Overseas Operations (Service Personnel And Veterans) Bill

Lloyd Russell-Moyle Excerpts

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

[John Healey]

No, I am very clear that we want to and must protect our British troops against vexatious claims and repeat investigations. Important parts of the Bill are wrong; we can get them right and that is what I want to do. There has been a problem—I get that—arising especially from the conflicts in Iraq and Afghanistan, as the Secretary of State said. The al-Sweady inquiry chairman, when he finally cleared the troops in 2014, spoke forcefully of the “most serious allegations”—of murder and mutilation—that

“have been hanging over these soldiers for the past 10 years”.

The family of an Iraqi boy, Ahmed Jabbar Kareem Ali, who drowned in a canal in 2003 with British soldiers directly implicated, had to wait until the Newman inquiry reported in 2016 before they got the truth and the MOD issued a full apology.

Long-running litigation, repeat investigations and judicial reviews are indeed the signs of a flawed system—a system that has failed British troops and failed victims under successive Governments. I get this problem, and it must be fixed, but it is important to see it in perspective, not least so that we can see clearly the problem that we are legislating in the Bill to fix.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

My right hon. Friend was touching on an important point that Members on the Government Benches have touched on as well. The problem is, as it stands, the long investigations and the repeated investigations that allow double jeopardy not via the courts, but by intimidation of investigation. The Bill does nothing whatever to deal with some of those issues. Is that not a reason for the Government to go away and rewrite parts of the Bill or even issue proper investigatory guidelines to stop that kind of thing happening?

[John Healey]

I sincerely trust that the Government will rethink and will be prepared to rewrite parts of the Bill. If they do so, I think they will find broad consensus for some of the changes that could be made to the Bill to help protect our troops and protect Britain’s reputation worldwide at the same time.

--- Later in debate ---

[Andrea Jenkyns]

I thank my right hon. Friend for his comment. That trauma has been inflicted on veterans by disgraced lawyers should be a source of shame to us all. Many veterans’ lives have been put into a state of unending misery.

The Bill will require that prosecutors take into account the adverse effect that overseas operations can have on service personnel. It recognises that, in the interests of justice, there should be reasonable and swift resolution of cases that have already been investigated and in which there is no compelling new evidence. There is justice in having certainty about the future for our armed forces—they deserve that. This is a legal framework that provides clarity in dealing with these allegations. I welcome the Bill not only for removing the injustice of repeated investigations, but for being a measured step—

[Lloyd Russell-Moyle]

Will the hon. Lady give way?

[Andrea Jenkyns]

No, I am running out of time.

The Bill will not put our armed forces in any legal privilege. The same laws, both domestic and international, will always apply. The Bill’s statutory presumption against prosecution does not prevent justice being served in cases where armed forces personnel have committed genuine crimes. This is a Conservative party manifesto promise and, as a party, we will always stand up to fight for our servicemen and women. Most importantly, however, the Bill ends the blight on the lives of our veterans with sensible and fair measures. My constituents will welcome its contribution to guaranteeing justice for those who have protected our freedom.

--- Later in debate ---

[Chris Clarkson (Heywood and Middleton) (Con)]

It is a pleasure to follow the hon. Member for City of Chester (Christian Matheson), who made a reasonable and moderate speech. In our debate on the Bill today, we have heard some powerful stories based on personal experience, not least from my hon. and gallant Friend the Member for Wolverhampton South West (Stuart Anderson), as well as some fairly strong accusations based on the belief that the Bill will somehow undermine this country’s enviable legacy in respect of human rights.

I read John Larkin’s article, and I have to concur with the conclusion reached in relation to Felix Frankfurter’s tripartite test for deciding whether a law does what it says on the tin:

“1. Read the statute, 2. Read the statute, 3. Read the statute”.

The Bill does not give, or even approach giving, immunity to service personnel in respect of serious crimes. There is no special provision to prevent prosecutions for torture, and those who claim otherwise should be ashamed of themselves. We hear a lot of Opposition Members paying lip service to supporting our forces, and I believe that some of them genuinely do, but when asked to do so, some have demurred. Failing to support the Bill will be a serious breach of faith on their part.

What the Bill does is create a new framework for prosecutions of alleged offences that take place on overseas operations. It requires exceptional grounds for bringing such prosecutions, and factors relevant to overseas operations must be taken into account in deciding whether it is in the public interest to prosecute. Specifically, prosecutors must take into account the negative effects on mental health and decision-making capacity arising from being exposed to the overwhelming stress of continuous threat to life or commanding those who are so exposed, from seeing colleagues killed or maimed, or from the myriad other harsh realities of overseas service, which most of us in this place should be grateful for never having seen.

[Lloyd Russell-Moyle]

Can the hon. Gentleman tell me how those things are not already taken into account under current provisions in courts and when deciding to prosecute?

[Chris Clarkson]

I thank the hon. Gentleman for his question, but if they were taken into account and taken seriously, we would not need legislation such as this.

What I described should dispel suggestions that the Bill will create immunity from prosecutions. The Bill only creates a test of exceptionality for prosecutions after a period of five years has expired. What is exceptional within the scope of the Bill is determined by an independent prosecutor, the Attorney General, who is still accountable to this place. It is clearly wrong to say that the Bill would forbid prosecutions of allegations of torture supported by evidence.

The Government are seeking with the Bill to provide some reassurance to service personnel that they are unlikely to be prosecuted many years on from events, where no new evidence has come forward. To paraphrase my right hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat), we the powerful must protect the strong—

--- Later in debate ---

[Stephen Farry (North Down) (Alliance)]

Sadly, I rise to speak in opposition to the Bill, but at the outset, I place on record my enormous respect for all those who have served the UK in uniform and have acted in various theatres around the world with great honour and distinction, and from my perspective, for those who served under Operation Banner in Northern Ireland. In saying that, we have to recognise that at times things have gone very badly wrong in Northern Ireland, and there are legitimate issues around accountability and investigations in that respect.

The Bill is regrettable in its own terms, but we are seeing quite a lot of Members referring to the pending legislation regarding Northern Ireland, and I want to make a couple of comments on that at the outset. Dealing with the legacy of the past in Northern Ireland is an even more thorny and difficult issue than Brexit, to put it in some context. It is something that people have been wrestling with for over 20 years. We have had the basis of some type of agreement through the Stormont House agreement from 2015, which the Government have struggled to implement over the past five years. I want to say this very loud and clear, so that everyone is aware: if this Parliament acts unilaterally over one aspect of legacy in Northern Ireland—around veterans—they will destroy any prospect of an agreed way forward to deal with the contentious past in Northern Ireland. This has to be a rounded process, and it has to involve all the parties in Northern Ireland, the victims’ groups in Northern Ireland and the Irish Government. Those have not been the characteristics of what we have seen so far with the statement from 18 March.

The narrative of vexatious prosecutions is one that I do not recognise. We have seen many claims of this from Ministers and others, but we never hear any reference to particular cases, so it is a narrative. Indeed, it has been debunked on many occasions by eminent persons—most recently, by the Lord Chief Justice in Northern Ireland. I have to say, I am somewhat bemused to see the references to the former Attorney General for Northern Ireland, John Larkin, as somehow the intellectual force behind what is happening, because he has been far from infallible, as many people in Northern Ireland will recognise, over the past number of years.

The triple lock in the Bill will make things more difficult, because it undermines the whole legitimacy of the people who served in Northern Ireland and overseas. They feel they do not need the system to be rigged and changed to give them an advantage. They can stand on their legacy. They were serving to uphold democracy, human rights and good governance—the values we need to project around the world.

[Lloyd Russell-Moyle]

Does the hon. Gentleman think it might also cause difficulty because part of the triple lock is a political decision, which might, particularly with the balance in Northern Ireland, cause real mistrust?

--- Later in debate ---

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

There are two substantial parts of the Bill: the criminal part, which in my view puts an unnecessary burden on the prosecution of war crimes and other crimes; and the civil part, which protects the MOD more than it protects veterans.

The Royal British Legion and numerous others have said that great sections of the civil part need to be rewritten. My view is that so much needs to be rewritten that the Government should come back with another proposal. Let us be clear: there is currently a presumption of three years, but that can be extended; a hard line of six years for civil actions, with no ability to extend, will potentially reduce the ability of our veterans to take action and seek compensation.

As an example, let us use a scenario in which a veteran is slowly going blind. Blindness can sometimes take 10 years from the initial act. The blindness comes on, but veterans are patriotic; they do not go running to the courts immediately. Only 10 years down the line does the veteran realise that it has ruined their lives and that they need support or compensation, but it is too late. In my view, that is wrong and that provision is totally wrong.

[Stuart Anderson]

I know that the hon. Gentleman speaks with passion, having worked with him in all-party groups. There is the timeframe to consider, but it is also about the point of knowledge. It was 15 years before it was recognised that I had post-traumatic stress, although I had seen the problems many years before that. Under the Bill, there would be time for me to take that forward.

[Lloyd Russell-Moyle]

That is why I used the example of blindness: the point of knowledge would be the first time that sight is lost, but total sight loss could take much longer. [Interruption.] The Minister for Defence People and Veterans can come back come in his usual style.

On the criminal part, I think the Bill threatens our service people with being more likely to be investigated by the ICC. I am not convinced that prosecutions would be sought in the ICC, but the very risk of investigation by the ICC defeats the whole point of this Bill, which in my view—I have said this a few times in the Chamber tonight—was to tackle a series of vexatious investigations. We need a system where cases, once they are fully investigated, can be closed and not reopened unless a significant bar is met. This Bill does nothing at all about that and fails in its very purpose. That is why it is a great shame that this wording—not the concept; I think we all agree this issue must be tackled—is what the Government have brought forward.

I also want to touch on the time limits. France has a 30-year time limit for serious crimes, while crimes under international humanitarian law are never given a time limit. In the USA, time limits are exempted for the law of war and also for serious crimes or murder. This Bill would put us at odds with how the French and American systems protect their veterans. It would seem extremely odd to take that approach. We should be learning from our allies, not trying to diverge from their approach.

I am extremely disappointed with the wording of this Bill. If it passes tonight, I will work extremely hard to try to amend it. I do not think it will ever be an amazing Bill, because it started from the wrong point and is answering the wrong questions, but I will work with others to try to get the best out of it. Given its drafting, however, I am not convinced that it deserves to go forward in its initial form. The Government should come forward with an alternative plan that hits the nail on the head, because this certainly does not.

[Mr Deputy Speaker (Mr Nigel Evans)]

I am terribly sorry to the 23 Members who were unable to get in, but I am afraid there was a lot of interest in this debate. I call Stephen Morgan to start the wind-ups.

Overseas Operations (Service Personnel and Veterans) Bill

Lloyd Russell-Moyle Excerpts

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

[Mr Jones]

He who waits it all comes to. I was going to answer that point in a minute.

The MOD argued two things in that case. First, it argued that the case was out of time, and the families won the limitation hearing to take the case forward. The hon. Member for Filton and Bradley Stoke (Jack Lopresti) has just said it would be within the six-year limit. No, it would not. Let us suppose they had taken the case not in 2016 but six years later. They would not be able to take a limitation hearing at all. The Minister does not quite understand that problem.

The case I raised in Committee was of an aircraft engineer who developed a very serious nerve condition from paint. The only reason he was able to take forward his case was because the technology had changed and research had shown that the paint actually damages people’s nervous system.

The Minister said in Committee that, somehow, he is on record in The Sun as guaranteeing that no one will lose out, but he cannot because that will not happen: as I said to him in Committee, using the Robin Day analogy, we are all here-today, gone-tomorrow politicians. Frankly, what will happen is that MOD lawyers will use this to stop people making claims.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

Will my right hon. Friend give way?

[Mr Jones]

If I must.

[Lloyd Russell-Moyle]

My right hon. Friend does not have to if he does not want to.

Will the passing of the Bill mean that civilians working for the MOD down the road will end up having, in effect, more rights than Army service personnel who have served in operations overseas? Does that not bring us back to the fundamental issue of the breaking of the armed forces covenant, on which the Government really must think again?

[Mr Jones]

It does. The Bill’s provisions will also mean that prisoners will have more right to sue the MOJ, for example, than armed forces personnel. The Minister said in Committee, “That’s terrible because you’re comparing armed service personnel with veterans”; no, I am not. I am saying that if the Bill goes through, prisoners will have more rights than armed forces personnel. That cannot be right. The Minister mentioned the 6%; I am sorry, but if even one veteran loses their rights under this Bill, I am not prepared to support that.

My next point is about the Human Rights Act. I support the amendments tabled by my hon. Friend the Member for Barnsley Central (Dan Jarvis) and the right hon. Member for Haltemprice and Howden (Mr Davis), because it is about how this looks in terms of our international reputation. There is derogation in the Bill; I accept that there cannot be derogation for torture, but it can and will be used to stop claims by MOD personnel against the MOD itself. The Snatch Land Rover case was brought under the Human Rights Act. Some people have the idea that the Human Rights Act is there to protect nasty foreigners and people we do not like; no, it is not. It is there to protect us all, including armed forces personnel. I am sure that that derogation will be used again by the MOD to deny the rights of individuals to take cases.

People should look at the Smith judgment on that case. What were the Government arguing? They were arguing that combat immunity, which is covered and was reinforced by the Supreme Court judgment, applied in that case because it happened in Iraq. No, that was not the case; the case was actually about the design and the decision to procure those Land Rovers and put them into theatre. The derogation will clearly be used in such a way.

I wish to make one final point, about our standing in the world. I am a supporter of the service justice system—it works well and we should be proud of it—but the problem with the Bill is this: do I want to see British servicemen and women tried in the International Criminal Court? No, I do not. I want them to be tried by their peers in a court in this country. As the Judge Advocate General, Judge Blackett, said in Committee, under this Bill there is a danger that if we have a presumption against prosecution and the issue around torture, we will get a situation whereby individuals will be tried not here but elsewhere. That would be terrible, not just for those individuals but for this country’s international reputation.

--- Later in debate ---

[Tom Tugendhat]

I will carry on.

It is also an issue for the human rights of some of the people we are fighting. Bizarrely, there were situations in Afghanistan where individuals could only be detained for a certain number of hours. They could not, for various reasons, be handed over to the Afghan authorities, despite the fact that we were, in theory, supporting the Afghan Government. It meant that after a certain number of hours—normally about 96 hours—they had to be released. The fact that they were known bomb makers who had definitely been handling explosives because chemical evidence showed it, could not be used, because in order to be used, those people would have had to be handed over to the Afghan authorities, and various people argued that the Afghan authorities were too inappropriate, too corrupt or too violent.

So, what happened? What do you think happens when someone who has taken up arms against you, literally tried to kill you and planted bombs to try to maim you cannot be detained? It is simple: after the legal limit was reached, the prisoners were released and followed for a number of hours, until they did exactly what we would expect: they went back to a weapons cache or arms unit and were engaged again as lawful military targets. How is that a defence of the human rights, even of the individual concerned?

[Lloyd Russell-Moyle]

The hon. Gentleman, who is a good Member and a friend, is making a really interesting argument, but I fail to understand how it has anything to do with the Bill. How has limiting the ability of service personnel to take civil action against the MOD got anything to do with what he is talking about? How is requiring a five-year statute of limitations on things like torture anything to do with what he is saying about the operation in war? Can he explain how the interesting points he is making are relevant to what is in the Bill? I and, I think, my colleagues fail to see it.

[Tom Tugendhat]

I am sorry that the hon. Member is failing to see it, because I thought I explained it quite clearly with the Ukraine example. We also see in other operations how the use of law has undermined the combat effectiveness of the armed forces. We see time and again in operations the opportunity for an individual with nefarious intent to try to bring legal action against the MOD to prevent operations.

--- Later in debate ---

[James Sunderland]

I could not agree more.

I am aware that several amendments were tabled in Committee, but none was agreed to. The Bill is hence essentially unaltered from Second Reading, so perhaps it is no surprise that such a large list is being considered today. I will admit that some of the amendments have merit. Having been contacted over the weekend by the eminent hon. and gallant Member for Barnsley Central (Dan Jarvis) and my right hon. and gallant Friend the Member for Haltemprice and Howden (Mr Davis), I have looked in particular at amendments 1 to 10. My view, however, is that this Bill will not prevent the UK from rightly prosecuting acts of torture, war crimes, crimes against humanity or genocide, and that the Bill does not need to exclude these from its triple lock because existing provisions already exist in law.

I also struggle with the notion that the MOD would somehow fail to investigate or prosecute, because the bad apples will always face justice, as indeed they did during my time in uniform. Regarding torture, the Government’s position is that the presumption against prosecution will not prevent any prosecutor from considering the severity of the crime or the unique circumstances in which it was committed. Indeed, war is a nasty business, so I do not believe that a court should somehow be prevented from giving weight to the mental health of the individual or the prevailing conditions. Hence I am minded against amendments 21 and 22. I agree with the Minister that this would be nonsensical, as prosecutors should give recognition to the difficulty, the trauma and the acute stress of military operations, as any member of HM forces will testify.

In addition, the Bill confirms that on a case-by-case basis, a prosecutor can determine that a crime is exceptional, so there is no collision course here with the UN convention against torture, the Geneva convention, the Hague or even NATO, as nothing will be swept under the carpet. As for the five-year time limit, this is correct, as the clock will start ticking from the point at which matters come to light, not from the time of the alleged incident. That was also the overwhelming preference during the public consultation. Not only should it be possible for all the evidence to be gathered within a five-year period, but I concur with the Minister that memories do fade, that evidence does deteriorate and that it remains in the interests of everyone involved to deliver justice quickly. I do not therefore support amendments 18 and 19, which seek to lengthen the period to 10 years. This is ultimately about taking pressure off our people, not prolonging it.

Part 2 of the Bill relates to claims by service personnel against the MOD. As 94% of all employer liability claims against the MOD since May 2007 have been brought within the limitation longstop of six years, I agree that there should be a time limit here, too. To be fair, I have considered the suggestion that this Bill is more about protecting the MOD than it is about protecting HM forces, but that, too, is ridiculous. I note that the time limit extends here, too, from the point at which the issue first came to light. There is more than enough time here for any complaint to be submitted, and the MOD cannot simply write a cheque for yesteryear. I will be voting against new clauses 5 and 6 and amendment 23 if they are divided on.

Lastly, I am aware that this Bill has attracted lots of interest in the media in recent months, so I want to set the record straight: I am not convinced that the criticism from the Royal United Services Institute, the Royal British Legion, the Joint Committee on Human Rights or other senior figures is necessarily fair, as the Bill delivers what it says on the tin. Having read it in detail, I am clear, too, that any new presumption against prosecution is not a statute of limitations and does not in any way create a bar to either investigations or prosecutions. Unlike some, I have complete faith in both our legal system and our armed forces, so I commend this Bill to the House.

[Lloyd Russell-Moyle]

We all agree that the aims of the Bill are noble, and that the idea of revolving investigations or a life in investigatory purgatory, never knowing when a vexatious investigator will come knocking at the door, is wrong and must end. The mental stress of that legal uncertainty needs clarity. The loopholes need to be closed and fixed, but this Bill does not do that. It does not even come close. In fact, in a number of areas, it makes things worse.

--- Later in debate ---

What we have here is a Bill that does not do what it says it wants to do. I think we all agree that the flawed investigation system needs to be fixed. We are in this situation because the Bill does not address that. The Bill ensures that members of the armed forces will be further exposed to the International Criminal Court, which I do not believe any Member wishes to see. As has been highlighted time and again, the Bill is written in such a way as to protect the Minister and his officials in Main Building, not to best serve members of the armed forces and veterans.

[Lloyd Russell-Moyle]

Does the hon. Member share my worry that potentially putting our armed forces up against the International Criminal Court could be the beginning of a path to undermining the Court itself? It is quite easy to see a situation where British service personnel are investigated, and then Conservative Members start braying for us to leave the Court in its entirety.

[Stewart Malcolm McDonald]

That is exactly the slippery slope I fear we are on. I hate the phrase “the thin end of the wedge”, but I am afraid that it rather fits where we are with this Bill and this Government. We have those senior opinions in military, legal and political circles against the Bill. That is before we get to the recent damning report by the Joint Committee on Human Rights, which made clear the number of flaws in the Bill.

I am conscious of time, so I will conclude. The Chairman of the Foreign Affairs Committee, the hon. Member for Tonbridge and Malling (Tom Tugendhat), suggested that, were we to change our defence posture with regard to training or peacekeeping in supporting Ukraine, we could be subject to what he called “a Russian hand” trying to take legal action here—no doubt that Russian hand is a Tory donor. That is exactly the kind of thing that would see UK personnel further exposed to the International Criminal Court.