the Bill will not breach the armed forces covenant, which states:

“Those who serve in the Armed Forces, whether Regular or Reserve, those who have served in the past, and their families, should face no disadvantage compared to other citizens in the provision of public and commercial services.”

The primary focus of the covenant is to help ensure that service personnel and veterans are not disadvantaged in comparison with civilians in the same position. Indeed, the longstops in part 2 will apply in the same way to all claimants bringing claims connected with overseas operations against the MOD, whether they are military personnel, civil servants, contractors or local nationals. Everyone, military or civilian, who is deployed on an overseas operation is treated equally in that respect. I therefore urge the House to reject the amendment.

Lords amendment 5 would require the Secretary of State to establish a duty of care standard for current and former service personnel and, where appropriate, their families, and would require the Secretary of State to provide an update in the armed forces covenant annual report. I would like to begin by saying that we take our responsibilities to our service personnel and veterans extremely seriously. On Tuesday 13 April, the Secretary of State published a written ministerial statement setting out as a matter of record the support that is, and will continue to be, available. First, that makes clear that service personnel are entitled to receive legal support where they face criminal allegations or civil claims that relate to actions taken during their service and where they were performing their duties. Legal advice and support are also available whenever people are required to give evidence at inquests and inquiries, and in litigation.

Secondly, a range of welfare support and mental health support is routinely offered to all service personnel. The potential impact of operations on a serviceperson’s mental health is well recognised, and there are provisions in place to help manage and mitigate those impacts as far as possible. Additionally, the Office for Veterans’ Affairs works closely with the MOD and Departments across Government, the devolved Administrations, charities and academia to ensure that veterans’ needs are met.

Significant progress has been made to ensure that our service personnel and veterans have access to a comprehensive package of legal, pastoral and mental health support, so we believe that it is unnecessary to establish a statutory duty of care. Not only is Lords amendment 5 unnecessary but it could result in unintended consequences, and would be likely to lead to an increase in litigation, which would mean more of our people being subject to potentially lengthy and stressful court proceedings, which is profoundly undesirable and contrary to the Bill’s objectives. Notions of moral and pastoral duties are extremely difficult to define adequately, and there is a real risk that attempting to do so in legislation would lead to more, rather than less, litigation and greater uncertainty. We are concerned that as allegations may occur in operational theatres involving commanding officers, the Royal Military Police and service personnel, the amendment might have unintended consequences that would undermine our operational effectiveness. The Government are clear about their responsibilities to provide the right support to our personnel, both serving and veterans, and to seek to improve and build on that wherever necessary. I do not believe that setting a standard duty of care in the Bill is necessary, so the Government cannot support Lords amendment 5.

Lords amendments 6 to 8 are minor and technical, and are simply drafting improvements. All in all, I urge the House to accept the Government amendments in lieu of Lords amendment 1, and to reject Lords amendments 2, 4 and 5 so that we can fulfil our solemn obligations for greater legal protection for our service personnel and our veteran community.

--- Later in debate ---

[John Healey]

I believe that if the right hon. Gentleman consults Lords Hansard, he will see that Lord Mackay was speaking to another amendment. I am talking about the four main amendments that are before us today.

I know there has been a long-running problem. The Labour party accepts and recognises the problem of baseless allegations and legal claims arising from Iraq and Afghanistan under both Labour and Conservative Governments. But the Bill, unamended, is not the solution, even though we have worked hard from the outset to forge consensus on the changes needed to make the Bill into legislation that best serves the interests of British troops, British justice and British military standing in the world. I take a perhaps old-fashioned view that it is our duty in this House and the other place to make this legislation fit for purpose, and ensure that it is a new legal framework for this country when we have in future to commit our servicemen and women to conflict overseas.

I thank and pay tribute to the work of the organisations that have been most active in helping parliamentarians in both Houses during the passage of this Bill with their expertise and views. Those organisations include Freedom from Torture, Reprieve, the Royal British Legion, the Centre for Military Justice and the Association of Personal Injury Lawyers. I also pay tribute to Members on both sides of this House, particularly the 15 who served with our Front-Bench colleagues on the Public Bill Committee and who have contributed so fully to the debates that we have had so far.

Let me turn to the Lords amendments on which I will concentrate. The reason that no Tory peers spoke in support of the Government on these amendments is because the Bill just does not do what it says on the tin—that is, protect British forces personnel serving overseas from vexatious legal claims and from repeat investigations.

I turn to Lords amendment 2. More than 99% of the 4,000-plus allegations against our troops arising from Iraq and Afghanistan would not have been affected at all by this Bill, because it relates only to the prosecution’s process and the prosecutorial system. That is why Lord Boyce, former Chief of the Defence Staff, said:

“The Bill’s significant emphasis on presumption against prosecution as a way of relieving some of the stress of legal proceedings”

is misplaced, and that,

“it is the investigation and reinvestigation process that…so…wears people down.”—[Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1170.]

I turn to Lords amendment 4. Part 2 of the Bill strips forces and forces’ families of their current rights to civil justice and compensation if they suffer injury or even death as a result of MOD negligence. That is why Lord Stirrup, also a former Chief of the Defence Staff, said:

“It seems strange to me that a Bill with the avowed purpose of providing government reassurance to service personnel seems intent on preventing those very personnel from seeking redress from that same Government.”—[Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1222.]

I turn to Lords amendment 1. The presumption against prosecution after five years increases the risk of British service personnel being dragged before the International Criminal Court. That is why the former Judge Advocate General—the military’s most senior legal figure—said in evidence to the Bill Committee itself:

“What it actually does is increase the risk of service personnel appearing before the International Criminal Court.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 117-18, Q234.]

Of course, the ICC’s chief prosecutor has indeed written to the Defence Secretary while the Bill has been in Parliament

“to ensure that the exemption clause extends to all crimes within the jurisdiction of the Court”.

Otherwise it would “render such cases admissible” before the International Criminal Court.

I turn to Lords amendment 3. I am pleased that the Government have accepted the case for removing clause 12, which would have required Ministers to consider derogating from the European convention on human rights before committing British troops to overseas conflicts. We challenged this with a Labour amendment at the very earliest stage of the Bill’s passage through the Commons. The decision to drop the clause reasserts the UK’s commitment to an important treaty that Britain played a leading role in drafting. It is important too in allowing an avenue of justice for both British forces personnel and for victims.

Let me turn to the core of the debate and concern in the House of Lords, which is Lords amendment 1 and the Government’s counter-proposals before the House this afternoon. The Secretary of State’s decision to accept parts of Lord Robertson’s amendment to exclude torture, genocide and war crimes from the presumptions is welcome, and it is testament to the efforts of Lord Robertson, many other groups and, indeed, Members of this House. I pay particular tribute to the right hon. Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Barnsley Central (Dan Jarvis), who together have banged the drum about the importance of torture not being carved out from provisions in the future.

The acts that Lord Robertson and so many Members of the upper House were concerned about are illegal and immoral. Under all circumstances, they must be investigated and, if there are grounds for the allegations, there must be prosecutions and punishment. The Minister talked about rectifying an omission with the Government’s amendments in lieu of Lords amendment 1. However, the Government are still picking and choosing some of the crimes that are covered by the Geneva conventions. Today they have picked out torture and genocide, but they are excluding the more general case of war crimes.

Torture and genocide should never have been included as offences within this Bill. Like sexual offences, there is no justification—there can never be justification—for them, so the decision now to exclude them is certainly a good step forward, and we welcome it and will support the Government’s amendments in lieu of Lords amendment 1. But can I urge the Minister, in the time between the consideration of these Lords amendments in this House and their being discussed again in the other place, to accept in full those crimes specified in Lord Robertson’s amendment 1, including war crimes, as excluded offences?

[Mr Kevan Jones]

Clearly those are the arguments we made in Committee, asking why sexual offences were excluded but these very serious crimes were not. If the Government have given way on two, I have not yet heard an explanation from the Minister as to why war crimes are not going to be excluded. It is not only right that they should be excluded but, in terms of the UK’s international reputation, it would save a lot of embarrassment. I want to avoid, and I think everyone wants to avoid, members of our armed forces ending up in the International Criminal Court.

[John Healey]

Indeed, my right hon. Friend makes an important point. I have touched already on the risk that this will undermine Britain’s international reputation for fully upholding and adhering to many of the international rules and laws that we were instrumental in drafting and creating after the second world war. The Minister describes torture and genocide as omissions from the provisions of the Bill, and he rectifies that with his proposed amendments in lieu of Lords amendment 1, but it is not clear, as my right hon. Friend says, why other crimes covered by the Geneva conventions, particularly war crimes, are still omitted, because exactly the same arguments apply to those as to the ones the Government have rightly conceded on and reflected in their amendments in lieu.

Let me spell it out for the Minister. Article 8 of the Rome statute says that war crimes are:

“Grave breaches of the Geneva Conventions”.

This dates back to 1949, just after the second world war. These grave breaches include:

“Wilful killing… Wilfully causing great suffering, or serious injury… Compelling a prisoner of war or other…to serve in the forces of a hostile Power”.

That is important because, as both the Judge Advocate General and the chief prosecutor of the International Criminal Court, and Members on both sides of the House this afternoon, have made clear, not excluding these offences makes it more likely that British soldiers risk being prosecuted and pursued in the ICC.

As my right hon. Friend rightly said, it is also about our adherence to and respect for international law. If we ourselves meet the highest standard of legal military conduct, we can hold other countries to account when their forces fall short. If we do otherwise, it compromises our country’s proud reputation for upholding the rules-based international order that Britain itself has helped to construct since the days of Churchill and Attlee.

I ask the Minister and his colleagues in the MOD, when the Bill returns to the other place, to include war crimes as excluded offences, along with the other exclusions that he lists in his amendments in lieu of Lords amendment 1.

--- Later in debate ---

[John Healey]

The right hon. and gallant Gentleman has experience of conflict. I do not know whether a legal mind, which mine certainly is not, would regard that as wilful killing, but as such, it is probably an act that is beyond the categories of specific crimes cited in the Government’s amendment that excludes them from the provisions of the Bill. That underlines the case I am making, for which I am grateful to the right hon. Gentleman, that that category of Geneva convention-defined crimes, including war crimes, really must be excluded from the presumption in this Bill; otherwise, we face the risks that we are discussing this afternoon of exposing our forces to potential action from the International Criminal Court, which none of us wants to see, and of dragging down the reputation of this country for upholding in full and fully adhering to the international rules and standards of military legal conduct.

I turn to Lords amendment 2, on investigations. I said earlier that the Bill does not yet do what it says on the tin. We were told that this Bill would bring an end to the harassment of forces personnel through repeated legal claims, but because it deals only with prosecutions and not with investigations, it will not do that. Only 27 prosecutions arising from Iraq and Afghanistan have been registered, yet 3,400 allegations were considered by the Iraq Historic Allegations Team and 670 from Operation Northmoor. Therefore, less than 1% of allegations were prosecuted. The problem here is investigations: the serious, consistent problems that lie in a system of investigation that has proved to be lacking in speed, soundness, openness and a duty of care to alleged victims or the troops involved. Those are all problems well before the point of decision about prosecution, which is the point at which the provisions of this Bill kick in.

The Minister describes the proposals in Lords amendment 2 as somehow premature and cites Henriques. I am aware, of course, that the Government have set up a review on this, but there have been three reviews already and he might want to ask his officials to dig them out for him. There have been three reviews in the past five years, with at least 80 recommendations on investigations that the Government could act on now. The Minister and his predecessor promised us that investigations reform would be a matter for the Armed Forces Bill, as my right hon. Friend the Member for North Durham (Mr Jones) has said, yet when that Bill was brought before the House nothing was included.

[Mr Kevan Jones]

I have sympathy with the Lords amendment on investigations, but I think that the new clauses 6, 7 and 8 that I tabled in Committee would have been far better. My new clause 8—I think it was that one—sought to put a time limit on minor investigations; they could go before a judge and be dismissed, and that would reduce the numbers. The other thing is the need to have judicial oversight of the investigations. That is not saying that we do not investigate things; it is about having rigour in ensuring that investigations are being done in a timely way, and can carry on if more evidence needs collecting, and that, likewise, reinvestigations can be opened only where a judge determines that new and compounding evidence is brought forward. That is the gaping hole still in this Bill even if we agree to the Lords amendment, which I have sympathy with. Without that, my right hon. Friend is right: this Bill does not pass the Ronseal test, because it does not do what it says on the tin.

[John Healey]

My right hon. Friend is right to say that there is a gaping hole. This is the gaping hole in this Bill, and it could be fixed. It could be fixed in the way that was proposed and passed to us by the Lords in their amendment 2. I guess the Minister might want to ask his officials to dig out my right hon. Friend’s new clauses 6, 7 and 8 from Committee, because, having served in this House for a long time with him, I can bet strongly that those new clauses will resurface in debate on the Armed Forces Bill, because once he gets his teeth into something, he is reluctant to let it go.

[Mr Jones]

My right hon. Friend is correct, but the problem is that the previous Minister promised that investigations would be part of the Armed Forces Bill and, lo and behold, they were not there. The Government have therefore had two chances to put this right and clearly have still not done it.

[John Healey]

Indeed. Madam Deputy Speaker, I am not going to get tempted on to the Armed Forces Bill any further in case you call me to order. Let me address my remarks to this Bill and these Lords amendments, particularly Lords amendment 2.

I have to say to the Minister that I am pleased that the Secretary of State has now taken a personal interest in this Bill, because that is helpful all round and I hope it will ensure that we can see it go smoothly on to the statute book. Lords amendment 2 proposes a tried and tested mechanism to improve investigations. It is not arbitrary, as the Minister told the House earlier. It is not a time limit; it ensures timely, not time-limited investigations. It is not unrealistic, because it has been tried and tested in civilian law. This is one of the reasons why the former Judge Advocate General is so keen on it. I am conscious that the Secretary of State believes that the proposals in Lords amendment 2 are somehow novel or that they may prejudice independent investigations. So I say to the Minister, and I have communicated this today to the Secretary of State, that they are not novel and they will not prejudice the independence of investigations, for the following reasons.

In civilian law, which is the model and the principle that we take here, there is in section 127 of the Magistrates’ Courts Act 1980 a six-month time limit on investigations for certain offences. It establishes the target, if we like, not a hard limit, and focuses the mind of the investigators. That is the principle that Lords amendment 2 seeks to establish.

On prejudicing independent investigations, the principle of judicial oversight of investigations has already been established, not just in civilian law but in military practice. I quote the former Judge Advocate General, who said in evidence to the Public Bill Committee:

“I introduced something called ‘Better Case Management in the Court Martial’, towards the end of my time as the Judge Advocate General. That puts time limits on investigations. The most important thing about it is that a case, early on, goes before a judge, and a judge then sets out a timetable of what various things should do.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 116, Q231.]

In other words, it is not novel and does not prejudice the independence of investigations. It is a principle that is already established in the military system and established in statute in the civilian system. I hope the Minister will therefore accept the intent of Lords amendment 2, and that it is workable, is certainly in scope, is implementable and gives us the opportunity to fix really long-standing problems. I hope that he and the Government will start to see our proposals in this area as being additional to the current content of the Bill, not a direct challenge to it.

Let me move on to Lords amendment 4 and part 2 of the Bill. I cannot for the life of me I understand why the Government are asking their Back-Bench Members to support something that will strip away the existing rights of forces personnel and their families. It seems to me to be simply wrong for those who put their life on the line serving Britain overseas to have less access to compensation and justice than the UK civilians whom they defend or, indeed, their comrades whose service is largely UK-based.

Lords amendment 4 to part 2 of the Bill was designed to ensure that claims by troops or former service personnel are not blocked in all circumstances after six years, as they would otherwise be under the Bill. There are already safeguards in the Limitation Act 1980—at not just six years but three years—but this Bill now penalises a group of people by applying to them a unique deviation from that Act. It clearly constitutes a disadvantage for those armed forces personnel, their families and the veterans affected, and it directly breaches the armed forces covenant, as the director general of the Royal British Legion confirmed himself in evidence to the Public Bill Committee. Frankly, it really does beggar belief that Ministers are looking to strip from forces personnel and their families their right to justice—to penalise them instead of protecting them.

Let me put this into perspective, because I have sometimes heard Ministers dismiss this issue as affecting such a marginal, small group of people that it does not matter. Some of the cases that have eventually secured justice are deeply moving, deeply troubling and would have been blocked by this Bill. Numbers matter, but they are not the only criteria. Nevertheless, in the most recent financial year, the number of claims by forces personnel against the MOD for injuries was 2,796—up 70% on five years previously. Almost nine in 10 of those claims were for noise-induced hearing loss.

In speaking of hearing loss in evidence to the Public Bill Committee, the specialist forces solicitor Hilary Meredith said—and this points to the problem with the hard block after six years:

“In latent disease cases…it is not just about the diagnosis. Many people are diagnosed at death. It is about the connection to service. That connection to service may come much later down the line, and by that time they will be out of time to bring a claim.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 18, Q30.]

It is plain wrong, and I hope that the Government will, at this late stage, reconsider giving those who put their lives on the line for Britain overseas less access to compensation than the UK civilians they defend. Since 2007, there have been at least 195 cases of troops that would have been caught by the Bill and prevented from pursuing a successful claim.

[Mr Kevan Jones]

Does my right hon. Friend agree that the only people who will benefit from this Bill are the lawyers? I cannot for the life of me think why a Government would want to put into statute something that will discriminate against former members of our armed forces. This will clearly be a test case in litigation, and I cannot see what justification the Government will use when that litigation goes ahead for why they have scooped out a certain section of our society away from the Limitation Act, as he outlined. It would be better if they gave up now, rather than spend a lot of time later on—which they will—when this gets tested in the courts.

[John Healey]

My right hon. Friend says that he cannot see why the Government are pursuing this, but the director general of the Royal British Legion could. When he spoke to the Public Bill Committee, he said:

“I think it is protecting the MOD, rather than the service personnel”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q163.]

He is right. When my hon. Friend the Member for Portsmouth South (Stephen Morgan) pressed him and asked whether it would breach the armed forces covenant in his view, he said:

“That is what we think, yes.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 84, Q155.]

I turn to the last of the four main amendments at hand today, Lords amendment 5, which was moved in the other place by Lord Dannatt and is on the duty of care. One of the things that struck me most when talking to troops and their families who have been through the trauma of these long-running investigations is that they felt cut adrift—cut adrift from their chain of command and from the Ministry of Defence. The Public Bill Committee heard really clearly from Major Campbell. He gave dramatic evidence, and I am sure that the Minister has followed this; in fact, he was on the Committee, so he will have been there. When Major Campbell was asked what support the MOD gave him, he simply replied: “there was none.”

Of course, for veterans, it is even worse. For them, there is nothing—not even the chain of command—there for them. Although some of the previous decisions that the Government have taken—for instance, to cover the legal costs of those involved in the Iraq Historic Allegations Team investigations—were welcome, there should be and there can be a higher standard to reach for us in this regard.

When Lord Dannatt moved this amendment successfully in the Lords, he said:

“Defence priorities change; the fortunes of military charities fluctuate; Ministers come and go; but the law does not change. Amendment 14 would bring into law the good ideas and intentions of well-meaning Ministers and officials with whom we are currently united in common cause but who are strangely reluctant to enshrine the fruits of their endeavours in a Bill which will become an Act of Parliament and thus part of our law—a law to protect our people for all time from vexatious investigations and prosecutions.”—[Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1244.]

The former Veterans Minister wrote in his resignation letter last night:

“I remain genuinely appalled by the experiences of some of the Nation's finest people who have served in the Armed Forces.”

I say to the Minister, we can do better than this duty of care, particularly when the MOD has forces personnel and veterans subject to investigation or prosecution. I hope he will now accept this, so that we can establish a new duty of care standard and that legal, pastoral and mental health support is made available as a matter of course and a matter of duty by the MOD for those who are put under pressure and under investigation or prosecution.

I am coming to my conclusion, Madam Deputy Speaker. We are now legislating for the future. The Bill is not a framework that is fit for that future point when we must again commit our forces to conflict overseas. The Government are still getting important parts of the Bill badly wrong. I continue to believe strongly that, ultimately, the Government, Labour and the armed forces all want the same thing: we want to protect British troops and we want to protect British values. That is not, and should not be, a matter of party politics.

I end today as I ended our debates on Report back in November by saying this: it is late, but it is still not too late for Ministers to think again about the best way both to protect service personnel from vexatious litigation and to ensure that those who do commit serious crimes on operations abroad are properly prosecuted and punished. I urge the Minister and the Government to do just that in the very final stages of this Bill in Parliament.

--- Later in debate ---

[Mr Davis]

The bishops often vote against the Government. This is something where the military securitat—as it were—do not vote against the Government. They are people whose patriotism is unquestionable and whose knowledge is unparalleled in this area, so the Minister should pay great attention to them and take notice.

The aim of the Bill, as we have heard several times, is to shield our military personnel from being pursued by vexatious claims—I was going to say something rude about lawyers. It is a proper and worthwhile ambition and one that we should fully support. The Government have rightly made it clear—and this is the point on which I support them—that torture and genocide can never be acceptable and have excluded them from a five-year presumption against prosecution.

However, even with these concessions, there remains a fundamental problem. The Government have failed to exclude war crimes from the list of offences, as has been made clear by the Opposition spokesman. I asked the Minister whether he would clarify for me how he distinguishes between war crimes, torture, and genocide as subjects properly excluded from the Bill. Although he made a very skilful response he could not do it and I do not think anybody could do it. As my right hon. and gallant Friend the Member for Beckenham (Bob Stewart) made plain, war crimes include wilful killing: in the case he raised, the wilful killing of prisoners; the wilful killing of innocent civilians; and wilfully putting people through miserable pain or suffering. All those things are, quite properly, war crimes. They are, quite properly, things we would be held to account for by the rest of the world, let alone our soldiers being held to account by our courts and our judicial procedure.

I firmly believe that we cannot protect our own soldiers without correcting that exclusion. That is not just my opinion; it is the opinion of many of our experienced military leaders. Take Lord Robertson, the former Labour Minister—he was both Defence Secretary and NATO Secretary-General—who authored the amendment. He argued that the Bill would create

“a two-tier justice system in which troops acting for us abroad would be treated differently from other civilians in society.”—[Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1190.]

That cannot be right and that cannot be just. Indeed, it is not what our troops stand up for. It is not what they fight for. When they go abroad to fight, they do so because they stand up for our civilised values, and this is one of them. There is a certain quirk to that.

The Bill must give confidence to military personnel, complainants and other countries that the United Kingdom remains a stalwart upholder of the rule of law. There can be no greater test of our national character and no more important measure of our moral fibre than maintaining the highest of standards in this most difficult of tasks. We must get this right. If we get it wrong, we will be in the shameful position—this was made clear several times by the Labour party spokesman, the right hon. Member for Wentworth and Dearne—of putting our troops at risk of being summoned before the International Criminal Court. The chief prosecutor of that court wrote to the Secretary of State for Defence. When I saw the account of that, I wrote to the chief prosecutor and received a clarification. War crimes are plainly in the court’s sights. If somebody is alleged to have been guilty of a war crime and we exercise the presumption against prosecution as stated in the Bill, they will end up in front of the ICC. That is quite clear to me. That is not a risk, but a certainty.

[Mr Kevan Jones]

In Committee, we spoke at lot about the famous case of Marine A. Under this measure, that individual would not have been prosecuted after five years, but it is clear that he would have ended up in the International Criminal Court for what he did. He would not have been given the hearing he had in this country, not just in terms of the fairness of our judicial system but also on appeal, taking into account the specific nature of the reasons why that incident occurred. To me, it would be absolutely awful if such individuals were found before an international court, rather than a court in this country.

[Mr Davis]

For people watching who will not remember Marine A, he is a marine who effectively executed a wounded prisoner and went to prison for it.

--- Later in debate ---

[Carol Monaghan]

I thank the hon. Gentleman—yes, of course. We heard evidence directly from Major Robert Campbell in the Bill Committee, who has gone through 17 years of hell, of repeated investigations. There is no doubt that people looking at that—serving personnel and potential serving personnel—will consider their future career.

[Mr Kevan Jones]

The hon. Lady is right, but the missing point in this is investigations. It was heartbreaking to hear Robert Campbell’s evidence to the Committee, but if the Bill goes through as it stands, there will be nothing to stop another case like Campbell’s going forward in future. This has been sold as a way of stopping vexatious claims and investigations, but without change in investigations, it will not do that.

[Carol Monaghan]

And in fact could make it worse. If we throw the ICC into that as well, potentially, we could have a much worse situation for personnel who are facing prosecution.

On Lords amendment 3, any derogation from the European convention on human rights for future overseas operations would have set a damaging precedent for an international treaty—an international treaty that this country played a major role in drawing up. These proposals would have undermined the protections that the UK was so integral to establishing. We welcome Lords amendment 3 and are pleased that the Government have accepted it. It is one of those common-sense ones that should not have needed to come to this stage, but we have got there, so we are thankful for that.

On Lords amendment 4, I spoke on Second Reading and in Committee about the issue of the time limit on claims. One thing that was raised was that some personnel are told, while they are still serving, that they are unable to pursue a claim, which is false, or they are told by those higher up the chain of command that they do not have a valid claim. The nature of the armed forces is that, for many serving personnel, if they are told by their superiors that they are not able to do something, they will accept that. It is only when they find out years later that, actually, they do have a valid claim and they are able to pursue it, they will be able to take action, but with this six-year limit, that is problematic.

We very much welcome Lords amendment 4, but it does not go far enough. As has already been mentioned, it in effect creates an unfair two-tier system in which MOD civilian employees, or indeed the families of deceased personnel, will not be able to make claims beyond the six-year limit. So we will be supporting the amendment, but it is disappointing that it only applies to members of the armed forces.

The Government had the opportunity to strengthen Lords amendment 4 by widening it to apply to all, but instead they are rejecting it entirely so that everyone has the time limit applied. We have heard about those with hearing loss, and again I spoke in Committee about an individual whose significant hearing loss could not be pinpointed to one event and had got progressively worse. Certainly, the six-year limit would have caused problems for that individual to pursue a claim, as it would for claims relating to post-traumatic stress disorder, because that can manifest itself very differently in different people and it may be many years later.

I know the time limit is supposed to be from the point of diagnosis, not from the point of first symptoms, but even at the point of diagnosis the link would still need to be made to service, and if that was not done in a timely way, it would prevent further progress of a claim. Another such issue I have spoken about is that of the nuclear test veterans, who 60 or 70 years on are still looking for stuff, but they would be prevented from making any claims under this. It is notable that we should be making it easier for our personnel to make claims against the MOD when the MOD is seen to be negligent, but as has already been said, this legislation seems to be crafted specially to protect the MOD, not the personnel themselves. We should all be quite concerned about that, so we will be supporting Lords amendment 4 today.

Finally, on Lord Dannatt’s amendment—Lords amendment 5—which ensures care and support for personnel involved in investigations, I cannot see why every Member of this place should not be supporting it. I know the Minister has spoken about the reasons why the Government are not supporting this, but if all these structures are in place just now, why do we still have personnel who are not getting that support at the moment? If that support is already there and is not working, then we do need something, and if it has to be statutory, then it should be statutory.

I will finish my comments by saying that I hope, with the change of Minister, that we do see a change of attitude. I know it will surprise Government Members, but occasionally Opposition Members may have points that are worth consideration. We are not always out to get you, although I will not be putting that on social media. I think there has to be an acknowledgment and a recognition of the experience that Members across the House can bring to legislation, particularly legislation such as this. I will, finally, just thank the Minister for his input today, and we certainly look forward to working with him in the future.

--- Later in debate ---

[Jim Shannon]

It is a pleasure to be called in this debate.

First, I want to take the opportunity to acknowledge the birthday of the head of our armed forces, Her Majesty the Queen. When I put on the Ulster Defence Regiment uniform in Operation Banner, it was done to serve Queen and country, and I still honour her today, on the Floor of the House. Our thoughts and prayers remain with Her Majesty and the royal family on this very, very difficult milestone day.

This issue is difficult and complex. The obligation to fulfil our duty under article 2 of the ECHR is vital. Among the chatter I have heard, there seems to be confusion between a legal investigation following appropriate procedures and an investigation that gives what the family feel to be the right result or justice. This Bill is not designed to be the answer to every death involving a member of the armed forces; it is designed to ensure that the killing was unlawful and is still able to be prosecuted. At the same time, it protects against the sustained, erroneous and vexatious prosecution of service personnel such as those who served in Iraq, Afghanistan or Northern Ireland.

As DUP spokesperson on human rights, I welcome the Government changes to the provisions regarding torture as suggested in Lords amendment 1 to clauses 6 and 7. The Government’s acceptance of this in their own proposals is welcome, as is clarification as to why war crimes have continued to be exempted. I look to the Minister for some clarity on that. I have further questions on Lords amendment 4 regarding the ability of service personnel to make a claim against Government. I have been struck by the Royal British Legion’s reasoning in the briefing sent to me. The shadow Minister mentioned this, as did many others. We are all aware of new clause 13, “Restrictions on time limits: actions brought against the Crown by service personnel”. That amends part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the part imposes in respect of actions relating to overseas operations. It could therefore potentially go some way to addressing the issues raised by the Royal British Legion, other external experts and members of both Houses in relation to the impact of part 2. Again, I seek clarity on this.

My next point will be of no surprise to anyone in this Chamber—equivalence of service personnel. For those who currently serve or who have served in the past, we have, as is the title of Lords amendment 5, a “duty of care to service personnel”. My hon. Friends the Members for Belfast East (Gavin Robinson) and for Upper Bann (Carla Lockhart) both mentioned this. It is really important for those of us who have served in the armed forces and those who represent Northern Ireland in particular. It is so simple and yet so effective, and unfortunately patently untrue. There is a duty of care to service personnel, unless of course they were called to serve in Northern Ireland.

At this stage, I wish to personally thank the former Minister for Veterans and Defence People, the hon. Member for Plymouth, Moor View (Johnny Mercer), for his honourable actions, his passion and his commitment in the job that he had, and also for the help that he gave some of my constituents personally. I would not want to embarrass him by saying it here in the Chamber, but he really did reach out to some of my constituents in a very, very personal way. I really appreciate that and I want to put it on record.

We have today not parallel legislation where we are working through the kinks, but nothing for those brave personnel who served in Northern Ireland. I asked the Minister earlier about the legislation in respect of protection for Northern Ireland. I do not want to embarrass him but I am going to tell him what I saw as I was sitting here just before I was called. Tracey Magee says:

“NIO source tells me there are no plans to bring forward legislation in the Queens Speech on NI veterans ‘at this stage’.”

To be fair to the Minister, who I respect greatly and have affection for, if that is the case, then we really have to address this issue. If it is not in this Queen’s Speech, then when will it be? If he does not mind, I am going to hold his feet to the fire on this one and say that we really need to have a commitment on legislative time and a timescale to work towards. I have no doubt whatsoever that he is committed to this, but we need to have the involvement of Government and the Northern Ireland Office and to see it the Queen’s Speech. We need to be reassured. If there is a legislative programme, then we need it to be confirmed today and to be told what it is. That is breaking news in the past few minutes.

No matter how the republican agenda seeks to rewrite history to make it appear that there is no difference between a terrorist whose every action is a crime, and whose causing of loss of life can only be murder, and a serving member of the armed forces who may cause loss of life while legally carrying out duties, let me be quite clear: they are not the same. Legislation needs to be in place to ensure that that is not the case.

There is much in the Bill that is right and proper, but I find it harder and harder to understand and support those who persist in belittling and traducing the Unionist people of Northern Ireland. The passing of the Bill will not be complete, and will not have the full assurance and confidence of everyone in this great United Kingdom of Great Britain and Northern Ireland, unless those who served in Northern Ireland have very same rights—every soldier who served, every family who grieved. Across this great United Kingdom of Great Britain and Northern Ireland, every MP no doubt has in their constituency families of those who served and died as a result of their service in Northern Ireland. For them, for the MPs in Northern Ireland, for my party and for the people of the Province, we want to be assured that legislative change will come in the House from this Government and that it will be forthcoming soonest. We want to hear about it right away.

[Mr Kevan Jones]

The Bill aims to address issues that rightly need to be addressed on potential vexatious investigations and litigations, but was the Bill needed? No, it was not needed. All those issues could have been addressed in the Armed Forces Bill, which is currently going through the House. The Bill was brought forward, as my hon. Friend the Member for South Shields (Mrs Lewell-Buck) said, as a clear piece of election gimmicking and as part of the worst aspects of what we have seen from the present Conservative party trying to get culture wars going.

We saw that on Second Reading in the wind-up from the hon. Member for Plymouth, Moor View (Johnny Mercer). Somehow, to criticise the Bill in any way meant that you were in favour of ambulance-chasing lawyers and against our brave servicemen and service- women. I take great exception to that. In June, I will have been in the House for 20 years. I think most people know that I have a long record in this House, like other Labour Members, of speaking up and arguing for members of our armed forces. It is worth reminding the House that many of the people who would be affected by the Bill are from northern constituencies—Liverpool and everywhere else. They are proud members of the armed forces and they need protection. The Bill is fundamentally dishonest, because it does not do what it claims to do.

Members have congratulated the hon. Member for Plymouth, Moor View today. Let me put this on the record. I have had my disagreements with him, but I do not for one minute question his integrity or passion in trying to get everything right for members of the armed forces. However, I have to say that the way he took this Bill and the Armed Forces Bill through was his way or no way. He was not prepared at all to countenance any view that was different from his, even when, on many occasions, it was completely wrong against the evidence we took.

Likewise, I understand what has been said about the hon. Gentleman’s campaign in Northern Ireland. It is one that I sympathise with, but he now tries to portray himself as a great champion of Northern Ireland veterans. He said last night, “Politics does this”. Well, I say to him, “Wake up. You are a politician. You were in a position to do something about it and you didn’t.” Not only did he stop the Armed Forces Bill taking written evidence from Northern Ireland veterans, but he voted against my amendment to look at Northern Ireland veterans in the Armed Forces Bill. So I shall take no lessons from him on that.

The key problem with the Bill is this: if we want to stop vexatious investigations and litigation the way to go about it is to address investigations, but the Bill is silent on that. In Committee I tabled new clauses 6, 7 and 8, which would have addressed investigations. The hon. Member for Plymouth, Moor View told me that investigations would be not be considered in this Bill but that they would be included in the Armed Forces Bill. Lo and behold, when I was on the Select Committee on the Armed Forces Bill, I found that investigations were not included because they are now part of the long-term review. That is a gaping hole in this Bill. That is why I welcome Lords amendment 2.