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Amendment, by leave, withdrawn.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.

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[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.

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[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?

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[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.

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[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.