Overseas Operations (Service Personnel And Veterans) Bill

Stephen Morgan Excerpts

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

[Stephen Morgan (Portsmouth South) (Lab)]

I would like to start by paying tribute to our armed forces and joining colleagues from across the House in expressing gratitude to those who serve. They truly give us reason to be proud of our country.

There is consensus across the House today. Labour, the Government and our armed forces all want the same thing. We all agree that we must protect our troops from vexatious claims, and we all agree that we must defend those who serve our country overseas with courage and distinction. The Government promised to bring forward legislation to do just that in the first 100 days of government. Now, 284 days later, they have disappointingly got crucial elements of this Bill badly wrong.

The question we must be asking is: what does this Bill mean for our troops? It risks breaching the armed forces covenant and rolls back on their employment rights. It fails to properly protect against vexatious claims and undermines Britain’s proud adherence to international laws, such as the Geneva convention, that we helped to create. However, it is not too late. There is still time for Ministers to work with us to get this right.

A number of powerful points have been made in the House today. It would probably be unwise of me to single out any of them, but let me just mention my right hon. Friends the Members for East Ham (Stephen Timms) and for North Durham (Mr Jones), and my hon. Friend the Member for City of Chester (Christian Matheson), who all spoke commandingly on the importance of our nation’s national standing; my hon. Friends the Members for Coventry North West (Taiwo Owatemi) and for Jarrow (Kate Osborne), who spoke about ensuring that we always think about the impact of this Bill on our armed forces personnel and veterans; my hon. Friend the Member for Leicester East (Claudia Webbe), who spoke about the need to invest in mental health services and tackling homelessness; and my hon. Friend the Member for Brighton, Kemptown (Lloyd Russell-Moyle), who spoke about the concerns raised by the Royal British Legion.

I also congratulate, and pay tribute to, the Chair of the Defence Committee on passionately saying that we do not want the Government to over-promise and that the Bill in its current form will not help a number of veterans. Finally, my hon. Friend the Member for Barnsley Central (Dan Jarvis) said that Britain must uphold its commitment to human rights. I agree with him that we cannot afford to become an outlier among our allies by refusing to investigate allegations of some of the gravest crimes imaginable.

I am most concerned by the Bill’s potential infringement of the rights of Her Majesty’s forces. I share the view of the Royal British Legion—an organisation with an unwavering commitment to service personnel—that the Bill constitutes a possible breach of the armed forces covenant. I urge other armed forces groups to share their views on what the Bill means for our forces community. Our troops must be at the heart of this debate.

The Government’s introduction of a six-year limit for bringing civil claims will prevent troops who suffer injury from taking cases to court. As we heard earlier in the debate, over the past 15 years there have been 25 cases brought by injured British troops against the MOD for every one case brought by alleged victims against our forces. That means the main beneficiary of this Bill is the MOD, not our personnel. The Bill should be designed to protect troops, not the purse strings of Government. I put this to the Minister: if this Bill is for our armed forces community, why does it deny them the same employment rights as civilians?

Labour is also deeply concerned that this Bill does not meet its primary objective. It does not do enough to protect our troops from vexatious claims. Months of letters from the Defence Committee to the Defence Secretary —the Committee only received a reply yesterday—made the point that the Bill does nothing to prevent arduous investigation processes; it just protects from prosecutions. It does nothing to deal with the serious failings in the system of investigating allegations against British troops, something that Defence Ministers have themselves admitted. Had those allegations been dealt with properly and self-regulation had occurred, we probably would not be here today. Perhaps the toughest, most intrusive aspects of the vexatious claims process are not being dealt with in this Bill, and that is not the only way in which it leaves our troops open to so-called lawfare.

By going back on our commitments under the Geneva convention, the Bill risks dragging our people in front of the International Criminal Court. I put it to the Minister: does he really want to make it more likely that the ICC can open investigations against British troops?

There is also a set of wider issues. Vexatious claims are not the only problem that our forces face. Action on the issue is not licence-e to neglect others, such as low pay, 10 years of falling morale, a decade of falling numbers and a housing crisis across the tri-services. If the Ministers are serious about tackling the poor track record on defence, we need to see action on all those issues. The Bill presents an opportunity to turn the tide, to break the mould and to work with Labour to get it right.

In this country, we are proudly patriotic, and reinforcing that patriotism—that love of our country—is the high regard in which our armed forces are held. When we see Union flags on the shoulder patches of service personnel overseas, that means something: it means honesty, it means respect for the rule of law and it means justice. From Sandhurst to Britannia Royal Naval College, there is a reason that countries around the world send their officers to be trained in our military institutions.

This Bill puts all that at risk. It is at odds with the rules-based international order we helped to create. In its current form, the Bill would make Great Britain the only nation among our major allies to offer a statutory presumption against prosecution. As the previous Chief of the Defence Staff but also the ex-Attorney General and a former Defence Secretary have said, the Bill undermines Britain’s proud, long-standing adherence to the Geneva convention.

Great Britain has proudly stood and must stand against the use of torture and against the use of rendition. I urge the Minister: do not undo the work of Churchill, do not undo the work of Attlee and do not chip away at our nation’s proud reputation. I put it to the Minister: how can we expect Great Britain to speak with authority on international law to China, Russia and Iran if we go back on our own commitments? In years gone by, a commitment made by our proud nation meant something. Last week, the Government tarnished that reputation by breaking international law with the United Kingdom Internal Market Bill. I urge the Minister to commit to working with us to ensure that this Bill does not do the same.

Unfortunately, the Government have got important parts of the Bill badly wrong. In its current form, it risks damaging our reputation and failing to protect Her Majesty’s armed forces, but it is not too late. As I said, there is consensus in the House today. There is still time for Ministers to work with the Opposition to get it right. Protecting troops from vexatious claims does not need to be at odds with our commitments to international law. Labour stands foursquare behind our troops. We want to work with the Government to build the broadest consensus possible around a Bill tailored to support our armed forces and to safeguard human rights. Let us work together to get this right, protect our troops and their reputation, and our country’s international standing.

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

Stephen Morgan Excerpts

Committee stage & Committee Debate: 1st sitting: House of Commons
Tuesday 6th October 2020 Public Bill Committees

[The Chair]

Thank you very much, sir. I have four Members who have indicated that they want to ask questions: Stephen Morgan, Kevan Jones, Carol Monaghan and Stuart Anderson. If anybody else wants to ask a question, please indicate. I will go first to Stephen Morgan, who I am sure will follow the Major’s instructions.

[Stephen Morgan (Portsmouth South) (Lab)]

Q Major Campbell, thank you for giving evidence before the Committee today. You have obviously recently been in the news for the eight investigations. How did the MOD provide you with support? Was there good care and assistance during the investigations?

Major Campbell: No, there was none. Depending on which investigation you wish to address, in the early investigations under the Royal Military Police we were told just not to think about it and to get on with stuff. No concession was given to us in our day-to-day duties. Later on, when the Aitken report was written in 2008, we were not approached prior to the publishing of the report; I heard about it on the radio like everybody else, while I was driving home. It is rather unpleasant to discover on the radio that your own Army accuses you of killing somebody in Iraq, three years after you have already been cleared of that allegation.

Moving forward to the later investigations, there was a civil claim made by Leigh Day in 2010, in which we were ordered to give another statement and we were ordered not to seek our own legal advice by the Treasury Solicitors. We ignored that instruction: we got our own legal advice, and we declined to assist the Ministry of Defence in defending the civil claim, because frankly we thought they had rather a cheek after previously accusing us of committing that offence.

When IHAT came in 2015, I had just started my intermediate officer education at staff college. I knew IHAT was going to come and arrest me and question me, so I approached the course colonel to ask whether I could defer the course, because I had to concentrate on this allegation. He wrote to me in an email, “Based on the version of events you have described to me, which would doubtless be corroborated by your colleagues, I do not believe you have anything to fear. Given the utter discrediting of Iraqi witnesses in al-Sweady, I believe you can take further confidence. I know this is extremely unsettling business for you, but I would urge you to try to put it to one side and focus on this course. That in itself will be a distraction and help you get on with your life.” So, to briefly answer your question, no, we were not offered any type of meaningful support other than some rather unhelpful advice to try not to think about it.

[Stephen Morgan]

Q How was the chain of command? Did they take responsibility? Should they have done?

Major Campbell: No. Again, that last instance was my direct line manager—okay, it was slightly different from the normal chain of command because I was on a course. Their belief was—this is what kept being told to me—if you have done nothing wrong, you have got nothing to fear. While I tried to explain to them, “Look, I have been through many investigations and, trust me, they are very, very unpleasant” they would not have it.

I pushed it up the chain of command to Army headquarters, and again they were not really interested in helping. They expressed to me that they were being told by the directorate of judicial engagement policy not to get involved. In terms of hindering me, if you like, I was appalled to discover that the Army personnel centre had handed over my service and medical records to IHAT without my knowledge or consent.

Apart from the military chain of command, I wrote to Penny Mordaunt, Mike Penning, Mark Lancaster and the Secretary of State, Michael Fallon, in response to some of their public statements in order to correct some things they said that were not entirely accurate when they were making claims that everybody was fully supported. They all responded back to me, “You don’t understand—we have to do this because we have to be seen to be doing something.” The impression I got was that me and my two other soldiers being multiply investigated was necessary for the reputation of the United Kingdom or the Army.

[Stephen Morgan]

Q We heard from other witnesses about the challenges that veterans have faced in getting information and suggestions of improvements to the armed forces covenant or a phone line or advocates. Will you say a bit more about what support you would have wanted?

Major Campbell: The Army is a large and compartmentalised place. For example, when public statements are being made about these investigations, nobody actually checks with us or our solicitors if they are indeed true. Certainly, Brigadier Aitken did not think to check with us or our solicitors if we might wish to dispute anything that he was going to write in his report. He wrote retrospectively that our case was included in another load of cases, some of which were true and some of which, I believe, were false. However, I think a greater degree of a direct communication would have been better.

I also suggested in my letter to Michael Fallon that an officer at least of colonel rank should be set up somewhere like Army headquarters—I will focus on the Army because I am not too sure about the other two services—to be the one-stop shop for anybody who is under investigation. I was told that that was not necessary. Both Michael Fallon and Sir Stuart Peach in the Defence Sub-Committee on this matter said there is no need for such a thing because there is the chain of command, which will do everything. The chain of command folded at the first hurdle. The administrative process in place to apply for our legal fees to be reimbursed failed at the first hurdle, because the form did not have a box for an IHAT investigation.

On top of that, there was just to be no concession on how we were supposed to conduct ourselves in our day-to-day life. Because there was no single point of contact, we had nowhere to address our concerns. I had a very tedious series of correspondence, again with all those people I just named, who all responded, “If you’ve got a problem with it, complain to IHAT.” That is not the most helpful piece of advice.

[Stephen Morgan]

Q You will have seen criticisms that the Bill does not do enough to protect our troops. What would you do to improve the Bill in its current form?

Major Campbell: In terms of legal protections of soldiers, I would not change anything in terms of historic allegations, let me make that point clear. Had the Bill been in place during my case, it would have meant, at the absolute worst, that our torment would have ended in 2009, and neither IHAT nor the Director Service Prosecutions would have had any method of dragging it out further. For me and my two soldiers, SO71 and SO72 as they are cited in the IFI report, that would have meant that we could have at least enjoyed the last 11 years in peace.

Secondly, if the Bill had been in place during my time, Leigh Day would not have been able to bring about false allegations. That would never have got off the ground. I am no legal expert, but if the Bill was in place, it would make the vexatious, scattergun, “throw a thousand allegations at the wall” process unprofitable, and people like Leigh Day and Phil Shiner would have to find some other human misery to exploit.

The last point about this hard stop of five years is that it would be a useful device, because it would focus the minds of the MOD and the investigators. It was the MOD that dragged it out for the last 17 years. If they had this hard stop, they would have to really focus and decide whether they are going to prosecute or not. Putting them under a bit of pressure would have saved us a lot of angst in the years past.

[Stephen Morgan]

Major Campbell, thank you for your answers.

[Stuart Anderson]

Q Thank you, Major Campbell. It is an absolute disgrace that you have had to go through everything that you have. It is horrible to hear, but we need to learn lessons from this and look to move forward. You just mentioned that if the Bill had been in place since 2009, you, SO71 and SO72 would have been able to lead a normal life, and the torment would have been over. Will you confirm whether you welcome the Bill or whether you are against it?

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

My other slight concern is that previous Attorneys General have done us no favours at all. Lord Goldsmith had a lot on his shoulders for how we ended up in Iraq and the manner in which we conducted operations there. When I appealed to Jeremy Wright, and when he gave evidence to the Defence Sub-Committee on this several years ago, he took the view that this was an entirely fair process and that there was absolutely no reason to stop IHAT or even to scrutinise it any further than necessary.

The last point I would make about the Bill is that I cannot really adhere to some of the arguments against it. When I wrote to all these people, such as the CGS, the Adjutant General and previous Ministers Mordaunt, Penning, Lancaster and Fallon, they would all express a variation of, “Well, we have to be seen to be doing something.” I do not believe that public relations and being seen to be doing something are a good enough reason to destroy a soldier’s life or to drive them to suicide. I do not think that is morally acceptable in any way, but apparently they thought that was a price worth paying.

To answer your question, yes, I support the Bill. There may be some minor tweaks here and there, but, in principle, and in the absence of anybody doing anything to help us in any way, it has my full support.

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

Stephen Morgan Excerpts

Committee stage & Committee Debate: 3rd sitting: House of Commons
Thursday 8th October 2020 Public Bill Committees

[The Chair]

For your information, in case you are not aware, we have a witness here in the room, Mr Charles Byrne, so we will be alternating between you and Mr Byrne. We have some logistical challenges, because we have to adhere to social distancing, so I am sure you will bear with us if those arise. We have until 12.15 for this session. I call on Stephen Morgan to begin the questioning.

[Stephen Morgan (Portsmouth South) (Lab)]

Q 155 Thank you, Chair. May I place on the record our gratitude for the work of the British Legion and other charities in this challenging time for our country? It has been an important year for the nation. Charles, does any aspect of the Bill risk breaching the armed forces covenant?

Charles Byrne: Thank you for the question. We welcome and understand the good intent behind the Bill. However, we have raised concerns that the six-year longstop could be a breach of the armed forces covenant, because it restricts the ability of armed forces personnel to bring a civil claim against their employer. As far as I understand it, that longstop limit does not apply elsewhere. That is the concern we have exactly.

[Stephen Morgan]

So it would breach the armed forces covenant, in your view?

Charles Byrne: That is what we think, yes.

[Stephen Morgan]

Can I put the same question to the general?

General Sir John McColl: First, I absolutely agree with Charles’s support for the intent of the Bill. The pernicious harassment of servicemen by the legal profession following the campaigns in Iraq and Afghanistan was absolutely disgraceful. We commend the efforts of the Government in bringing forward this legislation to try to address that issue.

In terms of the advantages and disadvantages, we absolutely acknowledge that the six-year cut-off will disadvantage some elements of the community—we understand that it is about 6% of cases. Of course, there is a judgment to be made between that disadvantage and the disadvantage experienced by the 94%, or the significant number of people, who may be subject to harassment. That is the balance of advantage.

I just observe, sitting in front of you as the chairman of the Confederation of Service Charities, that we members of the service charity community are not experts in law, human rights or legislation. Those are the remit of politicians, officials and lawyers. We can talk in broad terms about the interests of our community. We cannot talk about the detail of how to achieve the laudable intent of trying to put a stop to this appalling harassment.

[Stephen Morgan]

Q Thank you for those answers, and for setting out your concerns about part 2 of the Bill. What do you want to see addressed? What would improve the legislation, based on the comments you have made?

Charles Byrne: Anything that can be done to address the fundamental concern about that six-year longstop. As I say, we support the intent behind the Bill and welcome that the impact on mental health is explicitly called out; that is very good. While there is good there, we think that the Bill could be improved if it is possible to address the six-year longstop that limits the ability to bring civil cases. There is some difficulty in the numbers as well—the 6% that Sir John refers to. We could look into the detail that sits behind that.

General Sir John McColl: We encourage continuing consultation to find ways of ameliorating the difficulties of the 6%. However, we observe that the overriding requirement is to ensure that this harassment ceases.

[Stephen Morgan]

Q I understand that the British Legion has seen a copy of the Bill’s impact assessment. Are there any concerns in there that you want to bring to the attention of the Committee?

Charles Byrne: No. To be honest, I have not been through it in detail.

[The Chair]

I think the Minister has a follow-up question, which he will have to deliver from the microphone.

--- Later in debate ---

[Johnny Mercer]

No, because what we are looking to do is to protect, and to ensure that our servicemen are not disadvantaged.

Charles Byrne: I think it is protecting the MOD, rather than the service personnel—that is the debate that we have had.

[Stephen Morgan]

Could we go back to constructive questions, rather than an interrogation?

[The Chair]

Indeed. I think we will have the opportunity for some of the issues that the Minister has raised in the parliamentary debate and in the subsequent discussion in Committee.

--- Later in debate ---

[Stephen Morgan]

Q There are proposals to put the armed forces covenant into law next year. Do you think a legally binding covenant and the Bill are compatible under English law?

Charles Byrne: Can you say that again?

[Stephen Morgan]

Do you think a legally binding covenant is compatible with what we see in the Bill, in terms of the proposals that will be brought before Parliament next year?

Charles Byrne: It is an interesting question. On the general principle of strengthening the force of the armed forces covenant, I welcome that. In all honesty, on the considerations of how this might play out in that situation, I cannot give you an answer now.

[Stephen Morgan]

Can I put the same question to the general?

[The Chair]

Perhaps you could repeat your question, Mr Morgan.

[Stephen Morgan]

The proposals for next year are to bring the armed forces covenant into law. Do you believe that a legally binding covenant and this Bill would be compatible under English law?

General Sir John McColl: We are in consultation with the Government at the moment in relation to bringing the covenant into law. We have raised a number of issues with them, which the Minister who is sitting with you is very well aware of. Charles can support me here in terms of the concerns we have.

The first concern is that initially there was no mention of special consideration, in other words, for those who had given the most—those who had suffered bereavement or very serious injury. I understand that may now be in it. There was also a concern that it was limited, in that it dealt with three specific areas rather than the totality of the covenant. We continue to have concerns in that area, and we also have concerns that it seems to focus the effort on local government rather than central Government. Those are our major concerns. I am not sure whether I have answered your question, but those are the concerns that we have. We will be watching the consultation and participating in it.

[Sarah Atherton (Wrexham) (Con)]

Q Charles, on Second Reading, three times I heard Opposition Members say that the British Legion is categorically against the Bill. I have heard it once in this Committee already. Can you confirm? Are you against the Bill?

Charles Byrne: No, we are not opposing the Bill. We think the Bill can be improved, which is why we are focusing on this particular element in the second part of the Bill. To be categorical, no, we are not opposing the Bill.

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

Stephen Morgan Excerpts

Committee stage & Committee Debate: 4th sitting: House of Commons
Thursday 8th October 2020 Public Bill Committees

[Johnny Mercer]

Q Why do you think the MOD has not taken on your advice?

Judge Blackett: I think in terms of the six-month time limit, there were lawyers in the MOD who said that we did not put that in the Armed Forces Act 2006. There are commanding officers who do not want to be limited, because sometimes they need more time. In terms of better case management, I think that the MOD thinks that is a good idea, but I did not come to it until quite late in my time.

I will say one thing, though. In terms of IHAT and Northmoor, as the Judge Advocate General I wanted to be more involved, but I was kept out—properly, I suppose, because I might have to try the cases in the end. We expected a lot of cases to come out of those two matters, and as you know, not a single case came out of them, which tells its own story.

[Stephen Morgan (Portsmouth South) (Lab)]

Q Thank you, Judge Blackett, for being so willing to come before the Committee to hear our concerns and to help us improve the Bill. You described the Bill as ill conceived. Can you explain why you had that view?

Judge Blackett: Yes. Perhaps I can say this. I wondered why, in the face of all the opposition—there is huge opposition, from various bodies—the Government seemed intent to pursue this particular issue. I have three concerns about the Bill. One is the presumption against prosecution, one is the wording in clause 3(2)(a), and the other is the requirement for Attorney General consent.

I listened very carefully to what Johnny Mercer said to the Joint Committee on Human Rights a couple of days ago. He described a pathway that goes from civil claims for compensation. That becomes allegations of criminal behaviour. That leads to investigation. That leads to re-investigation. I think that is the pathway you described, Mr Mercer. He said the lock was a presumption against prosecution, and Attorney General consent. I can understand, looking back, how you might get to that, but I think that logic is flawed, because actually he agreed that the issue of concern is investigations, which is my concern as well, and the length of time they take. He accepted, as he would, that all allegations must be investigated. That acceptance and a presumption against prosecution just do not equate, in my terms.

Let us look at some statistics. In my time as JAG, we have had eight trials involving overseas operations, with 27 defendants, of whom 10 were convicted. There were obviously trials. I did the two murder trials. The first murder trial was about the murder of a chap called Nadhem Abdullah by 3 Para. That was a case called Evans. The events took place in 2003; the trial was in 2005. In the case of Blackman, Marine A, the unlawful killing took place in 2011; he and two others were tried in 2013. So the system worked and due process went along. There were eight trials.

At the same time, there were 3,400 allegations in IHAT and 675 allegations in Northmoor. We all know how long they took, and nothing came out of them. So I agree wholeheartedly with what the Minister is trying to do. I am absolutely behind protecting service personnel. I simply do not believe this Bill does it, because I cannot see that a bar on prosecution or—sorry—a presumption against prosecution is going to stop the ambulance chasing that the Government are so worried about.

My second concern, of course, was the International Criminal Court. Take a case like Blackman, for instance, where there was a video of him shooting somebody. Had that come to light over five years later and there was a presumption against prosecution, first of all, the investigation would have taken place. The prosecutor could have said, “The presumption exists. Therefore I am not going to prosecute.” That would lead to a victim right of review, perhaps. More importantly, it would lead the International Criminal Court to say, “You are unable or unwilling—article 17 of the Rome statute—to prosecute. Therefore we’ll take this and we’ll put him to The Hague.” That is a real concern of mine.

The prosecutor could decide there is a case to answer, but he would send it to the Attorney General, and the Attorney General says either, “Prosecute”—in which case, so what?—or no, and you have exactly the same thing: judicial review of his decision by all sorts of people, and the International Criminal Court saying, again, “You are unable or unwilling.”

In my view, what this Bill does is exactly the opposite of what it is trying to do. What it is trying to do is to stop ambulance-chasing solicitors and vexatious and unmeritorious claims. The Minister quite rightly said we want rigour and integrity. What it actually does is increase the risk of service personnel appearing before the International Criminal Court. That is why I said it was ill conceived.

[Stephen Morgan]

Q Thank you for that thorough and comprehensive answer. You mentioned earlier being kept out of discussions. One theme that has come out from the witnesses over the last few days has been about more engagement and consultation on what the Bill is trying to do and its contents. Is it unusual for someone in your position not to be formally consulted on the Bill’s contents?

Judge Blackett: No. My office is nearly always consulted on legislation, particularly when I went through the 2006 Act. I was heavily involved in that and, subsequently, with the other quinquennial reviews. I do not understand why my office was not consulted. There have been occasions in the past where paperwork has got lost when we have been consulted. I personally was not, but my office dealt with it. That was not the case here—we simply were not consulted.

[Stephen Morgan]

Q So it was quite unusual?

Judge Blackett: It was unusual. Whether it was pressure of time or whether officials wondered what I was going to say and did not want to hear it, I do not know.

[Stephen Morgan]

Q What difference would that formal consultation have made?

Judge Blackett: I would have hoped that we could have influenced the Bill, because I think a Bill is a good idea, but it has to have the right contents. Had I been able to have an input, perhaps on the format as I have just described, I do not know whether it would all have made it into the Bill, but at least it could have been discussed.

[Stuart Anderson]

Q On a point of clarification, you said it is very unusual for you not to be consulted, but you started off by saying you were not consulted on any of the other investigations when they were set up. Is that correct?

Judge Blackett: That is a different matter. That is apples and pears. I am consulted on policy development, even though I am an independent judge. In terms of individual cases then clearly—and properly, at the time—I was not consulted. I was going to have to deal with the serious matters that came out of it, so I was not consulted. I was told that there might be a case—“There is possibly a case. Can you clear seven weeks in the diary to sit in a case, sometime in the future?”—but I was not consulted about how the investigations were going on.

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

Stephen Morgan Excerpts

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

[Chris Evans]

This was a probing amendment. I am happy to withdraw it, but I hope that the Minister will revisit the matter as soon as we know more from research about the effects of post-traumatic stress disorder on drone operators and—as we move towards the integrated review—technology starts to dominate the battlefield. I hope that he will give a commitment that the MOD will revisit that in the near future. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stephen Morgan (Portsmouth South) (Lab)]

I beg to move amendment 25, in clause 1, page 2, line 2, leave out “5” and insert “10”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 26, in clause 1, page 2, line 4, leave out “5” and insert “10”

Amendment 27, in clause 5, page 3, line 19, leave out “5” and insert “10”

Amendment 28, in clause 5, page 3, line 36, leave out “5” and insert “10”

New clause 8—Limitation of time for minor offences—

“(none) No proceedings shall be brought against any person in relation to a relevant offence, where—

(a) the condition set out in subsection 3 of section 1 is satisfied,

(b) the offence is subject to summary conviction only, or is one in the commission of which no serious, permanent or lasting psychological or physical injury has been caused, and

(c) a period of six months has passed from the time the offence was committed or discovered.”

This amendment would dispose of minor allegations of misconduct by imposing a time limit similar to that which exists in relation to summary only matters in Magistrates’ Courts.

[Stephen Morgan]

It is a pleasure to serve under your chairmanship, Mr Stringer. I start by thanking you for the way you have skilfully conducted proceedings through this Committee stage so far. Your skill and guidance have allowed the Committee to provide the proper scrutiny that we all agree that all legislation passing through this House is due, and allowed proceedings to be conducted in an orderly and timely manner. I also thank the Clerks and wider support teams for their support in allowing proceedings to run as smoothly as possible. This period presents particular challenges, including allowing witnesses to provide evidence by video link. The entire Committee will join me in thanking them for their important work.

This is the first time I have led a Bill through Committee, and also, as I understand it, the Minister’s. However, this is by no means the first time that you have been Chair of a Bill Committee, Mr Stringer. As I understand it, it was the Digital Economy Bill back in 2016 that was first chaired by your good self in Committee, four years ago, almost to the day. It would be fair to say that a lot has changed in those four years and I am sure that I speak for the entire membership of the Committee when I say that we are in safe hands with your experience and guidance. I also thank my right hon. Friend the Member for North Durham for his contributions, as well as my hon. Friends the Members for Islwyn, for South Shields and for Blaydon.

Before we progress, I want to take the opportunity to outline our concerns about the Bill once again. The Government still have an opportunity to fix the Bill and get it right. Unfortunately, the Bill does not focus on the root causes of the terrible stresses experienced by our armed forces personnel and their families. The Government should focus on what can be done to reduce the length and regular occurrence of investigations for vexatious claims faced by our armed forces personnel, not prosecutions. In addition, as we heard from a wide variety of witnesses last week, the Bill does not protect our armed forces personnel; it protects the MOD. As we heard last week, the introduction of a six-year time limit against armed forces personnel making civil claims puts them at a distinct disadvantage to civilians.

Crucially, the Bill also risks breaching the armed forces covenant. I repeat: there is still time for the Government to fix this and get the Bill right. As we have said at every stage, we will work constructively with the Government to improve the Bill. That is why the Opposition have also tabled vital amendments, including the requirement for the Government to commission and publish an independent evaluation of service personnel access to both legal advice and legal aid in relation to legal, civil and criminal proceedings covered by the Bill’s provisions. I hope the Government will listen to the points raised in Committee and work with us to protect our troops and get the Bill right.

[The Chair]

Order. I have allowed the hon. Gentleman to continue, not because he started with those kind words about me, but because it is the start of the Bill and the hon. Gentleman is new to the position. The amendment is tightly drawn around five and 10 years, so I will from now on be quite strict about focusing on what the actual amendment is, and not moving out of scope.

[Stephen Morgan]

Thank you, Mr Stringer, I was about to get to the point around our amendment.

Part 1 sets a five-year limit on the prosecution of current or former armed forces personnel for alleged offences committed in the course of duty while overseas, save for exceptional circumstances. That would mean that the Bill would halve the timeframe initially envisaged for the prosecution of offences.

The Government’s consultation originally proposed a 10-year deadline, which would have meant that operations in Afghanistan, which ended in 2014, fell outside the time limit unless the circumstances for prosecuting any new alleged offences were deemed exceptional. That raises questions about the Government’s reasons, and about the evidence or advice that they received, for changing the deadline to five years. Why not six or seven years? Five years seems to be an arbitrary figure, with no clear evidence for why that timeframe has been selected. Will the Minister provide the evidence behind the selection of that specific timeframe?

According to written evidence shared by the charity Reprieve, even countries such as France and the US, which operate statutes of limitation for criminal offences, have never introduced provisions that give military personnel special status in criminal law. Why are we deviating from the international standards that we share with our security partners, which risks undermining our international reputation? That is not the global Britain that the country was promised by the Government during the last election.

In 2020, the Judge Advocate General for the armed forces—the most senior ranking military judge—said that creating a five-year limit on prosecutions would be a damaging signal for Britain to send to the world, and would be a stain on the country’s reputation if Britain were perceived as reluctant to act in accordance with long-standing international law. What was the Government’s reasoning for ignoring such an important figure who was raising serious concerns about the Bill’s five-year limit on prosecutions?

The Government also seem determined to ignore those very same concerns when they are raised by the Defence Committee. In July 2020, the Chair of that Committee sent a letter to the Secretary of State to reiterate concerns that to protect

“serving personnel and veterans against vexatious claims or unnecessary investigations and prosecutions”,

the Bill

“may not be an effective way of achieving those aims.”

In that letter, the Chair also posed a further set of questions about the decision to reduce to five years the initial prosecution cut-off of 10 years.

The Labour party is determined to stop vexatious claims made against armed forces personnel, which cause them and their families truly heartbreaking stress, but as last week’s evidence sessions made clear, the parts of the Bill that intend to remedy that contain logical flaws. Furthermore, the Minister himself has said that one of the biggest problems was the Ministry’s inability to investigate itself properly, as well as the standard of those investigations. If those investigations were done properly with self-regulation, we would probably not be in Committee today. I ask the Minister: why does the Bill not deal with those investigatory issues that he has identified?

Clive Baldwin, the senior legal adviser at Human Rights Watch, has suggested that the Bill would

“greatly increase the risk that British soldiers who commit serious crimes will avoid justice”;

that

“the presumptive time-limit of five years…will encourage a culture of delay and cover-up of criminal investigations”;

and that, in turn, it would increase the risk of the International Criminal Court considering bringing its own prosecutions.

As I have said, there is still time to change the Bill, to focus on the issues that need addressing, and to get it right. That means focusing on legislation that will stop the sad cases that we have heard time and again about our troops undergoing drawn-out investigations, only for the decision to be made against prosecution. That is what needs fixing and it is where the Government’s focus should be.

In last week’s evidence sessions, we repeatedly heard the same concerns from a wide range of witnesses. Hilary Meredith, of Hilary Meredith Solicitors, said that she was against any cut-off. She went on:

“I think the reason why the cases became historic is not the date of the accusation—any of the criminal accusations under human rights law, for example, came within 12 months of the incident taking place. It was the prolonged procedure that was bungled afterwards that made those cases historic. It is the procedure and investigation in the UK that need to be reviewed and overhauled, and not necessarily a time limit placed on criminal or civil prosecutions.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 06 October 2020; c. 16, Q24.]

That lays clear the problem with the Bill. It became increasingly clear from the evidence that not only is the five-year time limit arbitrary, but it does not even fix the issues that the Minister cites to justify the Bill. The investigations are what cause the mental stresses that we know put our troops and their families under incredible pressure. Dr Jonathan Morgan, fellow and reader in law at Corpus Christi College, Cambridge, also said in evidence last week:



“Ten years was originally proposed; that has been reduced to five. There seems to be no logical answer, certainly, as to that particular time period”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 34.]

To add to that, the former Attorney General of Northern Ireland from 2010 to 2020, John Larkin QC, went on to say:

“There is no magic in the number five; that is a matter of policy choice”.—[Official Report, Overseas Operations (Military Personnel and Veterans) Bill, 6 October 2020; c. 31, Q60.]

Yet again, we hear that there is seemingly no logic in the choice of five years as the limit for prosecutions. However, that also suggests something new: that the decision to select five years as the limit was a political choice, not one borne out of consultation or analysis.

--- Later in debate ---

[The Chair]

Order. I remind hon. Members that if they use “you”, they are referring to me, not the Front-Bench spokesperson. I also remind members of the Committee that interventions should be short and to the point. If hon. Members try to catch my eye, there will be time to make speeches on each amendment, if they wish to.

[Stephen Morgan]

I thank the hon. Gentleman for that remark. We also learned last week from the witnesses that, while veterans may welcome the intent of the Government to take forward action, when they looked at the detail of the Bill, they were not so satisfied with its contents.

[Mr Jones]

The hon. Member for Wolverhampton South West raised the issue of evidence, but the most moving statement last week was from Major Bob Campbell, who went through hell for 17 years. Even he admitted the problem in his case was the reinvestigation investigation.

--- Later in debate ---

[Stephen Morgan]

I thank my right hon. Friend for that remark. It is very clear that the Bill in its current form will not help that case if that is repeated ever again.

The Government have let us down on the Bill. It is becoming ever clearer in Committee not only that it fails to fix the problems that it intends to fix, but that the Government have failed in the due diligence for our armed forces personnel and their families that they deserve. The Government should be developing legislation by properly conducting consultation, analysis and identifying the best way to deal with the issues at hand.

Sadly, it seems that the Government are inclined to make policy on the hoof. It is exactly this failure to identify the root causes of the issues that our armed forces personnel face that has been continually highlighted in Committee. As Professor Richard Ekins, head of the judicial power project at the Policy Exchange, highlighted in evidence last week:

“It certainly does not stop investigations. In fact, if one were to make a criticism of the Bill, one might say that it places no obstacle on continuing investigations, which might be thought to be one of the main mischiefs motivating of the Bill”.—[Official Report, Overseas Operations (Military Personnel and Veterans) Bill, 6 October 2020; c. 35, Q60.]

We also heard from Major Bob Campbell about the unimaginable stresses he faced in a 17-year investigation that eventually did not lead to prosecution. I know the entire Committee will join me in thanking him for his service and offering our condolences for the terrible process he has been put through. Once again, we heard that the Bill does not deal with the key problem of addressing investigations. The specific case of Major Bob Campbell would not be covered by the Bill.

Last week, Dr Jonathan Morgan also stated that Major Bob Campbell’s case would not have been addressed by these proposals. He was prosecuted in 2006 in connection with an alleged offence in 2003, which would have been within the five-year period for bringing a prosecution. It is only in 2020, after 17 years, that he has finally been cleared. Several hon. Members made the point on Second Reading that perhaps the real vice is not so much late prosecutions but the continued investigations by the Ministry of Defence, without necessarily leading to a criminal prosecution at all.

If I have understood the facts of Major Campbell’s case, it rather shows that a five-year soft cut-off for prosecutions will not solve that kind of problem at all. Are the Government really prepared to abandon decorated armed services personnel like Major Bob Campbell? Is that really what the Government have set out to achieve?

In summary, I hope that the Government will listen to the points raised here—including the extensive evidence that we have heard that the five-year limit is at best arbitrary—refocus the Bill on dealing with investigations, not just prosecutions, and work with us to protect our troops and get this Bill right.

I ask the Minister, what evidence or advice have the Government received to change the deadline to five years? Why not six or seven? I ask the Minister to provide evidence on why that specific timeframe was selected. Are the Government really prepared to abandon decorated armed services personnel like Major Bob Campbell? Is that really what the Government have set out to achieve? Why does the Bill not deal with the issues in investigations that the Minister has identified? What is the Government’s reasoning for ignoring the Judge Advocate General in this Bill, raising serious concerns about the problems he raised about the five-year limit on prosecutions?

[Mr Jones]

Are we dealing with the group together, including my new clause 8?

--- Later in debate ---

[The Chair]

I will take no further points of order on the matter at this time. Clearly, people have not taken the opportunity to debate the matter. That is unfortunate. I will take the Clerk’s advice to see whether there is any way of doing that, but I cannot think of any way at the present time, because we have passed it. We have now moved on to amendment 26. Does Stephen Morgan wish to move amendment 26 formally?

[Stephen Morgan]

I do wish to move it.

[The Chair]

I am asking whether the hon. Gentleman wants to vote on the amendment.

--- Later in debate ---

[The Chair]

If the right hon. Member will take his seat, I had already told the Committee what was being debated. There was clearly a misunderstanding. We are going to resolve that issue, and then we can have the clause stand part debate. For clarity, amendment 26 has been moved formally. Does the Front-Bench spokesperson wish to put it to a vote.

[Stephen Morgan]

Yes, I wish to put that to a vote.

Amendment proposed: 26, in clause 1, page 2, line 4, leave out “5” and insert “10”.—(Stephen Morgan.)

Question put, That the amendment be made.

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

Stephen Morgan Excerpts

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

[Mr Jones]

I am not bad, actually. I am just trying to be helpful and to improve the Bill, but the Minister seems determined to push it through unamended. He might not like it, but this is the purpose of Parliament: it is about scrutinising legislation. I have tabled amendments that I do not necessarily agree with, but I have done so because we need to demonstrate to the public that all opinions have been aired in Committee. That is an important part of our democracy. Even with a Government majority of 80, a Minister cannot simply determine that their proposals go through on the nod. Likewise, just because something comes out of his lips, that does not necessarily make it right. Perhaps I can give the Minister some advice: he might be in a stronger position if he was prepared to stand up and argue, in a friendly way, some of the points made in the Bill. All he seems to be doing, however, is reading out a pre-prepared civil service brief. This is the first time I have seen that done in a Bill Committee.

On the presumption against prosecution, we have got things the wrong way around. As Judge Blackett said, by looking at prosecutions we are looking through the wrong end of the telescope. I think there are ways in which we can ensure that people do not have to face lengthy reinvestigations or an inordinately long wait before being taken trial, and, if they meet the threshold for prosecution, that they are not disadvantaged by the passage of time. It is worth exploring those issues. My hon. Friend the Member for Portsmouth South asks, through the new clause, a reasonable question about time limits. If this is not the way to do it, what is?

[Stephen Morgan (Portsmouth South) (Lab)]

I rise to support new clause 1. I have said many times throughout this process that the Opposition will work constructively with the Government to get the Bill right, to protect armed forces personnel and their families. We believe that the intent of the Bill is well placed, but it has been poorly executed to achieve what Members on both sides of the House want—an end to vexatious claims that are misplaced, that are drawn out for years longer than they should be, and that place our troops and their families under incredible amounts of stress and pressure that they simply should not have to expect.

Our world-class personnel and their families deserve so much better. That is why it is so important that we get the Bill right. However, the presumption against prosecution does not resolve the issue that we all recognise. It does not afford our armed forces personnel the protection that they deserve. That is why, where the Opposition see an opportunity to improve the Bill, we will seek to highlight it. It is why we have tabled new clause 1, which we believe is fair. Crucially, it tackles the key issues of bringing to an end many of the vexatious claims against our armed services personnel—we want to make that commonplace—and of ensuring that decisions to prosecute are brought to a swifter conclusion. For that to happen, clause 2 in part 1 of the Bill must be removed and replaced by a new clause that replaces the presumption against prosecution with a requirement for a prosecutor who is deciding whether to bring or to continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.

The principle of a fair trial and consideration of the length of time that has passed during an investigation of our armed forces personnel is important for two reasons. First, it focuses on fairness. It ensures that our world-renowned legal system’s reputation remains intact. It does not undermine our international reputation and avoids the potential repercussions of our armed forces personnel being dragged to The Hague for violating international law. Secondly, it tackles the issue of lengthy investigations, which, sadly, some of our armed forces personnel have experienced and still are experiencing. More specifically, it requires the prosecutor to consider whether the passage of time in such investigations has materially prejudiced the chance of a fair trial for our armed forces service personnel and veterans.

It is not just the Opposition who have identified the flaws in clause 2 and where it could be improved. The International Committee of the Red Cross has raised these concerns, submitting them in written evidence. For context, and for those who are not aware, the ICRC is an impartial, neutral and independent organisation whose mission is to protect the lives and dignity of victims of armed conflict and others in situations of violence and to provide them with assistance. The ICRC is also the origin of the Geneva conventions, an international agreement of which our country is a proud original signatory.

In its evidence, the ICRC acknowledges that there are occasions on which discretion has developed to address cases in which prosecutions are not taken forward. At international level, article 53 of the International Criminal Court statute sets out a procedure to follow if,

“upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because…A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime”.

The written evidence goes on to say, however, that the ICC Office of the Prosecutor said that

“only in exceptional circumstances will the Prosecutor of the ICC conclude that an investigation or a prosecution may not serve the interests of justice”.

Finally, under the heading, “The presumption in favour of investigation or prosecution”, the OTP notes:

“Many developments in the last ten or fifteen years point to a consistent trend imposing a duty on States to prosecute crimes of international concern committed within their jurisdiction”.

The written evidence gives rise to a number of considerations. Clause 2 states that there should be exceptional circumstances for a prosecutor to determine whether proceedings should be taken against armed forces personnel. However, as outlined in the ICRC submission, does the prosecution in the interests of justice, including the gravity of the crime, the interests of victims and the age and infirmity of the alleged perpetrator, sound like an exception to the rule of when proceedings should be brought forward? Indeed, it seems more likely to be exceptional for such a case to not be progressed and brought forward. The OTP compounds that point by stating that

“only in exceptional circumstances will the Prosecutor of the ICC conclude that an investigation or a prosecution may not serve the interests of justice.”

Under the Bill as drafted, it will not be exceptional to not prosecute such cases. Indeed, it risks undermining our international reputation and legal obligations, and, as a consequence, risks our armed forces personnel being tried at the International Criminal Court instead of in British courts. That gives rise to the question: why are the Government so intent on taking this risk, undermining our reputation and legal obligations, and leaving our armed forces personnel exposed? Why have the Government included a clause that risks undermining a historic, momentous international convention in which our country played a key role and of which it is an original signatory? That is something that our country and armed forces are proud of, and it is a reason for the high regard in which we are held across the world. Why risk breaching it, particularly when this clause could put our armed forces personnel at greater risk of vexatious claims? The Bill would not protect them, as it intends to do.

Furthermore, according to the evidence submitted by ICRC, the OTP also notes that many developments

“in the last ten or fifteen years point to a consistent trend imposing a duty on States to prosecute crimes of international concern committed within their jurisdiction”.

Why would we wish to deviate from our colleagues and international security partners on such an important issue? What is the Government’s reasoning for this?

That is not the only evidence received by the Committee that underlines the issue of clause 2. During last week’s evidence sessions, we heard from Judge Blackett, the former Judge Advocate General, the most senior military judge in the country, who said:

“I have three concerns about the Bill. One is the presumption against prosecution”.—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 116-17, Q234.]

He went on to say:

“I do not think that there should be a presumption against prosecution”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 121, Q248.]

Quite simply, if the most senior military judge in the country has clearly outlined that there should not be a presumption against prosecution in the Bill, what more do the Government need to understand that clause 2 should be removed? What advice and evidence have the Government taken to support their approach? Was the Judge Advocate General consulted? If not, why not? In summary, I hope the Government will listen to the points raised, remove clause 2, uphold our international reputation and obligations, and work with us to protect our troops and get this Bill right.

Finally, I ask the Minister to clarify what advice and evidence have the Government taken to support clause 2? Why do the Government wish to deviate from our colleagues and international security partners on such an important issue? What is the Government’s reasoning for this? Why have they included a clause that risks undermining a historic and momentous international convention in which our country played a key role and of which it is a key signatory? Why are the Government so intent on risking undermining our reputation and legal obligations and leaving our armed forces personnel exposed? I hope the Committee will get some answers from the Minister.

[Miss Sarah Dines (Derbyshire Dales) (Con)]

I rise to speak briefly to new clause 1. As a new Member, I find the quality of the new clause disappointing. It does a disservice to the intentions of those who tabled it, so I invite them to withdraw it. The wording is far too vague and subjective. It is without guidelines and substance. Its incredible vagueness would make for a very unworkable piece of legislation. I believe in proper scrutiny in Committee, and the quality of the new clause is not good. It is a lawyer’s gift and would be subject to countless legal challenges and much litigation, which is exactly what the Bill is meant to stop.

--- 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.”

[Mr Jones]

What my hon. Friend proposes in no way changes the Bill in effect; it strengthens the Bill. Does he agree that it is a simple thing which might assuage a lot of the critics of the Bill?

[Stephen Morgan]

My right hon. Friend is absolutely right. I hope that the Minister has heard our commitment to get the Bill right. It can be better for our armed forces, if he is willing to engage in the arguments being made.

I put it to the Minister, do not let party politics get in the way of making this Bill worthy of the troops it is set to serve. There is still time for him to work with the Opposition to get this right. He has made half of the argument for me. By already excluding sexual crimes, he recognises that some crimes are so serious they should be excluded from the Bill. He should now go the full way and exclude war crimes.

Labour stand four-square behind our troops, and we want to work with the Government to build the broadest consensus possible on the Bill, tailored to supporting our forces and safeguarding human rights. I urge the Minister to work with us and vote in favour of amendments that would strengthen the Bill for our troops and for our commitments to human rights.

Finally, I ask the Minister to clarify, on the case of those responsible for the six Royal Military Police who were killed in 2003—raised by the former Judge Advocate General last week—would he accept presumption against prosecution? Would we expect the factors in clause 3(2)(a) to be taken into account? Would we be content for a member of the Iraqi Government’s consent to be needed to prosecute, and would he accept a decision not to prosecute? Why would the Minister not prefer to have trials for British troops in British courts, rather than in The Hague? Finally, will he take us through paragraph 1(a) to (k) of article 7 the Rome statute and explain the legal need of those sub-paragraphs within the Bill? What is the legal necessity of including each of those sub-paragraphs?

[Liz Twist]

I want to speak briefly on torture, which is one of the issues that my constituents have brought to me. That is relevant, because it is about public perception of the legislation proposed.

Britain has a fine history with our armed forces of acting legally, morally and in the best interests and traditions of the armed forces. I believe that the Minister should consider the amendment that ensures that torture, war crimes and crimes against humanity are excluded from the Bill. Last Thursday, a number of witnesses said to us that they could see no reason why torture and war crimes should not be excluded too, as sexual offences rightly are. I urge the Government to consider the good name of our country and put those elements outside the scope of the Bill.

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

Stephen Morgan Excerpts

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

[The Chair]

With this it will be convenient to discuss the following:

Clauses 9 and 10 stand part.

New clause 2—Restrictions on time limits: actions brought against the Crown by service personnel—

“Nothing in this Part applies to any action brought against the Crown by a person who is a member or former member of the regular or reserve forces, or of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies.”

This new clause amends Part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the Part imposes in respect of actions relating to overseas operations.

For the avoidance of doubt, and so that we do not end up in the previous situation, I should say that if right hon. and hon. Members wish to speak to new clause 2, clauses 9 and 10, or part 2 of the Bill, now is the time to do so, although we will vote on them later.

[Stephen Morgan (Portsmouth South) (Lab)]

The fact that new clause 2 has to be tabled underlines one of the key problems in the Bill. As my right hon. Friend the Member for North Durham said, this Bill does not do what it says on the tin: it does not help to protect our armed forces personnel, but does the exact opposite. It limits our troops’ right to justice. It does not benefit them—in fact, it actively discriminates against them.

Unfortunately, this has been a long-running theme of the debate as the Bill has passed through the House. The intention of the Bill is one the Opposition are willing to work with, but the Government have got parts of it badly wrong; this part of the Bill, unfortunately, is a prime example of that. The Government cannot claim that the Bill benefits our personnel while legislating to limit the courts’ discretion to disapply time limits for actions in respect of personal injuries or deaths that relate to overseas operations of the armed forces. That is why this part of the Bill must be amended and improved.

New clause 2 would amend part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion imposed by part 2 in respect of actions relating to overseas operations. The question must be asked: why are the Government explicitly trying to mitigate the ability of our service personnel to access a route to justice? Is that really in line with the spirit of the Bill? In the lead-up to Remembrance Sunday, are the Government really comfortable passing a Bill that will clearly limit service personnel’s rights?

In the evidence sessions, we heard a great number of warnings about this part of the Bill. More specifically, points were raised about the Government’s own impact assessment of service personnel privately claiming for their injuries. As the witness from the Association of Personal Injury Lawyers said,

“I think it will definitely have an impact. I do not think that the impact statement that has been released really explores it fully, because it ignores a large proportion of civil claims brought against the Ministry of Defence, which may include elements of overseas operations.

If I can give you just a quick example, the impact study does not take into account noise-induced hearing loss claims. These are complex claims that may involve exposure to harmful noise at any point of the serviceperson’s service, and at different points of overseas operations in different countries. The impact study that has been released ignores all of those claims. In the last year alone, I think the figures released by the Ministry of Defence suggested that 1,810 claims relating to noise-induced hearing loss were brought against the MOD.

My answer to your question is that I think there will be an impact, but we do not know the extent of that impact, and that needs to be explored further.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 54.]

That is a real point of serious concern. If the Government’s own impact assessment is flawed and has not fully taken into account the scope of the legislation’s impact, it is imperative that the Government take another look at this part of the Bill, to ensure that they have been fully and properly informed by their own impact assessments.

I repeat once again that Labour wants to work with the Government to get the Bill right, but at this stage there are enormous concerns that it is far from that. In addition, there are real, specific cases in which the Bill would clearly disadvantage our troops—not simply numbers on a page. Those include types of case such as the noise-induced hearing loss that the witness a fortnight ago referred to. That witness referred to a former marine who received £500,000 for noise-induced hearing loss on the claim that his hearing loss and tinnitus were caused by a negligent exposure to noise. He served in Northern Ireland, the Gulf and Afghanistan and was exposed to noise from thousands of rounds of ammunition, thunderflash stun grenades, helicopters and other aircraft, and explosive devices, and left the Royal Marines in 2012.

The marine was unable to make a claim for compensation until 2014, seven years after he first became aware that he had problems with his hearing. The MOD admitted liability and made no argument about the case’s being brought out of time. The time limit in the Bill, however, would have eliminated all aspects of the claim relating to the marine’s extensive service overseas. It is exactly examples of that nature that raise questions over the depth and quality of the Government’s impact assessment, as well as whether this part of the Bill is really in line with the spirit of the Government’s supposed intent.

The Bill clearly needs fixing, and the Government need to go back and look at whether they really are delivering on what they claim they want to achieve. I ask the Minister: is it the Government’s intention to allow cases such as the said case of noise-induced hearing loss to be ignored by the Bill? What steps were taken both to ensure the Government’s impact assessment was comprehensive and to mitigate any confirmation bias of the Government’s intent on the Bill?

This part of the Bill also has another clear issue: it risks breaching the armed forces covenant. Let us take a look at what part 2 of this Bill really means. The Limitation Act 1980 currently results in the armed forces community and civilians being treated equally when it comes to seeking a claim for personal injury. As it stands, there is a three-year cut-off point in place, but the courts retain the right to grant an extension to forces personnel.

Section 33 of the Limitation Act provides the court discretion to override the current three-year limit, but this Bill deliberately moves away from that and snatches away the ability of courts to show discretion if the case relates to an overseas forces action. It makes a deliberate change to the Limitation Act. That makes no sense. There are already structures in place to ensure that only appropriate claims are brought forward. Courts routinely manage out-of-time proceedings and frequently throw out cases where the delay is unjustified. The detailed criteria set out in the Limitation Act already address cases that do not have reasonable grounds or are unjustified. I put it to the Minister: why is he actively removing the aspect of the Limitation Act that offers courts the right to grant an extension in cases relating to armed forces personnel?

The Bill removes the ability of members of the forces community to bring forward a civil claim at all after six years, even where it would have passed judicial scrutiny. Under the Government’s proposed changes, civilians will retain the right to pursue a civil claim against their employer, but armed forces personnel will not. That clearly risks breaching the armed forces covenant. With that in mind, I am concerned that the Royal British Legion has said that the Bill constitutes a potential breach of the armed forces covenant—a deeply worrying conclusion from the largest armed forces charity in the UK. Are Ministers not concerned that the very Bill that they claim is devised to help our troops is said to be doing the opposite by such a distinguished organisation?

In addition, we heard from the Association of Personal Injury Lawyers that the Bill leaves our veterans with fewer rights than prisoners. That is a damning verdict, delivered by lawyers who devote their lives to representing our armed forces personnel. Our armed forces serve the nation with distinction; they deserve more than to have their rights stripped away. I take this opportunity to say to the Minister, “Do not dismiss the warnings of the Legion and APIL. Work with us to address them.”

I ask the Minister to clarify whether Ministers are concerned that the Bill they claim was devised to help our troops is said to be doing the complete opposite by such distinguished organisations as the Royal British Legion. Why is the Minister actively removing the aspects of the Limitation Act that offers courts the right to grant an extension in cases relating to the armed forces personnel?

Why are the Government willing to introduce a six-year longstop for troops but not civilians? Why are some medical conditions worthy of justice and not others? Are the Government really comfortable with passing a Bill that will clearly limit service personnel’s rights in the lead-up to Remembrance Day? Is the Minister content to allow cases of noise-induced hearing loss to be ignored by the Bill? Finally, what steps were taken to ensure that the Government’s impact assessment was comprehensive and to mitigate any confirmation bias to the Government’s intent with the Bill?

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

Stephen Morgan Excerpts

Committee stage & Committee Debate: 8th sitting: House of Commons
Tuesday 20th October 2020 Public Bill Committees

[Johnny Mercer]

As the right hon. Gentleman will remember from his time in government, all legislation has to be signed off as ECHR compliant. The Department has done that, recognising our responsibilities under the legislation and meeting its requirements. He talks about rights, but people such as Bob Campbell have a right to be protected from experiences such as his over the past 17 years, and the soldiers who went through al-Sweady have a right to be protected as well. This is not all in one direction—it is not a one-way street—and we are clear that those people have a right to be protected in the jobs that we asked them to do. That is what the clause is all about, so I ask that it stand part of the Bill.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Schedule 2

International Criminal Court Act 2001

[Stephen Morgan (Portsmouth South) (Lab)]

I beg to move amendment 29, in schedule 2, page 16, line 4, leave out “six” and insert “ten”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 30, in schedule 2, page 16, line 35, leave out “six” and insert “ten”.

Amendment 31, in schedule 2, page 17, line 16, leave out “six” and insert “ten”.

Amendment 32, in schedule 2, page 18, line 34, leave out “six” and insert “ten”.

Amendment 33, in schedule 2, page 19, line 18, leave out “six” and insert “ten”.

Amendment 34, in schedule 2, page 19, line 26, leave out “six” and insert “ten”.

Amendment 35, in schedule 3, page 20, line 40, leave out “6” and insert “10”.

Amendment 36, in schedule 3, page 21, line 3, leave out “6” and insert “10”.

Amendment 37, in schedule 3, page 21, line 8, leave out “6” and insert “10”.

Amendment 38, in schedule 3, page 21, line 14, leave out “6” and insert “10”.

Amendment 39, in schedule 3, page 21, line 15, leave out “6” and insert “10”.

Amendment 40, in schedule 3, page 21, line 19, leave out “6” and insert “10”.

Amendment 41, in schedule 3, page 21, line 20, leave out “6” and insert “10”.

Amendment 42, in schedule 3, page 21, line 26, leave out “6” and insert “10”.

Amendment 43, in schedule 3, page 21, line 27, leave out “6” and insert “10”.

Amendment 44, in schedule 3, page 23, line 6, leave out “6” and insert “10”.

Amendment 45, in schedule 3, page 23, line 35, leave out “6” and insert “10”.

Amendment 46, in schedule 3, page 23, line 36, leave out “6” and insert “10”.

Amendment 47, in schedule 4, page 24, line 4, leave out “six” and insert “ten”.

Amendment 48, in schedule 4, page 24, line 28, leave out “six” and insert “ten”.

Amendment 49, in schedule 4, page 24, line 34, leave out “six” and insert “ten”.

Amendment 50, in schedule 4, page 25, leave out line 16 and insert—

“ten years is to be treated as a reference to the period of ten years”.

Amendment 51, in schedule 4, page 26, line 36, leave out “6” and insert “10”.

Amendment 52, in schedule 4, page 27, line 20, leave out “6” and insert “10”.

Amendment 53, in schedule 4, page 27, line 21, leave out “6” and insert “10”.

Amendment 54, in schedule 4, page 27, leave out line 27 and insert—

“10 years is to be treated as a reference to the period of 10 years plus –”.

[Stephen Morgan]

Ministers have said that the purpose of the Bill is to protect service personnel, but part 2 as drafted does the exact opposite. We are not here to score points or to play politics; we are here to work constructively with the Government and to highlight the areas of the Bill that must be improved. That does not need to be a binary choice. By moving the amendment, our objectives could not be simpler—to protect our personnel’s access to justice and to redress the Bill’s negative implications for our forces’ welfare. Are those concepts that Ministers cannot get behind?

In the Committee’s witness sessions, there was consensus among the specialists from whom we heard. From decorated soldiers to human rights groups and from lawyers to armed forces charities, there was agreement. Consensus on the Bill in its current form may erode rather than enhance the rights of personnel. Most notably, we heard comments from the Royal British Legion, and I am sure that no one would question its age-old, unwavering commitment to the welfare of our troops.

With that in mind, I am concerned about what the Royal British Legion has said, which is that the Bill constitutes a potential breach of the armed forces covenant—a deeply worrying conclusion from the UK’s largest armed forces charity.

[Mark Eastwood (Dewsbury) (Con)]

The hon. Gentleman mentions the Royal British Legion. When my hon. Friend the Member for Wrexham asked Charles Byrne whether the Royal British Legion opposes the Bill, did he not say that it does not?

[Stephen Morgan]

It was clear that the Royal British Legion is in favour of the intent of the Bill but has concerns about part 2, which it believes breaches the armed forces covenant. Charles Byrne was very clear on that point.

[Johnny Mercer]

I make this point again. I have heard it said a number of times, “We support the intent of the Bill.” Over 40 years Members have spoken of supporting the intent of looking after our veterans and protecting them from vexatious claims. No one has done anything about it. Lots of people gave evidence and said they supported the intent of the Bill. It does not mean anything unless we get into the detail of the Bill. The Royal British Legion did not oppose the Bill; it said it had concerns about the armed forces covenant, which we addressed, but it did not oppose the Bill.

[Stephen Morgan]

I give way to my hon. Friend the Member for South Shields.

[Mrs Lewell-Buck]

I am looking at the transcript of the evidence given by the Royal British Legion, in which it said:

“‘Can we achieve those aims without disadvantaging service personnel?’ If we can do both, both should be done.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 89, Q168.]

It welcomed the intent behind the Bill and believed that it could “be improved.” No Labour Member is against the Bill per se; we are against part 2. We are trying to improve the Bill as the Royal British Legion suggested. I do not understand why the Minister does not grasp that.

[Stephen Morgan]

I thank my hon. Friend for the intervention. She hits the nail on the head: we want to work constructively with the Government to get the Bill right. Sadly, we are not seeing that engagement, and that concerns us. Are Ministers not concerned that the very Bill they claim is devised to help our armed forces is said to be doing the very opposite by an organisation as distinguished as the Royal British Legion?

We heard from other important witnesses. The Association of Personal Injury Lawyers, a not-for-profit organisation representing injured serving and ex-service personnel, said:

“This Bill leaves our veterans with less rights than prisoners.”

I will repeat that because it is so important:

“This Bill leaves our veterans with less rights than prisoners.”

That is a damning verdict delivered by lawyers who devote their lives to representing our troops. Our armed forces serve the nation with distinction. They deserve more than to have their rights stripped away.

I say to the Minister: do not dismiss the warnings of the legion and APIL; work with us to address them.

Let us take a closer look at what part 2 means. The Limitation Act 1980 results in the armed forces community and civilians being treated equally in seeking a claim for personal injury. A three-year cut-off point is in place. The courts retain the right to grant an extension to forces personnel. Section 33 provides the court with discretion to override the current three-year limit, but this Bill deliberately snatches courts’ ability to show discretion if the case relates to an overseas armed forces action. It makes a deliberate change to the Limitation Act. That makes no sense. There are already structures in place to ensure that only appropriate claims are brought. Courts routinely manage out-of-time proceedings and frequently throw out cases where delay is unjustified. The detailed criteria set out in the Limitation Act 1980 already address cases that do not have reasonable grounds or are unjustified. Why is the Minister actively removing an aspect of the Limitation Act that offers courts the right to grant an extension in cases relating to armed forces personnel?

[Mr Jones]

As I said earlier in an intervention on my hon. Friend the Member for Blaydon, the nuclear test veterans case is a good example. There was a limitations hearing in which the MOD argued that the case was out of time because the incident took place so long ago. In that case, Judge Foskett argued that new evidence meant the date of knowledge was current and he allowed it to be admitted. I accept that the numbers are not huge, but it is the exceptional cases that are important.

[Stephen Morgan]

I thank my right hon. Friend for his remarks. I hope the Minister addresses the points that he makes so eloquently later on, in his summing up.

The Bill removes the ability of our armed forces personnel to bring forward a civil claim at all after six years, even where it would have passed judicial scrutiny. Under the Government’s proposed changes, civilians will retain the right to pursue a civil claim against their employer. Armed forces personnel will not, which clearly breaches the armed forces covenant. Non-discretionary time limits undermine justice and arbitrarily prevent legitimate claims from proceeding. We must hear the Minister’s business case for setting that time limit.

We have established that part 2 of the Bill is flawed. It introduces a six-year time limit for any claimant or bereaved family in bringing civil claims against the Ministry of Defence. That means that if someone suffers personal injury or even death owing to employer negligence and in connection with overseas operations, they can take no action after a six-year time limit. That is deeply concerning because a great many conditions might not come to light until after the time limit: for example, post-traumatic stress disorder.

Last year, The Times reported the case of Mark Bradshaw, aged 44, who had suffered from PTSD since being involved in a friendly-fire attack in 2010 while serving in the Royal Artillery. Despite the immediate onset of the condition, the veteran, who lives in Newcastle, was not given a diagnosis until 2016. By then he was drinking heavily and had suicidal thoughts. He had left the service and become alienated from his family. He was awarded £230,000 in a settlement, but feared that the proposed legislation could discriminate against those who do not develop PTSD or receive a diagnosis until many years later. He called the plan to impose a time limit on claims “horrendous”.

I have another example.

[Mr Jones]

Another issue concerns human rights cases. The impression being given is that they are always brought by people against the MOD and include litigants and people in foreign countries and so on, but Human Rights Act cases are also brought against the MOD by armed forces personnel. When Hilary Meredith gave evidence, she said:

“There is a difficulty putting a time limit on the Human Rights Act—I do not even know whether we can do that constitutionally”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 18, Q30.]

The Minister seemed to brush aside the fact that section 33 will be ignored in terms of time limits. Does he also think that that constrains the rights of veterans and service personnel from bringing cases against the MOD, which they can, under the Human Rights Act?

[Stephen Morgan]

We could spend all afternoon on different cases. That is why the amendment is so important. I have another example. It is about how legislation would have denied justice to a former royal marine with noise-induced hearing loss, according to the Association of Personal Injury Lawyers. The former marine received nearly half a million pounds for a noise-induced hearing claim on the grounds that his hearing loss and tinnitus was caused by a negligent exposure to noise. During his career the marine served in Northern Ireland, the Gulf and Afghanistan, and he was exposed to noise from thousands of rounds of ammunition, thunderflash stun grenades, helicopters and other aircraft and explosive devices. His claim related to his entire service.

When he left the Royal Marines in 2012 because of problems with his hearing, he was unaware that he was able to make a claim for compensation. He eventually spoke to a solicitor in late 2014, seven years after he was first aware that he had problems with his hearing. The MOD admitted liability and made no argument about his case being brought out of time. The time limit in this Bill, however, would have eliminated all aspects of the claim relating to the Marine’s extensive service overseas.

[Johnny Mercer]

I totally respect the manner and intent of the hon. Member’s remarks, but, again, the Mark Bradshaw case and the case of the royal marine, which we have looked at, would not be affected by this legislation. When Bradshaw became aware of his PTSD being service-related, it would have been dealt with within six years. The same detail applies to the royal marine.

I do not know what else to say, but the stuff that is coming forward—I have to be honest and say that I have heard it before, because I know it comes from a campaign group—is just simply not true. I do not know what to do with the cases being presented to me, which are simply incorrect.

[Stephen Morgan]

The claim could have been made only in relation to negligent exposure in the UK. It might not have been possible to isolate the extent and the effect of negligent exposure in the UK, making it very difficult to claim any redress at all. Why are some medical conditions worthy of justice, and not others? Many other medical conditions are likely to fall outside the cut-off point, and there are conditions such as long-term deterioration of joints resulting from carrying heavy equipment.

[Mr Jones]

Does my hon. Friend agree that what the Minister is saying cannot be the case? He cannot give any guarantee that such cases will not be resisted by the MOD. He cannot direct the MOD, because he will not be there when he leaves the MOD, and no one else can do it either. It is about protecting future cases. In the two cases referred to, the Bill would allow the MOD to legitimately turn those cases down because they were out of time. Those two individuals would have no recourse to law in order to enforce their rights.

[Stephen Morgan]

My right hon. Friend is absolutely correct. We are saying it time and again, but the Bill protects the MOD; it does not protect our troops. I hope the Minister will take that point on board.

[Carol Monaghan]

Does the hon. Gentleman share my concern that the Minister is suggesting that we are raising concerns because of a campaign group? Personally, I am not raising concerns because of a campaign group; I am raising concerns because of the protections being taken away from armed forces personnel and veterans. When an individual gets a diagnosis of PTSD, I cannot imagine anybody thinking, “The first thing I am going to do is lodge a claim against the MOD.” When a condition gets progressively worse, they might think about doing so over time, but not necessarily within six years.

[Stephen Morgan]

I thank the hon. Member for that intervention. We are not here just to speak up for campaign groups and emails; we are here to speak up for our armed forces. That is why we are absolutely keen to see the Bill improved. I really hope the Minister engages with these points in his summing up.

Is the Minister satisfied that the Bill in its current form will prevent troops who are suffering from these conditions from receiving justice? As we heard from APIL in evidence sessions last week, many troops are not aware that they can bring a claim against the MOD. They are directed to the armed forces compensation scheme, which pays out much lower sums. Why is it that the MOD has scrapped the proposed better compensation scheme, which would have seen payments that are closer to those offered in court settlements? Why is it that the Government are willing to introduce a six-year longstop for troops, but not for civilians? It puts troops at a patently clear disadvantage by comparison with civilians. As we heard last week from the director general of the largest armed forces charity in the UK—the Royal British Legion—it risks breaching our armed forces covenant.

Part 2 of the Bill in its current form protects the MOD; it does not protect our troops. Despite all this, it is not too late. The Opposition have proposed solutions today, and we can work together to address this issue. Protecting service personnel’s access to justice acts on the concerns voiced by friends such as the Royal British Legion.

--- Later in debate ---

[Johnny Mercer]

I am not going to give way again, there will be plenty of opportunity for the right hon. Gentleman to speak further. I recommend that the amendment be withdrawn.

[Stephen Morgan]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Chris Evans]

I beg to move amendment 76, in schedule 2, page 16, line 5, leave out

“the section 11 relevant date”

and insert “the date of knowledge”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.

--- Later in debate ---

[Chris Evans]

I just want to raise a point of clarification with the Minister. The nuclear test veterans were brought up because that was an example of a case that took numbers of years to emerge. I thought it was the best example of how people can be affected by an operation where it takes years for the case to develop.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stephen Morgan]

I beg to move amendment 69, in schedule 2, page 16, line 5, at end insert––

“except where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—

(a) the nature of the injuries;

(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or

(c) any other reasons outside the control of the person bringing the claim.”

This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for personal injury arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 93, in schedule 2, page 16, line 5, at end insert––

“save for exceptional cases where the overriding interest of justice should be served.”

Amendment 70, in schedule 2, page 16, line 36, at end insert—

“(2C) Subsections (2A) and (2B) shall not apply where it appears to the court this would be equitable having regard to the reasons for the delay, in particular whether the delay resulted from—

(a) the nature of the injuries;

(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or

(c) any other reasons outside the control of the person bringing the claim.”

This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.

Amendment 71, in schedule 3, page 21, line 9, at end insert—

“(7A) The court may disapply the rules in subsections (5) to (7) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—

(a) the nature of the injuries;

(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or

(c) any other reasons outside the control of the person bringing the claim.”

This amendment introduces a discretion for the courts of Scotland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.

Amendment 72, in schedule 4, page 24, line 5, at end insert––

“except where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—

(a) the nature of the injuries;

(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or

(c) any other reasons outside the control of the person bringing the claim.”

This amendment introduces a discretion for the courts of Northern Ireland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.

Amendment 68, in clause 11, page 7, line 34, at end insert—

“(4A) The court may disapply the rule in subsection (4) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—

(a) the nature of the injuries;

(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or

(c) any other reasons outside the control of the person bringing the claim.”

This amendment introduces a discretion for UK courts to allow a HRA claim arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.

--- Later in debate ---

[Stephen Morgan]

I rise to speak to amendment 69 in my name. The disapplication of the court’s discretion to bring forward a civil claim in the cases of service personnel raises areas of concern. As I am sure the Minister knows full well from his experience outside Parliament, there are many circumstances in which it would be at very least appropriate for judges to disapply the six-year longstop where either the nature of the injuries meant that service personnel were unable or unaware that they needed to make a claim within six years or the claimant was unable to make a claim for logistical reasons within six years. For example, claimants could have been detained or have been unable to access the UK justice system. It could be any other reason outside their control, such as failures of the state to protect veterans in need that prevent them from making claims in time.

In its current form, the Bill has gaping holes in its ability to give service personnel a fair hearing or offer at least a basic pathway to justice. The gaps in the legislation again raise concerns that it could breach the armed forces covenant if troops cannot afford the same rights as civilians because of the Bill. Labour will work constructively with the Government to ensure that our service personnel are given the legal rights that they deserve, are treated fairly and are given access to a fair trial, not a pathway that offers little hope for justice.

Over the last few weeks, we have heard several people, and had written submissions, outlining the issues around why disapplication of the six-year longstop, particularly with personal injury, is a problem. Take the submission from Reprieve, which seeks to uphold the rule of law and the rights of individuals around the world. Over the past 20 years, Reprieve has provided legal and investigative support to hundreds of prisoners on death row, the families of innocents killed in drone strikes, victims of torture and extraordinary rendition and scores of prisoners in Guantanamo Bay.

In its evidence, Reprieve states that schedules 2, 3 and 4 create an

“absolute bar by removing the discretion of UK courts to extend existing time limits for survivors of abuse or UK soldiers to bring claims relating to personal injury and death…In Reprieve’s experience of investigating the use of torture and other forms of mistreatment, it is clear that no arbitrary time limits can be placed on survivors seeking redress. Even where individuals know of the UK’s involvement in their mistreatment—for instance, where they have been detained by UK forces before being rendered by UK partners to arbitrary detention and torture—they may remain wrongly imprisoned for many years more than the 6-year time limit this bill imposes.

For example, the UK Government has been found to have been involved in the rendition of individuals from Iraq to face mistreatment in secret prisons around the world. These individuals, by the very fact of their detention and mistreatment, could only bring legal claims several years after these actions took place and the UK’s involvement in them came to light…Indeed, the involvement of UK personnel in abuses may not come to light until many years after the time limit has passed. This bill would allow for claims in such cases to be brought within only one year after UK involvement has come to the victims’ knowledge—regardless of the victim’s circumstances or location—following which an absolute bar to legal claims is imposed.

Investigation into the UK’s involvement in torture and rendition, for example, has taken nearly two decades, and it was only in 2018 that the Intelligence and Security Committee published its findings that UK personnel were systematically involved in mistreatment from the first days of the so-called ‘war on terror’.”

[Mr Jones]

As a member of the Intelligence and Security Committee, I would like to clarify what my hon. Friend just said. The report did not say that UK personnel were involved in the torture of individuals, but it was clear that they were present and that there were cases where rendition was conducted on behalf of the United States. However, I do not think there was any evidence that people were directly involved in torture.

[Stephen Morgan]

I thank my right hon. Friend for his clarification. I am quoting from the charity, but I thank him for putting that on the record.

Reprieve’s written evidence continues:

“In the period between these acts of mistreatment occurring and their exposure by the ISC, survivors of these abuses would have been barred from redress by this bill.

UK courts already have powers to strike out civil claims that disclose ‘no reasonable grounds’, including those which are vexatious or ‘obviously ill-founded’. The Court’s discretion to extend the limitation period for civil claims under section 33 of the Limitation Act 1980 is already subject to a full and rigorous assessment of all the circumstances of the case, including the reasons tending against extending time such as the impact of delay on the quality of the evidence available. Moreover, claims under the Human Rights Act 1998 must be brought within a year unless good reason can be shown as to why the claim was not brought sooner—a far tighter limitation period than almost all other areas of law.

Far from protecting soldiers’ interests, the bill, designed to benefit the Ministry of Defence, will fundamentally harm UK soldiers…The bill will have a very significant impact on the ability of UK soldiers and former soldiers to bring claims of this kind…As former Attorney General Dominic Grieve has highlighted, this raises the real prospect that the beneficiary of this bill ‘is not so much the personnel of the armed forces but the government, which is thereby protected from facing what may be wholly deserving late claims.’ Reprieve recommends that the Overseas Operations Bill be amended to ensure that survivors of abuses, as well as UK soldiers, do not face absolute time bars to bringing claims for serious human rights abuses, such as torture. ”

The evidence—not just from Reprieve, but from the Government’s former Attorney General— makes it clear that this legislation will not ensure the proper rights that are our service personnel deserve. Indeed, it is true to say that the path to justice would become more difficult and protect the MOD, not our service personnel. Does the Minister really intend to pass a Bill that would actively build barriers to the route to justice for the victims of torture and servicepeople with other injuries? Is that what our armed forces deserve?

Those are not the only examples of where potential injustices of this nature could occur. Take the case of Mark Bradshaw, which was reported in The Times last year and which we heard about earlier today. He was awarded £230,000 as a settlement, but he fears that the proposed legislation could discriminate against people who do not develop PTSD or receive a diagnosis until many years later. He called the plan to impose a time limit on claims “horrendous”.

We also heard earlier about the claim from the marine who left service due to hearing loss. The MOD admitted liability and made no argument about his case being brought out of time. However, the time limit in the Bill would have eliminated all the aspects of the claim relating to the marine’s extensive service overseas. The claim could have been made only in relation to negligent exposure in the UK. It might not have been possible to isolate the extent and effect of negligent exposure in the UK, making it very difficult to claim any redress at all.

Is the Minister willing to turn his back on those troops? Why are some medical conditions worthy of justice, and not others? I urge the Minister to work with us. Put party politics to one side and build a consensus around the Bill that is worthy of our troops, who set out to achieve what they need to achieve. Does the Minister really intend to pass a Bill that would actively build barriers to the route to justice for victims of torture and servicepeople with other injuries? Is that what our armed forces deserve? Finally, is he satisfied that the Bill in its current form will prevent troops who are suffering from conditions such as PTSD, or even torture, from receiving justice?

Ordered, That further consideration be now adjourned. —(Leo Docherty.)

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

Stephen Morgan Excerpts

Committee stage & Committee Debate: 9th sitting: House of Commons
Thursday 22nd October 2020 Public Bill Committees

[Johnny Mercer]

The right hon. Gentleman can say it has not, but people such as Bob Campbell, to whom he has alluded a number of times, would strongly disagree. We are trying to bring certainty for our veterans and service personnel going forward. That has been a strong Government commitment from the start of this Government, and I support it. I therefore recommend that the amendments be withdrawn.

[Stephen Morgan (Portsmouth South) (Lab)]

We wish to withdraw amendment 69 and pick up the issue at a later date.

Amendment, by leave, withdrawn.

[The Chair]

Mr Jones, do you wish to press amendment 93 to a division?

--- Later in debate ---

[The Chair]

Thank you, Mr Jones. You have saved me from saying that it was not a debate on the amendment.

[Stephen Morgan]

I beg to move amendment 89, in schedule 2, page 17, line 5, at end insert—

“(c) the court must also have particular regard to the importance of the proceedings in securing the rights of the claimant.”

This amendment adds a further consideration to which the courts of England and Wales must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not subordinated.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 90, in schedule 3, page 20, line 32, at end insert—

“(c) the importance of the proceedings in securing the rights of the claimant.”

This amendment adds a further consideration to which the courts of Scotland must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not subordinated.

Amendment 91, in schedule 4, page 25, line 5, at end insert—

“(c) the court must also have particular regard to the importance of the proceedings in securing the rights of the claimant.”

This amendment adds a further consideration to which the courts of Northern Ireland must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not subordinated.

Amendment 88, in clause 11, page 7, line 23, at end insert—

“(c) the importance of the proceedings in securing the rights of the claimant.”

This amendment adds a further consideration to which UK courts must have particular regard when determining whether to disapply the standard HRA limitation period of one year so as to ensure that the claimant’s interest in having their claim proceed is not subordinated.

That the schedule be the Second schedule to the Bill.

That schedule 3 be the Third schedule to the Bill.

That schedule 4 be the Fourth schedule to the Bill.

[Stephen Morgan]

It is a pleasure to serve under your chairmanship again, Mr Mundell. I rise to speak to amendment 89, which stands in my name. During the proceedings so far, there has been much discussion in recognition of the role that mental health plays in the cases to which the Bill applies. Although the Opposition recognise the importance of the Bill in cases where the court is given discretion to disapply the time limits of three years, the court must also have particular regard for the likely impact of the action on the mental health of any witness or potential witness who is a member of Her Majesty’s armed forces. There is still more to be done here. There is an imbalance in the consideration of civil claims in the Bill. I will say it once again: where the Opposition see that the Bill can be improved, we will highlight it.

We have tabled the amendment to ensure that both witnesses’ and claimants’ interests have been secured. The Bill asks the courts to have

“particular regard to the likely impact of the action on the mental health of any witness or potential witness who is a member of Her Majesty’s forces”,

but we can do better. It is important to ensure that there is equality under the law and that the interests of the claimant are also considered. The intent of the amendments is to balance the considerations UK courts must have particular regard for in determining whether to disapply the standard Human Rights Act limitation period so as to ensure that the claimant’s interest in having their claim proceed is not illegitimately subordinated.

Over the last few days, we have received written evidence highlighting this very issue, including the submission from Rights and Security International, a charity which works to promote just and accountable security policy; it has over 25 years’ experience working in the field of human rights and national security policy in the UK. In its evidence submission, it said that it is concerned about the creation of a one-sided discretion to disapply the standard limitation period within the six-year mark.

“First, the proposed considerations have a discriminatory impact against the claimants. This is because they are illegitimately weighted in favour of the MOD operating solely to the detriment of claimants. They are overly focused on factors tending to preclude claims with no reference to the interests of the claimant in having his or her rights vindicated. This has the effect of creating a hierarchy of values and subordinating the claimant’s interest in bringing the claim”.

Secondly, RSI says that there is a requirement that the court give particular regard to the likely impact of the action on the mental health of the witness or potential witness who is a member of Her Majesty’s forces. They argue this is an inappropriate and disproportionate test because it is heavily weighted in favour of precluding claims from proceeding. This is because giving evidence is almost always stressful to any witness be they members of Her Majesty’s forces or not. It continues:

“It is disproportionate because there are many alternative ways to support vulnerable witnesses that do not have the effect of preventing access to justice for potential victims of human rights abuses, wrongful death or personal injury. Were the Government really serious about protecting members of Her Majesty’s Forces, ensuring the provision of such support services would be the focus of reforms to the law, rather than provisions which have the effect of protecting first and foremost the MOD.

Third, it is questioned whether it is really necessary that the court gives particular regard to the likely impact of the operational context on the ability of individuals to remember relevant events or actions fully or accurately. This is because it has been determined that effective legislation can still take place way after the event occurred. For example, the Malmo litigation proceeded over 50 years after the incident. The courts were still able to identify systematic rights abuses and systematic flaws on the part of the Bill relevant to the British colonial administration. This is evidence of the fallacy of the allegation that effective investigations can never take place well after the fact due to a loss of evidence or decreasing reliability of evidence over time”.

That is a lengthy quote, but I think it makes some very important points, which I will take in turn. Once again, we have heard that the Bill is not designed to protect our service personnel but to protect the Ministry of Defence. The legislation is heavily weighted against the ability of service personnel to proceed with civil claims. These are not my words or Labour’s; they are from a highly respected organisation that has covered the issues raised here for many years and is highly experienced in this area.

In light of this, will the Minister recognise the mistake that is being made here for the sake of our service personnel? Why is he so intent on rushing through the House a Bill that will disadvantage our troops? There is another theme here, which we have covered before—something that we have called into question before in other areas of the Bill: fairness and balance.

In its current form, this part of the Bill would create a serious imbalance of fairness within the equality of the law. If the Minister will not address these issues for the sake of our armed forces personnel, will he not do it for the sake of equality under the law, for which our country is so well respected and renowned?

We received further written evidence highlighting this problem of an unbalanced weighting. The Centre for Military Justice is a charity established to advise current and former members of the armed forces, or their bereaved families, who have suffered serious bullying, sexual harassment, sexual violence, racism, or other abuse or neglect. In its evidence, the charity outlined the need for the Bill to take into account the mental health of claimants, not just their witnesses. Specifically, the CMJ said that

“there are often very good reasons why some claims or parts of them need to be issued 6 years after date of knowledge or diagnosis; or where some of the damage would have been caused outside of the 6 year limitation period and some within it. If you are suffering from PTSD you may become aware that there is something seriously wrong within the limitation period, but it may be very hard for you to get help then or even for some time after.

Imagine if you are a veteran with undiagnosed PTSD—you are drinking heavily, or having a lot of personal problems (because of what you have been through)—you may know there is something wrong—you may even go to your GP—so that might be said to be your date of knowledge for limitation purposes—but you may not be able to take the next step of getting properly diagnosed and/or be able to get legal advice. Those are the kinds of cases that need to have the option of applying to the court to extend time and it makes no sense to add a hard ‘long stop’. If there are good reasons to extend time, the claimant should be allowed to try and persuade the court and the court should be allowed to apply the existing criteria.

Last year, The Times reported the case of Mark Bradshaw, 44, who suffered from post-traumatic stress disorder (PTSD) since he was involved in a friendly fire attack in 2010 while serving with the Royal Artillery. Despite the immediate onset of nightmares and hypervigilance, the veteran was not given a formal diagnosis until 2016. By then he was drinking heavily, had suicidal thoughts and had left the service and become alienated from his family. He was eventually awarded a settlement, but not without a fight, and he fears that the proposed legislation could discriminate against those who do not develop PTSD, or receive a diagnosis, until many years later. He called the plan to impose a time limit on claims ‘horrendous’. The Times reported him saying, ‘I got pushed to the GP. How many people sick with mental health won’t go to the GP?’”

That tragic case, which we have already heard about in Committee, shows that we need a proper and fair weighting of both witnesses and claimants. I hope this will make clear to the Minister the changes required in the Bill. In the light of the fact that his legislation is heavily weighted against the ability of service personnel to proceed with civil claims, will the Minister, for the sake of our service personnel, recognise the mistake that is being made here? Why is he so intent on rushing through this House a Bill that disadvantages our troops? If he will not change his mind for the sake of our armed forces personnel, will he not do so for the sake of the equality under law for which our country is so respected and renowned?

[Mr Jones]

Do I understand that we are also debating schedule stand part?

--- Later in debate ---

[Stephen Morgan]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Clause 9 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 10 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 11 ordered to stand part of the Bill.

Clause 12

Duty to consider derogation from Convention

[Chris Evans]

I beg to move amendment 57, in clause 12, page 8, line 20, at end insert—

“(1A) No order may be made by the Secretary of State under section 14 following consideration under this section unless a draft of the order has been laid before, and approved by, each House of Parliament.”.

This amendment would require significant derogations regarding overseas operations proposed by the Government from the European Convention on Human Rights to be approved by Parliament before being made.

Good afternoon, Mr Mundell. It is a pleasure to once again serve under your chairmanship as we head into the final straight of this Bill Committee. I rise to speak in support of amendment 57. I have concerns about multiple aspects of the Bill. This amendment is crucial to improving the Bill and safeguarding our reputation at home and abroad, and it can easily be implemented.

The amendment is simple. It asks that the Government seek approval from both Houses of Parliament before the Secretary of State for Defence approves any derogations from the European convention on human rights. I spoke in the last sitting about parliamentary scrutiny of the role that the Bill gives to the Attorney General, and I must once again raise the absolute importance of scrutiny. I remind the Government that the UK is not a presidential system—given what we see from the United States at the moment, amen to that. The Government draw their power from this House. This House must be consulted on matters as serious as derogating from our key international obligations. The Government are in danger of destroying our reputation as a country that upholds and defends international law. They should at the very least let Parliament act as a check on the worst urges that may come out this legislation.

The Bill would use article 15 of the European convention on human rights, the derogation clause. A guide from the Council of Europe says of article 15:

“It affords to Contracting States, in exceptional circumstances, the possibility of derogating, in a limited and supervised manner, from their obligations to secure certain rights and freedoms under the Convention.”

The words that stick out to me are “exceptional” and “limited”. If these cases are exceptional, there should be no problem with the Defence Minister seeking parliamentary approval on the very rare occasions when they deem derogation necessary.

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

Stephen Morgan Excerpts

Committee stage & Committee Debate: 10th sitting: House of Commons
Thursday 22nd October 2020 Public Bill Committees

[The Chair]

We now come to new clause 2, which we debated as part of an earlier group of amendments. Mr Morgan, do you want a vote on the new clause?

[Stephen Morgan (Portsmouth South) (Lab)]

indicated dissent.

New Clause 3

Access to legal advice for service personnel

“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation of access to impartial and independent legal advice for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, in relation to legal proceedings in connection with operations of the armed forces outside the British Islands, and lay a copy of the evaluation report before Parliament.”—(Stephen Morgan.)

This new clause would require the Government to commission and publish an independent evaluation of service personnel’s access to legal advice in relation to the legal proceedings covered by the provisions in the Bill.

Brought up, and read the First time.

[Stephen Morgan]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 4—Access to legal aid for service personnel in criminal proceedings—

“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation of access to legal aid for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, in relation to criminal legal proceedings in connection with operations of the armed forces outside the British Islands, and lay a copy of the evaluation report before Parliament.”

This new clause would require the Government to commission and publish an independent evaluation of service personnel’s access to legal aid in relation to the criminal proceedings covered by the provisions in the Bill.

New clause 5—Access to legal aid for service personnel in civil proceedings—

“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation of access to legal aid for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, in relation to civil legal proceedings in connection with operations of the armed forces outside the British Islands, and lay a copy of the evaluation report before Parliament.”

This new clause would require the Government to commission and publish an independent evaluation of service personnel’s access to legal aid in relation to the civil proceedings covered by the provisions in the Bill.

New clause 9—Access to justice for service personnel—

“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation comparing—

(a) access to justice for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, in relation to legal proceedings in connection with operations of the armed forces outside the British Islands, with

(b) access to justice for asylum seekers and prisoners seeking to bring an action against the Crown.”

New clause 10—Duty of care to service personnel—

“(1) The Secretary of State shall establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.

(2) The Secretary of State shall lay a copy of this standard before Parliament within six months of the date on which this Act receives Royal Assent.

(3) The Secretary of State shall thereafter in each calendar year—

(a) prepare a duty of care report; and

(b) lay a copy of the report before Parliament.

(4) The duty of care report is a report about the continuous process of review and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—

(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;

(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;

(c) judicial reviews and inquiries into allegations of misconduct by service personnel;

(d) in such other fields as the Secretary of State may determine.

(5) In preparing a duty of care report the Secretary of State must have regard to, and publish relevant data in relation to (in respect of overseas operations)—

(a) the adequacy of legal, welfare and mental health support services provided to service personnel who are accused of crimes;

(b) complaints made by service personnel and, or their legal representation when in the process of bringing or attempting to bring civil claims against the Ministry of Defence for negligence and personal injury;

(c) complaints made by service personnel and, or their legal representation when in the process of investigation or litigation for an accusation of misconduct;

(d) meeting national care standards and safeguarding to families of service personnel, where relevant.

(6) In section (1) “service personnel” means—

(a) members of the regular forces and the reserve forces;

(b) members of British overseas territory forces who are subject to service law;

(c) former members of any of Her Majesty’s forces who are ordinarily resident in the United Kingdom; and

(d) where relevant, family members of any person meeting the definition within (a), (b) or (c).”

(7) In subsection (1) “Duty of Care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.

(8) None of the provisions contained within this clause shall be used to alter the principle of Combat Immunity.”

This new clause will require the Ministry of Defence to identify a new duty of care to create a new standard for policy, services and training in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigations arising from overseas operations, and to report annually on their application of this standard.

--- Later in debate ---

[Stephen Morgan]

It is a pleasure to serve under your chairmanship, Mr Stringer.

A running theme throughout the Committee’s evidence sessions was the sad cases of those who could have claimed justice had they received the proper support and advice. We are a country of fairness, one that prides itself on having a legal justice system that is seen as a bastion of truth, founded on the right to a fair trial. It has become clearer and clearer, however, that there are cracks in the system, and that we are not affording people the right support and guidance in accessing the right to a due process and a fair hearing.

There is also the concern that we are not affording our personnel the proper pastoral care and mental health and wellbeing support that they need when required. That is not acceptable. It is imperative that we ensure that our commitment to the armed forces covenant is maintained, and that that promise is honoured. Our country owes a huge debt to our service personnel yet many are unaware of or unable to access support—at least a fair hearing, for instance, when their employer may be liable for negligence against them, or other such claims, or even get the pastoral, mental and wellbeing support that they require when most needed. That is all because of a lack of resources and proper guidance. That risks breaching the armed forces covenant, and also undermines the reputation of our legal system. In turn, it also undermines our country’s wider international reputation, and I know that the entire membership of the Committee does not want that to happen.

Although Labour accepts that it would be counterintuitive and unproductive for the MOD actively to invite litigation and investigation into itself, the MOD has its own reputation to uphold. It is not just a matter of its standing in terms of representing our country throughout the world, whether on operations with our security partners or on humanitarian missions to provide support where it is needed most, but in terms of its own reputation. That cannot be compromised, and our partners need confidence in our MOD, whether that is in relation to an operational security matter, or a legal one. That confidence is necessary because of what it says about how effectively the Ministry is run. If that is called into question, that undermines confidence in two critical areas. First, it undermines our security partners’ confidence in the MOD to run an effective operation. Secondly, it undermines confidence in our MOD and, more broadly, the wider Government to operate our country’s security competently and effectively.

The Bill presents the opportunity to fix the problems that could cause such loss of confidence. We have an opportunity to get this right. I repeat what Labour has said throughout the process: we want to work with the Government to make the Bill better. Where we think we can see it improved, we will work constructively with the Minister, so that the Government get the Bill right. However, these amendments are just an example of how the Bill can be improved and, Mr Stringer, please do not just take my word for that; this issue was specifically raised in earlier evidence sessions by none other than Major Bob Campbell.

--- Later in debate ---

[Chris Evans]

I rise to speak in support of new clause 10 on a duty of care, but before I begin it would be remiss of me not to mention the good work that the Minister has done since he came to the House on the treatment of mental health, which I believe has put the issue to the forefront. We have a knockabout in this place—I speak for the Opposition; he for the Government—but when somebody is trying to do their best, they should be praised and that should be put on the record. I place on the record my thanks for all the work that he has done on mental health—not just since becoming a Minister, but since coming to this House. I think we can all agree that that has been the right thing to do.

New clause 10 provides for a duty of care to service personnel. It says:

“The Secretary of State shall establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.

(2) The Secretary of State shall lay a copy of this standard before Parliament within six months of the date on which this Act receives Royal Assent.

(3) The Secretary of State shall thereafter in each calendar year—

(a) prepare a duty of care report; and

(b) lay a copy of the report before Parliament.

(4) The duty of care report is a report about the continuous process of review and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—

(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;

(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;

(c) judicial reviews and inquiries into allegations of misconduct by service personnel;

(d) in such other fields as the Secretary of State may determine.”

That really drives at the heart of the concerns that we have had about the Bill. We have talked often about legislation and how it will change, but as we have seen in many interventions from my right hon. Friend the Member for North Durham and my hon. friend for Portsmouth North—

[Stephen Morgan]

South.

[Chris Evans]

Sorry. Maybe next time; that is the third mistake I have made today. As my right hon. and hon. Friends said, the crux of the Bill is not just about the law but the investigation. I believe from what the Minister has said that he has some sympathy for that as well.

The problem that we have with mental health, of course, is that we do not know what somebody’s background is when they join. Yes, they do psychometric testing and follow tests for reading and writing, and so on, but we do not know what was in their background. What was their family history? Might they have experienced personal distress or trauma in their childhood? That leads on to the problem that military investigations are often preceded by internal disciplinary acts.

What actually happens is that someone is faced with two pieces of law, especially if they have had a mental health problem. They have civilian law on the one hand and military law on the other, making things extremely complicated.

For example, investigations in military contexts are often more complex and involve additional investigative personnel, many of whom do not deal with investigations as their primary task. Therefore, we have all these multi- layered rules and regulations that are not in civil law.