Overseas Operations (Service Personnel And Veterans) Bill

Stewart Malcolm McDonald Excerpts

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

[Mr Wallace]

I am now going to progress.

The second element of the first part of the Bill ensures that, when making a decision, the prosecutor must give particular weight to certain matters, such as the adverse impact of operations on our personnel and the public interest in finality where there has been a previous investigation and there is no compelling new evidence. If it is deemed that the case should proceed to trial, the third threshold requires consent before a prosecution can proceed. In England and Wales, for example, that will be from the Attorney General. In those cases, the Attorney General will be acting independently of Government, as guardian of the public interest.

Some groups such as Liberty have suggested that this is political interference. It is nothing of the sort. Given that the Attorney General already has decisions over prosecutions in statute ranging from the Auctions (Bidding Agreements) Act 1927 to the Theatres Act 1968, it is neither uncommon nor controversial.

[Stewart Malcolm McDonald (Glasgow South) (SNP)]

rose—

[Mr Wallace]

If the hon. Gentleman is going to tell us about the Advocate General for Scotland—[Interruption]—or rather, the Lord Advocate in Scotland, who also sits in the Scottish Cabinet—and his role in directing prosecutions, I will be interested to hear.

[Stewart Malcolm McDonald]

Of course, the Advocate General for Scotland resigned just last week. I believe it is the case that the Department consulted the Lord Advocate in the Scottish Government. It is normally the case that the Government would not publish the advice of its own lawyers, but the Lord Advocate in Scotland is not a UK Government official; he is a Scottish Government official. Will the Secretary of State publish the opinion that the Ministry of Defence received from Scotland’s Lord Advocate?

[Mr Wallace]

We are not going to publish his opinion or anybody else’s.

We do not publish the opinion of our Attorney General. It is a long-held policy of most Governments not to publish the legal advice they receive, except in exceptional circumstances.

Part 2 of the Bill makes changes to the time limits for bringing claims in tort for personal injury or death and claims for Human Rights Act 1998 violations that occur in the context of overseas military operations. Clauses 8 to 10 introduce schedules 2, 3 and 4. Taken together, these provisions introduce new factors that the courts in England, Wales, Scotland and Northern Ireland must consider when deciding whether a claim for personal injury or death can be allowed beyond the normal limit of three years. The provisions also introduce an absolute maximum time limit of six years for such claims. These new factors ensure that operational context is properly taken into account, and they weigh up the likely impact of giving evidence on the mental health of the service personnel or veterans involved.

Clause 11 amends the Human Rights Act. This provision largely mirrors the changes that are being made for tort-based claims. It will change the rules governing the court’s discretion to extend the one-year time limit for bringing claims under the 1998 Act and will introduce an absolute maximum time limit of six years for human rights claims in relation to overseas operations. Again, critics of the Bill are trying to mislead veterans with tales that this somehow discriminates against our armed forces.

Let us put this six-year backstop into perspective. Currently, for claims in tort, where personnel may sue for personal injury in England, there is already a time limit. Mostly, that limit is three years from the date of the incident or knowledge of it. In other words, if a former soldier is diagnosed with PTSD 20 years after his service, the time limit starts then, not when the operation took place. The existence of time limits is commonplace and was upheld by the European Court of Human Rights in the case of Stubbings v. the UK. The UK Human Rights Act itself has a 12-month time limit for claims from the event happening but does allow for further judicial discretion, and the armed forces compensation scheme has a seven-year time limit.

Finally, clause 12 will further amend the Human Rights Act to impose a duty to consider derogating from—that is, suspending our obligations under—the European convention on human rights in relation to significant military overseas operations. This measure does not require derogation to take place, but it does require future Governments to make a conscious decision on whether derogation should be sought in the light of the circumstances at the time. We want in future the ability, if necessary, to allow soldiers to focus on the danger and job in hand when on operations, not on whether they will have a lawsuit slapped on them when they get home.

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[Stewart Malcolm McDonald (Glasgow South) (SNP)]

I, like others, pay tribute to the armed forces, not least for the work they have done during the coronavirus crisis, particularly in erecting the extraordinary construction of the NHS Louisa Jordan Hospital in my own home city of Glasgow. I know they have done much in Members’ constituencies all across the UK, and I am sure we will expect more of them in the times to come.

I acknowledge at the outset of my remarks—this will probably be the only bit that pleases Government Ministers and Conservative Members—the sincerity with which Ministers have approached this, in that they recognise the problem and sincerely wish to fix it. Indeed, the Minister for Defence People and Veterans, the hon. Member for Plymouth, Moor View (Johnny Mercer) was a jolly advocate of getting this done way before he became a Minister, and I think I am right in saying that the Secretary of State himself was raising this when he was a Member of the Scottish Parliament in the first Parliament of 1999. I acknowledge their long-standing desire to fix these issues, but I am afraid I do not believe that this Bill does it.

Those who risk their lives for their country do so in some of the most unimaginable circumstances. There are gallant Members here who have gone through that. I certainly have not. Far from home, they are often surrounded by danger at the behest of this Parliament, and they have to make split-second decisions under circumstances that, as I say, I cannot imagine. Sometimes those decisions are wrong, and when they are wrong, there needs to be a means by which that can be righted and justice can be done. Sometimes many years later these incidents rear their heads in the form of legal claims that force claimants and former service personnel to relive some of those dark days in a search for answers, but no one, least of all service personnel and veterans of the armed forces, deserves to be accused of a crime that they did not commit, and far less to be harassed by investigation after investigation. As the Chairman of the Intelligence and Security Committee and former Chairman of the Defence Committee, the right hon. Member for New Forest East (Dr Lewis) has said, the Bill does not achieve that.

The Secretary of State has mentioned Phil Shiner, and other firms have also sought to cash in on this kind of behaviour. I do not deny that they have done so, and they are to be deprecated for it. Indeed, I believe that they are deprecated on all sides of the House. However, this legislation is not the way to deal with this. It is using the proverbial sledgehammer to crack a nut. I accept that the nut is deeply problematic, but I have to say that this looks like a Bill designed more to protect the Government, and in particular the Ministry of Defence, rather than anyone who dons a uniform. Indeed, it was the Minister for Defence People and Veterans, who we will hear from at the end of the debate, who said that

“one of the biggest problems…was the military’s inability to investigate itself properly and the standard of those investigations…If those investigations were done properly and self-regulation had occurred, we probably wouldn’t be here today”.

The Bill makes no provision whatsoever for an independent investigative body or for reporting accountability mechanisms of the kind that would help to address the historical claims that I believe we all want to address. We are asked to hope by the Government, and to trust and believe that a real solution will come later, after we vote to undermine international law and the rules that keep us safe. That is a promise that seems to be being made with increasing regularity from the Government Benches. That is why I believe that this Bill is bad, not just for our rules and laws but for the armed forces as well.

If we can agree with the Minister for Veterans, as I do, that the investigations process in the Ministry of Defence is flawed and needs fixing, let us bring forward a Bill to do that. If that does not require legislation, let us bring forward those proposals. Let us have that discussion first. Passing the Bill in this form or a form close to it would be to put the cart before the horse. If the Government truly want to protect the UK armed forces from legacy allegations of war crimes, they must create mechanisms for allegations, both contemporaneous and historical, to be properly addressed by independent investigators. I am horrified, as I am sure other legal minds in this place, the other place and outside Parliament will be, at the extraordinary powers that the Bill invests in the Attorney General, who is not an independent Law Officer of the Government, but a political appointment and part of the Government.

We believe that the ways that I have just outlined are the ways to ensure that we can deal with this properly, but instead, the Government have offered a Bill today that does not help the victims of these cases—by which I mean service personnel, veterans and their families—who feel that the courts are their only recourse to justice. I would argue, as do other Members, that this exposes UK forces more to the International Criminal Court. And I can tell the House what will happen then: Tory Back Bencher after Tory Back Bencher will be on their feet complaining about foreign judges intervening in UK justice. How long would it then be before someone made it mainstream within the Conservative party that the United Kingdom should withdraw from the ICC? I can see the start of a very slippery slope indeed.

[Mr Carmichael]

Is it not part of the problem that, where suspicion exists, there requires to be an investigation, and that if that investigation produces evidence, there should be a prosecution? By putting barriers in the way of prosecution, we do no favours to those who are accused of criminal acts in the first place, because no line is ever drawn underneath it for them.

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[Stewart Malcolm McDonald]

The right hon. Gentleman is correct, so I do not need to expand on that. I am conscious of your points about time, Madam Deputy Speaker, but he is correct in what he says.

I want to go through some of the senior military, legal and political opinion that has come out against the Bill. I can accept that Conservative Members, probably those on the Front Bench, think that the Opposition—if not the entirety of it, my party—are just Guardian-reading, lentil-munching sandal wearers, but that can hardly be laid at the feet of Nicholas Mercer, can it? Nicholas Mercer, the former command legal adviser during the Iraq war, has pointed out that this Bill

“undermines international humanitarian law while shielding the government”.

The Bill serves one body, and that body is the Ministry of Defence.

I can also point to some other opinion against the Bill—indeed, one of the Secretary of State’s predecessors, Sir Malcolm Rifkind. The Secretary of State has managed to unite Sir Malcolm Rifkind with the Scottish National party, and he was a leading nat-basher-in-chief back in his day. He has said that the Bill risks

“undermining the UK’s position as a champion of the rule of law”.

That might be fashionable on Government Benches these days, but it is something that we in the Scottish National party will not stand for.

You could also quote the former Attorney General, Dominic Grieve. I hear the Government Front Bench often praying in aid the Attorney General for Northern Ireland. For a Bill that does not concern itself with Northern Ireland, you seem awfully keen on the Northern Irish Attorney General. As the shadow Secretary of State mentioned, we were told by the Secretary of State in a letter that he sent to all Members of the House that the Bill will be equivalent to what is brought forward in Northern Ireland. Well, good luck with that one!

We can also quote Field Marshal Lord Guthrie, although I understand he has taken some of what he said back. Again, he is hardly a lentil-munching leftie. He said:

“There can be no exceptions to our laws, and no attempts to bend them. Those who break them should be judged in court.”

He also stated:

“These proposals appear to have been dreamt up by those who have seen too little of the world to understand why the rules of war matter. If we start down the slippery slope of arguing that rules apply to others, but not to ourselves, it is we who will suffer in the end.”

[Tom Tugendhat]

To make a small point of clarification, Field Marshal the Lord Guthrie has rethought his words, having spoken to the Chief of the General Staff.

[Stewart Malcolm McDonald]

I do not believe that anything I read out is what he has withdrawn, however. If I am wrong on that, I am happy to be corrected. I thought I was going to be told that he was indeed a lentil-munching Guardian reader, but clearly not.

To come to how the Government are approaching this, I have listened to many of the sedentary chunterings that have come from the Treasury Bench this afternoon, and I had a call with the Minister for Veterans yesterday—he told me that he was not the “king of good ideas”, but I did not need to be told that—but all I have seen is arrogance. Any objection, whether adumbrated by people outside or inside the House—including people on his own side, by the way—is all met with, “Didn’t read the Bill”, “Doesn’t understand it”, “This is embarrassing”, or “It’s this way or no way.” I am afraid that unless we can amend the Bill within an inch of its life, beyond any recognition of what appears before Members this afternoon, there is no way that my party can support the Bill in this form.

I will say this, however: if the Minister wants to get the issue solved—which I believe we both do, as I said at the start—

[Johnny Mercer]

Will the hon. Gentleman give way?

[Stewart Malcolm McDonald]

I will once I have completed my peroration. Scrap the Bill and let us have a discussion about the way in which the Ministry of Defence investigates these things internally. I am more than happy to engage in that discussion with the Minister and with the Secretary of State, but to ask us to vote for a Bill so roundly condemned by senior legal, military and political opinion is something that we will not contemplate.

[Mr Wallace]

As ever, the hon. Gentleman makes reasoned points and a good speech. First, he has not mentioned it yet, but he will be aware that there was something called the Lyons review, which was the service justice review that has reviewed and continues to review. We are in the middle of implementing some of its recommendations on improving on exactly the points he makes about service justice.

Secondly, before the hon. Gentleman finishes his speech, I ask him within what parameters we should work when trying to come to a consensus with the Scottish National party. For example, does he except that in cases of civil law there is a need for tort limitations? Does he accept the statute of limitations on civil pursuit—that many of those cases should have a time limit? Does he also accept the line in the relevant article of the European convention on human rights that says people are entitled to

“a fair and public hearing within a reasonable time”?

If he accepts both those parameters, perhaps we can talk.

[Stewart Malcolm McDonald]

I have not disputed any of those things. I am willing to have that conversation, but the Secretary of State has introduced a Bill that is so egregious he makes it impossible for me to support it. Look, he has his majority so he will get it through in whatever form he wants, but if he wants to have, as we often do in defence discussions in this Parliament, a degree of consensus that most people outside this place probably do not think exists, it cannot come on the back of a Bill like this one. I understand that the review he mentioned at the start of his intervention is taking place; why not pause the Bill and let that review report first? Let Parliament debate it and then see what we can fix.

[Johnny Mercer]

I have a lot of time for the hon. Gentleman and recognise his allegations of how I have ridiculed some of the approaches. The reality is that we on the Government Benches have to deal in what is actually in the Bill and the reality of operations. We have a duty to these people. We have engaged both the hon. Gentleman and the shadow Secretary of State in trying to improve the Bill, and not once have you come forward with something with which I can improve the Bill. The Bill is moderate, fair and down the middle. If you are on the wrong side in the Lobbies tonight, you are clearly on the wrong side of history.

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. I am not entering into the debate, but I shall merely say that all day today Members on both sides of the House have been using the word “you”. They have been calling the Prime Minister you and they are calling Members on each side of the House you. In this Chamber, you means the occupant of the Chair. It is really important, in order to keep the right sort of distance in an argument of this kind, that we use the phrase “the hon. Gentleman” or “the hon. Lady”, or something along those lines. Mr McDonald, you have not committed this sin.

[Stewart Malcolm McDonald]

That is because I know what I am doing, Madam Deputy Speaker, as you well know.

Let me say this to the Minister for Defence People and Veterans. We always try to find the maximum consensus, but I rather suspect that we just cannot agree on this Bill. He is not willing to change it to the degree I would like to see it changed, which in essence would mean scrapping it and letting the review come forward. When we table amendments in Committee, it will be interesting to see what they say; I am sure the Minister will be interested to read them, and it will be interesting to see how the Government approach them. As I say, we all know what is going to happen: the Government have a huge majority and are not going to accept anything that they feel they do not have to. We do not agree with them that the Bill is moderate at all, which is why we will vote against its Second Reading tonight.

[Joanna Cherry (Edinburgh South West) (SNP)]

The Minister for Defence People and Veterans is keen that we look at the Bill itself. Does my hon. Friend agree that the Bill creates a presumption against prosecution for a class of defendants, placing one group above the other in the eyes of the law? Does he agree that that is unprecedented in our domestic legal systems, whether we speak of England and Wales or the separate and independent jurisdiction in Scotland? That is unprecedented and that is what is objectionable about the Bill: it does away with the idea of equality before the criminal law, and that is wrong.

[Stewart Malcolm McDonald]

My hon. and learned Friend is absolutely correct in saying that. I would go further and say that actually, in terms of the whole scope of the Bill and how it protects the Ministry of Defence from claims coming from members of the armed forces themselves, as brilliantly illustrated by the shadow Secretary of State in his speech earlier, it is not welcomed by those people who need protection. We all agree that they need protection, but we cannot agree with the Government that this Bill is the way to do it.

The context is this: this Parliament has no power to prevent the Government from entering a discretionary conflict. There is no war powers Act. When Tony Blair took the country to war—a war that, in an interesting contribution earlier, the Defence Secretary said he now accepts was illegal, but which his party supported at the time—he at least came to this Parliament and held a vote. When the airstrikes in Syria took place in Easter 2018 under the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), that was done away with; that discretion was used without any parliamentary consent.

On the issue of special forces oversight or lack thereof, we stand out as unusual, even by comparison with a country such as the United States with zero oversight of special forces operations. As my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) said earlier, this Bill creates two levels of playing field for people in this country. This is all unwelcome and highly unusual. There is a reason that no other country has a version of this Bill on its statute book or before its national legislature. Members of the armed forces are rightly expected to perform to a high standard and members of the armed forces are right to expect a high standard of us in this House, but for the reasons I have outlined we will vote against this legislation tonight. Members of the armed forces are entitled to a better standard than this.

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[Mr Kevan Jones (North Durham) (Lab)]

I have been in the House for nearly 20 years, and I have always prided myself on being a strong advocate for defence and the support of our servicemen and women, both from the Back Benches and as a Minister. I am also no friend of unscrupulous lawyers. Older Members of the House will remember my campaign of the early 2000s against unscrupulous lawyers who defrauded my constituents who were claiming miners’ compensation. That led to the instigation of the Solicitors Regulation Authority, which took the disciplining of lawyers away from the Law Society. I am also, though, a strong supporter of the legal system and of the military justice system. I have served on the last three armed forces Bills as either a Minister or a Back Bencher, and I think I understand the system well and respect it.

Unfortunately, though, this Bill does not pass the Ronseal test: it does not say what it does on the tin. It excludes completely the arguments, with which I have a lot of sympathy, about prosecutions of those in Northern Ireland. The other issue is the need for the Bill. Its promoters give the impression that there is an army of vexatious lawyers out there who are pursuing veterans. I asked, in a parliamentary question, for numbers. I was told that they were not kept by the Department centrally. The explanatory notes say that there were 900 cases for Afghanistan and Iraq between 2003 and 2009; the impact assessment says the number is 1,000, but what they do not explain is the nature of those cases. How many were brought by vexatious lawyers? How many were compensation cases rightly brought by members of the armed forces or their families?

I accept the issues around the case of Phil Shiner. That individual was disgraceful, but I have to say that the Solicitors Regulation Authority, which was put in place by the last Labour Government, sorted that problem out. On the other main thing that has been raised today, I was a Minister in the Department at the time, and the problem was the way in which cases were investigated. The Bill will not address that.

The other point that I would like to address is my fear that the presumption, as outlined in the Bill at the moment, that prosecutions will not go forward outside a certain timescale will lead to members of our armed forces going before the International Criminal Court. That cannot be acceptable. If we had that presumption against prosecution, the court would perhaps conclude that the UK was either unwilling or unable to initiate a prosecution. I do not want to see that, and I do not think the Minister does either, but it is an unintended consequence of the Bill and it has to be changed.

I also have problems with clause 3, which says that prosecutors should take into account “exceptional demands and stresses” in cases after five years. If it is good enough after five years, why not before? There is no need for the clause, because that is already taken into account. The Judge Advocate General, in his letter to the Defence Secretary, outlined the case of Marine A, where evidence of unique circumstances taken at the first court martial and then at the appeal meant that the sentence was reduced to manslaughter.

[Stewart Malcolm McDonald]

Does the right hon. Member not agree that it diminishes the Government’s standing when they come to the House and cast to one side all these concerns from experts such as those he mentions, when there probably is a reasonable Bill that the House could gather around?

[Mr Jones]

I think there is, but I also say that people should talk to those in the service justice system, because they do this every day of the week. They are an independent judiciary—that is recognised internationally. They do a job in ensuring that people get justice and I think that this Bill will complicate that. One of my fears is that this will undermine the military justice system, of which I am a passionate supporter. I know that some people want to do away with it, but I certainly do not. I also agree with the points that have been raised by the Royal British Legion and my right hon. Friend the Member for Wentworth and Dearne (John Healey) concerning conditions around the ability of veterans to make compensation claims later.

I will not vote against the Bill tonight, because I think it can be improved. However, I will also not fall into the political trap that has been set, where it will be said that if someone is against the Bill or criticises it in any way, they favour ambulance-chasing lawyers over our armed forces. I am sorry but I take great exception to that, and I am in good company, along with a lot of other people, such as Field Marshal Lord Guthrie, Nick Parker, whom I have huge respect for—I worked with him in the Ministry of Defence—and the Judge Advocate General.

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[James Sunderland (Bracknell) (Con)]

It is a great privilege to be called so early in this debate, Madam Deputy Speaker. I might be new to this place, but I spent three decades in uniform. I have worked with many veterans charities across the UK, not least in my previous role as commander of the Army engagement group at Sandhurst and in my Bracknell constituency where our armed forces champions are working wonders.

The Bill needs to be considered for what it is, not for what it is not. Given that it is groundbreaking, it needs to start somewhere and is therefore bound to attract negative interest. For those who have not noticed, the architect of the Bill is a veteran. I cannot think of a single Minister who has invested so much of himself against such a tough backdrop and I commend the Minister for Defence People and Veterans, my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), for everything he has done this far. He has fulfilled his promise, to date, to our veterans and it is incumbent on us in this place to be objective, because we will not be forgiven if we fail. I do not believe that anybody can be a supporter of our armed forces and vote against the Bill.

[Stewart Malcolm McDonald]

I will not have that. The armed forces look to this place to get this right—the hon. Gentleman is correct on that—but they expect and deserve a better standard than the comment he has just made. I know he is new, but I like him and I just ask him to withdraw it. Please withdraw it.

[James Sunderland]

I am a great fan of the Bill and the Bill is right. We need to put it through.

At its simplest level, the imposition of a presumption in law against prosecution after five years will provide greater certainty for our service personnel. Since 2002, the MOD has faced 1,400 judicial review claims and over 2,000 civil claims relating to operations in Iraq and Afghanistan alone. Many are valid, but about 3,400 allegations of unlawful killings have also been received by the Iraq Historic Allegations Team, of which at least 70% have been filtered out as being spurious. Members will also be aware of the al-Sweady inquiry, which cost the taxpayer £31 million and was proven to be based on

“deliberate lies, reckless speculation and ingrained hostility”.

That was just the tip of the iceberg, and it is right that public interest lawyers, such as Phil Shiner, should have been struck off. But that is nothing compared to the anguish of our veterans, many of whom are innocent.

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[Richard Drax (South Dorset) (Con)]

It is a pleasure to follow my hon. Friend the Member for Belfast East (Gavin Robinson). As he said, I too am honoured to sit on the Defence Committee. We have a very cohesive Committee, which is doing some fascinating work on behalf of our armed services.

May I point out to my hon. and gallant Friend the Member for Beckenham (Bob Stewart) that once a commanding officer, always a commanding officer—of course I refer to the mention of the hairstyle of the Minister for Defence People and Veterans, my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer). I thank the Minister while he is sitting on the Front Bench, and the Secretary of State, for the huge amount of work that they have both done to get the Bill before the House. I would like to show my appreciation for all the armed service personnel in another country, and to those in South Dorset in camps such as Bovington and Lulworth, the headquarters of the armoured force nowadays. There are many thousands of troops and their families who serve with great distinction and honour, in Dorset and around the world, and we owe them a huge debt.

It is those of us in this House who send troops to war—no one else; we do. We sit here on these green Benches, or at home in our comfortable armchairs, armed with a gin and tonic perhaps, watching the men and women we sent fight for their lives in places like Iraq and Afghanistan. Can we possibly, with few exceptions—honourable exceptions—really understand what they have gone through and are going through? I do not think we possibly can.

The law had until recently covered warfare very well. Things like torture and sexual assaults and so on are already covered by international law, under which our troops serve. Unfortunately, other laws have crept into military law and are being exploited, as we have heard, in some cases by unscrupulous lawyers, and even scrupulous lawyers who genuinely feel that they have a legal duty to protect their clients’ claims and investigate them.

The Bill, we have heard, gives immunity to those who commit crimes—or, some have said, amnesties. Hon. Members may remember the case of Marine A, Alexander Blackman; I sought his permission to mention his name today. I was honoured and privileged to form part of a small team that fought for him for three years to get his conviction for murder reduced to manslaughter. In that case, if hon. Members remember, he shot a member of the Taliban while serving in Afghanistan. He was convicted of murder and sent to jail for 10 years. Under a very able QC and his team, we took the case to the Appeal Court, where it was reduced to manslaughter with diminished responsibility.

What I find encouraging in the Bill is that—if I may read the notes that I was helpfully given by the Minister—it will require prosecutors, when deciding whether to prosecute, to take into account the unique circumstances of “overseas operations” and the “adverse effects” that those can have on personnel.

In the Appeal Court, five of the top judges in the land listened to the case that I have mentioned and decided that it was not murder. So, having served four years of his life, and having served 16 years with great distinction and honour for Queen and country and for us, Mr Blackman was released.

[Stewart Malcolm McDonald]

rose—

[Richard Drax]

I will not give way, because 70 Members wish to speak, and the hon. Gentleman has had plenty of time to say his bit.

The point I am trying to make is that this man did not get away with it. He was convicted for four years of his life. He paid for a terrible mistake in the heat of battle after a long tour. When the circumstances were investigated by the lawyers at the Appeal Court and the experiences that he and others had been through came out, and the psychiatrists had their say, it was discovered that this man had been pushed to a point that none of us in this place can understand.

Next time—and there sadly will be another time—we send our men and women into harm’s way, we must remember what we are sending them to. This Bill, which I totally support, is being introduced to protect them from new aspects of law that our forebears in world war two and other battles did not have to cope with. I shall be voting with the Government tonight. I thank the Minister and the Secretary of State for bringing this Bill to the House, and I look forward to the Northern Ireland Bill coming to the House before Christmas.

Overseas Operations (Service Personnel and Veterans) Bill

Stewart Malcolm McDonald Excerpts

Report stage & 3rd reading & 3rd reading: House of Commons & Report stage: House of Commons
Tuesday 3rd November 2020 Commons Chamber

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. We must come to the winding-up speeches. I call Stewart Malcolm McDonald.

[Stewart Malcolm McDonald (Glasgow South) (SNP)]

I am grateful, Mr Deputy Speaker, and I am only sorry we did not get to hear the end of the speech by the hon. Member for North Down (Stephen Farry).

I rise to support the new clauses, and to speak to amendment 32 in my name and those of my hon. Friends. I want to begin by thanking my hon. Friends the Members for Glasgow North West (Carol Monaghan) and for West Dunbartonshire (Martin Docherty-Hughes), who served on the Bill Committee, among other hon. Members who find themselves here this afternoon. I am afraid to say to hon. Members, particularly those who were with us on Second Reading, that very little has changed from what I said then. In fact, almost nothing has changed from what I said then and that is a great shame. It is the case, then as now, that senior legal, military and political opinion was united in consensus against the Bill. That has not changed. [Interruption.] That did not take very long, did it? The Minister should not worry; I will come to the points that he loves to chunter.

[Stuart Anderson]

It is not fair to say that opinion is united against the Bill. That is not factual from the evidence given to the Bill Committee.

[Stewart Malcolm McDonald]

Well, we will go through some of that evidence, shall we? We will go through some of the comments made by senior military, legal and political opinion that make it quite clear that what I have said is correct. I accept, of course, that there are differences of opinion within those fields, but it is the case, I am afraid to say to the hon. Gentleman and to the Minister chuntering at me from the sidelines, that senior military, legal and political opinion believes that the Bill is farcical in several respects. I will go through them in turn.

[Mr Kevan Jones]

We cannot get more distinguished than the Judge Advocate General, Judge Blackett, who was firmly of that opinion. The Minister did not perhaps listen, but the judge made his position about the Bill very clear.

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[Stewart Malcolm McDonald]

Yes, that is entirely correct. Or we could take the former Conservative Defence Secretary, Sir Malcolm Rifkind. I think I said in the previous debate that he is not exactly known as a sandal-wearing, lentil-munching, Guardian-reading lefty hipster type, is he Mr Deputy Speaker? I suspect you know him way better than I do, although we have some experience of him in Scotland, of course. He is against the provisions in the Bill. So when the Minister chunters away that what I have said is incorrect, I am afraid what he needs is a mirror, because what he is saying is fundamentally incorrect.

It did not have to be this way. Back in that Second Reading debate, I said, along with others, that we would try to bring forward amendments to get a Bill we could support. But with every attempt to do so—we will see it again, I am quite sure—we have had the door slammed shut in our faces.

The Minister might win in the Lobby tonight, but for a man so convinced of his powers of charm and persuasion, he has failed to bring forward a Bill that the House can unite behind. Those who were here before the election, and who have been in the few defence-related debates we have had since, will know that, on defence matters—setting aside the nuclear question, certainly for myself—there is actually a lot of consensus in the House. So why is it that the one Minister who brings forward a Bill on issues of security, supporting the armed forces and the rule of law, where that consensus exists, has failed to get any Opposition Member to support him? It is his failure that the Bill will divide tonight, with one or two honourable exceptions, between Government and Opposition Benches.

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[Lloyd Russell-Moyle]

Does the hon. Member share my worry that potentially putting our armed forces up against the International Criminal Court could be the beginning of a path to undermining the Court itself? It is quite easy to see a situation where British service personnel are investigated, and then Conservative Members start braying for us to leave the Court in its entirety.

[Stewart Malcolm McDonald]

That is exactly the slippery slope I fear we are on. I hate the phrase “the thin end of the wedge”, but I am afraid that it rather fits where we are with this Bill and this Government. We have those senior opinions in military, legal and political circles against the Bill. That is before we get to the recent damning report by the Joint Committee on Human Rights, which made clear the number of flaws in the Bill.

I am conscious of time, so I will conclude. The Chairman of the Foreign Affairs Committee, the hon. Member for Tonbridge and Malling (Tom Tugendhat), suggested that, were we to change our defence posture with regard to training or peacekeeping in supporting Ukraine, we could be subject to what he called “a Russian hand” trying to take legal action here—no doubt that Russian hand is a Tory donor. That is exactly the kind of thing that would see UK personnel further exposed to the International Criminal Court.

[Bob Stewart]

Will the hon. Gentleman give way?

[Stewart Malcolm McDonald]

No, I am going to wind up.

The Minister has to take that into account, but he has failed, and the failure is his alone. I do not want him to think that, when he gets his way tonight, the job is done. The job is not done. He has promised the House legislation to fix the investigation system. My goodness, I hope he will do a better job on that than he has done on this Bill.

[John Healey (Wentworth and Dearne) (Lab)]

This is not a wind-up speech. We have had a good debate, with 23 Back-Bench contributions, some really good speeches and serious concerns about the Bill raised on both sides of the House. We are legislating, and I want to say to the Minister that it is wrong to see all criticism as opposition or all opposition as hostility. The Government never get everything right, especially with legislation, and no one has a monopoly on wisdom, especially Ministers. I say to him, it is wrong to dismiss anyone arguing for amendments to the Bill as ill informed or ill willed. There has never been a Bill brought to this House that could not be improved—this is certainly one of those. That is our job as legislators.

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[Johnny Mercer]

It is quite extraordinary the way that individuals carry on in this House. That is precisely why I became a Member of Parliament—because quite frankly the military were sick and tired of some of the warm words that come out of this place when actually the actions are what matters.

I thank the Chairs of the Public Bill Committee and my fellow members of the Committee for their scrutiny of the Bill. As I said in Committee, we may not always agree, and that is to be expected, but I have listened to the views put forward, including those of Members who have spoken today. I hope that I will be able to address a number of the points raised and set out the Government’s position on the amendments chosen for debate.

On part 1 of the Bill, as I have said before, I fully recognise the importance of striking an appropriate balance between victims’ rights and access to justice. This has meant seeking to have a balance in the Bill. On the one hand, we are introducing protective measures that set a high threshold for a prosecutor to determine that a case should be prosecuted and ensuring that the adverse impacts of overseas operations would be given particular weight in favour of the service personnel or veterans. On the other hand, we must ensure that in circumstances where our service personnel fall short of the high standards of personal behaviour and conduct that is required, they can still be held to account. That is one of the reasons why we have not proposed an amnesty or a statute of limitations for service personnel and veterans as part of these measures—a claim again produced by Labour Members today. That is not true. [Interruption.] The right hon. Member for Wentworth and Dearne can chunter from a sedentary position about what is in the Bill, but all that has been mentioned all afternoon is what is not in the Bill. It is literally a waste of everybody’s time. I see that Momentum has said this afternoon that we have forced Labour Front Benchers to vote against it. I was unaware that Momentum had any seats in the House of Commons, but clearly Labour Members are unable to think for themselves. However, that is a matter for them. We have also ensured that the measures are compliant with international law.

I recognise that alleged misconduct by service personnel is dealt with most effectively if individuals are investigated and, where appropriate, subject to disciplinary or criminal proceedings at the time of the conduct. Nobody should underestimate the often inordinate difficulty in delivering timely justice in relation to investigations of alleged historical offences. As we have heard in many oral evidence sessions, this can leave our service personnel with stress and mental strain for many years afterwards. There is a danger that if we fail to recognise that all the elements of the armed forces have come a long way from the beginning of the Iraq conflict, it looks like we are not continuing to learn and adjust. That is not true, which is why the Secretary of State has announced, in parallel with this Bill, a judge-led review of how allegations of wrongdoing on overseas operations are raised and investigated. The right hon. Member for Wentworth and Dearne raises time and again the issue of the investigations, but he knows that they are for the forthcoming armed forces Bill and will be addressed there. That is why it might be unintentionally disingenuous to suggest that nothing is being done, Madam Deputy Speaker.

A number of amendments are proposed to clause 6 and schedule 1. A number seek to exclude torture offences from the presumption, and we know what this is; I should make it clear again that there is no requirement in customary international law for a state to prosecute a war crime or other breach of the Geneva convention in all circumstances where it has sufficient evidence of the offence, irrespective of this clause. We believe that the statutory presumption, which still allows the prosecutor to continue to take decisions to prosecute, is consistent with our international obligations.

Similarly, amendments 1 to 10 seek to ensure that the offences in section 134 of the Criminal Justice Act 1988 in relation to torture, and the relevant sections of the International Criminal Court Act 2001 in relation to offences of torture, genocide, crimes against humanity and war crimes, should be excluded offences in schedule 1. I am very much aware that many people have misinterpreted the decision to exclude only sexual offences from the presumption against prosecution, including by suggesting that it somehow undermines the UK’s continuing commitment to upholding international human rights law and humanitarian law, including the UN convention against torture. As Opposition Members well know, that is completely untrue. The UK does not participate in, solicit, encourage or condone the use of torture for any purposes, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law.

[Stewart Malcolm McDonald]

Will the Minister give way on that point?

[Johnny Mercer]

I think I have put up with enough this afternoon; I will not take any interventions.

The Bill does not decriminalise torture or war crimes, and it will not encourage or allow our service personnel to act with impunity. We will continue to take other offences such as war crimes and torture extremely seriously. The severity of the crime and the circumstances in which it was committed will always be factored into the prosecutor’s considerations. I have previously explained the Government’s decision to exclude only sexual offences from the Bill, and I am not going to say it again.

I wish to discuss new clause 5, which seeks to amend part 2 of the Bill so that it explicitly excludes actions brought against the Crown by current or former service personnel. None of the measures in part 2 of the Bill will prevent service personnel, veterans or their families from bringing claims against the MOD in connection with overseas operations within a reasonable timeframe, which most have done historically. To exclude, as Opposition Members would want to me to, claims from service personnel and veterans from part 2 of the Bill would amount to a difference in treatment between categories of claimants, including the civilian personnel who deploy alongside service personnel on overseas operations. That would not be justifiable and it would likely be discriminatory. Therefore, in the interests of fairness to all claimants, claims from service personnel and veterans are not excluded. I am confident that these measures do not break the armed forces covenant. The new factors and limitation longstops apply to all claims in connection with overseas operations, and I have dealt with that point a number of times before.

I wish to say to colleagues that this House has a poor record on looking after those who serve. There comes a tangible moment, which the public can see and feel, when Members must cross the divide. In my experience, Members never tire in this place of warm words towards our armed forces or sombre reflections, particularly at this special time of year, as we run into remembrance weekend, but, as I said, there comes a moment, which the public can see and feel, when we must do better and match our words with action. This is that moment—one our predecessors have consistently failed, time and again, to seize. I am proud that this Government will move from warm words to actually dealing with how we look after those who have served. Gone are the days when this was an afterthought, and I pay tribute to this Prime Minister for his resolution to allow me to change this.

There are a lot of amendments that I am unable to speak to, but what I will say is that I have listened to all the contributions. I know that there is this kind of feeling that I do not listen and that I am not going to change the Bill. The reality is that I did not write the amendments—

[Stewart Malcolm McDonald]

Will the Minister give way?

[Johnny Mercer]

No, I am not giving way—I have suffered enough. The House has suffered enough at the hands of the hon. Gentleman. I have listened to all the points about the amendments, but I did not ,write them. I wrote the Bill and the Bill as it stands deals with the problem that we are trying to fix, and hon. Members fully know that. Imagine my surprise—the Al-Sweady inquiry has been picked out by Opposition Members, but they would not believe who was the Minister at the time of the Al-Sweady inquiry: the right hon. Member for North Durham (Mr Jones). If Members are really going to contribute honestly with a debate that they know the answers to, it has to be done with the sort of standards, values and ethos that we expect our people to adhere to.

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[Stewart Malcolm McDonald]

I also thank the Clerks and the staff of the House who have worked on the Bill and the Library staff who have worked hard to ensure that Members are briefed properly. I want to mention Clorinda Luck, our own researcher, who has put a lot of work into this as well.

I echo much of what the shadow Secretary of State has said. We all wanted to solve the Phil Shiner problem. I do not think that any of us wants to see Phil Shiner mark 2, but this was not the way to do it. The Minister, with whom I enjoy these exchanges, has let himself down. He could have had a chance, as he said he wanted on Second Reading, to bring together all the Members of the House who wanted to solve the problem, and he did not accept one single amendment. On arithmetic, he might win this evening, but his powers of persuasion and politics clearly need a lot more polishing than he thinks. When this legislation comes forward on investigations next year, I hope that he will look back at the Hansard of this debate and at how he conducted the passage of the Bill and do it differently next time. He has good will in the House that I fear he has squandered irreparably, especially in the passage tonight. This Bill does not protect the armed forces; it risks them being dragged in front of the ICC. If he is happy with that as his legacy, that is for him to resolve, but it is not something that we can support. For that reason, we will be against the Bill in the Lobby tonight.