Overseas Operations (Service Personnel And Veterans) Bill

Martin Docherty-Hughes Excerpts

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

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

My constituents clearly live in a very different country from the hon. Member for Bracknell (James Sunderland). I declare an interest, as it seems that everyone else is, in that my brother is a member of the armed forces, as is my nephew. Unlike the hon. Member for Wolverhampton South West (Stuart Anderson), a fellow member of the Defence Committee, they are not generals, members of senior command or part of the officer corps. [Hon. Members: “Not yet!”] Yes, hopefully in an independent Scotland.

Let us start with what we do agree on. Those of us who have close family members who have put themselves in harm’s way overseas, such as in the illegal war in Iraq that the Secretary of State mentioned earlier, know the feeling of dread when that loved one leaves and the utter relief when they come back. The very idea that that dread should be extended long after they have left the battlefield simply on the whim of vicious lawyers is unconscionable. I think we all agree about that. Vexatious claims are rightly illegal, not only because of the psychological duress they inflict on the veterans they target, but because they seek to paint the actions of those who serve and the overall conduct of our armed forces in a negative light purely for profit.

Let us also be clear that while those instances of serving UK personnel breaking international human rights law are well documented, as they should be, they are exceedingly rare. The improvements that the Army in particular has made in the past few decades in ensuring adherence to international human rights law and the rules of engagement should give a sense of genuine achievement and be a matter of pride. Hard fought for, through conventional and non-conventional conflicts, those advances should be jealously guarded by the Government.

However, the fundamental divergence between me and Conservative Members is about how we deal with an intractable issue. Her Majesty’s Government believe that issue is best solved by putting members of Her Majesty’s armed forces beyond the law. Perhaps it is the working-class boy in me—or the fact that I am from a socialist tradition —who thinks that it would be better spent examining the rare lapses of leadership, failures in the chain of command and imbalances in the power structures that led to the crimes being committed in the first place.

I can think back to when I brought forward a ten-minute rule Bill on the formation of an armed forces representative body. I see the former Chair of the Defence Committee, the right hon. Member for New Forest East (Dr Lewis) in his place, and he will know a lot about that. For many veterans I have spoken to since and for many civilians, the principle that serving members of the armed forces deserve the same rights as civilians was self-evident. Just as NHS workers and the police on the frontline protecting our security have certain obligations that cannot be abrogated, so do the armed forces.

When I introduced that Bill, what surprised me was the lack of understanding among Government Members of the idea that there might be a better way to fulfil the solemn contract that a state has to those who place themselves in harm’s way to defend that state. I think that Ministers would agree that this state has not always done that in the best way possible. At the same time as the number of those with experience of military service is at a historic low, as therefore is the number of people like me with direct family experience, too, this Government have consistently taken the path of creating a discrete military caste remote from the communities they have sworn to protect.

I and those I have spoken to in my party wish to see a country where veterans and serving personnel are given top-class medical care because top-class medical care is available to all. We want to live in a country where veterans and serving personnel can access affordable and liveable housing for their families because that is available to all. That also means a country where veterans and serving personnel are accountable for their actions in the line of duty, because we are all accountable for our actions in the line of duty.

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

Martin Docherty-Hughes Excerpts

Committee stage & Committee Debate: 5th sitting: House of Commons
Wednesday 14th October 2020 Public Bill Committees

This is a probing amendment from my hon. Friend, and I think that is the purpose of this Committee: perhaps not to have votes on things, but to ensure that we have looked at the different areas.

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

When the hon. Member for Islwyn was introducing the amendment, he noted that it was not meant to take on board issues in relation to fully autonomous systems. Nevertheless, it should be recognised that fully autonomous systems will be with us sooner rather than later and that, in those systems, there is a human decision-making process that must be safeguarded. Artificial intelligence is artificial, requiring human instigation to create the algorithm to make the decision-making process, and we must keep that in mind as we recognise the need for and validity of securing protections.

[Mr Jones]

I agree. Again, some people writing or talking about this area are saying that somehow the human being has nothing to do with it. The hon. Gentleman is correct in that even if we get to having a futuristic system with fully autonomous vehicles and in-flight combat between various systems, swarms of drones and things like that, a decision will still need to be taken on how that system is used. That is an area where not just in the UK but internationally we will need to look at rules of engagement and the definition of an autonomous vehicle. There is increasingly a move towards autonomous vehicles. Look at the Team Tempest programme from BAE Systems and its partners and how that is going: there can be a pilot, but the design will not need a pilot, and that ain’t that far away—it is coming up fast.

It comes back to the decision-making process. The hon. Member for Filton and Bradley Stoke mentioned the chain of command issue. That goes to the heart of the Bill because of the importance of having the audit trail for who took which decisions. It is difficult for anyone in the chain of command to take a decision, from the person executing the mission on the ground right up to a Minister signing something off. That is not an easy process. Can things go wrong all the way through? Yes. However, I would argue that as long as a decision is underpinned by our legal processes right the way through to authorisation by a Minister to ensure that it is legally watertight, we should be okay. Mistakes will happen. What a lot of the public find strange is that in cells that deal with targeting, there are MOD or RAF lawyers sat there, saying, “I am sorry, you cannot do that.” It shocks people.

Unmanned aerial vehicles have got to the point where there is a bit of folklore when people make a decision. It is therefore important to ensure there is that legal framework. However, as I said, things will go wrong, and my hon. Friend the Member for Islwyn is trying in the amendment to consider what happens when things do go wrong. Is somebody sat in RAF Waddington classed as being on overseas operations? That is a grey area that perhaps has not appeared yet in all these claims, but I think it will.

The evidence we have taken in the last few weeks has highlighted how, in many ways, this is an easier area to look at in terms of investigations because there is—there should be—that chain of decision making. However, it does get complicated when we are working with allies. I am confident that we have some of the most robust rules in terms of targeting and rules of engagement, but—how can I put this diplomatically?—I do not think it is the same for some of our allies, especially one of our closest allies. Could we argue that some of the examples I have seen in Afghanistan and Iraq were proportionate in the way they were conducted? I do not think they were. That has led to the idea that somehow we are the same.

Let us suppose we get to the situation where we have a legal challenge to somebody who has been sat in Waddington, has legitimately followed the legal advice and something goes wrong. What happens? Are they classed as being on overseas operations? We should give them protection because they are not just following orders, but following the legal guidance that has been supplied to them as to why they are carrying out the mission. That is an area we need to look at.

It links to a broader point about what we deem to be overseas operations. Eminent lawyers will want to argue around the head of a pin about this, if we do not look at it. The other side is other operations. Increasingly we, as a nation, are not going into conflicts on our own, but with other nations. That leads to a situation where, on occasion, UK forces are not under the command of UK personnel, but those of other nations. I do not think people realise that.

Some nations have different interpretations of what is proportionate. How are they included, especially within—that misnomer—peacekeeping? Peacekeeping can be dangerous. I have visited parts of the world where peacekeeping is taking place that were far from peaceful, and were stressful for the individuals involved. Is that classed as an overseas operation?

When I was walking in this morning—I often think when I am walking—I was thinking that this gets to the definition of what an overseas operation is. If somebody were based at NATO headquarters in Brussels, would that be classed as an overseas operation? I am not suggesting they would be involved in a mission such as an airstrike or combat in Brussels, although perhaps they might be on a rowdy Friday or Saturday night in the Grand Place. Is that classed as an overseas operation for that individual? Those individuals are lone officers, but members of our armed forces are serving in ones and twos around the world, mentoring forces, doing a great job in defence diplomacy and ensuring that the high standards we have in this country are passed on to other nations.

My hon. Friend the Member for Islwyn talked about the UAV operators themselves. I have read a few studies about their mental health and the jury is out on evidence of increased PTSD and other things. It is a strange environment for individuals, as my hon. Friend said, because they are separated from the battle space, but they see and do some graphic and dangerous things. Having seen some of those videos, what happens is not pretty. The jury is still out on the issue of mental health effects and that is an area where we need more research, not just in this country but internationally. That links to part 2. If those individuals developed mental illness later, given the time limits set out in the Bill, would they be excluded or not? That is another area that we need to look at when we come to part 2.

Can we ever future-proof legislation? No. Politicians all think that we can see into the future as if with hindsight, but unfortunately we all know that most of our legislation is reactive to events. We can try to make it as future-proof as possible, however, and amendment 23, which I presume is a probing amendment, is really a way of asking whether the MOD and the people who have drawn up the Bill have thought about the area. Whether we like it or not, it will increasingly become a challenge not just for how we train people, but for how individuals are legally protected. Even if it cannot be incorporated into the Bill, I would certainly like the Ministry of Defence to look not only at the training, but at what the legal status of those individuals will be. The amendment is welcome in allowing us to explore some of those areas; I hope that it will give MOD policy makers some food for thought on where we take this in the future.

--- Later in debate ---

[Johnny Mercer]

Some really important points have been made, particularly about mental health provision and the protection of those who operate these systems, but the Bill is clearly there to provide the additional protections that particularly apply to those who face the threat of violence and attack at the time, so I disagree on this point. I therefore ask that the amendment be withdrawn.

[Martin Docherty-Hughes]

I take on board what the Minister says, but we may disagree on an overall element of the Bill. It is the Overseas Operations Bill, and the persons we are speaking of are involved in an overseas operation. Surely the security given to those in the physicality of the arena of military activity should not be just about geography or about those who are physically participating in the overall operations.

[Johnny Mercer]

The clauses that deal with special consideration for the circumstances of what is going on at the time are there precisely to take account of the unique physical and mental demands of being in close combat; that is what they are designed for. To suggest that drone operators operating from UK shores would face the same pressures is not the same thing. I therefore ask that the amendment be withdrawn.

--- Later in debate ---

[Martin Docherty-Hughes]

In reality, the right hon. Gentleman wants to remove bureaucracy because justice delayed is justice denied, whether someone is the accuser or the accused. His new clause seeks clarity for minor offences.

[Mr Jones]

It is clarity for the individuals, so that they can be dealt with swiftly. If Judge Blackett had been consulted on this Bill, that might have been included.

I will not try your patience, Mr Stringer, because I might need it when I come to new clauses 6 and 7 on the broader issues around investigation, which I notice the MOD is now moving on and possibly recognising that it has missed a trick in the Bill. The new clause would give the court powers. We are not talking about serious offences or common assault. We did a similar thing in the Armed Forces Act 2006. We gave commanding officers the powers to deal with minor offences, because the old system was taking an inordinate amount of time to deal with them. We are basically setting up a de minimis case. As the hon. Gentleman just said, it would deal with the bureaucracy and make sure that we concentrate on the most serious offences.

People might say, “How does this get into ambulance-chasing solicitors?” With IHAT and Northmoor, some of the cases put forward were to do with such things as slaps and assaults, which would actually meet this criteria. Why did it take years to investigate whether somebody was slapped if it was on a Saturday night in a pub and classed as a common assault? Why did it take years to investigate or in some cases re-investigate? We could argue that it happened in Iraq or Afghanistan or somewhere else and it might be more difficult to gather evidence and witnesses, but it should not be beyond the wit of the legal system to look at the evidence initially and say, “To be honest, the threshold for this would not be very high.” Why were they brought? We know: in some cases, clearly, Phil Shiner was trying to get some compensation out of an alleged fault, but the pressure was put on those individuals who were accused of things that were minor and would have been dealt with normally. The new clause frees up the criminal justice system and the investigators to concentrate on the things that we want to concentrate on, which are the more serious cases.

Would that protect our armed forces? Yes, I think it would, because we would have a sense of fairness for them—they would be getting speedy justice, they would not go through reinvestigation and they would not have to wait an inordinate length of time for things dealt with as a matter of course in a magistrates court. It is a way to give protection to servicemen and women, while also—as the hon. Member for West Dunbartonshire said—making the system more effective.

The important thing, however, is the judicial oversight—this is not just deciding to stop prosecution; the evidence is looked at, the de minimis test is applied and only then would that be ended. That would be a huge improvement. The Minister said he was looking for improvement of the Bill and, to me, this is an obvious way to do it.

--- Later in debate ---

[Mr Jones]

I just find this remarkable, Mr Stringer. We have a Minister who has come in here to read his civil service brief into the record. He is not taking account of anything that is being said, by myself or by other hon. Members. When he wants to be questioned on it, he will not take interventions. It is a strange way of doing this. He possibly thinks that doing a Committee is just about reading the civil service brief the night before and then reading it into the record. I am sorry, but that is not how we do scrutiny in this House.

With regard to the Minister’s comment that this measure would be more appropriate in an armed forces Bill, that may well be the case, but he has an opportunity to put it in here. He can sit there and smile but, frankly, he is doing himself no favours. He has said that he wants co-operation on the Bill, but he is doing nothing. He is going to try to plough through with what he has got, irrespective of whether it damages our armed forces personnel. That makes me very angry.

The Minister said that the Magistrates’ Court Act provisions would not cross over to this Bill. We could draw up a protocol around that, which would fit in the Bill. If the Bill is supposed to be the all-singing, all-dancing, huge protection that we are going to give to our servicemen and servicewomen, then that should have been in the Bill.

[Martin Docherty-Hughes]

Does the right hon. Gentleman recognise that the ranks, as opposed to the chain of command, would be best served by an acceptance of the new clause, because it gives clarity and allows them to move forward on those cases, within the elements that he has discussed?

--- Later in debate ---

Division 1

Ayes: 6

---

Labour: 5
Scottish National Party: 1

Noes: 10

---

Conservative: 10

[Martin Docherty-Hughes]

I beg to move amendment 14, in clause 1, page 2, line 2, leave out “the day on which the alleged conduct took place” and insert “the day on which the first investigation relevant to the alleged conduct concluded”.

[The Chair]

With this it will be convenient to discuss the following:

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

“(ba) the thoroughness, promptness and efficacy of any ongoing investigation into the alleged conduct or any relevant previous investigation, and the reasons for any delays in such investigations;”

This amendment would ensure that the adequacy of any investigative process to date is given particular weight by a relevant prosecutor.

Amendment 56, in clause 3, page 2, line 33, at end insert—

“(ba) the quality and duration of relevant investigations.”

This amendment would require prosecutors to give weight to the quality and duration of relevant investigations when deciding whether to bring or continue proceedings against a person relating to alleged conduct during overseas operations.

New clause 6—Judicial oversight of investigations—

“(1) This section applies to any investigation by a police force into alleged conduct as described in subsection 3 of section 1.

(2) The police force investigating the conduct must place their preliminary findings before an allocated judge advocate as soon as possible, but no later than 6 months after the alleged offence was brought to their attention.

(3) The judge advocate shall have the power to determine—

(a) that no serious, permanent or lasting psychological or physical injury has been caused; and order that the investigation should cease;

(b) that the evidence is of a tenuous character because of weakness or vagueness or because of inconsistencies with other evidence, and that it is not in the interests of justice to continue an investigation; and order that the investigation should cease; or

(c) that there is merit in the complaint; and make directions as to the timetable and extent of further investigation.”

This amendment would set a timetable for police investigations into alleged conduct during overseas operations, to ensure they are as short as possible and provide an opportunity for a judge to stop an unmeritorious or vexatious investigation early.

New clause 7—Limitation on reinvestigation—

“(1) This section applies where—

(a) a person has been acquitted of an offence relating to conduct on overseas operations, or

(b) a determination has been made that an investigation into an offence relating to such conduct should cease under section (Judicial oversight of investigations).

(2) No further investigation into the alleged conduct shall be commenced unless—

(a) compelling new evidence has become available, and

(b) an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong that there is a real possibility that it would support a conviction.”

[Martin Docherty-Hughes]

I rise to speak to the amendment for a very specific reason. It concerns the word “alleged” in the Bill. The Government, in bringing forward the Bill, have sought to provide clarity to members of the armed forces and veterans against some elements of the legal profession, which is the constant narrative during our debates—although, I have to say that there are many members of the legal profession who are not only members of the armed forces, but veterans too. We need to be very much aware of the rule of law.

The clarity that I and my party require, which is why we have tabled this amendment, is to remove that word “alleged”, because it causes ambiguity, whereas I think the Government’s intention in introducing the Bill is to give clarity. Whether or not I disagree with various parts of it, if not the vast majority, we are seeking to work here in a coherent and collegiate fashion, because I think that, not only for the accused but for the accuser, we need to be clear about the point at which we start, which is the day on which the first investigation takes place. 

The word “alleged” creates ambiguity in the law and ambiguity for members of the armed forces and veterans, which is why we have brought forward this specific amendment.

[Johnny Mercer]

Mr Stringer, do you want me to speak only to amendment 14?

--- Later in debate ---

[Johnny Mercer]

One of the main purposes of introducing the presumption against prosecution is to provide greater certainty for veterans in relation to the threat of repeat investigations and the possible prosecution for events that happened many years ago. Amendment 14 would undermine that objective by extending the starting point for the presumption and, in some cases, creating even more uncertainty. However, I want to reassure Members that the presumption measure is not an attempt to cover up past events as it does not prevent an investigation to credible allegations of wrongdoing in the past, and neither does it prevent the independent prosecutor from determining that a case should go forward to prosecution.

[Martin Docherty-Hughes]

Does the Minister not accept that the very word “alleged” creates ambiguity within the law and, if anything, creates a barrier? Our amendment would give the clarity that he and his Government are seeking.

[Johnny Mercer]

I do not accept that. The wording about the “alleged conduct” is clear. We have dealt with a number of allegations: 3,500 from the Iraq Historical Allegations Team alone, and another 1,000 from Afghanistan. They are alleged offences and it is right to leave those in there. I request that the amendment be withdrawn.

--- Later in debate ---

[Martin Docherty-Hughes]

I will not be withdrawing the amendment.

Question put, That the amendment be made.

--- Later in debate ---

[Mr Jones]

My hon. Friend makes a very good point. We were told, although I do not believe it, that the Government wanted to improve the Bill and would consider amendments. I accept that Opposition amendments are not always properly drafted to fit into a Bill, but it is quite common for the Government to say that they will look at an amendment and change it, but put the spirit of it into a Bill. There is an opportunity to do that now, but unfortunately we have a Minister who clearly just wants to say, “No, we will get the Bill through as drafted, and that’s it,” which is contrary to his statements about trying to work together with people. There is an opportunity to do that now and I do not understand why we cannot do it, as my hon. Friend says.

The Defence Secretary’s statement goes on to say:

“A key part of the review will be its recommendations for any necessary improvements. It will seek to build upon and not reopen the recommendations of the service justice system review”.—[Official Report, 13 October 2020; Vol. 682, c. 9WS.]

[Martin Docherty-Hughes]

On the justice system review and its relationship to the Bill, in answer to a question from my hon. Friend the Member for Glasgow North West last week about Major Campbell’s 17 years of dreadful investigation, General Sir Nick Parker said:

“That will not happen if you have a credible system that investigates and you address some of the cultural issues in the chain of command by making it genuinely accountable for what is happening.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Bill Public Bill Committee, 8 October 2020; c. 98, Q201.]

Does the right hon. Gentleman agree that the Bill does absolutely none of that?

[Mr Jones]

It does not. If somebody like Nick Parker is saying that, we need to take it seriously. As for how the Bill has been born, I would love to know who is claiming paternity for it, because a lot of people seem to have been excluded—certainly the Judge Advocate General has. I would have thought he was the obvious person, as a senior military person in the justice system, to be brought in at an early stage to look at some of the things we shall talk about later—not only the issues of international law, but how the system could be improved.

--- Later in debate ---

[Mr Jones]

I am sorry, Mr Stringer. I was going down memory lane to happier times. Just to finish that point, the welfare pathway, which the Government who came to power in 2010 rightly changed and renamed the covenant, was something that I introduced in 2010.

The hon. Member for Derbyshire Dales raised the issue of investigations and what we did. She is the new Member for that beautiful part of the world, and I have huge respect for her predecessor. I spent many a time at Kinder Scout and Hope as a boy walking round that area, so I know her area very well. But I think that she has to recognise the issue in terms of Iraq and Afghanistan. Yes, huge and terrible accusations were made about what was going on. There was pressure not only from what could be called the outriders on the left but from her own party to the effect that some of these accusations should have been investigated. If there was a failure, it was around investigation.

I do not want to try your patience, Mr Stringer, but we also did the Armed Forces Act 2006, which meshed the three service disciplinary systems into one. That was a huge issue, but it actually improved service discipline and investigations. This is an opportunity to get this Bill right. Let me say to the hon. Lady that I just want to get the Bill right. I think that if we had an approach from the Minister whereby he would take on board some of this, we could do these things, both here and in the other place, but there is a tendency, which I do not like, to think that somehow we in this place scrutinise legislation, and the Government know that they are going to change things but they change things in the House of Lords, giving the public the impression that somehow the House of Lords is this all-singing, all-seeing, body when actually those things should be done here. I am already talking, as I am sure others are, to Members of the House of Lords, including, I have to say to the Minister, some of his noble Friends who I think also have concerns about the Bill.

There is an opportunity here to do that with investigations. The issue with the amendments that we were talking about is really this. We had the debate about investigation of de minimis things, but what I think everyone wants is that investigations can be done quickly—not be done quickly and dismissed, because we have to get the balance right in terms of people making serious allegations that are investigated properly. Let us remember that we are talking here about allegations from civilians against members of the armed forces, but remember also that there are often cases between servicemen and women, who are making accusations against themselves—against individuals. There has to be a sense of fairness, and it cannot be right that it goes on for a very long time, so it does need judicial oversight. If someone is accused of something, that should be investigated properly and quickly, but that should also be done in a legal process that cannot be challenged—well, I am sure that everything can be challenged if someone pays a lawyer enough, but we must ensure that we have a situation whereby it is as judicially robust as possible.

[Martin Docherty-Hughes]

In response to a question asked by the hon. Member for Blaydon last week, General Sir Nick Parker stated:

“Nobody would want anything in the process that somehow allows people who have behaved badly on the frontline to get away with it. But all of us would believe that the process has to be quick, efficient and effective to remove the suspicion of a malicious allegation as quickly as possible. I cannot see how this Bill does that.”–[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 94, Q188.]

Does the right hon. Gentleman agree that legitimacy and effectiveness are not an element of this Bill and that we need to see structural change before we can go forward?

[Mr Jones]

I agree. The impression that I think some people try to give of the armed forces is that the armed forces, which have a job to go and do, want to be above the law. Nothing could be further from the truth.

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

Martin Docherty-Hughes Excerpts

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

[Mr Jones]

Yes. That is the problem. How do we get at it? Is it about a lack of resource? I think it is. Going back to Iraq and Afghanistan, as I said this morning, there was huge pressure from all sides, including the Conservative Opposition at the time, that these things had to be seen to be investigated to the nth degree. There was a culture, which led to a resistance to say in some cases, “There is no evidence to stand those.” If that was done politically, I understand why people have issues with that.

However, if there were a judicial process, which new clause 6 provides for, overseen by a judge, that would give confidence to the public and the international community, in relation to our obligations, that this was being done not for political reasons but because a judge had determined independently what the facts are. It would certainly help.

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

In response to a question the right hon. Gentleman raised last week, Judge Blackett said, in relation to the Magistrates’ Court Act 1980, that

“a great raft of those allegations in IHAT and Northmoor would have gone with that.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 122, Q254.]

Is that not the right hon. Gentleman’s point? Much of what the Bill seeks to do could easily have been dealt with through existing legislation.

--- Later in debate ---

I do not want to criticise the service police, because in some cases they have a hugely difficult job to do. It is not like going and investigating a house burglary in west London; it is often going on overseas operations to very difficult terrain. In some cases it is dangerous to gather evidence. In many cases we are dealing with different cultures and people for whom English is not their first language, so I am not criticising the service police. However, it would give them some rigour to know that, by a certain date, they at least have to come back before a judge to say what they have done in a certain case. In the cases that we have seen, a lot would have been fished out of this pool way before they got to the prosecution stage.

[Martin Docherty-Hughes]

Again, the hon. Member asked Judge Blackett question last week in relation to Marine A. Judge Blackett responded that

“a number of the issues here were raised by Marine A subsequently through the Criminal Cases Review Commission and back to the Court of Appeal, and they were never raised at first instance. Had he”—

Marine A—

“raised them at first instance—had all the psychiatric evidence that came out eventually appeared at the start—he probably would have been charged with manslaughter rather than murder”, ––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 124, Q262.]

which is what he was charged with. It was actually on the second appeal that it was overturned and the prosecution was for manslaughter. Does the right hon. Member agree that the process is at fault and that, to improve that, the Government need to make substantial changes and investments in the process, rather than with the Bill?

[Mr Jones]

It is the process. I am glad that the hon. Member has mentioned the case of Marine A, because the way it was dealt with worries me. People might not be familiar with it. It was an individual who was on operations in Afghanistan and shot, on camera, a wounded Taliban fighter. That case did not come about through an ambulance-chasing lawyer; it came about because somebody filmed the shooting and was so horrified by it that they handed in the video. That was not an ambulance-chasing lawyer saying, “This man’s killed somebody in cold blood.” That case is important.

The process being adopted concerns me for two reasons. My first concern, on the point we raised last week, is about the support that servicemen and women are getting while they are going through the process. Clearly, in that case, the individual did something that goes against everything that members of the armed forces are trained to do. But when we look at the overall envelope of what he had been up to—the psychological trauma and the other things he had been through—we could explain it not as murder, but as manslaughter. Again, if that case had gone through this type of system, it would have led to those issues around the individual’s mental health, which do not excuse his actions but obviously had an impact on what happened, and to the first issue being seen as manslaughter, which would have been a fairer way of dealing with it.

My second concern about the Bill is that if that happened more than five years after that case, the presumption would have been not to prosecute. There would then have been a political decision, because the Attorney General would be deciding on prosecution. That individual could then end up before the International Criminal Court, because we would deem that we had not prosecuted.

There was a media maelstrom around the case. As with many such cases that we have all dealt with, it got a nice headline in the Daily Mail or The Sun, but there were obviously more details to it. If we have a similar case in future on which there is to be a political decision, it will be a strong politician or Attorney General who will turn around and say, “Yes, I want to prosecute this person.” There would then be the danger of the International Criminal Court picking up the case. Whereas in the process that I am proposing in new clause 6, the judge would review all the evidence, including, in that case, whether he should have been charged with murder in the first place when it went to court or to appeal—and no, he should not have been.

As many Committee members have said, and certainly, having spoken to members of the armed forces and veterans, they do not want to be above the law; they want to be treated fairly. That is what we are here to ensure. I have spoken to the individuals involved in the Marine A case, who explained the reasons why it happened, which I understand. It did not fulfil the high standards that are expected of the armed forces. In that case, it is about being fair to members of our armed forces, and ensuring that we are doing the right thing. Again, the combination of new clause 8, which we debated this morning, and new clause 6 would start to reduce that pile of potential litigants, even if they came from vexatious lawyers or elsewhere.

The other issue, which I can never get my head around, is the idea that the same case can be reinvestigated, as in the Campbell case. That is just ridiculous. There must come a time when we have to say, “Well, it has been looked at in detail. There has been evidence.” There might be a delay to trawl for witnesses and other evidence, but in effect what that says is, “Basically, we will do a fishing exercise until we get the answers that we want.” That cannot be right.

My new clause 7 addresses some of the limitations around investigations. I think we on this Committee all want thorough investigations, and so do members of the armed forces; what they do not want is endless reinvestigations that go on for, in the Campbell case, 17 years. New clause 7 would put limitations on reinvestigation. The section applies where

“(a) a person has been acquitted of an offence relating to conduct on overseas operations,”

so it would apply to those individuals.

I know this is not within the scope of this Bill, and I am sure you would pull me up, Mr Stringer, if I mentioned other areas, but that is the problem with the title of the Bill: some of the things in here should apply to members of the armed forces if the offence was committed on the UK mainland, but they do not. That is why I come back to the point that it would be better to do these things in the Armed Forces Bill next year and to take a holistic approach. Obviously, there are political reasons why this Bill is being rushed forward, to meet a manifesto 100-day commitment. However, I think some of these things should apply in the UK, but they will not with this Bill, and no doubt they will have to be picked up in the Armed Forces Bill.

The section also applies where

“(b) a determination has been made that an investigation into an offence relating to such conduct should cease under section (Judicial oversight of investigations).

(2) No further investigation into the alleged conduct shall be commenced unless—

(a) compelling new evidence has become available”.

Again, this is about trying to stop that reinvestigation, but having judicial oversight. The judge advocate determines

“the totality of the evidence against the accused”,

and sees whether it is strong enough such that

“there is a real possibility that it would support a conviction.”

Let us go to the Campbell case: if that case came forward again, the judge would have to look at the evidence and see whether the material circumstances had changed since the last time the offence was looked at. The strength of doing it this way, rather than as proposed in this Bill, is that it is not about limitations of time and the presumption against prosecution; a judge will look at the evidence and there will be a process. That would avoid the reinvestigation of such complaints.

If there is compelling new evidence, I think we would all agree—not just in the military justice system, but in a civil case—that we would want it to be looked at again. That links to the time limits on investigations, which for the individual concerned would not then stretch out for an indeterminate length of time.

[Martin Docherty-Hughes]

Regarding proposed new subsection (a) on new evidence, in evidence to the Committee last Thursday, in response to the hon. Member for Wrexham, the judge advocate gave as an example the six Royal Military Police who were sadly killed at Majar al-Kabir in 2003. Would this not allow us parity of esteem in the international judicial system? If new evidence came out in Iraq, we would demand that the Iraqi Government prosecute the individuals responsible for the murder of those six Royal Military Police.

[Mr Jones]

Yes, I remember that case—it was awful, if you read the background to it. The Bill is basically saying, “We are going to do something different from what we expect of other people.” I am sorry, but that is just not acceptable. We have a high standard in this country of judicial law and the rule of law and, as I said earlier, we should be a beacon. We should say, “This is something we are proud of.” Anything that changes that would be detrimental, and not only to the armed forces, for the reasons that have been raised. It is just logic that, if new evidence comes forward in a case, it must be looked at; just to say that the reason it cannot be looked at is that it has gone past a certain time period is wrong. If we dismiss new evidence without looking at it and having any judicial oversight of it, that would be a mistake.

--- Later in debate ---

[Johnny Mercer]

I thank the hon. Gentleman for that pertinent question. Extensive efforts have gone down over the years to make sure our people understand the rules within which they should operate. There clearly have been challenges in some of the training regarding detentions and so on, as has been found out through various court cases. I have always talked, on Second Reading and even before the legislation came to the House, about how the it is one of a series of measures. One such measure is about investigatory standards, another is about education and how individuals’ lives are affected, because it is not in anybody’s interests for us to do the legislation and for people not to understand. I am more than happy to share with the hon. Gentleman how much work we have done in that space.

[Martin Docherty-Hughes]

Go on, give way.

[Johnny Mercer]

I will not. Repeat investigations of alleged historical offences or the emergence of new allegations of criminal offences relating to operations many years ago can make the delivery of timely justice extremely difficult. It can also leave our service personnel with the stress and mental strain of the threat of potential prosecution hanging over them for far too long. The measures in part 1 of the Bill are key to providing reassurance to our service personnel and veterans about the threat of repeated criminal investigations and potential prosecution for alleged offences occurring many years ago on overseas operations. The purpose and effect of clause 1 is to set the conditions for when the measures in clause 2 and 3 must be applied by a prosecutor in deciding whether to prosecute a criminal case or to continue with the proceedings in a case. It should be noted with reference to clause 1(2) that the measures do not affect the prosecutor’s decision as to whether there is sufficient evidence to justify prosecution. The first stage of the prosecutorial test will therefore remain unchanged. Clause 1 therefore details to whom and in what circumstances the measures will apply.

[Martin Docherty-Hughes]

I am very grateful to the Minister for giving way. When we consider his summing up, critically with reference to new clause 7(2)(a), does he not recognise that some of the evidence given by Judge Becket in response to his hon Friend the Member for Wrexham creates an ambiguity in terms of our partners in military activity? For example, Judge Becket referred to the murder of six Royal Military Police in Iraq and noted that if new evidence was brought forward, and the Government of Iraq had the same legislation, there is every possibility that the people responsible would not be prosecuted.

[Johnny Mercer]

I assume that the hon. Gentleman is talking about Judge Blackett, who is the Judge Advocate General. He made some keen points. I have met Judge Blackett and we have tried to incorporate his work in the Bill, where appropriate. The idea that new evidence is presented and we do not prosecute is simply not the case. With reference to the six individuals killed at Majar al-Kabir in 2003, if new evidence is presented in that case, we would expect the Iraqis to prosecute. If new evidence emerges in cases against servicemen and women, they can still be prosecuted beyond these timelines. The legislation is simply bringing integrity and rigour to the process.

--- Later in debate ---

[Johnny Mercer]

No, because that would be to pre-empt the judge-led review of how we protect the Department, configure ourselves and develop the capability to deal with lawfare. Judge Blackett gave his view, but in our judgment it was better to engage the independent prosecutors, the Crown Prosecution Service and the Service Prosecuting Authority. That is what we have done—we engaged in a wide public consultation—and I believe that where we have arrived is fair and proportionate.

[Martin Docherty-Hughes]

If the Bill were not legislation relating to the armed forces, it would have been given prior oversight by either the Attorney General for England and Wales, the Attorney General for Northern Ireland or, for Scotland, the Lord Advocate or the Advocate General. Will the Minister tell the Committee why the Judge Advocate General was excluded from that process for this legislation?

[Johnny Mercer]

The Secretary of State wrote to the Judge Advocate General on 14 May 2020 acknowledging that, because of the 100-day election commitment to introduce the Bill, it was not possible for the legal protections team to complete the usual level of stakeholder engagement that we would usually seek to undertake post-public consultation.

[Martin Docherty-Hughes]

rose—

[Johnny Mercer]

I am answering the hon. Gentleman’s question. However, we welcomed the Judge Advocate General’s interest in the Bill: an offer was made for the project team to engage with him at a convenient time, and I subsequently met him. I respect the hon. Gentleman’s views on who would be consulted if the Bill were drafted in a civilian context, but I am entirely comfortable that the Department spoke to the right people to gauge their views on how we should deal with the current system, which is difficult and ultimately unfair to veterans.

I respect all the views that we heard last week—of course I do—but I am allowed to disagree with them. Having worked on this for seven years, it is possible to hear other people’s views on the matter and disagree with them. The Department has taken a balanced and proportionate view, and indeed, it has incorporated a lot of views from other stakeholders throughout the process.

--- Later in debate ---

This relates to the question, raised previously by the hon. Member for Wolverhampton South-west, about people’s responsibilities in relation to the orders they have been given. That is no excuse for their actions, but weight should be given to whether one is a senior officer. Again, this is a probing amendment. It is difficult to disaggregate, because all members of the armed forces are covered by the same basic rules. In terms of relevance to the prosecutor, it is a matter of the position that person was in to have changed their actions. That is different for a senior officer and a private, for example.

[Martin Docherty-Hughes]

The right hon. Gentleman gets to a point that many of us find disconcerting, especially when reflecting on the second part of the Bill. The chain of command needs to take responsibility for its decision making. I know this is only a probing amendment, but the Government need to consider the fact that the chain of command has responsibility within the decision-making process.

[Mr Jones]

That is important. It is about taking responsibility of the chain of command. I remember when we first introduced the Service Complaints Commissioner for the Armed Forces, there was a huge fear, as there was when we introduced the armed forces ombudsman, that they would interfere with the chain of command. I do not want for one minute to do that, and neither should a prosecutor, but the actions and freedoms that someone has is a relevant factor that needs to be taken into consideration. As we discussed this morning, these people are in very difficult situations—I am sure that neither you, Mr Stringer, nor I could imagine what it would be like, although I am sure that the Minister can—and that needs to be taken into account.

Having made those comments, I shall leave it there.

--- Later in debate ---

[Martin Docherty-Hughes]

I want to speak to amendment 3, the probing amendment tabled by the right hon. Member for North Durham, and to reflect on several issues that he has raised about trust and accountability. That is because there is a sense, at least among Scottish National party Members, that if this type of amendment were to be considered at a future time by the Government, it would allow the criminal justice system, and specifically the military judicial system, to retain some element of trust within civilian oversight.

I recognise that the Minister and the Government have a passion for this issue, and that there is a commitment to do this within 100 days. I hear that, but I have some concerns that need to be answered. First, to enable accountability and trust, can the Minister tell us whether the Crown Prosecution Service for England and Wales gave a positive response to the Bill? Secondly, in relation to the 100 days, there is also a commitment to have a similar Bill for Northern Ireland, so would he consider it appropriate for the Public Prosecution Service for Northern Ireland to be engaged in any future Bill-building on that Bill, given the fact that he excluded from this process the Judge Advocate General, who is a coherent part of the military judicial system, and engagement with whom enables trust to be built across the House?

I wonder whether the Minister can answer those questions: did the Crown Prosecution Service for England and Wales say that the Bill was a good piece of legislation; and will he instigate discussions with the Public Prosecution Service for Northern Ireland if he is going to introduce another piece of legislation for Northern Ireland, and again exclude the Judge Advocate General?

[Stephen Morgan]

I rise to speak in support of the amendments to clause 3. When I became a Member of Parliament, in the nation regarded as the birthplace of modern parliamentary democracy, I never once thought that I would have to argue the case for retaining Great Britain’s commitments against war crimes. This country was built upon principles of fairness, equality and justice. We have stood against torture and other war crimes, with a proud tradition of taking direct action when we see violations against human rights being committed. From world war two and the Nuremberg trials to Bosnia and The Hague, this country has a reputation for standing against torture and crimes against humanity. It is part of our identity and is part of what makes us British, which is why it is so concerning that this Bill in its current form, as my right hon. Friend the Member for North Durham said earlier, puts all of that at risk.

Schedule 1 to the Bill sets out what constitutes excluded offences for the purposes of presumption against prosecution. Torture is not included and neither are other war crimes listed in article 7 of the Rome statute, apart from sexual crimes. That is morally wrong. It breaks our commitments to international law, it risks dragging our troops in front of the International Criminal Court, and it is entirely avoidable with some common-sense amendments to the Bill.

Let us consider that first point. I know that everyone in this room would agree that it is morally wrong in any situation to commit an act of torture—it is the most serious of crimes and has no moral justification in any circumstances. When we look at schedule 1, we see that the offences excluded from legal protection are sexual offences. Labour agrees that these offences should be utterly condemned and are inexcusable, and that they should be excluded from any presumption against prosecution. However, schedule 1 fails to exclude terrible crimes such as torture and genocide. The Government have provided no good explanation or justification whatever for excluding only sexual offences from the scope of protection under the Bill, particularly as no service personnel in Iraq or Afghanistan have been accused of genocide, yet it is not excluded as an offence in the Bill. As a former Attorney General, Dominic Grieve, put it:

“This could create the bizarre outcome that an allegation of torture or murder would not be prosecuted when a sexual offence arising out of the same incident could be.”

As the Minister wrote the Bill, can he take us through sub-paragraphs (a) to (k) of article 7(1) of the Rome statute and explain why each provision is legally needed? What is the legal necessity of including each of those provisions?

That brings me to Labour’s second ground for objection to the Bill’s exclusion of torture and other war crimes. Britain has always had an unwavering commitment to the law of armed conflict. The Geneva conventions are known in most households in Britain, and the Bill tramples on our commitments to them. We have heard from judges and generals, witnesses who have trained our armed forces and provided them with independent legal advice, and ex-service personnel. We have received written evidence from the International Committee of the Red Cross. All those individuals and organisations have said two things in common. First, they are clear in their duty to uphold the law of armed conflict and instruct others to do so. Secondly, they are clear that the Bill risks eroding our commitment to those laws and have expressed grave warnings on the consequences. First, it would irreparably damage the moral credibility and authority of the UK to call out human rights abuses worldwide. Secondly, it would undermine the hard-won reputation of UK forces as responsible and reliable actors. Thirdly, it risks reprisals against British troops, particularly service personnel who may be captured and detained on operations.

I am reminded of the evidence last week of the Judge Advocate General, who said:

“You will remember that six Royal Military Police were killed…in 2003. If those responsible were identified today, would we accept that there would be a presumption against their prosecution? Would we expect the factors in clause 3(2)(a) to be taken into account? Would we be content that a member of the Iraqi Government’s consent would be needed to prosecute? Would we accept a decision by that person not to prosecute? In my view, there would be outrage in this country if that occurred. In all areas of law, you have to be even-handed.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 128, Q278.]

It is hard to disagree with those words. To demand justice from others when our men and women on the frontline need it, Britain must be at the forefront of defending that system, underpinned by international laws and the principle of equality under the law.

Labour is deeply concerned that the Bill sets the UK on a collision course with the International Criminal Court and that the Bill risks our troops being dragged to The Hague. Last week, we heard from a witness who represents and is the voice for thousands of veterans, who said that

“there is without a doubt greater fear of a non-British legal action coming against people than of anything British.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 110, Q219.]

Going back on our commitments to the Geneva conventions risks our forces personnel being dragged in front of the International Criminal Court, only confirming the worst fears among veterans discussed by Lieutenant Colonel Parker. Why would the Minister not prefer to have trials for British troops in British courts rather than The Hague?

The Bill as it stands is flawed. It is fundamentally at odds with British values by failing to offer an absolute rejection of torture. It tramples on our commitments to international doctrines that we helped to write, and it fails our troops by risking action by the international courts.

There is a way out. Protecting troops from vexatious claims does not need to be at odds with our commitments to international humanitarian law. There does not need to be a trade-off between safeguarding our armed forces and standing against torture. That is why we have tabled these amendments, which will address those imbalances.

First, the amendments would ensure that, under schedule 1, the forms of crime listed in the Rome statute, such as torture, genocide and crimes against humanity, were—alongside sexual offences—excluded from the presumption against prosecution. Further amendments would ensure that any breach of the Geneva conventions and other international laws also fell outside the scope of that. Labour’s amendments, by bringing the Bill in line with international law and doubling down on our commitments against torture, would protect our troops from international courts and protect our nation’s reputation.

The Minister said at the witness stage, “Don’t let the perfect be the enemy of the good.”

Overseas Operations (Service Personnel and Veterans) Bill

Martin Docherty-Hughes Excerpts

Consideration of Lords message
Tuesday 27th April 2021 Commons Chamber

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)[V]]

May I first take this opportunity to congratulate the Minister on their new position? It is always good to see Dochertys in very lofty positions, even ones that are lofty in the wrong direction.

The Bill was supposed to tackle vexatious claims, yet the evidence received, both written and in Committee, pointed to the problems arising from flawed investigations. Nothing in the Bill improves service justice or tackles repeated investigations. The Bill was an opportunity to overhaul the system, but that is an opportunity now lost. Unless the Government establish proper structures and processes for investigations, including independent investigators, personnel will remain vulnerable to repeated investigations and indeed investigations by the International Criminal Court.

Still, the Government have been forced into significant concessions in other areas of the Bill because of the work of Members in the other place. The Government agreed last week that genocide, crimes against humanity and torture would be excluded from legal safeguards in the Bill. The threat of a further possible defeat at the hands of peers has, I am glad to hear, forced the Government also to exclude war crimes from the presumption against prosecution. Although we on the SNP Benches recognise this change, it should not have taken until the last gasp of this Bill for the Government to make it.

In their refusal to listen to evidence presented in Committee and to the calls of Members of this House, the Government, at least from our perspective, have profoundly damaged the UK and Parliament’s reputation internationally. We also see that the final version of the Bill retains the six-year longstop on civil claims against the MOD, denying members of the armed forces justice in valid civil claims. Indeed, it will significantly disadvantage those who have served abroad. The House should be making it easier for personnel to make claims when the MOD has been negligent, but this legislation seems to be crafted especially to protect the MOD and not the personnel themselves.

Lords amendment 5B ensures care and support for personnel involved in investigations, and every Member of this place should be supporting it. The House knows from discussions with personnel that the structures currently in place are not working for those facing prosecution, and we have seen that in evidence to the Armed Forces Bill Committee, of which I am a member. Finally, if that support is already there and it is not working, we need to strengthen it through statutory requirements. I wonder whether the Minister and the Government are willing to do that.

[Bob Stewart (Beckenham) (Con)]

The distinct purpose of the Bill is to provide legal protection to military personnel serving overseas on operations—that is what it is about. It is all about stopping vexatious prosecutions, often generated, for large sums, by unscrupulous lawyers. In short, lawfare, such as we saw a few years ago, should be a thing of the past, but is it totally gone? I wish to explain a little of the worries I have.

I am pleased that the Government have now decided to include war crimes alongside torture, crimes against humanity, genocide and sexual crimes, such as a rape, as being not subject to a statutory presumption against prosecution. That is good news, because, as others have said, it might stop our service personnel being dragged before the ICC in the future. So we must now prosecute war crimes like any other crime, but might I suggest a slight spanner in the works here?

I have seen such crimes in my time in Bosnia, in 1992-93—obviously, I should emphasise, they were not carried out by British soldiers. I have also given evidence in the International Criminal Tribunal for the former Yugoslavia, where such crimes were tried—this is now done by the ICC. I gave evidence in trials where the guilty were sent to prison for between 15 and 45 years. I wonder exactly what crimes are not subject to a statute of limitation. What crimes creep through? As far as I can see, most of the definitions allow us to decide exactly what happens. I am quite worried that the Minister might not be able to identify a crime carried out that we could prosecute without a statute of limitation.

Sexual crimes can be prosecuted anyway under Navy, Army and Air Force Acts. Service personnel can never be ordered to carry out such acts by superior officers. Effectively, the Bill accepts and confirms crimes under the Sexual Offences Acts 1956 and 2003. The Bill states that unless there is compelling evidence, service personnel cannot be charged with crimes committed more than five years ago, unless of course they have taken part in war crimes, torture, crimes against humanity or genocide, which are offences without a time limit. As I mentioned earlier, I am slightly worried about what is left. Of course I go along with what we have done, but I am slightly worried that many crimes can evade the provisions and that people could be done on these classifications.

On service personnel who have suffered some form of physical or mental injury, the limit is broadly six years after the event. In short, they must have started proceedings against, say, the Ministry of Defence within that period. However, the Bill allows for the possibility of someone bringing forward proceedings where, for example, they have PTSD but had not discovered it, even if they are affected 20 years later. In such as case, they will have six years from the point when they discover they are affected or when they are diagnosed to bring a claim against the MOD. I reckon that is fair enough. The MOD is certainly not trying to disadvantage its own.

I end by reminding everyone of a point the Minister made. The Government are still committed to bringing forward a Bill to protect veterans in Northern Ireland in the same way as those who have served overseas. If they do not, our servicemen and servicewomen will have two levels of protection: those like me who served in Northern Ireland will have a lesser degree of protection than those who have served overseas. To that end, I have always believed and supported the suggestion by the Defence Committee, on which I served several years ago, that the way forward in Northern Ireland is for there to be a qualified statute of limitations unless compelling new evidence has been produced. I therefore hope that very soon the Government will bring forward legislation to stop possible unequal treatment of our service personnel.