Overseas Operations (Service Personnel And Veterans) Bill

Tom Tugendhat Excerpts

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

[Mr Wallace]

I certainly recognise that people have concerns. Some of those people were doing the job that I am doing when these things were going on, so I would venture to ask them why they did not do anything about it at the time. It is a fact that there has been abuse of this system; we all know that on both sides of the House. It is a fact that we need to do more, rather than just talk about it, for our veterans. It is really important to include measures to recognise the very unique experiences of and pressures put on the men and women of our armed forces when they go on operations hundreds of miles away.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

I want to pick up on the point made by the hon. Member for Cardiff South and Penarth (Stephen Doughty)—I am glad to see him wearing his Royal College of Defence Studies tie; there are quite a lot of military ties in the Chamber today—about the application of the ECHR. The derogation that we are asking for and that the Bill recommends is not new; it was included in the initial treaty when it was signed in the ’50s, and other countries have already used it. We are talking about recognising the provisions of a treaty that we signed in order to allow the military to act in a military way, because this treaty was written by people who had fought in the second world war and knew exactly what they were talking about.

[Mr Wallace]

My hon. Friend makes a substantive point, and one reason we find ourselves facing these challenges is because there is a clear conflict between international humanitarian law in some areas, and international human rights. The encroachment and growing reach of ECHR into areas of combat has created a clash, in some sense, between things such as the Geneva convention and individual human rights. That is why when the authors wrote the ECHR, they included some of those carve-outs as a way of accommodating the international laws under which they had been operating in the mass conflict of the second world war. Indeed, when the Defence Committee was chaired by my right hon. Friend the Member for New Forest East (Dr Lewis), it picked up on that very real clash, which is hard to resolve. In my view, some of the problems with lawfare is that people are exploiting that clash for financial gain. It is easy to hide behind a humanitarian law on one day and a human rights law on another, and we have a duty to try to make a difference.

We are not going as far as many countries under the jurisdiction of ECHR. Other countries in Europe have a statute of limitations on criminal offences. Germany and France both have a number of criminal statutes that are statutes of limitations. Other countries also do that, or have amnesties, but we are not going that far. We are trying to resolve that clash and see how we can ensure a proper threshold, so that there are no vexatious investigations and our men and women do not constantly find themselves the subject of them.

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[Mr Carmichael]

Obviously not, because murder is dealt with by the common law of this country. The Secretary of State is perfectly aware that such a case could still be brought under the exceptional circumstances provisions. The problem he has is that there is no such thing as unexceptional torture.

[Tom Tugendhat]

Will my right hon. Friend give way on that point?

[Mr Wallace]

I will crack on. The House has heard the point from the Liberal Democrat spokesman. I venture that I will side with the former Attorney General for Northern Ireland on his views regarding whether this provision does or does not prevent torture. I think his judge of the law is pretty succinct, although I have not always agreed with his views. [Interruption.] I shall carry on.

In conclusion, the Bill is about doing the right thing by our troops. Our soldiers and values must uphold the highest international standards. The Bill is not an amnesty, a statute of limitation, or the decriminalisation of erroneous acts. We will continue to protect the independence of our prosecutors and our service police, and we will investigate and, if necessary, prosecute service personnel who break the law. But what we will not accept is the vexatious hounding of veterans and our armed forces by ambulance-chasing lawyers motivated not by the search for justice, but by their own crude financial enrichment.

This House should reflect on how lawfare has ranged way out of control. All too often, the victims have been the very people who risked life and limb to keep us safe. The Bill is a measured step, making provision for the unique circumstances our troops find themselves in on operations overseas. I commend the Bill to the House.

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

I start by also paying tribute to the role, dedication and work of our armed forces. They face exceptional risks, give exceptional service and require exceptional skills. As we face as a nation a second covid crisis, they are likely to be called on again, more heavily, including overseas.

I am pleased that we have come to the Commons debate on this legislation. I thank the Secretary of State for the way he introduced the Bill. The first duty of any Government is to protect the nation and its citizens, and the first duty of any Defence Secretary is to protect the men and women who dedicate themselves to the service of their country. We have our own British way of doing this. Since the days of Churchill and Attlee, when Britain led the global efforts to establish the rules-based international order after the second world war, we have been the champions of democracy, freedom and universal human rights. Our British forces uphold, unequivocally, international law and conventions. By adhering to the highest standards of legal military conduct ourselves, we can hold other countries to account when their forces fall short. The Bill calls into question Britain’s proud commitment to the Geneva convention, our duty as a “permanent five” member of the United Nations to uphold international law, and our moral authority to require the conduct of other nations to meet the standards set by those international conventions.

Since the end of the 2000s, all parties in this House have upheld a strong commitment to the armed forces covenant, which declares that those from the armed forces and their families

“should face no disadvantage compared to other citizens in the provision of public and commercial services.”

The Bill breaches that covenant by denying troops who serve overseas the same employer liability rights as are held by the UK civilians they defend. Our aim with this Bill is, first, to protect British troops and their right to justice from the MOD, and secondly, to protect Britain’s reputation as a force for good in the world, upholding human rights and the rules-based international order. We will work to help forge a constructive consensus through the Commons and the Lords for the changes necessary to achieve that aim.

[Tom Tugendhat]

The right hon. Gentleman must recognise—I am sure he knows this well, having spoken to his opposite numbers in socialist or left-wing parties around Europe—that many other countries follow this system of derogation and have national caveats. France itself has a reserve of emergency powers it can use to defend its troops against vexatious or inappropriate litigation. Is he seriously suggesting that France is not a law-based state, or that it is in some way immoral and has no right to sit as one of the P5? Surely he is not suggesting that.

[John Healey]

No, I am very clear that we want to and must protect our British troops against vexatious claims and repeat investigations. Important parts of the Bill are wrong; we can get them right and that is what I want to do. There has been a problem—I get that—arising especially from the conflicts in Iraq and Afghanistan, as the Secretary of State said. The al-Sweady inquiry chairman, when he finally cleared the troops in 2014, spoke forcefully of the “most serious allegations”—of murder and mutilation—that

“have been hanging over these soldiers for the past 10 years”.

The family of an Iraqi boy, Ahmed Jabbar Kareem Ali, who drowned in a canal in 2003 with British soldiers directly implicated, had to wait until the Newman inquiry reported in 2016 before they got the truth and the MOD issued a full apology.

Long-running litigation, repeat investigations and judicial reviews are indeed the signs of a flawed system—a system that has failed British troops and failed victims under successive Governments. I get this problem, and it must be fixed, but it is important to see it in perspective, not least so that we can see clearly the problem that we are legislating in the Bill to fix.

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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—

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[Tom Tugendhat (Tonbridge and Malling) (Con)]

It is a pleasure to see you in the Chair this afternoon, Madam Deputy Speaker, and to follow my friend, the hon. Member for Glasgow South (Stewart Malcolm McDonald), who made some interesting points, some of which—forgive me—I am going to disagree with. He will not be surprised to hear that, because we have often entered into many civilised, and sometimes lubricated, conversations on these very subjects. These issues affect the whole House and have been discussed by many Members in here and in other places, because they really matter.

I declare an interest; I got into politics on leaving the Army, after writing a paper for Policy Exchange in 2013 called “The Fog of Law”, which covered these very subjects and highlighted many of the issues raised in this debate. I appreciate that there are difficult decisions and that it is hard to balance what the right hon. Member for Wentworth and Dearne (John Healey) quite correctly said was the difference between the liability that a civilian employee could expect with their employer and that which a soldier on overseas operations could expect. I accept that that is different.

I accepted that it was different when I swore allegiance to Her Majesty and put on the uniform for the first time. I accepted it was different because the job that I had accepted to do was different; it was fundamentally different—different in every sense from any civilian job at all. Why? Because I promised, as the men and women of our armed forces still promise, to give everything even unto death. That is not something that any other employer asks of their team or their staff. Nobody who is not wearing the Queen’s uniform pledges to defend our people, our islands, our values, our country, our allies and our interests even up to their own life. That is different.

In recognising that that is what we need from our armed forces, we must also recognise that the law defending our troops and the law that applies to their terms of employment must also be different. It simply cannot be the case that civilian employment contracts are applicable to the invasion of Iraq or hard detention operations in Afghanistan, or even to training missions in other places that go wrong and become combat in ways that the people involved do not expect. Of course they must be different.

[John Healey]

Will the hon. Gentleman accept that this is a distinction not just between the armed forces serving overseas and civilians, but between armed forces serving overseas and armed forces serving and based in this country? To that extent, this legislation uniquely disadvantages the latter and reduces their rights.

[Tom Tugendhat]

I will accept that this is an overseas operations Bill and that being on patrol in Helmand is different from bringing on guard at Buckingham Palace, and therefore the rights that troops should accept in different places under different terms should of course be different.

I have served, as have many of my colleagues in all parts of the House. Indeed, my friend and former comrade in arms the hon. and gallant Member for Barnsley Central (Dan Jarvis) and I served in camps in places where the electricity could best be described as ropey and would fail any civilian investigation. We served in places where to walk outside the camp was to risk everything, from loss of life or limb to very real mental damage. We served in those places because the national security and the interests of our country—decided on by people here, by the way, not soldiers—was judged to be that important.

[Mr Wallace]

I listen with interest to what my hon. Friend says and to his example of unique circumstances. The hon. and learned Member for Edinburgh South West (Joanna Cherry) made the point that this Bill makes some people less or more equal before the law—that it was an unfair application—but it does not prevent anyone from being prosecuted for a crime that they have committed, nor does it introduce special defences for people, so that some of these offences allow them to have an excuse. All it does is ask a prosecutor to have exceptional regard for the circumstances that those concerned may find themselves in and also, where an investigation has already happened, to think about the level of new evidence that should be applicable.

[Tom Tugendhat]

I agree with my right hon. Friend, and the important point about the Bill is that it recognises the difference between a crime and an error. We all know that crimes should be prosecuted, and we all know that the difference between a crime and an error is a difference of understanding and, on some occasions, circumstance. It is not necessarily a crime for a missile, sadly, to go astray and kill civilians. It can be an error; it may be a terrible, regrettable error; it may be an error that we should learn from a thousand times. But it cannot always be a crime, otherwise the invasion of Normandy could never have happened, because if it was always a crime for civilians to die in combat, the troops could not have prepared that battlefield to land on those beaches.

If that was a crime, it would always be a crime to use force in situations where we cannot be absolutely certain of the outcome of that force. Of course, that is never possible, because the reality is that if we put such blocks on any use of force, what we are saying is that force can never be used.

[Joanna Cherry]

I am failing to follow this argument. Is the hon. and gallant Gentleman suggesting that torture is a crime that can be committed by error?

[Tom Tugendhat]

No.

[Joanna Cherry]

That seems to be what he is suggesting. But let us focus on what we are talking about here. We are talking about torture—[Interruption.]

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. We do not have time.

[Tom Tugendhat]

That is simply not what I am saying, and it is quite clear that it is not what I am saying. What I am saying very clearly is that there is a fundamental difference between an error and a crime, and there is a fundamental need in military law to allow soldiers to take the risks that we need them to take if they are going to keep our country safe. If we do not allow them to take those risks, what we are saying, fundamentally, is that the weak must defend themselves and the strong can look after themselves; because the point about military service, soldiering and our armed forces, fundamentally, is that they allow the strong to defend the week. They put the use of force under the rule of law, and they allow this country to be strong and safe, and partnered with others around the world.

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[Dr Julian Lewis (New Forest East) (Ind)]

I greatly admire and respect the hon. and gallant Member for Barnsley Central (Dan Jarvis), but I fear that it would require rather more than just an improvement to the way in which service authorities investigate allegations to solve this problem, because the problem derives in large part from the application of the Human Rights Act abroad.

The purpose of this Bill should not be to stop sound cases being prosecuted, and it does not do so. Its purpose should be to stop unsound cases being repeatedly investigated, and that, I fear, it fails to do. The hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) seized on this point in his earlier intervention, in which he referred to intimidation by reinvestigation, and he is right; that is the nub of the problem. The Secretary of State conceded that only a small proportion of these many cases—most of them spurious—end up in a prosecution. He suggested that, if it were known that there would be less likelihood of a prosecution, there might be fewer rounds of investigation and reinvestigation, but I am afraid I do not find that wholly or, indeed, at all convincing. Something must be done to stop the repeated reinvestigations, which, in large part, happen because of the application of the Human Rights Act abroad.

I first became aware of the scale of this problem several years ago when I heard speeches from my hon. and gallant Friends the Members for Beckenham (Bob Stewart) and for Filton and Bradley Stoke (Jack Lopresti). The effect of that was to interest me in trying to take the matter further during the two periods for which I chaired the Defence Committee. In those two periods, we produced three reports. The first inquiry was carried out by the sub-Committee under the chairmanship of my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), now the Minister for Defence People and Veterans. That inquiry dealt with Iraq and reported in February 2017. The second one dealt with Northern Ireland and reported in April 2017.

The third one, dealing with the whole panorama of all these scenarios, reported in July 2019. That report warned that the European Court of Human Rights

“has gone far beyond the original understanding of the European Convention on Human Rights, and… its rulings have stretched the temporal and territorial scope of the Human Rights Act beyond Parliament’s original intentions”.

The report examined proposals by Professor Richard Ekins, now professor of law and constitutional government at Oxford University, in which he proposed to restore the former scope of the HRA and the application of the ECHR. As long as that legislation, which was never intended to be applied abroad when it was enacted by this House in 1998, persists in its extended application, we will not solve this problem.

[Tom Tugendhat]

Is my right hon. Friend aware that it is not only the United Kingdom facing an issue with the extraterritoriality of the ECHR? The French Conseil d’État —in which I must declare an interest, as my wife is a member—has also been investigating this, as has the German court, because this extraterritoriality was never envisioned by the signatories in the ’50s, nor was it envisioned by the then Prime Minister in the ’90s.

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[Carol Monaghan (Glasgow North West) (SNP)]

It is a pleasure, as always, to follow the hon. and gallant Member for Beckenham (Bob Stewart), whose hair is looking glorious this afternoon as well. I declare an interest because, as most Members will know, my husband is a veteran. [Interruption.] He is also an Ulsterman: I thank the hon. Member for Strangford (Jim Shannon) for pointing that out.

I must pick the hon. and gallant Member for Beckenham up on one thing. It is not true to say that all members of the armed forces want this Bill, as that is not the case. None of us wants a repeat of the shameful Phil Shiner episode, and no person in this House would disagree that we need protections in place for our personnel and veterans. Unfortunately, however, the Bill is not the vehicle to do that. Our armed forces are the gold standard for militaries around the world and that must include the structures we have in place to deal with behaviour that falls short of our expectations.

Like the right hon. Member for North Durham (Mr Jones), I have submitted a series of written questions to try to get a feel for the scale of this problem. I was hoping for a bit of information, but I have yet to have any answers to these questions. The Minister has not been in touch. Despite what the Secretary of State said— it is a pity he has gone now—about the Library impact assessment having all those numbers in it, it does not. It has numbers relating to part 2 of the Bill, not part 1. It is worrying that we are bringing forward legislation to tackle the industrial scale of vexatious claims, but we cannot get a handle on how many there actually are.

As we know, many conflicts involving our personnel are in parts of the world that are now experiencing a fragile peace. To put in place a statute of limitations on prosecutions assumes that normality and the structures of a democratic society will be promptly established post conflict. This, of course, is not the case. If we are to rely on investigations that have taken place, we must have confidence in those original investigations.

[Tom Tugendhat]

I appreciate the hon. Lady’s point about the confusion of post-conflict societies and therefore about the statute of limitations, but would she not accept that this goes both ways? There is also the difficulty people can have in defending themselves when evidence has been lost, burned or destroyed in exactly those post-conflict societies, and therefore time works both ways on this question. This is essential for the defence in justice, because justice must not only be for the prosecution, but for the defence.

[Carol Monaghan]

There are two things: that is not unique to conflict—that happens in many things—and that is also why the original investigation must be carried out properly. If we want to minimise the opportunities for these vexatious claims, such investigations should be independent. They should be collecting accurate evidence, and without this we really do leave the door open.

If the conduct of our personnel is as we expect, why should anyone fear this transparency? This legislation undermines our international standard the more so because it includes, as Members have already mentioned, unlawful killing and torture. Judge Blackett, the Judge Advocate General of the armed forces, has warned:

“This increases the likelihood of UK service personnel appearing before the ICC in the future.”

Is this what any of us want?

Part 2 of the Bill has not had much mention this afternoon, and it should. It is ironic, when we have the Tory chest-thumping going on about protecting our brave soldiers, that part 2 is actually an attack on these very personnel. It removes many of the rights of those who have been injured through the negligence of the MOD to claim against it. Here is the nub of this Bill: it is about protecting the MOD, not personnel.

In the urgent question on 16 July, the Minister for Defence People and Veterans said:

“I will be honest that I cannot, off the top of my head, think why individuals would be diagnosed and choose not to do anything about it… I have not come across that in all my experience in the field, but I am happy to learn. If that is the case, I am happy to change the Bill”.—[Official Report, 16 July 2020; Vol. 678, c. 1675.]

Well, that is great, because it needs changing. There are many reasons why claims are not brought forward promptly, such as a culture in the military meaning that personnel may be told they cannot pursue a claim while serving or told by their chain of command they do not have a valid claim. If part 2 of the Bill becomes law, those injured through negligence will no longer have the full discretion of the court to allow a claim to proceed after the limitation period has expired.

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[Gavin Robinson (Belfast East) (DUP)]

It is a pleasure to follow the hon. Member for Wrexham (Sarah Atherton), not only because she made an eloquent speech but because it has been a pleasure to serve with her on the Defence Committee for the past few months. She is a welcome addition to our group. She followed the hon. Member for West Dunbartonshire (Martin Docherty-Hughes). Although our opinions on the Bill may differ throughout our proceedings, it is right to acknowledge that on the Defence Committee, there is great sense of collegiality and a great degree of cohesiveness. We work well and sincerely in the interests of our armed forces and all those who serve our country.

I see the right hon. Member for New Forest East (Dr Lewis) in his place smiling at me. A former Chair of our Committee, he expertly navigated the way through two of the three reports published by the Committee. I was a member of the Committee during the passage of the two substantive reports, and I commend them to Members, not just in relation to the Bill but in relation to future provisions that we hope to see apply to Northern Ireland, because they outline the complexity of the legal arguments that are engaged. Not once have we heard mentioned in the debate thus far the rationale for Northern Ireland not being included in an overseas operations Bill. It is not because it is expedient, but because we operate in entirely different legislative frameworks. International treaties and the Geneva convention do not apply to domestic deployments.

I listened very earnestly to the hon. Member for Bracknell (James Sunderland) and thought that he made a good speech, but he wanted to focus on what is in the Bill rather than on what is not in it, and I am afraid I cannot do that. I cannot say to the 300,000 veterans who served in Northern Ireland during Operation Banner —the longest continual deployment in our country’s history—that they do not count today. I recognise that those 300,000 do not all live in Northern Ireland. In fact, the majority live in constituencies in England, Scotland and Wales. Yet they are hearing us debate issues about protecting those who protected us without recognising fully that they are not included.

[Tom Tugendhat]

I am very pleased to hear the hon. Gentleman talking about this because it matters so much to many of us. But there is a difference, surely, between overseas operations and domestic operations that he has touched on. The very nature of what we are dealing with, with citizens of countries from around the world rather than citizens of the United Kingdom, means that the legal framework must be different. While I appreciate that he is absolutely right that the Bill should go further, or indeed the Northern Ireland Secretary should bring forward a Bill that covers similar issues, does he not recognise that it at least addresses part of the lacuna, even though not the whole?

[Gavin Robinson]

I have enormous respect for the hon. Gentleman, and he is right that there is a different legal framework. That is the point I was making, and I acknowledge it. However, I am not prepared to let this Second Reading debate go by without saying that there is a compelling and equal argument that needs to be made for those who served in Northern Ireland: his constituents and mine. When this Bill was introduced for its First Reading on 18 March, a written ministerial statement was also tabled in this House giving equal provision and commitment to the people who served in Northern Ireland. If that was necessary on the day of its first introduction, the very least we could ask is that we would today have had clarity and further sight of that, and potentially its introduction, so that there was some parallel progression of the commitment that was in the Conservative party’s manifesto, and veterans are looking to see how it will be brought forward.

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[Stuart Anderson (Wolverhampton South West) (Con)]

Thank you, Madam Deputy Speaker, for the extra few minutes. I declare an interest as a veteran who has served on multiple overseas operational tours and successfully taken the Ministry of Defence to court over injuries sustained in my time. In my maiden speech I spoke about what was best described as a hatred of this place and the decisions that were made here. After those decisions were made, I had to go and fight in those conflicts and saw them at first hand. But I think we need to move on from that and say, “There are new Members in; let us help to educate the House from our perspective”. We do not all have the same views, but we have been given that opportunity, so I want to show hon. Members a day in my life as a young soldier.

At the age of 22, I had been shot, rehabilitated, learned to walk again, returned to active duty, spent several years on different operational tours, gained promotion and got married. Then Kosovo erupted. We were chosen to go at the start of the conflict, so on returning from my honeymoon, I kissed my wife goodbye and said, “See you in six months.” As we entered Pristina, we did not know what awaited us. I was a proud junior NCO—that meant I could read a map—with the formidable R Company of the 2nd Battalion the Royal Green Jackets. I worked alongside professional, battle-hardened men, and we knew our job and did it well. There was no proper accommodation when we arrived, so we put our doss bags down in what could best be described as rat-infested, disease-ridden derelict buildings. We worked all hours round the clock, so sleep was a real bonus if we got it. Within a couple of weeks of the tour starting, it was clear that we were stretched thin, had unsuitable kit and lived in the worst conditions imaginable. We did not complain. We got on with it.

One evening, I was a quick reaction force commander, and our temporary base was burned down. It would have been a blessing to get rid of the place if my friends had not been so badly burned in it. As we were trying to put the fire out, the conflict raged all around us. We had to go and deal with that, regardless of the fact that all our stuff was getting burned as we did so. My brief over the radio on the way to the incident was: “Several armed men have entered a house. Civilians inside. Serious threat to life. Deal with it.” That was the brief.

There are all kinds of ways of dealing with such situations in training, and loads of support agencies that can be brought in. Not one was available then, so I and three of my colleagues arrived at the location. I briefed the team by saying, “Make ready.” For those who do not know, that means put a round in the chamber and prepare to engage the enemy. We entered the building and had a split second to decide whether these men were armed. Were they waiting for us? Were they even in there? What were they going to do? We were sleep deprived, under pressure and had just watched our mates burn. We knew the rules of engagement. We knew what we could and could not do. If we made the wrong decision, we went to prison or we died.

On that occasion, we were able to get the men to surrender and prevented any loss of life. That incident is nothing unusual in the day of a soldier on operational tour. That is what they do—day in, day out. They never want to be held above the law. They do not want to be treated differently. They want to do their job without fear of being chased decades afterwards. If a crime is committed, they must be prosecuted and they all get that, but this lawfare culture is a disgrace to this country. It will damage the military and it must be stopped.

This Bill is a major step forward for veterans and soldiers. It will bring back reassurance for our troops that they can move in operations without that fear of prosecution. I welcome everything that my hon. Friend the Minister for Defence People and Veterans has done to get this legislation here. It is a major step forward. I also welcome the Northern Ireland Bill that is coming forward. We must see that through.

[Tom Tugendhat]

I just wondered whether my hon. Friend would like also to praise the Minister’s hair.

[Stuart Anderson]

Like me with the long beard, the Minister has long hair; we are leading the game in this House.

I am new to this game. I have only been a politician since last year. As I said, I had never voted before 2015. I hated politics and the decisions made. I have watched some of the debates and have honestly found myself angry at some views, but I have to put that to one side because we have to debate this matter fairly. I have seen the impact of these issues on soldiers’ lives; some of my friends are not here now because they took their own lives. We have got to put that above everything else. I am asking the House to put egos and political parties aside, and to support this legislation tonight. We will be judged by our actions, not our words.

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

I will confine my comments to the presumption against prosecution for serious criminal offences contained in part 1 of the Bill. I believe that the way in which this is framed will make prosecutions close to impossible for some of the most serious crimes under international law. I am also concerned, as are many lawyers, that it will create a presumption against prosecution for a class of defendants, which is unprecedented in our domestic legal systems.

In cases where UK personnel have committed crimes such as torture, the triple lock will apply no matter how grave the conduct involved is or how detailed the evidence is. The Government claim that this measure is designed to protect soldiers, but in fact, it runs counter to everything that our military personnel stand for. I respectfully remind Government Members that many Opposition Members have family members who have served in the armed forces as well. My paternal grandfather served in the Royal Air Force.

After the second world war, our armed forces helped to update and expand the Geneva conventions, which protect captured personnel. Both the Army field manual and the Ministry of Defence doctrine explicitly forbid torture or cruel treatment. Torture has been prohibited in Scotland since the Treason Act 1708 and in England for more than 300 years, since the Long Parliament’s abolition of the Star Chamber. Even Margaret Thatcher—not somebody I am normally given to praising—fought to preserve the ban on torture, and in 1988 she made it a criminal offence, no matter who committed it or where it was committed. Right-thinking Conservative Members might wish to bear that in mind when considering the part of the Bill to do with the triple lock.

[Tom Tugendhat]

I know that the hon. and learned Lady has a much finer legal mind than mine, but I merely draw her attention to clause 3(2)(b), which refers to “no compelling new evidence”. Surely the Bill does envision the possibility that there could be compelling new evidence, and therefore this is not the absolute lock of which she speaks.

[Joanna Cherry]

I have not said that it is an absolute lock. It does envisage some possibilities. But the bottom line is that you do not create a triple lock against something if you are expecting to encourage it or to allow it in. It simply cannot be right not to prosecute criminal acts of a crime as serious as that of torture if there is strong evidence that it took place. Torture victims have a right to see their tormentors brought to account, and there should be no time limit on justice.

This is not just a matter of domestic law. As we have heard from other hon. Members, our international legal obligations under the UN convention against torture and the Rome statute consist of recognising prohibitions against torture, which are absolute. That was the point of my intervention on the hon. Member for Tonbridge and Malling (Tom Tugendhat). The prohibition against torture in international law is absolute, and it ill behoves us to pass a statute creating one class of defendants in the United Kingdom wherein there is a presumption against them being prosecuted for that crime.

I have no time for vexatious litigation. I can say, as somebody who practised at the Bar for many years, and also someone who prosecuted, that vexatious litigation is a pain in the neck. What I am concerned about is the international reputation of the United Kingdom, for so long as Scotland remains part of it. Indeed, I will be concerned about the international reputation of England even when Scotland is no longer in a union with it. International law may not mean much to this Government, but they forget at their peril that it keeps all of us safe. If this is what the Government meant by their manifesto promise to update human rights laws, then we should all be very concerned.

Overseas Operations (Service Personnel and Veterans) Bill

Tom Tugendhat Excerpts

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

[Madam Deputy Speaker (Dame Eleanor Laing)]

I had been hoping to manage this afternoon’s proceedings without a time limit, but I do not think that is going to work; therefore, I am now obliged, in order to try to get a fair and equitable debate, to start with a time limit of eight minutes, but that will be significantly reduced later in the debate. If hon. Members who have eight minutes choose in an honourable way to speak for less than eight minutes, that would be remarkable.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

The right hon. Member for North Durham (Mr Jones) set me a target of 30 minutes, Madam Deputy Speaker, and you have reduced it to eight. It is a crying shame.

The Bill’s importance comes down to the penultimate points that the right hon. Gentleman was talking about. The importance of the Bill is all about the Human Rights Act. It is all about the defence not just of British service personnel—which is absolutely right—but of these islands, this nation and our citizens. The point about this Bill is that the law not only interferes inappropriately in the way that the combat forces of our country conduct themselves, but it actually weakens the defence of our realm. Let me break down what I mean by that and explain clearly why this is a problem.

We are seeing today armies being stopped from deploying in certain areas and individual personnel being asked to stop operations because the law is geared to a civilian environment. We have seen legal action brought against the MOD to protect the rights of an individual on operations who has volunteered and specifically stepped up to serve in a risky environment, knowing the dangers and the consequences. The important difference between the civilian environment and the military one and between, to use the jargon, international humanitarian law and international human rights law—or the Geneva convention and civilian law, if you like—is that the law is geared to the environment. If it is not, we end up doing something most unfortunate that nobody in the House wants to do: we end up giving ammunition to the enemy and power to those who would seek to take power from us.

--- Later in debate ---

[Mr Kevan Jones]

I like the hon. Member, but he is talking complete nonsense. If he has read the Smith case, which went before the Supreme Court, he will know that combat immunity is completely covered under the Human Rights Act. It did not change that one iota, so what he suggests just will not happen. That case reiterated the point about combat immunity under the Human Rights Act.

[Tom Tugendhat]

I am sorry, but the right hon. Member is completely wrong. If he reads “The Fog of Law” written by—oh—me in 2013, a paper for Policy Exchange written alongside actual lawyers, rather than me, such as Richard Ekins, with a foreword written by Lord Moses of the Supreme Court, he will see exactly what I am talking about. If he reads “Clearing the Fog of Law”, which explains the situation, he will see clearly why this is a problem. This is absolutely an issue.

[Mr Kevan Jones]

Will the hon. Gentleman give way?

--- Later in debate ---

[Tom Tugendhat]

I will carry on.

It is also an issue for the human rights of some of the people we are fighting. Bizarrely, there were situations in Afghanistan where individuals could only be detained for a certain number of hours. They could not, for various reasons, be handed over to the Afghan authorities, despite the fact that we were, in theory, supporting the Afghan Government. It meant that after a certain number of hours—normally about 96 hours—they had to be released. The fact that they were known bomb makers who had definitely been handling explosives because chemical evidence showed it, could not be used, because in order to be used, those people would have had to be handed over to the Afghan authorities, and various people argued that the Afghan authorities were too inappropriate, too corrupt or too violent.

So, what happened? What do you think happens when someone who has taken up arms against you, literally tried to kill you and planted bombs to try to maim you cannot be detained? It is simple: after the legal limit was reached, the prisoners were released and followed for a number of hours, until they did exactly what we would expect: they went back to a weapons cache or arms unit and were engaged again as lawful military targets. How is that a defence of the human rights, even of the individual concerned?

[Lloyd Russell-Moyle]

The hon. Gentleman, who is a good Member and a friend, is making a really interesting argument, but I fail to understand how it has anything to do with the Bill. How has limiting the ability of service personnel to take civil action against the MOD got anything to do with what he is talking about? How is requiring a five-year statute of limitations on things like torture anything to do with what he is saying about the operation in war? Can he explain how the interesting points he is making are relevant to what is in the Bill? I and, I think, my colleagues fail to see it.

[Tom Tugendhat]

I am sorry that the hon. Member is failing to see it, because I thought I explained it quite clearly with the Ukraine example. We also see in other operations how the use of law has undermined the combat effectiveness of the armed forces. We see time and again in operations the opportunity for an individual with nefarious intent to try to bring legal action against the MOD to prevent operations.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Will the hon. Member give way?

[Tom Tugendhat]

I will not give way any more; I had two interventions and they are done. We see again and again how legal intervention could be used to try to prevent operations. That, absurdly, prevents the armed forces from doing exactly what they are there for: to be the strong defending the weak. Instead, soldiers deployed on lawful operations will not be able to act in defence of the most vulnerable. The Bill clearly intends to go some way towards dealing with that. I do have a criticism of the Bill in that it does not go far enough to prevent multiple investigations, but the Minister for Defence People and Veterans, my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer) will agree with me on that. It is true that it goes some way, but not nearly far enough.