Overseas Operations (Service Personnel and Veterans) Bill

Nigel Evans Excerpts

Wednesday 21st April 2021 Commons Chamber

[Olivia Blake (Sheffield, Hallam) (Lab) [V]]

I start by congratulating the Minister for Defence People and Veterans, the hon. Member for Aldershot (Leo Docherty), on his promotion. I welcome him to his new role.

Article 8.2 of the Rome statute of the International Criminal Court defines the term “war crimes” in two ways: as “grave breaches” of the Geneva convention or

“serious violations of the laws and customs applicable in international armed conflict”.

Under those two headings, the article provides 31 different offences. Here are just some examples:

“Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives”;

“Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion”;

“Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments”;

and

“Committing outrages upon personal dignity, in particular humiliating and degrading treatment”.

I list some of those crimes because if we accept only the Government’s proposal, instead of the amendments from the other place, they will remain “relevant” offences under the Bill. I am incredibly sceptical about there being a presumption against prosecution just because a crime was committed abroad, but it is unclear to me why anyone would support a time limit or presumption against prosecution specifically on the charge of attacking defenceless towns or killing people who have surrendered. Why rule out torture but not physical mutilation or scientific experiments on enemy combatants?

The concessions that Ministers and the MOD have made on torture, genocide and crimes against humanity are very welcome, but they do not go far enough to ensure that some of the worst crimes a person can commit are excluded. I agree with the many Members who have signalled that adopting Lord Robertson’s excellent amendment, Lords amendment 1, wholesale would be the best approach to uphold our international reputation.

On the issue that Ministers say the Bill addresses—the wellbeing of veterans—it also falls well short. My right hon. Friend the Member for Wentworth and Dearne (John Healey) mentioned Lord Boyce’s remarks, and I will reiterate them. A presumption against prosecution helps no one. The issue that needs to be dealt with is the investigation and reinvestigation of cases. The Lords amendments provide a mechanism for dealing with those reinvestigations, yet the Government are opposing them. At the same time, Ministers propose to make it harder for veterans to bring cases against the MOD and oppose any attempt to provide a duty of care to ex-service personnel involved in legal cases.

Without the Lords amendments, the Bill fails across the board and falls well short. Instead of playing politics with human rights, the Government should guarantee access to justice for all victims of war, from the victims and survivors of war crimes to those ex-service personnel failed by the MOD. That is why I will vote for the Lords amendments today.

[Mr Deputy Speaker (Mr Nigel Evans)]

I call Geraint Davies.

[Geraint Davies (Swansea West) (Lab/Co-op) [V]]

Diolch yn fawr, Mr Deputy Speaker. The Bill as it stands is frankly damaging to our armed forces, as it removes the protection of the law from many who have suffered injustice while serving our country, and it means war crimes may go unchallenged and that they might be dragged into the International Criminal Court.

As it stands, the Bill is bad for our international reputation and, indeed, for those who so gallantly protect our country because, unfortunately, it will stop people bringing legitimate cases of negligence, bullying and worse against the Ministry of Defence that are over six years old, while at the same time turning a blind eye to cases of war crimes and torture that are over five years old, all in the name of reducing the number of so-called vexatious cases.

In the case of Iraq, there have been 1,000 supposedly vexatious cases in the past 17 years. Of those, 330 have been settled—in other words, the Government have paid up and accepted liability. Some 414 remain ongoing—in other words, the Government have not applied for them to be struck out as being vexatious—and 217, only 217 out of 1,000, have been withdrawn or struck out. Many of them have been unmeritorious as opposed to vexatious, by which I mean they have been poorly pleaded or there have been errors of law. That is no surprise, because the Government have made savage cuts to legal aid. Many soldiers do not have law degrees and are traumatised by the experience about which they are bringing their case. There were about 10 unmeritorious cases in 17 years, which is fewer than the number of Government cases that have been rejected in court. Perhaps the Government should put their own house in order.

Let us also remember that, at the moment, the courts will not hear cases of historic facts unless they pass the test of being equitable—in other words, that fairness requires it—so we do not need the six-year limit. What is more, claimants face substantial costs to the Ministry of Defence in cases that are found to be unmeritorious, which is a clear deterrent.

We now have a situation in which the MOD can delay evidence in the name of national security and evade prosecution for negligence or worse. A constituent came to me who had been on an exercise with the military, and he had been hooded, stripped and tortured. He ended up with post-traumatic stress disorder, alcoholism and basically a lifetime of mental health problems, and we are still trying to get compensation. Clearly his case would be ruled out by the Bill.

There is the famous case of an Army cadet who was sexually abused by her instructor, and she did not bring it up until she was an adult. Again, the six-year rule would have meant that her case was not heard. There is the case of a Territorial Army officer who was subjected to racist abuse over many years, to which his superiors turned a blind eye. That case would not have been heard under the six-year limit. The cases go on.

I have no hesitation in supporting the Lords amendments on the duty of care, on the facility for cases to be reopened by the Director of Service Prosecutions when new evidence emerges, and on the facility for members of the armed forces to bring civil claims against the Ministry of Defence.

Finally and crucially, the Bill bans the prosecution of war crimes, including murder and torture, after five years, which is appalling, especially as it can take decades to investigate some of these crimes. We all know what happened after the second world war, for instance. The Government can sit on evidence for years. In a particular case in Britain, which involved the execution of unarmed civilians by British special forces, they sat on the evidence for more than a decade. We cannot justify a blanket pardon for war crimes and torture after five years of their happening, otherwise we will end up in the International Criminal Court in The Hague.

I very much support the amendments from the Lords that try to make the Bill a bit better. In essence, though, my view is that the Bill was not necessary and that it should have been completely scrapped, which is why I voted against it in the first place. None the less, I urge Members to vote for the Lords amendments today.

[Mr Deputy Speaker (Mr Nigel Evans)]

Diolch yn fawr.

[Beth Winter (Cynon Valley) (Lab) [V]]

I followed the process of this Bill through the House and, at every point, I voted against it and stood in opposition to it. The Bill has deeply worrying implications for Britain’s standing worldwide and risks further eroding the rights of those living in countries where Britain has a military presence.

The Bill is completely contrary to the values that I hold dear: justice, the rule of law, human rights, peace and a total abhorrence of the inhuman treatment of fellow human beings. I am glad that these views are shared with my colleagues in the other place who voted overwhelmingly across parties in support of measures to address some of the most concerning elements of the Bill.

Although the Government made a belated U-turn yesterday on the exclusion of torture, genocide and crimes against humanity from the Bill, that has been a disappointing and partial change. The Government’s amendment failed to exclude war crimes from the scope of the Bill. By choosing not to exclude from the Bill crimes identified by article 8.2 of the Rome statute of the International Criminal Court in its totality, the Government’s partial amendment will leave many crimes—inhuman treatment, biological experiments, murder, mutilation and cruel treatments, to name just a few—subject to the presumption against prosecution in the Bill. That was clearly not the Lords’ intention when passing Lords amendment 1. We do not send our troops abroad to commit war crimes. We must hold our armed forces to higher standards than this and be willing to prosecute any cases where their behaviour falls short of our shared values. It will be a grave mistake to fail to exclude these war crimes from the five-year limit and will send a signal that we condone crimes of this nature.

Without these Lords amendments, the Bill would effectively legislate to decriminalise war crimes committed by our armed forces. That would be a grave injustice and a moral stain on our international reputation, and would put UK service personnel at risk both in the field and of prosecution in the International Criminal Court. It is for those reasons that I will vote to support Lords amendment 1, tabled by former Defence Secretary and NATO Secretary-General, Lord Robertson of Port Ellen, which excludes torture, genocide, crimes against humanity and, crucially, war crimes from the scope of the Bill.

That brings me to Lords amendment 4, which would eliminate the time limit for current or former service personnel to bring claims against the Ministry of Defence. During discussions with veterans and the Royal British Legion in Wales, they voiced a deep-seated opposition to the Government’s proposal on this matter, which would weaken the key avenue for service personnel to access proper compensation by introducing an unnecessarily brief time window for them to pursue claims. This is inappropriate as some conditions can take years to manifest or be properly diagnosed, such as post-traumatic stress disorder.

The Royal British Legion has rightly expressed grave concerns that the six-year longstop could be a breach of the armed forces covenant. The Government proposal does nothing to protect service personnel or veterans or to expand their rights, but rather serves to shield the Government from criticism. It is vital that we take steps to protect the wellbeing of soldiers and allow them to exert their rights. For these reasons, I support Lords amendment 4, which would remove any restrictions on the time limits for actions brought against the Crown by service personnel.

In a statement following my vote against the Bill on First Reading, I said that, in my view, it undermines the UK’s good standing in defence of human rights and the historically leading role that we have played in the fight against international war crimes. While I welcome and support the Lords amendments and urge others to vote for them, I have not changed my view of this Bill. Serious problems remain, and while supporting the Lords amendments, I cannot support this Bill in its entirety as, in the words of Justice, it would go against

“the interests of service personnel, victims and the UK’s reputation as a country governed by the rule of law.”

As my colleague Baroness Chakrabarti, who has taken a principled stand and fought tirelessly against this Bill from day one, has said, this Bill is a violation

“not just of human rights, but of the rule of law itself and that fundamental principle of equality before the law…which is supposed to be a principle that even conservatives hold.”

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I urge colleagues to support the amendments. I urge the Minister to look at investigations, even at this late stage, to see whether we can get that in if the Bill comes back during ping-pong. That would improve the Bill. I just wish the current Minister had been there during consideration of this Bill and the Armed Forces Bill because I think we would have had a more fruitful consideration of amendments, and real change. I just say to Government Members—the Minister knows this, because I know him well—that there are Opposition Members who want to stand up for our armed forces and help members of our armed forces. Just because we are in a different political party does not necessarily mean that we are against everything that is being put forward. I know that the Minister will work in a cross-party way because he has a record of doing that. I finish by wishing him well and I look forward to some constructive engagement with him as Veterans Minister, because, at the end of the day, I think there is pretty good consensus across the House on the fact that we want to do the best for members of our armed forces and veterans.

[Mr Deputy Speaker (Mr Nigel Evans)]

I welcome the new Minister to his post.

[Leo Docherty]

Thank you very much, Mr Deputy Speaker. I thank colleagues from across the House this afternoon for their considered contributions. I have listened with humility and interest, and I deeply appreciate the constructive tone from the shadow Secretary of State, the right hon. Member for Wentworth and Dearne (John Healey), and colleagues on both sides of the House.

A number of colleagues expressed concern about the list of excluded crimes, including the shadow Secretary of State, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), the hon. Member for Glasgow North West (Carol Monaghan), my right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright), the hon. Member for Barnsley Central (Dan Jarvis), my right hon. Friend the Member for Beckenham (Bob Stewart), my hon. Friend the Member for Gravesham (Adam Holloway), the hon. Members for Sheffield, Hallam (Olivia Blake) and for Swansea West (Geraint Davies), and the right hon. Member for North Durham (Mr Jones).

Let me make it clear that the presumption against prosecution created by part 1 does not prevent investigations or prosecutions for any category of crimes. It creates a higher threshold for prosecution, not a bar. It therefore does not prevent the UK from investigating crimes of any nature, whether they are in or out of the list of excluded offences in schedule 1. I have listened with sympathy to the concerns of many hon. Members that failing to expand the list of excluded offences makes UK service personnel more likely to face prosecution by the International Criminal Court, but it does not. Cases are only admissible to the ICC when a state is unwilling or unable to investigate or prosecute, so the presumption against prosecution created in part 1 does not prevent investigation, and cases can still be prosecuted. We will therefore not be considered by the ICC to be unwilling or unable to investigate and prosecute war crimes.

Several Members expressed concern about the duty of care, including the hon. Members for Belfast East (Gavin Robinson), for South Shields (Mrs Lewell-Buck), for Caithness, Sutherland and Easter Ross (Jamie Stone), and for Upper Bann (Carla Lockhart). The Ministry of Defence takes very seriously its duty of care for service personnel and veterans, for whom there already exists a comprehensive range of legal, pastoral, welfare and mental health support, details of which can be found, as I have mentioned, in the Secretary of State’s written ministerial statement of 13 April. The Lords amendment carries a risk of unintended consequences, including a possible increase in litigation, which would be contrary to the Bill’s objectives. I can reassure the House that the MOD and the Office of Veterans’ Affairs work closely across all Government Departments and the devolved Administrations, and with charities, to ensure that the welfare needs of our service personnel and veterans are met. We have come a long way on the welfare provisions for veterans and our service personnel, but we will continue to work tirelessly to ensure that we get this absolutely right.

This is without the scope of the Bill, but I feel obliged to reiterate my earlier comments about our approach to Northern Ireland veterans. In response to inquiries from the hon. Members for Strangford (Jim Shannon) and for Upper Bann, my right hon. Friend the Member for Beckenham and others, I can confirm that I expect, with confidence, legislation very soon from the Northern Ireland Office, and I look forward to keeping hon. Members updated in that regard.

I hope that I have been able to provide additional clarity and reassurance on the many issues that have been covered this afternoon. I hope that the House will agree to the Government amendments in lieu of Lords amendment 1, and disagree to Lords amendment 2, 4 and 5. I hope that the whole House agrees that the Bill will deliver an important step forward in the commitment of the Prime Minister and the Government to give our finest defence asset—our people—and our veteran community the protection they so richly deserve. I commend it to the House.

[Mr Deputy Speaker (Mr Nigel Evans)]

I am expecting Divisions—more than one. I remind everybody that there will be eight minutes for the first Division and five minutes for each Division subsequently.

Lords amendment 1 disagreed to.

Government amendments (a) to (o) made in lieu of Lords amendment 1.

After Clause 7

Investigation of allegations related to overseas operations

Motion made, and Question put, That this House disagrees with Lords amendment 2.—(Leo Docherty.)

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Committee to withdraw immediately; reasons to be reported and communicated to the Lords.

[Mr Deputy Speaker (Mr Nigel Evans)]

In order to observe social distancing, the Reasons Committee will meet in Committee Room 12.

That concludes consideration of Lords amendments to the Overseas Operations (Service Personnel and Veterans) Bill. I suspend the House for three minutes.