Overseas Operations (Service Personnel And Veterans) Bill

Stephen Timms Excerpts

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

[Mr Wallace]

I am going to make some progress. I know that there are lots of people down to speak in this debate and, although I am willing to give way as much as possible, I would like to make sure that other Members across the House get a chance to speak and make their points.

Let me set out what the Bill does and what it does not do. First, the Bill ensures that, in accordance with article 6 of the European convention on human rights, every member of the armed forces and Crown servant is

“entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Not my words, not the Government’s words, but the actual words in the ECHR itself. Note the phrase “reasonable time”. That condition runs right through this Bill.

Clauses 1 to 7 introduce new conditions on prosecution for certain offences. In particular, clause 1 sets out when the presumption against prosecution measures will apply, including that the measures will apply only to alleged events that took place on overseas operations more than five years ago. Clauses 2 to 5 create new thresholds that a prosecutor is required to consider when bringing a case. That will give service personnel and veterans greater certainty that the unique pressure placed on them during overseas operations will be taken into account when decisions are made on whether to prosecute for alleged historical offences. The first threshold is that, once five years have elapsed from the date of an incident, it is to be exceptional for a prosecutor to determine that a serviceperson or veteran should be prosecuted for alleged offences on operations outside the UK.

[Stephen Timms (East Ham) (Lab)]

When the Secretary of State’s Department consulted on the Bill in July last year, it suggested that there were two categories of offence that might be excluded from the Bill. One was sexual offences, and the other was torture. Sexual offences have been excluded; why has torture not been?

[Mr Wallace]

First, I took the decision that, if we look back at many examples of case law or challenges, the debate around torture and murder has often been about the excessive use of an action in doing something that is what a soldier may or may not think is legitimate. For example, it is an act of war to go and attack a target. It is, unfortunately, an act that a soldier may have to do, which is to use lethal force in defence. It is often a side effect or a consequence of an action that you detain people. Often, the legal debate around that has focused on whether the soldier has been excessive in that use of force. If a soldier uses an excessive amount of force in self-defence on duty, that is viewed as murder. That is where we have often seen challenges in courts around both investigations and decisions to charge.

What is not part of war in any way at all is sexual offences. It is not a debatable point. It is not a place where it is possible to turn on a coin and argue that there is a right and a wrong. That is why I took the view that we should exclude sexual offences from schedule 1 but in the main part of the Bill cover all other offences. It is not the case that, even after five years, someone cannot be prosecuted for torture, murder or anything else. It is absolutely clear that it is still possible to prosecute, and it is our intention, should new or compelling evidence be brought forward, to prosecute for those offences. The Bill is not decriminalising torture and it is not decriminalising murder in any way at all. I mentioned earlier the view of the former Attorney General of Northern Ireland, who is himself well practised in that type of law and an expert.

--- Later in debate ---

[Stephen Timms (East Ham) (Lab)]

I am pleased to follow the hon. Member for Morley and Outwood (Andrea Jenkyns) and I share her objective of ending vexatious claims. But it is to our shame that Governments of which I was a member, in circumstances that we still do not fully understand, participated in rendition leading to torture. That should not have happened and it must not be allowed to happen ever again. That is the aim of the all-party group on extraordinary rendition, of which I was recently elected Chair. I am afraid that this Bill will not help with that shared objective. I am troubled, for example, that, in the Bill, the presumption against prosecution will extend not just to the battlefield, not just to the sort of circumstances that the hon. Member for Wolverhampton South West (Stuart Anderson) very powerfully explained to us a few minutes ago, but to peacekeeping operations and to a worryingly undefined category of operations dealing with terrorism. We could so easily slip back to repeating what went so badly wrong before.

The House’s Intelligence and Security Committee has carried out two investigations on extraordinary rendition. There is still a great deal that we do not know, but the Committee has identified hundreds of cases linked to the UK. Many of the people involved still do not know that the UK was involved in what happened to them, and it would be quite wrong to cut them off now from any legal redress. There will one day need to be a judge-led inquiry into what happened with that extraordinary rendition, but, for now, the Government seem to have set their face against that. It may well fall to the Front Bench of this party to do the right thing, but let us not now choose to downgrade the seriousness with which we regard acts of torture. I asked the Secretary of State why, having floated the idea of excluding torture from the remit of this Bill along with sexual offences, the Department did not exclude torture. Sexual offences, I am pleased to say, have been excluded. The Secretary of State did not give an answer. He simply said that that was the decision that he had made. In the case of sexual offences, it is absolutely right: those are not acceptable in any circumstances. Surely the same is true for torture. That must surely be the view of this House and of the British Government as well.

Draft Armed Forces Act 2006 (Amendment of Schedule 2) Order 2017

Stephen Timms Excerpts

Wednesday 24th January 2018 General Committees

[The Parliamentary Under-Secretary of State for Defence (Mr Tobias Ellwood)]

I beg to move,

That the Committee has considered the draft Armed Forces Act 2006 (Amendment of Schedule 2) Order 2017.

It is a pleasure to rise in support of this draft order to amend the Armed Forces Act 2006. I bring the attention of the Chair and the Committee to the Register of Members’ Financial Interests—I am a member of the reservists. It is on that note that I will begin, underlining the importance of why discipline is so important in our armed forces and why we need to continue to amend and advance the 2006 Act.

As I hope all hon. Members agree, we in this country can be proud of the professionalism of our armed forces, which is revered and recognised in NATO among our allies, and respected and feared by our adversaries. That professionalism is there because our armed forces are disciplined. The people that sign up to wear the uniform are therefore able to meet the high standards we set for them, and that is reflected in the values that we support and promote throughout the world. If we do not maintain that high standard of discipline, the cohesion of the unit ceases to function as it should do, and we would not be able to operate in the manner in which we wish. Likewise, the responsible commander would not be able to conduct the activities or meet the commitments expected of him or her.

Discipline is therefore crucial. It is arguably different in the world of the armed forces from other areas of life, because if that discipline erodes in any form whatever in the armed forces, the functionality itself changes. Sometimes, because of the isolation in which we place units of our armed forces, the responsibility of any unit commander is arguably higher than in other walks of life. We must therefore give any commander, whether on a ship, in a fighting force on the ground or in a squadron in the sky, the necessary control over the other personnel in the unit to ensure that discipline is retained and maintained at all times.

In that spirit we approach this draft statutory instrument. We are considering an amendment to schedule 2 to the Armed Forces Act 2006. The Act established a single system of service law that applies to the personnel of all three services, wherever in the world they may be operating. The Act provides nearly all the provisions for the existence of a system for the armed forces of command, discipline and indeed justice. It covers matters such as offences, the powers of the service police, and the jurisdiction and powers of the commanding officers and the service courts, in particular the court martial.

The draft order will amend schedule 2 to the 2006 Act. The schedule lists serious offences to which special rules on investigation and charging apply. The offences listed in that schedule are commonly referred to as schedule 2 offences. They include serious disciplinary offences such as mutiny, desertion and serious criminal offences, such as murder, manslaughter and certain sexual offences.

The 2006 Act imposes a special duty on commanding officers with respect to the investigation of allegations of schedule 2 offences and of circumstances that indicate that a schedule 2 offence might have been committed by someone under their command. Under section 113 of the 2006 Act, a commanding officer who becomes aware of such allegations or circumstances must ensure that the service police are aware of them as soon as reasonably practicable. The Act also imposes a duty on members of the service police forces with respect to the investigation of schedule 2 cases.

Under section 116 of the 2006 Act, the service police must refer a case to the Director of Service Prosecutions if they consider that there is sufficient evidence to charge a person with a schedule 2 offence.

The offences listed in schedule 2 include all offences under part 1 of the Sexual Offences Act 2003, except sexual assault, voyeurism, exposure and sexual activity in a public lavatory. There has been much debate in recent years about whether those four offences should be listed in schedule 2. At the heart of those debates was the question of whether a commanding officer should have a role in the investigation of any allegations or circumstances that would indicate to a reasonable person that one of those offences has been, or may have been, committed by a person under their command.

For the avoidance of doubt, I want to make clear what the Armed Forces Act 2006 requires of a commanding officer who becomes aware of allegations of circumstances that indicate that a service offence other than a schedule 2 offence has been, or may have been, committed. That commanding officer may ensure that, as soon as reasonably practical, the matter is reported to the service police. Alternatively, he or she may ensure that the matter is appropriately investigated. An investigation other than by the service police will in some cases be appropriate because service offences include all offences that may be committed by service personnel under the 2006 Act, including the less serious disciplinary offences.

The manual of service law gives special guidance to commanding officers about allegations of the four offences to which I have referred. The manual requires that a commanding officer who becomes aware of an allegation of one of these offences must take legal advice about whether it would be appropriate to call the service police. Access to such advice is available 24 hours a day, seven days a week. The manual also makes it clear that there is a presumption that allegations of such offences will normally be reported to the service police, and the armed forces have policies in place that require all allegations of sexual offences to be referred to the service police. It will rarely be appropriate for the commanding officer not to report an allegation of sexual assault to the service police.

The Committee may recall some of the debates during the passage of the most Armed Forces Act, in 2015 and 2016, about whether the four offences to which I have referred should be listed in schedule 2. Recognising the importance of the issue, the Government promised to review the situation. That review happened, and my right hon. Friend the Member for Milton Keynes North (Mark Lancaster), now the Armed Forces Minister, announced in November 2016 that the offences of sexual assault, voyeurism and exposure should be included in schedule 2 of the Armed Forces Act 2006. That will mean that a commanding officer who becomes aware of an allegation or circumstances that indicate that any of those offences has been, or may have been, committed, must refer the matter to the service police. As I said, that happens already as a matter of policy, but today’s instrument will ensure that it must happen as a matter of law.

Why make today’s change? Perceptions about how we fulfil our obligations are just as important as the mechanisms we have in place to do so. We recognise the great courage that it takes to come forward and report a sexual offence, which is precisely why the armed forces have extensive support in place for those who are affected. Steps are being taken to provide better education. Helplines, awareness campaigns and training presentations on sexual consent are helping to ensure that service personnel know how to report concerns and what support is available to them.

[Stephen Timms (East Ham) (Lab)]

I welcome what the Minister is proposing. Could he tell the Committee whether the change affects civilian personnel of the military, for example civilian staff working at a barracks or a military base, or does it affect only uniformed personnel?

[Mr Ellwood]

As far as I am aware it affects all people under the command of the unit commander.

It is right that the Government have listened to the concerns of Parliament and others to make sexual assault, exposure and voyeurism schedule 2 offences, but for completeness I should also say something about the fourth offence, to which I referred earlier. The offence of sexual activity in a public lavatory is a public order offence, which covers a very wide range of activity including consensual activity. It also applies only to activity in a lavatory to which the public have access, and is therefore likely to be prosecuted as a civilian offence, not a service offence. For those reasons, we do not believe that it would be appropriate to add the offence of sexual activity in a public lavatory to schedule 2.

In conclusion, we are continually looking for ways to enhance our processes and to make sure that the service justice system continues to be relevant and as effective as it can be. That is why we are considering this order today.

Oral Answers to Questions

Stephen Timms Excerpts

Monday 30th January 2017 Commons Chamber

[Mike Penning]

I could not agree more with my colleague. One thing that I know as a former serviceman is that our armed forces need to know that the country is behind them. I hope that the entire House will support our troops as they deploy to eastern Europe.

[Stephen Timms (East Ham) (Lab)]

7. What assessment he has made of the implications for defence policy of the UK leaving the EU.

[The Secretary of State for Defence (Sir Michael Fallon)]

The Prime Minister has set out our commitment to continuing to work closely with European allies and partners on shared defence and security priorities. We are already making a significant contribution to a wide range of European security challenges, and this year, in addition to undertaking our normal exercises, we will deploy troops to Estonia and Poland, and fighter jets to Romania.

[Stephen Timms]

The UK has long played a leading role in EU missions, including Operation Sophia in the Mediterranean and Operation Atalanta off the horn of Africa. Given the renewed commitment expressed by the Prime Minister, to which the Secretary of State has drawn attention, does he intend us to continue participating in EU missions after we leave the EU?

[Sir Michael Fallon]

These are voluntary missions in which we participate not simply because they are European, but because they are in our own national interest—curbing piracy off the horn of Africa, bringing peace to the Balkans and helping to stop the flow of migrants across the Mediterranean. The right hon. Gentleman is right that we will have the opportunity, if we wish to do so, to co-operate with our European partners on future missions where it is in our national interest.