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Public Bill Committees

Debated on Wednesday 14 October 2020

Education and Training (Welfare of Children) Bill

The Committee consisted of the following Members:

Chair: †Judith Cummins

† Bailey, Shaun (West Bromwich West) (Con)

Byrne, Ian (Liverpool, West Derby) (Lab)

† Daly, James (Bury North) (Con)

† Foy, Mary Kelly (City of Durham) (Lab)

† Gullis, Jonathan (Stoke-on-Trent North) (Con)

† Hopkins, Rachel (Luton South) (Lab)

† Keegan, Gillian (Parliamentary Under-Secretary of State for Education)

† Morris, Grahame (Easington) (Lab)

† Osborne, Kate (Jarrow) (Lab)

† Owen, Sarah (Luton North) (Lab)

† Perkins, Mr Toby (Chesterfield) (Lab)

Richards, Nicola (West Bromwich East) (Con)

† Richardson, Angela (Guildford) (Con)

† Simmonds, David (Ruislip, Northwood and Pinner) (Con)

† Trott, Laura (Sevenoaks) (Con)

† Wakeford, Christian (Bury South) (Con)

† Wood, Mike (Dudley South) (Con)

Adam Mellows-Facer, Committee Clerk

† attended the Committee

Public Bill Committee

Wednesday 14 October 2020

[Judith Cummins in the Chair]

Education and Training (Welfare of Children) Bill

Welcome to the Public Bill Committee for the Education and Training (Welfare of Children) Bill. Before we begin, I have a few announcements. You will all understand the need to respect social distancing guidance. If necessary, I will intervene to remind you. Note passing should be done electronically only. The Hansard reporters would be eternally grateful if Members emailed any electronic copies of their speaking notes to The selection list for today’s sitting is available in the room and online. No amendments have been tabled and I intend there to be a single debate on all three clauses.

Clause 1

Welfare of children: 16 to 19 Academies and further education

Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss the following:

Clause 2 stand part.

Clause 3 stand part.

I look forward to serving under your chairship, Ms Cummins, and I am very grateful to every Member who has agreed to be part of this Committee. I appreciate people’s willingness to give up their time, especially given the important debates taking place in the Chamber at the minute.

While the Education and Training (Welfare of Children) Bill might not make the front pages, it is a very important piece of legislation. There is a flaw in the way young people are safeguarded in education: while every child is protected by safeguarding duties, they are not all protected in the same way. That is clearly wrong.

The Committee has the opportunity today to enact the sort of cross-party work that is sometimes needed in Parliament. A clear problem has been identified and a sensible solution provided. Together, we can work to correct a mistake and help to improve the education system by keeping young people safe and giving parents the peace of mind they deserve.

Although technical, the Bill is relatively simple. All providers of post-16 education have safeguarding requirements. Further education colleges, sixth forms and schools have a statutory duty to safeguard and promote the welfare of every child at that institution. However, while 16-to-19 academies, special post-16 institutions and independent learning providers have safeguarding duties as a condition of funding, young people who attend those institutions are not protected in the same way that they would be at a school or further education college. That was clearly an unintentional oversight and it must therefore be amended.

The Bill has two substantive clauses and it will amend the Education Act 2002 and the Apprenticeships, Skills, Children and Learning Act 2009. It will impose direct safeguarding duties upon 16-to-19 academies and also place an obligation upon the Secretary of State for Education to ensure that compliance with the safeguarding duties is a condition of funding for special post-16 institutions and independent learning providers.

As all providers have safeguarding responsibilities, there should be no extra cost for providers. Instead, the 100 16-to-19 academies and 1,000 independent providers brought into scope by the Bill will benefit from a simplified safeguarding system with greater alignment of duties. The Bill therefore works for education providers, as well as parents and young people.

I want to stress just how necessary the Bill is. It will only become more important as we see the roll-out of T-levels and continued academisation. No matter what our disagreements on how education should be delivered, we can all agree that every young person should be protected in the same way, no matter which organisation delivers the education. That is why it is so important that this anomaly is corrected. By law, providers have safeguarding responsibilities and the vast majority will follow best practice. I believe we need a guarantee of that in law. I hope the Committee will support me in closing the loophole to ensure that every young person is kept safe in education.

It is a pleasure to serve under your chairmanship for the first time, Ms Cummins, and I congratulate my hon. Friend the Member for City of Durham on promoting this private Member’s Bill.

The flaws in the way young people are safeguarded in education and the disparities in the system need to be addressed and corrected. It is right and absolutely necessary that apprenticeships training providers meet the minimum standards that already exist for schools, further education colleges and sixth form colleges. Every child and young person needs to be protected, and the Bill helps to do just that.

I pay tribute to my hon. Friend the Member for City of Durham for introducing the Bill, which is an important piece of legislation. We all feel strongly about the importance of apprenticeships and skills, and we recognise that 16 to 19-year-olds are at a delicate stage in their lives. Anyone who has been the parent of a child of 16 to 19 knows—most Members here are too young—that it is quite a challenge. [Laughter.] Joking aside, they are at a vulnerable point in their lives, moving between childhood and adulthood. Also, in many areas, they are moving from the school education space to the workspace, and it is important to have clarity on what their rights are in relation to safeguarding.

I want to place on the record my congratulations to the hon. Member for City of Durham on securing this important piece of legislation. Having worked in the sector with secondary school kids and as a head of year in pastoral care, and regularly worrying in some cases about what they were going on to, I want to make sure that Conservative Members add our congratulations to the hon. Lady on this important Bill. I thank the hon. Gentleman for giving way.

I am glad that the hon. Gentleman took the opportunity to say that. Having read the Hansard record of the first debate, I know how many people spoke in it and that the intentions behind the Bill were widely supported across the House.

When young people are in the space that encompasses both their education and their employment, it is important that there is clarity about what the responsibilities are. In the area of T-levels—an educational environment, but with very much a work focus—it is important that everyone understands and that independent learning providers realise that the expectations of them are exactly the same as they are for further education providers.

I think this is a wonderful Bill. For those of us who have been touched by and blessed with close family members who are on the autistic spectrum, the underlying challenges and social issues that young people face when they go through the school system are still there at 16 to 19. We have to safeguard the interests of children who are special and unique, but who have challenges in their lives. Training has to be adapted, whether with regard to a T-level or a more academic subject. Whatever training is provided, we need to ensure we have a system that safeguards those unique qualities to make sure that everybody can succeed. That is why I think this Bill is so worthwhile, and from the bottom of my heart I congratulate the hon. Member for City of Durham.

I could not agree more. It is important that children and young people with autism and the particular vulnerabilities that they face are not left out of our discussions. It is absolutely right that they need to be safeguarded. That is one reason that there is such support for the Bill.

While this is a technical change, it is of real importance, because specifying and putting front and centre that safeguarding duty is absolutely crucial. We all know that ignorance of the law is not a defence in law, but making sure that fewer employers are ignorant is one of our responsibilities in this place. I think this Bill will achieve that. I congratulate my hon. Friend the Member for City of Durham on introducing the Bill and I am glad that there seems to be such widespread support for it.

It is a great pleasure to serve under your first chairmanship, Ms Cummins, and I extend my heartfelt congratulations to the hon. Member for City of Durham on introducing the Bill and progressing it to this stage. I am pleased to work with her on this important issue, and in a collaborative, cross-party way, because, as she rightly points out, we are often at our best in this House when doing so. I thank all hon. Members for their contributions.

It was clear on Second Reading that the Bill had cross-party support, and I am pleased that the same is the case at this stage. I feel confident in recommending the Bill’s passage to its remaining stages and I thank the shadow Minister, the hon. Member for Chesterfield, for his comments. We take seriously our duty to protect young people at each critical stage of their development.

This is a really good opportunity to use the Bill as a way to look at independent training providers. While there are many fine examples, there are also too many duds out there, to be quite frank. I really hope that we can use this opportunity to review the quality of independent training providers, especially for those children who have special educational needs and disabilities.

A lot of work has been done on the quality, which my hon. Friend rightly says varies.

Often when putting things in legislation, it is worthwhile taking a moment to think about the impact it has on people. I was struck by the intervention made by my hon. Friend the Member for Bury North on behalf of those with autism. We know that a lot of children at this age struggle to get into employment, and it is our duty to give all the support that we can at that fragile and vulnerable stage, as he said. Actually understanding the difference we can make in this place in highlighting those issues is also important. I know that all hon. Members agree that the safety and welfare of children are of the utmost importance. The Government take these issues extremely seriously, which is why we are pleased to support the Bill.

The post-16 education sector is rich and diverse. It offers A-levels, T-levels, apprenticeships, traineeships and so much more, but that also means that it is a complex landscape with a range of academic, vocational and technical training providers, which sometimes vary in quality. Providers of post-16 education and training that are funded by the Education and Skills Funding Agency already have safeguarding requirements placed on them, but the nature of those requirements varies. Certain providers have statutory safeguarding duties placed on them, and others have safeguarding requirements placed on them as a result of conditions of funding, as the hon. Member for City of Durham laid out. Those are all contractual obligations, and all providers are subject to inspection by Ofsted, which ensures the quality.

The Bill is designed to streamline and simplify the system by making it easier for providers to understand what safeguarding actions they need to take, and it will bring clarity to students, apprentices and their parents on the protections in place to keep children safe at college and at work.

This is a simple Bill. Clause 1 makes the Secretary of State for Education directly accountable for ensuring that the terms of funding provided to post-16 education and training providers include safeguarding duties. It extends safeguarding duties that already apply to schools and colleges to 16-to-19 academies, special post-16 institutions and independent training providers that provide further education. In other words, all providers that are directly funded by the Government for the provision of further education will have a legal duty to make arrangements to safeguard and promote the welfare of children as a condition of funding.

The clause also means that those providers must have regard to guidance issued by the Secretary of State for Education, such as “Keeping Children Safe in Education”. That provides information on how to identify abuse and neglect and what to do when there are concerns that a child has been, or is being, harmed. We agree that having one set of guidance covering all providers will simplify safeguarding and make it far clearer and more transparent.

Clause 2 ensures that the safeguarding duty is extended to providers funded under the Apprenticeships, Skills, Children and Learning Act 2009 to deliver apprenticeships and technical education or training. That change is necessary to ensure that providers funded under the Act have the same safeguarding duties as those providers listed in clause 1.

In practice, the terms of the clauses mean that all Government-funded providers of post-16 education must make arrangements to promote and safeguard the welfare of children, and to have regard to the same information on how to prevent and spot abuse, neglect or harm. That means that providers have policies and processes in place to ensure that harms can be identified and, if they occur, dealt with. In turn, that means that there is a clear and rigorous process established to investigate and address any issues raised by staff, students or parents, and that it is all up to date and can tackle any new or emerging harm.

If I may come back to the definition of welfare and safeguarding, one thing about the welfare of children in education is how their needs are protected by the education provider. An autistic child may need one-on-one support or a certain environment that enables them to learn and to address their challenges. May I confirm that the welfare of the child in the educational setting and the requirement that that puts on providers to seek the best way to ensure that such children can succeed are encompassed in the spirit, if not the wording, of the Bill?

My hon. Friend makes a very good point. The “Keeping Children Safe in Education” guidance sets out the type of consideration that providers need to show and goes into a great deal of information about special educational needs and disability. The Bill extends safeguarding duties that already apply to schools and colleges, including special schools and colleges of special educational needs, to new settings. The welfare and needs of the child are at the centre of that.

I am sure that all hon. Members wish to join me in thanking the providers of post-16 education up and down the country who work every day to protect our children. It is vital that parents and students have confidence that their education provider is doing all that they can, and should, to provide a safe, supportive learning environment that protects those students from harm. Providers must clearly understand what is expected of them, and having all the information in one place enables providers to get the help that they need quickly. That is why I strongly believe that the Bill will deliver consistency and simplicity to our diverse further education sector.

I thank all Members present today for their openness and constructive comments. I am confident from our discussions that we have the right foundations on which to progress the Bill. I am grateful to all Members present for taking the time to attend and contribute to this important debate. I pass on my gratitude in particular to the hon. Member for City of Durham for bringing this important issue to light and ensuring that the Bill will be enacted. I thank her very much for her support, and I commend the Bill to the Committee.

I thank everyone for serving on the Committee, especially given the added challenges of covid. With that in mind, I thank the Clerks, the Chair and every civil servant who has assisted in the preparation of the Bill and the delivery of the Committee stage. The return to physical proceedings has caused incredible damage to the staff who keep this place running, and I am genuinely grateful for everything that they do. I am sure that my colleagues share that sentiment.

Hear, hear!

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 and 3 ordered to stand part of the Bill.

Bill to be reported, without amendment.

Committee rose.

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

The Committee consisted of the following Members:

Chairs: David Mundell, † Graham Stringer

† Anderson, Stuart (Wolverhampton South West) (Con)

† Atherton, Sarah (Wrexham) (Con)

† Brereton, Jack (Stoke-on-Trent South) (Con)

† Dines, Miss Sarah (Derbyshire Dales) (Con)

† Docherty, Leo (Aldershot) (Con)

† Docherty-Hughes, Martin (West Dunbartonshire) (SNP)

† Eastwood, Mark (Dewsbury) (Con)

† Evans, Chris (Islwyn) (Lab/Co-op)

† Gibson, Peter (Darlington) (Con)

† Jones, Mr Kevan (North Durham) (Lab)

† Lewell-Buck, Mrs Emma (South Shields) (Lab)

† Lopresti, Jack (Filton and Bradley Stoke) (Con)

† Mercer, Johnny (Minister for Defence People and Veterans)

Monaghan, Carol (Glasgow North West) (SNP)

† Morgan, Stephen (Portsmouth South) (Lab)

† Morrissey, Joy (Beaconsfield) (Con)

† Twist, Liz (Blaydon) (Lab)

Steven Mark, Sarah Thatcher, Committee Clerks

† attended the Committee

Public Bill Committee

Wednesday 14 October 2020


[Graham Stringer in the Chair]

Overseas Operations (Service Personnel and Veterans) Bill

Before we begin consideration, I have to make a few preliminary points. Members will understand the need to respect social distancing guidance, and I shall intervene if necessary to remind everyone. I remind Members to switch electronic devices to silent. Tea and coffee are not allowed during sittings.

Many Members will speak spontaneously in the debate but, if they have speaking notes, it would be helpful to our colleagues in Hansard if those can be sent to

For a number of Members, this is the first time that they have been in a Bill Committee. If any hon. Member is unsure of the procedure or wants advice, the Clerk and I are here to help, and not in any sense to hinder.

We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room, on the desk. It shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or a similar issue.

Please note that decisions on amendments do not take place in the order that they are debated, but in the order that they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause to which the amendment relates.

Clause 1

Prosecutorial decision regarding alleged conduct during overseas operations

I beg to move amendment 23, in clause 1, page 2, line 1, at end insert—

“(ba) operating weapon-bearing UAVs (Unmanned Aerial Vehicles) or RPAS (Remotely Piloted Aerial Systems) from the British Islands in support of overseas operations.”

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

The Bill is important to our service personnel, and it is crucial that we get it right. Last week, one of our witnesses, Mr Sutcliff, said to us:

“please scrutinise the Bill as carefully as you can…and…look after your service and ex-service personnel in the best way you can.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 10, Q9.]

It is important to keep those things in mind as we proceed. I hope that the Government will consider our amendments even-handedly. They have been tabled in good faith, in the hope that we can make the Bill the best it can be for the brave men and women who serve in our armed forces.

Amendment 23 calls for unmanned aerial vehicles or remotely piloted aerial systems operated from the British isles in support of overseas operations to be included in the Bill. The Minister has said that he is happy to look again at all aspects of the Bill and that he wants to build a collegiate approach in the House to get the Bill through. I would argue that this clause is a good place to start. The amendment would a simple and effective way to help the Bill to achieve its stated aims. If the Government are serious about making this Bill comprehensive, I see no reason for UAVs not to be included. As drafted, the Bill is not clear enough about its scope or what it includes.

In recent times, we have seen a dramatic rise in the use of UAVs. The failure to include them in the Bill gives me concern that it is not looking enough to the future of warfare. The Government have made their plans clear, saying that they will rely increasingly on unmanned aerial vehicles, meaning that those will account for an important part of the integrated review. Across the world, armed forces have invested millions in the development of UAVs for military operations. The United States has increasingly relied on drones to carry out its military operations overseas, and the rest of the world is quickly following.

In 2016, at the cost of £816 million, the drone acquisition programme was approved by the Ministry of Defence. Earlier this year, the permanent secretary at the Ministry of Defence said that the estimated cost had risen by an additional £325 million. The UK Government are funnelling ever-increasing sums into the funding of UAVs for military purposes. Since 2007, about 3,700 Royal Air Force drone missions have killed 1,000 terrorists in Iraq, Afghanistan and Syria.

Does my hon. Friend agree that UAVs are an integral part of the new battlespace and that, while some people argue that they are outside any rules of engagement, they are in fact governed by the same rules as govern conventional weapons and that the people using them are aware of the legal restraints?

I thank my right hon. Friend for his intervention. A long-standing member of the Defence Committee, he has developed a reputation as an expert in the field of defence. He is right that the impact of technology will only increase in changing our world beyond all recognition. It is important to realise that, in future, whether drones are operated from the British islands or America, they will be as much a part of warfare as boots on the ground. Unmanned combat is likely to become an increasingly common form of warfare. The Ministry of Defence has said it aims for a third of the Royal Air Force to be remotely piloted by 2030, and funding for unmanned aerial vehicles for military purposes continues to grow. Given their rising use, the exclusion from the Bill of UAVs and remotely piloted aircraft systems is a glaring oversight if the legislation is to serve its purpose in the future.

The Ministry of Defence is also considering the most appropriate systems for air combat, especially when Typhoon leaves service in 2030. Options for air combat forces include unmanned combat aerial vehicles with both offensive and defensive capabilities. That would see a mix of manned and unmanned craft in the air force, working alongside each other. Surely those piloting UAVs from the UK should be given the same consideration under the Bill as those they work alongside.

The hon. Friend refers to unmanned aerial vehicles, but is it not the case that in future we will also have unmanned sea vehicles and, increasingly, autonomous tank-type vehicles on the battlespace?

My right hon. Friend is absolutely right. People will still have to operate those vehicles in future, and they will also be open to the horrors of war and what happens on the battlefield. We should keep that in mind as we develop this argument.

Until recently, the drones used by the UK armed forces were remotely piloted aerial systems. The proposed unmanned combat aerial vehicles differ from the previous drones as they are designed to fight for air supremacy. That widens the scope of drone and other unmanned warfare, as my right hon. Friend just said, increasing the number of service personnel working on an overseas mission but not physically based overseas. General Sir Mark Carleton-Smith recently said that he foresees the Army of the future as an integration of “boots and bots” and that in future combat those on the ground will be supported by “swarms of drones”. We look forward to hearing more about those plans when the integrated review is finally published.

The Ministry of Defence also continues to fund research into the future of drones. The Government are funding jointly with the French a study into the feasibility of an unmanned combat aircraft as a possible replacement for Typhoon from 2030. The Government have said they have no plans to develop fully autonomous weapons; that means that service personnel will continue to operate UAVs for the foreseeable future. What is clear from all that is that drones are here to stay. Therefore, those who operate those missions should be included in the Bill. It is important to note that drone operators face a worryingly high chance of developing post-traumatic stress disorder. In fact, in 2015, Reaper squadron boss Wing Commander Damian Killeen told the BBC that staff operating drone aircraft in Iraq and Syria may be at greater risk of mental trauma.

While drone operators may be based in the UK, they are completing overseas missions. There is a popular image that operating a drone is like playing a video game, but those who serve say that that is simply not the case. One US drone operator is quoted as saying:

“You are 18 inches away from 32-inch, high-definition combat, where you are in contact [by headset with] the guys on the ground... You are there. You are there. You fly with them, you support them and a person you are tasked with supporting gets engaged, hurt, possibly killed, it’s a deeply, deeply emotional event. It’s not detached. It’s not a video game. And it’s certainly not 8,000 miles away.”

For some, drone operation can be more traumatising than flying a conventional aircraft. As Commander Killeen says:

“You’ve got that resolution where you know exactly what it is that’s on the other end of your crosshairs.”

Research by the US air force also suggests that those in the kill chain see more graphic violence than their special forces counterpart on the ground. On surveillance missions, they are more likely to see destroyed homes and villages, as well as witnessing dead bodies and human remains. One UAV pilot told the Daily Mirror:

“The days are long and hard and can be mentally exhausting. And although UAV pilots are detached from the real battle, it can still be traumatic, especially if you are conducting after-action surveillance.

When you are piloting a UAV for hours, you feel part of the battle, even though you are thousands of miles away.”

The risk of post-traumatic stress disorder is also increased by the fact that, unlike personnel on the ground, who perhaps do a four-month tour, UAV operators often work year round, meaning less chance for a break and time to recover. Justin Bronk, a research fellow for airpower at the London-based Royal United Services Institute, said that fast jet crews were used to deploy on short tours abroad, but that drone operators switched daily between potentially lethal operations and family life, which could be

“extremely draining and psychologically taxing”.

The psychological stress of drone warfare is visible in difficulties that the UK faces in recruitment and retention of those qualified to fly armed drones. During an appearance before the Public Accounts Committee in January, the Ministry of Defence permanent secretary said that for the Royal Air Force, the training and retraining of drone crews has “historically proven challenging”.

The effect that taking part in such machines has on UAV pilots mentally, despite their being physically further away from the action, merits their inclusion in the Bill. Only last week, in our evidence session, Clive Baldwin of Human Rights Watch said:

“The idea of having one rule for overseas operations and one for domestic operations will be increasingly artificial”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 67, Q135.]

Drone operators may not be physically overseas, but they are very much taking part in overseas operations. With unmanned warfare looking like it will be more common in future conflicts, I would argue that failing to include those operations in the Bill may cause the Ministry of Defence service personnel issues down the line. The Government have said that they want the Bill to protect service personnel from repeated investigations and vexatious claims. Do those service personnel who operate UAVs not also deserve to be protected?

Given the increasing use of UAVs and RPAS, I would be deeply concerned were they not included in the Bill. If the Bill is to do as the Minister purports, surely, if we are to protect our service personnel, we want to include and protect those personnel who operate our drones.

I thank my hon. Friend for introducing this amendment, which I assume is a probing one in order to have the debate. But, Mr Stringer, it was remiss of me not to say what a pleasure it is serve under your chairmanship, especially now we are both serial rebels on our Benches, after votes that took place this week on covid.

I do not like the word “drone”. It gives the sinister idea that somehow these things are indiscriminate weapons and there is no human in the chain. Unmanned aerial vehicle is a more appropriate term. I accept that, in the future, we may get to a system where unmanned aerial vehicles or subsea systems are completely autonomous, but at the moment, we are talking about the human in the chain.

It is a common myth, mainly argued by those who are against the use of UAVs, that somehow there are no rules that govern how they are used. Nothing could be further from the truth. When I was a Minister in the Ministry of Defence, I met the individuals who pilot—that is the word we use—these unmanned systems in both Iraq and Afghanistan. They are in the same decision-making process and legal framework as if someone was dropping a ordnance from a Typhoon or any type of manned aircraft.

There is a chain of command, including a legal framework around their decisions. Before each individual airstrike takes place, there is a legal justification. That might come as a surprise to some people who want to portray the view that people are sat in Nevada or Waddington or Florida pressing buttons, attacking targets. Nothing could be further from the truth. There is a legal framework for each operation and that is supported by the legal service. It surprises some people that each strike has a legal sign-off, with lawyers who agree what can and cannot be done, including, as I know from my time in office, a chain that sometimes includes Ministers who have to agree to those sign-offs. There are many examples where Ministers have had sign-off.

Is what we are talking about pretty? No, it is not—but anyone who knows the battle space or any type of combat knows that it is not a pretty thing. Killing people is not something that anyone wants to do, but unmanned aerial vehicles have given a capability to us and our allies which has been of tremendous help, not only in saving UK and allies’ servicemen and women’s lives, but in saving civilian lives.

The chain of command is a legal framework. Do things go wrong? Yes, clearly they do, and not just in this theatre. Sometimes in a very complex battle scenario, no matter how well you plan for it, you cannot foresee every eventuality. What irritates me is that people sometimes look back at those situations with some sort of crystal ball and say, “Well, if I was there, I would have done X, Y and Z.”

On a point of information, and paying tribute to the right hon. Gentleman’s experience in the field, if a Minister signs off an operation and it goes wrong, does that mean that the Minister is legally culpable for the decision, or is it the operator operating the UAV or is it the people on the ground calling in the mission?

I will come to that in a minute; it is an important point on the legal protection that is there for the people involved.

Things do go wrong. It is fine for people to look back and say, “Look, if that happened, I would have done this differently,” but that is just not how warfare takes place. Sometimes, there are critical decisions that have to be taken at short notice to protect civilians or protect our armed forces’ lives. At the end of the day, they are down to individual judgments, not only by the commanders who authorise things, but by the people we are asking to protect us as members of our armed forces.

On that side, I think we are a world leader in terms of ensuring that our men and women, when they go into battle and have to use force, have clear rules of engagement and a clear legal framework behind that. I know that there are some hon. Members on this Committee who have served, and they will know that it is drummed into them right from basic training, “These are the things you will do,” but if we are looking for perfection in this very complex world, we will not get it. On airstrikes, will we will get perfection? No, we will not. We will get situations where intelligence changes or is wrong, and situations where “collateral damage”—an awful phrase that I never like using—happens, meaning that civilians are maimed or killed because of that airstrike. That does not, though, undermine the reason why we need to use lethal force in certain circumstances.

There is one other thing that I can certainly tell the Committee from my experience: there are numerous missions with UAVs, and the impression has been given that somehow we can just press a button and people an fire at things willy-nilly. That is not true, because we have a situation with a legal framework around it, and I know that from my own experience of airstrikes that were stopped, sometimes at the last minute. The reason for that is because the operator, possibly in connection with people on the ground, sees that there are civilians or that the situation has changed in terms of the target. Those missions are aborted at the last minute, and that goes not only for UAV operations but for conventional airstrikes as well; that is the nature of a fast-moving battlespace.

In all that, we can have all the rules we like, but at the end of the day we have human beings in that process. What this amendment states, and what I believe, is that that individual needs protection, because it is a new type of warfare and it is only going to change further. If we look, for example, not just at UAVs, but at the maritime systems we have now, which will be unmanned, and the land systems we have, which will increasingly be unmanned, I am quite confident from my experience that the use of those systems in this country will be governed by the rules of engagement and chain of command and decision making. We cannot necessarily say that for many of our adversaries, who will not use the type of ethical approach that we do.

However, that does change the nature of warfare, and I think my hon. Friend the Member for Islwyn is making a point about the human being in this. Is somebody sat in Warrington, operating a drone over Afghanistan, Yemen or anywhere else in the world, on overseas operations? They are not physically out of this country, because they are sat there in a nice part of Lincolnshire, but is that classed as an overseas operation? If we get a situation where, for example, it is argued that the use of force was not justified or that it led to civilian deaths or to something that would not be “legal”, that is where we need some clarity.

This is a probing amendment from my hon. Friend, and I think that is the purpose of this Committee: perhaps not to have votes on things, but to ensure that we have looked at the different areas.

When the hon. Member for Islwyn was introducing the amendment, he noted that it was not meant to take on board issues in relation to fully autonomous systems. Nevertheless, it should be recognised that fully autonomous systems will be with us sooner rather than later and that, in those systems, there is a human decision-making process that must be safeguarded. Artificial intelligence is artificial, requiring human instigation to create the algorithm to make the decision-making process, and we must keep that in mind as we recognise the need for and validity of securing protections.

I agree. Again, some people writing or talking about this area are saying that somehow the human being has nothing to do with it. The hon. Gentleman is correct in that even if we get to having a futuristic system with fully autonomous vehicles and in-flight combat between various systems, swarms of drones and things like that, a decision will still need to be taken on how that system is used. That is an area where not just in the UK but internationally we will need to look at rules of engagement and the definition of an autonomous vehicle. There is increasingly a move towards autonomous vehicles. Look at the Team Tempest programme from BAE Systems and its partners and how that is going: there can be a pilot, but the design will not need a pilot, and that ain’t that far away—it is coming up fast.

It comes back to the decision-making process. The hon. Member for Filton and Bradley Stoke mentioned the chain of command issue. That goes to the heart of the Bill because of the importance of having the audit trail for who took which decisions. It is difficult for anyone in the chain of command to take a decision, from the person executing the mission on the ground right up to a Minister signing something off. That is not an easy process. Can things go wrong all the way through? Yes. However, I would argue that as long as a decision is underpinned by our legal processes right the way through to authorisation by a Minister to ensure that it is legally watertight, we should be okay. Mistakes will happen. What a lot of the public find strange is that in cells that deal with targeting, there are MOD or RAF lawyers sat there, saying, “I am sorry, you cannot do that.” It shocks people.

Unmanned aerial vehicles have got to the point where there is a bit of folklore when people make a decision. It is therefore important to ensure there is that legal framework. However, as I said, things will go wrong, and my hon. Friend the Member for Islwyn is trying in the amendment to consider what happens when things do go wrong. Is somebody sat in RAF Waddington classed as being on overseas operations? That is a grey area that perhaps has not appeared yet in all these claims, but I think it will.

The evidence we have taken in the last few weeks has highlighted how, in many ways, this is an easier area to look at in terms of investigations because there is—there should be—that chain of decision making. However, it does get complicated when we are working with allies. I am confident that we have some of the most robust rules in terms of targeting and rules of engagement, but—how can I put this diplomatically?—I do not think it is the same for some of our allies, especially one of our closest allies. Could we argue that some of the examples I have seen in Afghanistan and Iraq were proportionate in the way they were conducted? I do not think they were. That has led to the idea that somehow we are the same.

Let us suppose we get to the situation where we have a legal challenge to somebody who has been sat in Waddington, has legitimately followed the legal advice and something goes wrong. What happens? Are they classed as being on overseas operations? We should give them protection because they are not just following orders, but following the legal guidance that has been supplied to them as to why they are carrying out the mission. That is an area we need to look at.

It links to a broader point about what we deem to be overseas operations. Eminent lawyers will want to argue around the head of a pin about this, if we do not look at it. The other side is other operations. Increasingly we, as a nation, are not going into conflicts on our own, but with other nations. That leads to a situation where, on occasion, UK forces are not under the command of UK personnel, but those of other nations. I do not think people realise that.

Some nations have different interpretations of what is proportionate. How are they included, especially within—that misnomer—peacekeeping? Peacekeeping can be dangerous. I have visited parts of the world where peacekeeping is taking place that were far from peaceful, and were stressful for the individuals involved. Is that classed as an overseas operation?

When I was walking in this morning—I often think when I am walking—I was thinking that this gets to the definition of what an overseas operation is. If somebody were based at NATO headquarters in Brussels, would that be classed as an overseas operation? I am not suggesting they would be involved in a mission such as an airstrike or combat in Brussels, although perhaps they might be on a rowdy Friday or Saturday night in the Grand Place. Is that classed as an overseas operation for that individual? Those individuals are lone officers, but members of our armed forces are serving in ones and twos around the world, mentoring forces, doing a great job in defence diplomacy and ensuring that the high standards we have in this country are passed on to other nations.

My hon. Friend the Member for Islwyn talked about the UAV operators themselves. I have read a few studies about their mental health and the jury is out on evidence of increased PTSD and other things. It is a strange environment for individuals, as my hon. Friend said, because they are separated from the battle space, but they see and do some graphic and dangerous things. Having seen some of those videos, what happens is not pretty. The jury is still out on the issue of mental health effects and that is an area where we need more research, not just in this country but internationally. That links to part 2. If those individuals developed mental illness later, given the time limits set out in the Bill, would they be excluded or not? That is another area that we need to look at when we come to part 2.

Can we ever future-proof legislation? No. Politicians all think that we can see into the future as if with hindsight, but unfortunately we all know that most of our legislation is reactive to events. We can try to make it as future-proof as possible, however, and amendment 23, which I presume is a probing amendment, is really a way of asking whether the MOD and the people who have drawn up the Bill have thought about the area. Whether we like it or not, it will increasingly become a challenge not just for how we train people, but for how individuals are legally protected. Even if it cannot be incorporated into the Bill, I would certainly like the Ministry of Defence to look not only at the training, but at what the legal status of those individuals will be. The amendment is welcome in allowing us to explore some of those areas; I hope that it will give MOD policy makers some food for thought on where we take this in the future.

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

The principle is that part 1 should cover personnel in circumstances in which they may

“come under attack or face the threat of attack or violent resistance”

in the course of an overseas operation, as detailed in clause 1(6). When developing our policy, we considered whether we should extend the coverage of part 1 to include UK-based drone operators when the systems that they are operating are involved in operations outside the British islands. However, we determined that although the UK-based drone pilots would be considered part of an overseas operation, they could not be said to be at risk of personal attack or violence, or face the threat of attack or violence, as would be the case for an individual deployed in the theatre of operations. We therefore determined that as the personal threat circumstances would not arise in a UK-based role, the personnel in those roles would not warrant the additional protection provided by the measures in part 1. I therefore ask that the amendment be withdrawn.

I see the logic of how the Bill is structured, and I accept that somebody sitting in Waddington is not going to be attacked by an enemy, but if the purpose of the Bill is to give them legal protection for their actions, they are not immune from being attacked in a legal process for something that they do on overseas operations.

Some really important points have been made, particularly about mental health provision and the protection of those who operate these systems, but the Bill is clearly there to provide the additional protections that particularly apply to those who face the threat of violence and attack at the time, so I disagree on this point. I therefore ask that the amendment be withdrawn.

I take on board what the Minister says, but we may disagree on an overall element of the Bill. It is the Overseas Operations Bill, and the persons we are speaking of are involved in an overseas operation. Surely the security given to those in the physicality of the arena of military activity should not be just about geography or about those who are physically participating in the overall operations.

The clauses that deal with special consideration for the circumstances of what is going on at the time are there precisely to take account of the unique physical and mental demands of being in close combat; that is what they are designed for. To suggest that drone operators operating from UK shores would face the same pressures is not the same thing. I therefore ask that the amendment be withdrawn.

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

Amendment, by leave, withdrawn.

With this it will be convenient to discuss the following:

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

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

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

New clause 8—Limitation of time for minor offences

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the Bill

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

I note that every example the hon. Gentleman uses is a legal representative or firm, or legal mind. We heard some great evidence last week from the soldiers. As you said, this is a point of policy. We wanted to make sure we represent our armed forces and make them the best in the world to serve in, and five years was well received among the junior ranks we spoke to the armed forces. You say that Labour is the party to support the armed forces, but arguing for 10 years shows that is not the case.

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

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

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

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

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

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

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

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

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

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

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

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

Thank you for that clarification, Mr Stringer.

With new clauses 8, 6 and 7 we come to the issue of investigation. We will discuss new clauses 6 and 7 later. The new clauses put forward by my hon. Friend the Member for Portsmouth South get to the heart of the issue, which has come out in the evidence we have taken over the past few weeks. This Bill puts the cart before the horse. It deals with prosecutions rather than the real issue, which is investigations.

I find that odd. Who was consulted on drafting this Bill? We heard evidence last week that Judge Blackett was not consulted on this Bill, so who drafted it? Anyone looking at the Iraq Historic Allegations Team or the testimony given last week by Major Bob Campbell can see that the issue is investigation. It would interesting to hear the reasons why the limit has gone from 10 years, as recommended in the consultation, down to five.

Personally, I do not agree with the time limit, for the reasons that my hon. Friend has just outlined. It will give no protection to those veterans of the most recent conflicts in Afghanistan and Iraq, whom this Bill seems to be focused on, nor will it give protection to veterans in the future, because investigation will still take place from that five-year period. Are they traumatic? I think they must be.

I agree with my hon. Friend, and I pay huge tribute to Major Bob Campbell for his evidence last week, because it must have been very difficult for him. Consider the idea that any of us would have something hanging over us for 17 years. If it was a minor offence, it would be bad enough, but he was accused of horrendous crimes for 17 years, and investigated time and again for the same thing. I cannot imagine how that felt for him as an individual.

What is proposed will not stop investigations. It is clear to me that if we have limitations as outlined in the Bill, we will get cases that go to the International Criminal Court. Its investigations will take into account the lack of action, because there is a five-year limit. We will come later to the presumption of prosecution, which is another huge problem. Do I actually want our servicemen and women to end up in the International Criminal Court? No, I do not. I think it is proud testimony not only to the professionals in our armed forces, but to our legal system and what we have had so far, that we have avoided that because of our robust legal system and the oversight of our military justice system.

The problem with the Bill—the Minister gave this away in his ill-advised winding up on Second Reading—is that it implies that people are either in favour of our brave armed forces or in favour of ambulance-chasing lawyers. As I said on Second Reading, my record of supporting defence and the armed forces speaks for itself. My attacks on ambulance-chasing solicitors, through my work on the miners’ compensation scheme and the formation of the sister regulation body—taking it away from the law side—also speak for themselves. What we need over the Bill is a legal framework that is there not just because it is nice to have, but because society needs a framework that protects individuals—not just individual civilians, but members of our armed forces. As one witness said last week about the unique situation for members of the armed forces, they have few enough rights, and recourse to the law is important. In terms of our standing in the world, we are rightly proud that we have been a beacon of being able to portray good practice both in law and in other areas.

New clause 8 is about how we try to stop the cycle of investigation. As I say, I am just surprised that when the Bill was being drafted, no one thought, “Let’s look at what the problem is.” It is around investigation and the time it takes. Various arguments have been about why investigations have taken so long. Is it a lack of resources? It possibly is in some cases. Has it been the issue around Iraq and Afghanistan? Are we now in a different political climate? Yes, we are. When I was a Minister in the Ministry of Defence, when we were in Iraq and Afghanistan, the will to ensure that accusations were investigated came from all sides. It was not just from the liberal wing of Liberty and others; it was from Conservative Members as well. Mistakes were made.

Not having the issue of investigation in the Bill—

Order. I have been listening carefully to the right hon. Member. The amendments are very tightly drawn. New clause 8 is about the limitation on time for minor offences. I do not want to restrict the debate, but I do want to focus on what the amendments are, rather than wandering all the way through the Bill. If the right hon. Member focused on the new clause and the three amendments that were are debating, that would be helpful.

Yes. I will come back to the new clauses later.

Some serious accusations were made in the IHAT and Northmoor investigations. They took so long because some were very complicated, but some were very minor. The more we can speed up the system for the accused and the quicker it is dealt with, the better. It will be better for armed service personnel, and better for confidence in our system. New clause 8 tries to get a system that deals with minor cases and does not lead to endless investigations into things that really should be dealt with in the first instance.

New clause 8 argues that minor offences should be dealt with through a summary process, which Judge Blackett referred to last week and through which the magistrates court system already deals with cases. One thing that is missing in the entire Bill, which would give us confidence in it, is judicial oversight of the reasons why things are done. That is important. New clause 8 would empower prosecutors to place a six-month time limit on summary matters.

In reality, the right hon. Gentleman wants to remove bureaucracy because justice delayed is justice denied, whether someone is the accuser or the accused. His new clause seeks clarity for minor offences.

It is clarity for the individuals, so that they can be dealt with swiftly. If Judge Blackett had been consulted on this Bill, that might have been included.

I will not try your patience, Mr Stringer, because I might need it when I come to new clauses 6 and 7 on the broader issues around investigation, which I notice the MOD is now moving on and possibly recognising that it has missed a trick in the Bill. The new clause would give the court powers. We are not talking about serious offences or common assault. We did a similar thing in the Armed Forces Act 2006. We gave commanding officers the powers to deal with minor offences, because the old system was taking an inordinate amount of time to deal with them. We are basically setting up a de minimis case. As the hon. Gentleman just said, it would deal with the bureaucracy and make sure that we concentrate on the most serious offences.

People might say, “How does this get into ambulance-chasing solicitors?” With IHAT and Northmoor, some of the cases put forward were to do with such things as slaps and assaults, which would actually meet this criteria. Why did it take years to investigate whether somebody was slapped if it was on a Saturday night in a pub and classed as a common assault? Why did it take years to investigate or in some cases re-investigate? We could argue that it happened in Iraq or Afghanistan or somewhere else and it might be more difficult to gather evidence and witnesses, but it should not be beyond the wit of the legal system to look at the evidence initially and say, “To be honest, the threshold for this would not be very high.” Why were they brought? We know: in some cases, clearly, Phil Shiner was trying to get some compensation out of an alleged fault, but the pressure was put on those individuals who were accused of things that were minor and would have been dealt with normally. The new clause frees up the criminal justice system and the investigators to concentrate on the things that we want to concentrate on, which are the more serious cases.

Would that protect our armed forces? Yes, I think it would, because we would have a sense of fairness for them—they would be getting speedy justice, they would not go through reinvestigation and they would not have to wait an inordinate length of time for things dealt with as a matter of course in a magistrates court. It is a way to give protection to servicemen and women, while also—as the hon. Member for West Dunbartonshire said—making the system more effective.

The important thing, however, is the judicial oversight—this is not just deciding to stop prosecution; the evidence is looked at, the de minimis test is applied and only then would that be ended. That would be a huge improvement. The Minister said he was looking for improvement of the Bill and, to me, this is an obvious way to do it.

Amendments 25 to 28 seek to change the time at which the presumption comes into effect from five to 10 years. The proposal in the public consultation that we ran last year was for a 10-year timeframe for the statutory presumption. It was not fixed policy, because we were seeking the public’s views.

In the consultation, we asked the following questions: whether 10 years was appropriate as a qualifying time, and whether the measure should apply regardless of how long ago the relevant events occurred. As we set out in our published response to the consultation, there was support for a 10-year timeframe, but equally there was support for presumption to apply without a timeframe at all. We also considered the written responses, which clearly indicated the concerns that a 10-year timeframe was too long—memories can fade, evidence tends to deteriorate and the context of events changes. There were also concerns that 10 years was too long to have the threat of prosecution hanging over a serviceperson’s head.

Respondents suggested time periods of less than 10 years, with the most popular timeframe being five years. As the issue that we seek to address relates to historical alleged offences, we did not feel able to apply the presumption without a timeframe. However, given the strength of the views expressed, we felt that a timeframe of less than 10 years would be more appropriate, and five years was the most popular alternative.

Will the Minister say what the numbers were for the responses to the consultation? What was the basic divide between those who wanted 10 years and those who wanted none or five years?

I am more than happy to write to the right hon. Gentleman with the exact responses. They are in the House of Commons Library, in the impact assessment. The numbers were clear, and I have just outlined the general findings—[Interruption.] I will not give way again. Some people want 10 years and some five years—

Thank you, Mr Stringer.

New clause 8 seeks to limit to six months the period between an offence being committed or discovered and any proceedings being brought, where a number of conditions can be satisfied. First, the offence must be a relevant offence, committed on overseas operations by a serviceperson. Importantly, the bar to proceedings only applies if the offence being prosecuted is subject to summary conviction only, or is one where no serious, permanent or lasting psychological or physical injury has been caused.

During an investigation, it is not always clear what the charge will be, but this is made harder for investigations on overseas operations where the injured person is a local national. It will not always be possible to get information regarding the incident, or on the permanence or lasting nature of an injury, in the timeframe demanded by the amendment.

Investigations on overseas operations inevitably rely to some degree on actions by others in theatre. Delays in such investigations are a fact of the operational environment and placing a time limit on investigations runs the risk that others may be able to affect the outcome of a service police investigation. The service police cannot have any barriers placed in the way that fetter their investigative decision making. A time limit in these circumstances would do just that.

Even the most minor offences take on a greater significance in an operational environment. A minor offence is not necessarily a simple matter that could be dealt with quickly by a commanding officer. Placing a barrier in the way of investigations for minor offences does not take account of the disproportionate effect of poor discipline directed towards local nationals in an operational setting.

The amendment is modelled on the provisions that exist in relation to summary-only matters in the Magistrates’ Courts Act 1980. That is where the problem lies. That Act codifies the procedures applicable in the magistrates courts of England and Wales. It is not legislation written to accommodate the extraordinary demands made of a system operating in an operational context.

I will not give way.

Delays are inevitable and applying civilian standards to an operational context is inappropriate. If this is something that might be considered for the service justice system, it would seem more appropriate for an armed forces Bill, but with an exemption to account—

On a point of order, Mr Stringer. This is a very strange Committee. Basically, the Minister is reading his civil service brief into the record, rather than actually answering the points. It is going to be very difficult to scrutinise the Bill properly if he will not take interventions, even though I accept he might be at a disadvantage if it is not in his briefing notes.

The right hon. Gentleman knows that is not a point of order. The Minister is entitled to give way as he chooses.

If this measure is something that might be considered for the service justice system, it would be more appropriate for an armed forces Bill, but with an exemption to account for the complexity of overseas operations. This Bill is not the correct legislative vehicle for the measure. I therefore ask that the amendment be withdrawn.

I just find this remarkable, Mr Stringer. We have a Minister who has come in here to read his civil service brief into the record. He is not taking account of anything that is being said, by myself or by other hon. Members. When he wants to be questioned on it, he will not take interventions. It is a strange way of doing this. He possibly thinks that doing a Committee is just about reading the civil service brief the night before and then reading it into the record. I am sorry, but that is not how we do scrutiny in this House.

With regard to the Minister’s comment that this measure would be more appropriate in an armed forces Bill, that may well be the case, but he has an opportunity to put it in here. He can sit there and smile but, frankly, he is doing himself no favours. He has said that he wants co-operation on the Bill, but he is doing nothing. He is going to try to plough through with what he has got, irrespective of whether it damages our armed forces personnel. That makes me very angry.

The Minister said that the Magistrates’ Court Act provisions would not cross over to this Bill. We could draw up a protocol around that, which would fit in the Bill. If the Bill is supposed to be the all-singing, all-dancing, huge protection that we are going to give to our servicemen and servicewomen, then that should have been in the Bill.

Does the right hon. Gentleman recognise that the ranks, as opposed to the chain of command, would be best served by an acceptance of the new clause, because it gives clarity and allows them to move forward on those cases, within the elements that he has discussed?

It does. There is an argument, which some members of the Committee are trying to make, that it is the ranks versus the seniors, but this is designed to protect the ranks.

The Minister says that it would be more appropriate to have this in an armed forces Bill. If that is the case, why was this Bill not held over until next year, when we could incorporate all of this into an armed forces Bill? Having sat on nearly every single armed forces Bill over the past 20 years, I know that there are things in this Bill that would be able to fit into an armed forces Bill. We know that the reason it is in this Bill is because it was a political stunt—it is more about politics than about what it is supposed to do.

New clause 8 should be incorporated in this Bill, because it would get to the root cause, which we discussed last week and which people have continually commented on: namely, that the Bill does not look at investigations. If the Minister got off his phone and listened, he might be able to get to a situation where, after reflecting on this, the Government may well look at how they can codify this and put it into the Bill, because it would then be stronger. As has been said, we want to protect, and that is what we are supposed to be doing with the Bill.

I beg to move amendment 14, in clause 1, page 2, line 2, leave out “the day on which the alleged conduct took place” and insert “the day on which the first investigation relevant to the alleged conduct concluded”.

With this it will be convenient to discuss the following:

Amendment 2, in clause 3, page 2, line 33, at end insert—

“(ba) the thoroughness, promptness and efficacy of any ongoing investigation into the alleged conduct or any relevant previous investigation, and the reasons for any delays in such investigations;”

This amendment would ensure that the adequacy of any investigative process to date is given particular weight by a relevant prosecutor.

Amendment 56, in clause 3, page 2, line 33, at end insert—

“(ba) the quality and duration of relevant investigations.”

This amendment would require prosecutors to give weight to the quality and duration of relevant investigations when deciding whether to bring or continue proceedings against a person relating to alleged conduct during overseas operations.

New clause 6—Judicial oversight of investigations

“(1) This section applies to any investigation by a police force into alleged conduct as described in subsection 3 of section 1.

(2) The police force investigating the conduct must place their preliminary findings before an allocated judge advocate as soon as possible, but no later than 6 months after the alleged offence was brought to their attention.

(3) The judge advocate shall have the power to determine—

(a) that no serious, permanent or lasting psychological or physical injury has been caused; and order that the investigation should cease;

(b) that the evidence is of a tenuous character because of weakness or vagueness or because of inconsistencies with other evidence, and that it is not in the interests of justice to continue an investigation; and order that the investigation should cease; or

(c) that there is merit in the complaint; and make directions as to the timetable and extent of further investigation.”

This amendment would set a timetable for police investigations into alleged conduct during overseas operations, to ensure they are as short as possible and provide an opportunity for a judge to stop an unmeritorious or vexatious investigation early.

New clause 7—Limitation on reinvestigation

“(1) This section applies where—

(a) a person has been acquitted of an offence relating to conduct on overseas operations, or

(b) a determination has been made that an investigation into an offence relating to such conduct should cease under section (Judicial oversight of investigations).

(2) No further investigation into the alleged conduct shall be commenced unless—

(a) compelling new evidence has become available, and

(b) an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong that there is a real possibility that it would support a conviction.”

I rise to speak to the amendment for a very specific reason. It concerns the word “alleged” in the Bill. The Government, in bringing forward the Bill, have sought to provide clarity to members of the armed forces and veterans against some elements of the legal profession, which is the constant narrative during our debates—although, I have to say that there are many members of the legal profession who are not only members of the armed forces, but veterans too. We need to be very much aware of the rule of law.

The clarity that I and my party require, which is why we have tabled this amendment, is to remove that word “alleged”, because it causes ambiguity, whereas I think the Government’s intention in introducing the Bill is to give clarity. Whether or not I disagree with various parts of it, if not the vast majority, we are seeking to work here in a coherent and collegiate fashion, because I think that, not only for the accused but for the accuser, we need to be clear about the point at which we start, which is the day on which the first investigation takes place. 

The word “alleged” creates ambiguity in the law and ambiguity for members of the armed forces and veterans, which is why we have brought forward this specific amendment.

I want to give you the opportunity to comment on amendment 14 and the associated amendments and new clauses.

What is being debated is amendment 14 to clause 1. We are also debating amendments 2 and 56, and new clauses 6 and 7. If hon. Members wish to vote at the end, we will vote on amendment 14. However, it is in order to discuss the other amendments and new clauses.

One of the main purposes of introducing the presumption against prosecution is to provide greater certainty for veterans in relation to the threat of repeat investigations and the possible prosecution for events that happened many years ago. Amendment 14 would undermine that objective by extending the starting point for the presumption and, in some cases, creating even more uncertainty. However, I want to reassure Members that the presumption measure is not an attempt to cover up past events as it does not prevent an investigation to credible allegations of wrongdoing in the past, and neither does it prevent the independent prosecutor from determining that a case should go forward to prosecution.

Does the Minister not accept that the very word “alleged” creates ambiguity within the law and, if anything, creates a barrier? Our amendment would give the clarity that he and his Government are seeking.

I do not accept that. The wording about the “alleged conduct” is clear. We have dealt with a number of allegations: 3,500 from the Iraq Historical Allegations Team alone, and another 1,000 from Afghanistan. They are alleged offences and it is right to leave those in there. I request that the amendment be withdrawn.

On a point of order, Mr Stringer. I would be grateful for your clarification on the next steps. I understood that that was taken as a group, but will we be moving now to the other amendments in the group and asking for them to be moved?

The opportunity to debate the other amendments in this group has gone; that went when that debate finished. We can now, if hon. Members wish, vote on amendment 26, and then we will come to clause stand part. If I can help the hon. Lady, if I think—as I almost certainly will think—that the debate on clause 1 has not been exhausted, we can have a general debate on clause 1. However, the opportunity to debate amendment 26 went when we moved to the vote on the previous amendment. I will now ask whether you want to vote on amendment 26.

Further to that point of order, Mr Stringer. I did ask whether you were taking these as a group and when I could move my amendment.

I read out at the beginning that they were being debated together. I made that clear.

May I ask for clarification on new clauses 6 and 7? In terms of the general debate on clause 1, reference could obviously be made to them in that.

I will think about that while we are debating. I know that the right hon. Gentleman is not new to the House, but many members of this Committee are. If they listened carefully, I did read through all the areas we were debating at the start of this. I read out the amendments we were debating and what was before the Committee.

To be fair, Mr Stringer, I also asked to move those new clauses. I am sorry, with respect, Chair, but you did not clarify that.

It was clarified at the beginning. I cannot go back to that. That has been debated, although Members did not speak to it. If hon. Members wish to have a clause stand part debate, we can have that. You are absolutely right that we will vote later on new clauses, but the opportunity to debate them was then, when I read out the list.

Further to that point of order, Mr Stringer. I do not wish to be difficult in any way, and of course I respect your ruling, but I think there was some misunderstanding at the start about exactly what we were doing. You certainly did say that we were taking these amendments, but I think we were expecting the sequence of people to be able to move them. I wonder whether there is any way that we can resolve that issue so that these amendments can be moved.

I accept that there is a misunderstanding, but the statements were read out clearly from the Chair about what we were debating at the start. The opportunity to debate them was not taken. I cannot think of any way to debate them now. However, I will take the Clerk’s advice later and see whether there is a way.

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

On a point of order, Mr Stringer. I was under the impression that we voted on amendment 26 as part of the first grouping.

We did not. We debated it. There is a difference between debates on amendments grouped together because they are related and the order in which decisions are taken.

No. We have to get through the amendments, and then there will be a clause stand part debate on clause 1. We have to agree to clause 1, as amended or not, before moving on to the amendments to clause 2. By the start of this afternoon’s session, which I will chair, I will have clarified with the Clerk whether it is possible to come back to this, because the hon. Member for Blaydon says that there has been a genuine misunderstanding.

If hon. Members will take their place, the Clerk tells me that the issues raised in the amendments and the new clause can be raised in the clause stand part debate on clause 1. If that is not clear to hon. Members, now is the time to ask a question.

It is clear, but I asked the Chair, when he was taking that group of amendments, whether I could move my new clause. I will not go over that. It was strange to me, because I have been here long enough to know that when amendments and new clauses are grouped, they can actually be moved. I did ask the Chair, but I was not allowed to do that.

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

Yes, I wish to put that to a vote.

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

Question put, That the amendment be made.

Question proposed, That the clause stand part of the Bill.

Does the Minister wish to say something generally about clause 1? If not, I will open it up to the floor so that the amendments in the previous group, or any other issue relating to the clause, can be debated.

I say again what a pleasure it is to serve under your chairmanship, Mr Stringer.

On clause 1, we heard last week that one problem the Bill does not address relates to investigations. If that had been included, the Bill would be more effective in stopping the unfair distress of individuals. We heard from Major Campbell, who was quite graphic about his 17 years of investigations. The clause is clear about trying to clear up the system and we have heard about the system being made more efficient, which would not only ensure that armed forces personnel get a fair hearing but speed up the processes where they face distress.

It is not surprising that investigations are not being considered. Let us look at General Nick Parker’s evidence last week. I know him well—he has had a distinguished career—and I certainly know his son, who was injured in Afghanistan. Those of us on the Opposition Benches might say, “It’s yet another general rather than a squaddie,” but I have a huge amount of respect for him. He not only has the Army running through his veins but stands up for the armed forces and the men and women who served under him, having their best interests at heart. He would be supportive of any legislation or anything done to try to improve their lot. Having had a few heated arguments with him over the years—he is no shrinking violet—I know that if he thought the Bill was perfect or would improve things, he would say that. What he says about investigations is therefore important. He said:

“On the effectiveness side, it appears as if part 1 of the Bill focuses entirely on the process of prosecution, whereas for me the big issue here is the process of investigation and, critically in that process, ensuring that the chain of command is deeply connected with what goes on from the very outset. I do not think there is any serviceman or woman who would not accept that bad behaviour on the frontline must be treated quickly and efficiently. Nobody would want anything in the process that somehow allows people who have behaved badly on the frontline to get away with it. But all of us would believe that the process has to be quick, efficient and effective to remove the suspicion of a malicious allegation as quickly as possible. I cannot see how this Bill does that.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 94, Q188.]

The Minister referred to next year’s armed forces Bill as being appropriate for that, but I am aghast. If this Bill is supposed to be the Rolls-Royce legislation to protect our servicemen and women, why on earth does it not include investigation?

I note that, ironically, since we took evidence, a written ministerial statement was made yesterday in which the Defence Secretary announced that investigations will be looked at. He said:

“The Overseas Operations (Service Personnel and Veterans) Bill currently before this House will provide reassurance to service personnel that we have taken steps to help protect them from the threat of repeated investigations and potential prosecution in connection with historical operations…However, we are also clear that there should be timely consideration of serious and credible allegations and, where appropriate, a swift and effective investigation followed by prosecution, if warranted. In the rare cases of real wrongdoing, the culprits should be swiftly and appropriately dealt with. In doing so, this will provide greater certainty to all parties that the justice system processes will deliver an appropriate outcome without undue delay.”—[Official Report, 13 October 2020; Vol. 682, c. 9WS.]

Even the Defence Secretary recognises that one of the issues is the length of investigations. Could I disagree with any of what he said? No. As I said in speaking to new clause 8, the issue is effectiveness in making sure not only that the service is protected from malicious allegations, but that individuals are. We must always think about that, because at the end of the day the individual is important.

The Defence Secretary’s statement goes on to say:

“I am therefore commissioning a review so that we can be sure that, for those complex and serious allegations of wrongdoing against UK forces which occur overseas on operations, we have the most up to date and future-proof framework, skills and processes in place and can make improvements where necessary. The review will be judge-led and forward looking and, whilst drawing on insights from the handling of allegations from recent operations, will not seek to reconsider past investigative or prosecutorial decisions or reopen historical cases. It will consider processes in the service police and Service Prosecuting Authority as well as considering the extent to which such investigations are hampered by potential barriers in the armed forces, for example, cultural issues or operational processes.”—[Official Report, 13 October 2020; Vol. 682, c. 9WS.]

Is my right hon. Friend a little concerned about the Secretary of State’s comments, as I am? If indeed those comments are true and that is the intention, why has the Minister not tabled amendments today to address that issue?

My hon. Friend makes a very good point. We were told, although I do not believe it, that the Government wanted to improve the Bill and would consider amendments. I accept that Opposition amendments are not always properly drafted to fit into a Bill, but it is quite common for the Government to say that they will look at an amendment and change it, but put the spirit of it into a Bill. There is an opportunity to do that now, but unfortunately we have a Minister who clearly just wants to say, “No, we will get the Bill through as drafted, and that’s it,” which is contrary to his statements about trying to work together with people. There is an opportunity to do that now and I do not understand why we cannot do it, as my hon. Friend says.

The Defence Secretary’s statement goes on to say:

“A key part of the review will be its recommendations for any necessary improvements. It will seek to build upon and not reopen the recommendations of the service justice system review”.—[Official Report, 13 October 2020; Vol. 682, c. 9WS.]

On the justice system review and its relationship to the Bill, in answer to a question from my hon. Friend the Member for Glasgow North West last week about Major Campbell’s 17 years of dreadful investigation, General Sir Nick Parker said:

“That will not happen if you have a credible system that investigates and you address some of the cultural issues in the chain of command by making it genuinely accountable for what is happening.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Bill Public Bill Committee, 8 October 2020; c. 98, Q201.]

Does the right hon. Gentleman agree that the Bill does absolutely none of that?

It does not. If somebody like Nick Parker is saying that, we need to take it seriously. As for how the Bill has been born, I would love to know who is claiming paternity for it, because a lot of people seem to have been excluded—certainly the Judge Advocate General has. I would have thought he was the obvious person, as a senior military person in the justice system, to be brought in at an early stage to look at some of the things we shall talk about later—not only the issues of international law, but how the system could be improved.

The Defence Secretary’s written statement states:

“A key part of the review will be its recommendations for any necessary improvements. It will seek to build upon and not reopen the recommendations of the service justice system review”.—[Official Report, 13 October 2020; Vol. 682, c. 9WS.]

We heard last week from Judge Blackett about the service justice system review, and it would be interesting to know how those recommendations, which are about improving the system, have been fed into the Bill. If there are obvious things in the review, they should have been included in the Bill. It is strange to me when I consider who has written the Bill—whether it has been done for political reasons, rather than by people who understand the military and the service justice system and who look at the issues that face servicemen and women. I am amazed at the exclusion of people such as Judge Blackett.

Then, literally as the Bill is beginning its passage through the House, the Defence Secretary commissions yet another review of the exact subject that came up in the evidence sittings, about investigations. I find it remarkable. We do not need another review. We just need to implement some simple things, some of which Judge Blackett came forward with last week, and some of which will have come out of the service justice review.

I am sure that there will be an argument in the Ministry of Defence, knowing the civil servants as I do, that everything should be pushed off into the Crown review and the armed forces Bill, which I understand is coming up next year. To be honest, I have a lot of sympathy with that, because that is where the provisions we are considering should be—not in a separate Bill. Things have been done in this way for political reasons, because the Conservative party stood for election saying that it would implement legislation.

If we were to deal with the matter next year as part of the armed forces Bill we would look at the situation in the round, in terms of not just prosecution but investigations. There may be a view that it is possible to do things in isolation in this regard, but it is not. We have already seen the implications that changing one thing will have elsewhere. Ideally it would be best to act next year.

It is a pleasure to serve under your chairmanship, Mr Stringer. The scope of the Bill clearly does not encompass a wide-scale investigation of the present investigation process. Will the right hon. Gentleman explore a little more and explain what he did in his tenure as a Defence Minister to look into the matter?

I will say this to the hon. Lady: if she wants a long rundown of the positive things that the Labour Government did for the armed forces I can start with the Armed Forces (Pensions and Compensation) Act 2004.

It is related, because it is related to people who were serving on operations. For the first time ever it brought forward a modern system of lump sum payments, which were never there before, for Falkland veterans or anything else. I actually extended that in 2007 to cover issues to do with mental health provision. Our record was that each year but one of that Labour Government we accepted the finding of the Armed Forces Pay Review Body, as opposed to the Conservative Government’s cutting pay. We maintained our armed forces spending at a level above inflation. The 2010 Conservative Government cut the defence budget by 16%.

We also had the armed forces welfare pathway, which I started in—

Order. I am sure that the right hon. Gentleman knows that he is moving way outside the scope of clause 1 and the amendments and new clauses. I ask him to come back to the clause stand part debate.

I am sorry, Mr Stringer. I was going down memory lane to happier times. Just to finish that point, the welfare pathway, which the Government who came to power in 2010 rightly changed and renamed the covenant, was something that I introduced in 2010.

The hon. Member for Derbyshire Dales raised the issue of investigations and what we did. She is the new Member for that beautiful part of the world, and I have huge respect for her predecessor. I spent many a time at Kinder Scout and Hope as a boy walking round that area, so I know her area very well. But I think that she has to recognise the issue in terms of Iraq and Afghanistan. Yes, huge and terrible accusations were made about what was going on. There was pressure not only from what could be called the outriders on the left but from her own party to the effect that some of these accusations should have been investigated. If there was a failure, it was around investigation.

I do not want to try your patience, Mr Stringer, but we also did the Armed Forces Act 2006, which meshed the three service disciplinary systems into one. That was a huge issue, but it actually improved service discipline and investigations. This is an opportunity to get this Bill right. Let me say to the hon. Lady that I just want to get the Bill right. I think that if we had an approach from the Minister whereby he would take on board some of this, we could do these things, both here and in the other place, but there is a tendency, which I do not like, to think that somehow we in this place scrutinise legislation, and the Government know that they are going to change things but they change things in the House of Lords, giving the public the impression that somehow the House of Lords is this all-singing, all-seeing, body when actually those things should be done here. I am already talking, as I am sure others are, to Members of the House of Lords, including, I have to say to the Minister, some of his noble Friends who I think also have concerns about the Bill.

There is an opportunity here to do that with investigations. The issue with the amendments that we were talking about is really this. We had the debate about investigation of de minimis things, but what I think everyone wants is that investigations can be done quickly—not be done quickly and dismissed, because we have to get the balance right in terms of people making serious allegations that are investigated properly. Let us remember that we are talking here about allegations from civilians against members of the armed forces, but remember also that there are often cases between servicemen and women, who are making accusations against themselves—against individuals. There has to be a sense of fairness, and it cannot be right that it goes on for a very long time, so it does need judicial oversight. If someone is accused of something, that should be investigated properly and quickly, but that should also be done in a legal process that cannot be challenged—well, I am sure that everything can be challenged if someone pays a lawyer enough, but we must ensure that we have a situation whereby it is as judicially robust as possible.

In response to a question asked by the hon. Member for Blaydon last week, General Sir Nick Parker stated:

“Nobody would want anything in the process that somehow allows people who have behaved badly on the frontline to get away with it. But all of us would believe that the process has to be quick, efficient and effective to remove the suspicion of a malicious allegation as quickly as possible. I cannot see how this Bill does that.”[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 94, Q188.]

Does the right hon. Gentleman agree that legitimacy and effectiveness are not an element of this Bill and that we need to see structural change before we can go forward?

I agree. The impression that I think some people try to give of the armed forces is that the armed forces, which have a job to go and do, want to be above the law. Nothing could be further from the truth.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.

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

The Committee consisted of the following Members:

Chairs: David Mundell, † Graham Stringer

† Anderson, Stuart (Wolverhampton South West) (Con)

† Atherton, Sarah (Wrexham) (Con)

† Brereton, Jack (Stoke-on-Trent South) (Con)

† Dines, Miss Sarah (Derbyshire Dales) (Con)

† Docherty, Leo (Aldershot) (Con)

† Docherty-Hughes, Martin (West Dunbartonshire) (SNP)

† Eastwood, Mark (Dewsbury) (Con)

† Evans, Chris (Islwyn) (Lab/Co-op)

† Gibson, Peter (Darlington) (Con)

† Jones, Mr Kevan (North Durham) (Lab)

† Lewell-Buck, Mrs Emma (South Shields) (Lab)

† Lopresti, Jack (Filton and Bradley Stoke) (Con)

† Mercer, Johnny (Minister for Defence People and Veterans)

Monaghan, Carol (Glasgow North West) (SNP)

† Morgan, Stephen (Portsmouth South) (Lab)

† Morrissey, Joy (Beaconsfield) (Con)

† Twist, Liz (Blaydon) (Lab)

Steven Mark, Sarah Thatcher, Committee Clerks

† attended the Committee

Public Bill Committee

Wednesday 14 October 2020


[Graham Stringer in the Chair]

Overseas Operations (Service Personnel and Veterans) Bill

Clause 1

Prosecutorial decision regarding alleged conduct during overseas operations

Question (this day) again proposed, That the clause stand part of the Bill.

I hope everyone had an enjoyable lunch. When we left off, I was still talking about investigations and what came through in the evidence we took. Mr Stringer, you and I are old enough to remember when Public Bill Committees did not hold evidence sessions. The process is far better now, because it informs the debate and our progress. Certainly, our witnesses gave valuable evidence, and from a variety of different positions. The one thing that did come through, however, was the lack of any reference in the Bill to investigation.

This morning I referred to Nick Parker’s comment that

“part 1 of the Bill focuses entirely on the process of prosecution, whereas for me the big issue here is the process of investigation”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 94, Q188.]—

and of reinvestigation. Major Campbell gave some very good evidence—I think everyone had sympathy—about how he had spent 17 years under investigation and reinvestigation.

Last Thursday we had the Judge Advocate General before us. I was amazed that he had not even been consulted on the Bill before it was introduced. I would have thought that he, as the leading judge in the service justice system, would be a good starting point to run things by. He said in evidence:

“My concern relates to investigations, not prosecutions; but there are a number of issues”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 115, Q231.]—

that need addressing. He also accused the Government of

“looking at the wrong end of the telescope”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 116, Q246.],

which is a good analogy for how they have approached the subject. We have been blindsided by the disgraceful case of Phil Shiner, which concentrated on the number of vexatious claims. I will put on the record again that I thoroughly condemn that individual, but I think that the process that we had did deal with him, in terms of regulation.

I will now turn to the two amendments that stand in my name, amendment 2 and new clause 6. We did not get a chance to talk about amendment 2, which is also about investigations. It seeks to insert into clause 3:

“the thoroughness, promptness and efficacy of any ongoing investigation into the alleged conduct or any relevant previous investigation, and the reasons for any delays in such investigations”.

The purpose of that is to ensure that we get timely investigation. I will move on shortly to new clause 6, which talks about judicial oversight, because that is important, but we do not want to get into a situation in which the service military police or other people simply say, “Well, we’re not going to investigate because it’s too difficult.” We need oversight, but amendment 2 puts the focus on looking at the investigation, not only to ensure an adequate investigational process, but to give particular weight to the prosecution. In considering a case, therefore, a prosecutor should be able to consider the efficiency of the process and previous investigations that have taken place.

As a statement of principle, I would like the Bill to consider more effectively the way in which the investigation function in the military justice system can be amended. I am sorry that the Government do not seem to accept that that should be part of the Bill. I think I referred to it this morning. At least I know why the civil servants are not accepting that. The obvious thing to have done with the Bill would have been to have put it with the armed forces Bill that will be coming through next year. If there is one thing that I know from my experience of civil servants, it is that they like tidiness, and this process is not tidy. That would have been a better way of doing it.

Does my right hon. Friend agree that witness after witness in the evidence sessions pointed to the centrality of good-quality investigation in removing the problem of vexatious and pluralistic claims?

Yes, and in a moment or two I will cover the important point that my hon. Friend raises. It is about efficiency in dealing with claims through an early process, so that when the evidence is not going to go anywhere, a claim can be dropped. As the hon. Member for West Dunbartonshire said this morning, that is good for the efficiency of the system as well as for the individual. As Lieutenant Colonel Parker said, it is not just the prosecution case, but the mental torture that people go through when waiting for that. It would help servicemen and women going through that process to have an early resolution.

We did not get to discuss new clauses 6 and 7, so I will speak to them now. I understand, Mr Stringer, that they will be voted on at the end of this process. Is that correct?

We are debating clause 1 stand part and we will vote on clause 1 stand part at the end of the debate.

One of the important things about the process is that we have judicial oversight of whatever happens. That is important for making the system robust and fair, both for those complaining and for those accused, as well as in relation to our international obligations. We have been a beacon of light in ensuring that we have an independent judiciary in this country, and it is important that we have oversight of that. Judge Blackett suggested things that could do that, and that could also make the system more efficient.

New clause 6 proposes to bring in judicial oversight of investigations. It would allow the judge advocate, once an investigation has come to its preliminary conclusions, to look at the evidence in the allegation as soon as possible, but no later than 6 months, and the judge, not the Ministry of Defence or the chain of command, would then make an assessment. It is important that the assessment is made by the judge advocate, who is part of the judiciary. The judge advocate would have

“the power to determine—

(a) that no serious, permanent or lasting psychological or physical injury has been caused; and order that the investigation should cease”.

If, at that stage, an indication was taken that the case was going nowhere, that would knock out all the vexatious cases, which is what we are trying to get at here. It would allow the individual who has been accused to move on. It would have the strength of having a judge make that decision. The clause moved this morning takes away more minor offences, allowing us to get down to the serious cases that need to be investigated and prosecuted.

My right hon. Friend is rightly seen as an expert on defence matters, having been in this House for a number of years. I wonder whether we could have the benefit of his experience. In his experience, both as a Minister and as a member of the Bill Committee, is he open to the suggestion that a number of these investigations are taking so long because of failures within the Ministry of Defence, and that that is why we have arrived where we are?

Yes. That is the problem. How do we get at it? Is it about a lack of resource? I think it is. Going back to Iraq and Afghanistan, as I said this morning, there was huge pressure from all sides, including the Conservative Opposition at the time, that these things had to be seen to be investigated to the nth degree. There was a culture, which led to a resistance to say in some cases, “There is no evidence to stand those.” If that was done politically, I understand why people have issues with that.

However, if there were a judicial process, which new clause 6 provides for, overseen by a judge, that would give confidence to the public and the international community, in relation to our obligations, that this was being done not for political reasons but because a judge had determined independently what the facts are. It would certainly help.

In response to a question the right hon. Gentleman raised last week, Judge Blackett said, in relation to the Magistrates’ Court Act 1980, that

“a great raft of those allegations in IHAT and Northmoor would have gone with that.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 122, Q254.]

Is that not the right hon. Gentleman’s point? Much of what the Bill seeks to do could easily have been dealt with through existing legislation.

Well it could, but I am a defender of the service justice system, because I think it is unique. There are those who want to abolish the service justice system, who ask, “Why aren’t these tried in the civil courts?” I am against that, and I always have been, because of the unique nature of the circumstances and the way the system works. It is an independent judiciary, not part of the MOD, so it has respect. Courts martial understand not only the special nature of service, but the circumstances that people are in.

My fear is that this Bill will strengthen those who want to sweep away what they see as giving special privilege to the armed forces. I do not see it that way at all. It gives those men and women who go before it the chance to be judged by an informed judiciary, which deals with certain cases. That is the important point. Again, it comes back to judicial oversight.

New clause 6 states, in subsection (3)(b), that a judge can determine

“that the evidence is of a tenuous character because of weakness or vagueness or because of inconsistencies with other evidence, and that it is not in the interests of justice to continue an investigation”.

The judge would look at the evidence and make a judgment about the validity of the original claim, as well as what the investigation has thrown up. If the judge were subsequently to decide that the case should go no further, that is defendable, because it would be the judge’s decision.

Subsection (3)(c) presents the other side, where the judge may decide

“that there is merit in the complaint; and make directions as to the timetable and extent of further investigation.”

Clearly, if the judge looks at the evidence after six months and says, “Actually, there is a case here, and further leads from the investigation need to be taken forward,” it is important that that is allowed to happen. That is not stopping prosecutions or interfering in any way with the investigative process; it is reviewing the evidence and whether it will go forward. It would also give directions to set a timescale for that investigation to be completed.

In the Colonel Campbell case, he was investigated not only once, but a few times, for the same thing. Had this system been before a judge earlier, it would have stopped that type of reinvestigation of the same offence. It would also have given a judgment early, regardless of whether the original complaint was warranted. As the hon. Member for West Dunbartonshire said this morning, that is about making the system more efficient in the way it works, but it is also about being fair to the individual.

Let us take the example of an individual who has been accused of some type of crime, an allegation having been made. If that is reviewed by a judge after six months and the individual then knows either that it will be kicked out and go no further—that is the end of it—or that further investigation is deemed necessary, there is also a time limit or some indication of time. There would have to be a re-examination, so we might want to have a time limit whereby a judge says, “Right, come back within the next six months to complete the thing.” We all know the nature of investigations—they might take longer than that, but at least we would have regular judicial oversight of the system, which we do not have today. That would be important.

I do not want to criticise the service police, because in some cases they have a hugely difficult job to do. It is not like going and investigating a house burglary in west London; it is often going on overseas operations to very difficult terrain. In some cases it is dangerous to gather evidence. In many cases we are dealing with different cultures and people for whom English is not their first language, so I am not criticising the service police. However, it would give them some rigour to know that, by a certain date, they at least have to come back before a judge to say what they have done in a certain case. In the cases that we have seen, a lot would have been fished out of this pool way before they got to the prosecution stage.

Again, the hon. Member asked Judge Blackett question last week in relation to Marine A. Judge Blackett responded that

“a number of the issues here were raised by Marine A subsequently through the Criminal Cases Review Commission and back to the Court of Appeal, and they were never raised at first instance. Had he”—

Marine A—

“raised them at first instance—had all the psychiatric evidence that came out eventually appeared at the start—he probably would have been charged with manslaughter rather than murder”, ––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 124, Q262.]

which is what he was charged with. It was actually on the second appeal that it was overturned and the prosecution was for manslaughter. Does the right hon. Member agree that the process is at fault and that, to improve that, the Government need to make substantial changes and investments in the process, rather than with the Bill?

It is the process. I am glad that the hon. Member has mentioned the case of Marine A, because the way it was dealt with worries me. People might not be familiar with it. It was an individual who was on operations in Afghanistan and shot, on camera, a wounded Taliban fighter. That case did not come about through an ambulance-chasing lawyer; it came about because somebody filmed the shooting and was so horrified by it that they handed in the video. That was not an ambulance-chasing lawyer saying, “This man’s killed somebody in cold blood.” That case is important.

The process being adopted concerns me for two reasons. My first concern, on the point we raised last week, is about the support that servicemen and women are getting while they are going through the process. Clearly, in that case, the individual did something that goes against everything that members of the armed forces are trained to do. But when we look at the overall envelope of what he had been up to—the psychological trauma and the other things he had been through—we could explain it not as murder, but as manslaughter. Again, if that case had gone through this type of system, it would have led to those issues around the individual’s mental health, which do not excuse his actions but obviously had an impact on what happened, and to the first issue being seen as manslaughter, which would have been a fairer way of dealing with it.

My second concern about the Bill is that if that happened more than five years after that case, the presumption would have been not to prosecute. There would then have been a political decision, because the Attorney General would be deciding on prosecution. That individual could then end up before the International Criminal Court, because we would deem that we had not prosecuted.

There was a media maelstrom around the case. As with many such cases that we have all dealt with, it got a nice headline in the Daily Mail or The Sun, but there were obviously more details to it. If we have a similar case in future on which there is to be a political decision, it will be a strong politician or Attorney General who will turn around and say, “Yes, I want to prosecute this person.” There would then be the danger of the International Criminal Court picking up the case. Whereas in the process that I am proposing in new clause 6, the judge would review all the evidence, including, in that case, whether he should have been charged with murder in the first place when it went to court or to appeal—and no, he should not have been.

As many Committee members have said, and certainly, having spoken to members of the armed forces and veterans, they do not want to be above the law; they want to be treated fairly. That is what we are here to ensure. I have spoken to the individuals involved in the Marine A case, who explained the reasons why it happened, which I understand. It did not fulfil the high standards that are expected of the armed forces. In that case, it is about being fair to members of our armed forces, and ensuring that we are doing the right thing. Again, the combination of new clause 8, which we debated this morning, and new clause 6 would start to reduce that pile of potential litigants, even if they came from vexatious lawyers or elsewhere.

The other issue, which I can never get my head around, is the idea that the same case can be reinvestigated, as in the Campbell case. That is just ridiculous. There must come a time when we have to say, “Well, it has been looked at in detail. There has been evidence.” There might be a delay to trawl for witnesses and other evidence, but in effect what that says is, “Basically, we will do a fishing exercise until we get the answers that we want.” That cannot be right.

My new clause 7 addresses some of the limitations around investigations. I think we on this Committee all want thorough investigations, and so do members of the armed forces; what they do not want is endless reinvestigations that go on for, in the Campbell case, 17 years. New clause 7 would put limitations on reinvestigation. The section applies where

“(a) a person has been acquitted of an offence relating to conduct on overseas operations,”

so it would apply to those individuals.

I know this is not within the scope of this Bill, and I am sure you would pull me up, Mr Stringer, if I mentioned other areas, but that is the problem with the title of the Bill: some of the things in here should apply to members of the armed forces if the offence was committed on the UK mainland, but they do not. That is why I come back to the point that it would be better to do these things in the Armed Forces Bill next year and to take a holistic approach. Obviously, there are political reasons why this Bill is being rushed forward, to meet a manifesto 100-day commitment. However, I think some of these things should apply in the UK, but they will not with this Bill, and no doubt they will have to be picked up in the Armed Forces Bill.

The section also applies where

“(b) a determination has been made that an investigation into an offence relating to such conduct should cease under section (Judicial oversight of investigations).

(2) No further investigation into the alleged conduct shall be commenced unless—

(a) compelling new evidence has become available”.

Again, this is about trying to stop that reinvestigation, but having judicial oversight. The judge advocate determines

“the totality of the evidence against the accused”,

and sees whether it is strong enough such that

“there is a real possibility that it would support a conviction.”

Let us go to the Campbell case: if that case came forward again, the judge would have to look at the evidence and see whether the material circumstances had changed since the last time the offence was looked at. The strength of doing it this way, rather than as proposed in this Bill, is that it is not about limitations of time and the presumption against prosecution; a judge will look at the evidence and there will be a process. That would avoid the reinvestigation of such complaints.

If there is compelling new evidence, I think we would all agree—not just in the military justice system, but in a civil case—that we would want it to be looked at again. That links to the time limits on investigations, which for the individual concerned would not then stretch out for an indeterminate length of time.

Regarding proposed new subsection (a) on new evidence, in evidence to the Committee last Thursday, in response to the hon. Member for Wrexham, the judge advocate gave as an example the six Royal Military Police who were sadly killed at Majar al-Kabir in 2003. Would this not allow us parity of esteem in the international judicial system? If new evidence came out in Iraq, we would demand that the Iraqi Government prosecute the individuals responsible for the murder of those six Royal Military Police.

Yes, I remember that case—it was awful, if you read the background to it. The Bill is basically saying, “We are going to do something different from what we expect of other people.” I am sorry, but that is just not acceptable. We have a high standard in this country of judicial law and the rule of law and, as I said earlier, we should be a beacon. We should say, “This is something we are proud of.” Anything that changes that would be detrimental, and not only to the armed forces, for the reasons that have been raised. It is just logic that, if new evidence comes forward in a case, it must be looked at; just to say that the reason it cannot be looked at is that it has gone past a certain time period is wrong. If we dismiss new evidence without looking at it and having any judicial oversight of it, that would be a mistake.

In terms of whether this is something novel and new, it is not, because we already have it in the UK. The Criminal Cases Review Commission can review prosecutions, look at the evidence and, if it finds a flaw, refer them to the Court of Appeal. I wondered whether we could have something similar in this area, but that would be cumbersome. What we need is to put cases before a judge, as at the Court of Appeal. I have had quite a lot to do with the Criminal Cases Review Commission—obviously not personally—regarding the Horizon scandal at the Post Office. Thankfully, last week it was announced that 44 convictions will be overturned. That is judicial oversight, and that is what is lacking in the Bill.

I do not doubt the Bill’s good intentions, but there are problems with how it has been done. Under new clause 7, new evidence would have to be compelling. It would not be a question of, “Can we have another trial of this case? or, as with the Shiner cases, where one case has been dismissed and a related one comes in, that previous case has to be reinvestigated all over again. The important point—I cannot reiterate this strongly enough—is that that limitation would be defensible in any international system because the scrutiny of the three stages mentioned in new clause 6, and as Judge Blackett said last week, would be done by judges and not, as the Bill proposes, by an Attorney General, who is a political appointment, with a presumption against prosecution.

As I look at the Bill, I think those things could be done now. The new clauses would certainly improve the Bill and get to the root of stopping vexatious prosecutions and investigations more effectively. I think there is a misunderstanding—I include the Minister in this—that the Bill will stop investigations within those five-year periods.

It is also important that we do not do anything to damage our international reputation. I looked at a tweet the Minister put out earlier this week. The linked article said:

“War crimes under international law in the Nuremberg sense, together with sex offences, are excluded from”

the effects of the Bill. The Minister’s tweet said:

“Perhaps worth reading this before going off on one about the Overseas Bill…Committee stage continues tomorrow, and I actually get a chance to counter some of the ridiculous narrative around it.”

We have not heard much from the Minister apart from his civil service brief.

I am not being personal, but a Minister usually does more than read what is in front of him; he takes notes and engages. My proposals should be looked at seriously, because they would improve the Bill. The Minister says he wants to work with everybody, but he seems to have deaf ears when people make suggestions that would not harm but improve the Bill. It is not just me saying that, as someone who is passionate about protecting the armed forces; that is the evidence we have taken through this process. As I said earlier, that is the good thing about the process.

What would be the argument against accepting the new clauses? The only one I can see is that the Government want to deal with this next year in the Armed Forces Bill. Fair enough, but put them in now. They can be done now. We will not end up with any additional costs of process—in fact, that will save money. I know we do not have a money resolution with this Bill, so we cannot propose things that cost money, but I doubt whether those proposals will. As the hon. Member for West Dunbartonshire said this morning, it is about making things efficient, and there are two wins here: one win with the process being slicker and quicker; and another win with the accused individual being dealt with fairly and robustly.

Turning to other parts of the clause, this morning we asked why five years, rather than 10, 15, 20 or whatever. I asked the Minister to justify that and I also asked about the numbers for who said what. He said they were in the impact assessment, but I could not find them when I looked at it at lunchtime in the Library, or where they are referred to. I would like the Minister to do what I thought he would do when he responded to my hon. Friend the Member for Portsmouth South, which is to say, “Well, five years has been put forward for X reasons and 10 years was seen as too long”—or something like that—“and these were the people who argued for each.”

On balance, I agree, that some such things are at the end of the day political decisions, but we did not get that sort of response. I would still like an explanation for the decision of five years. I do not think that is in the impact assessment, on which, likewise—I have raised this with the Minister on the Floor of the House—there is confusion on the number of claims and the potential of those claims. The figures vary from 900 to 1,000, but there is no breakdown at all of whether those claims are from civilians or from members of the armed forces making claims against the MOD.

The other thing that concerns me is the presumption not to prosecute. I know of no other system where the presumption is written into a Bill to state, before anything is done, that someone will not be prosecuted. Again, my fear about that is that it will be seen as interfering with process. I am sure some people in Committee are old enough to remember the time before the Crown Prosecution Service, many years ago—this is the reason why we had that in this country—when police investigated and did the prosecution as well. Anyone who wants to know the reasons why that system failed—for example, in the Horizon case to which I referred earlier—should read last week’s excellent report of the Justice Committee, which criticised the arrangement whereby someone was both investigator and prosecutor.

The presumption in this Bill is worse than that, because we are saying, “We will presume that we are not going to prosecute.” I know that Ministers have said, “This does not mean that cases will not be prosecuted”, and I accept that, but the decision on whether a case should be prosecuted should be down to an independent judicial process; it should not be in the hands of the Attorney General, a Minister or anyone else to decide whether a case goes forward.

My right hon. Friend has touched on this before. The issue is not prosecutions but the actual investigations. The question to ask is, how do we square proper and prompt investigations, where there is justice at the end, with this limitation on prosecution? Do the Government have this the wrong way around?

I agree with Judge Blackett and General Nick Parker. What the Government have done is looked at the prosecution end of it, rather than at the investigation end of it. As I have said, Blackett referred to it as looking through the wrong end of a telescope. We all know what happened when we were kids—we looked through telescopes, which were quite good for seeing things that were far away. It is as though somehow we would not pick up on the detail of what can be seen. With the Bill, however, we can see the detail.

As I have just outlined, what is needed is proper investigation. No one is suggesting shortcuts in investigations. We need a proper system that has judicial oversight, which will ensure that it is fair on all sides, and that it is efficient. The next bit of it is prosecution, which has to be independent of Government. I have never seen it written into a Bill that, before there is an investigation, there is a presumption in law that there will be no prosecution. How would we do that? What is the purpose of investigating a case and going through details if, from the outset, there is a presumption that it will not be prosecuted? That is very difficult. It would be like you, Mr Stringer, burgling somebody’s house—I am not suggesting for one minute that you would do that. The authorities would then say, “We are going to investigate you, but the presumption”—not the decision, because I accept that you could still get prosecuted—“is that you are innocent and that you haven’t done it.” That is just nonsense and will not stand up. It will end up with judicial reviews, so we will not be free from the ambulance-chasing lawyers or the legal aid system, because if they can see that there is a buck to be made in that way, they will do it.

Likewise, on international comparisons, it comes down to the point that the Judge Advocate General made in his excellent letter to the Defence Secretary, to which I referred last week in evidence: he was not consulted on the Bill. When these cases go to the International Criminal Court for investigation, it will say, “Wait a minute. At the outset you had a presumption that you were not going to prosecute in these cases.” If we had a situation in which a case went forward, there would be a presumption against prosecution and there would be an investigation. If the Attorney General were to decide that the case did not go to prosecution, the International Criminal Court would have a field day. It would say, “Well, wait a minute. You’ve had a presumption against prosecution. You’ve had political interference, with the Attorney General making the final decision about whether a prosecution should take place.” I do not think that is compatible with our treaty obligations to the ICC.

I know that reference is often made to the Human Rights Act 1998 and that there is a tendency—not with you, Mr Stringer, because I know you are an expert on European matters—to think that somehow it is something to do with the European Union. It has nothing at all to do with the EU. It has a proud history, and we should be proud to have helped develop the idea of human rights after the second world war in order to ensure that we have the highest standards. My fear is that we will end up with servicemen and women before the International Criminal Court. I am sorry, but I do not want to see that. What I want to see is their being dealt with in our judicial legal system, which will end up with their getting better justice. It will be very difficult to explain to the public why servicemen and women end up in the International Criminal Court. If that happens, the next step is that we withdraw from the International Criminal Court and everything else. If we do that, it will affect our reputation in the world as a country that wants to uphold the rule of law and to tell China and other nations, “Look, these are the basic standards that you should adhere to.” It will be a godsend to them.

There are serious issues to do with clause 1, which I do not think the Minister has addressed. If we end up with fairness and justice for our servicemen and women but we do not have an efficient system, that needs to be changed. I repeat to the Minister that the Bill can be changed on Report in this place, and I am happy to work on the investigation issues with him. If new clauses to that effect were not perfectly written according to the Ministry of Defence, I would be quite happy to work on getting a form of words that we could all accept. I am a mild-mannered individual, as many people know, and I would quite happily let the Government table them and claim the credit. I am not looking for plaudits. What I want above everything is a good Bill, and the Bill as it stands is not a good one.

I thank my right hon. Friend for a rather long, in-depth speech. I am sure that I will repeat some of the points that he raised, but I want to focus particularly on the measures that apply to events that occurred more than five years ago. The starting point for covering that time period is the date that the alleged conduct occurred. When an alleged offence continued over more than one day, the starting point for the five-year time period would be the last day on which the alleged conduct occurred. I believe that that needs a bit more probing and explanation.

As we know, the Defence Committee report “Protecting veterans by a Statute of Limitations” was supported on the presumption against prosecution for allegations that were more than 10 years old. I was extremely concerned that the proposals would not cover soldiers who had served in Northern Ireland through the troubles. It is said that the Ministry of Defence should ensure that sufficient resources are made available for educating the armed forces more regularly about their legal obligations.

Far be it from me to be personal, but when the Minister replies, I would like him to give further explanation of why he moved from the 10-year period agreed by the Defence Committee to the five-year period. The real issue here, as my hon. Friend said—sorry, my right hon. Friend; he is a member of the Privy Council and I should acknowledge that—is not so much the prosecution but the investigation. All soldiers who make the great commitment to serve our country in the armed forces need a prompt, fair, efficient and effective investigation before we reach prosecution.

I would like to cite the example of how alleged crimes in Iraq were investigated and how we have arrived at the current position. As many of us know, UK military operations in Iraq lasted from the start of the invasion on 20 March 2003 to the withdrawal of the last remaining British forces on 22 May 2011—an eight-year period. Alleged crimes by UK forces in Iraq have formed the subject of two public inquiries initiated by the Ministry of Defence between 2008 and 2009 to examine the death in custody of an Iraqi civilian, Baha Mousa, in September 2003, and allegations of unlawful killings in a street arising from the so-called battle of Danny Boy in May 2004.

In March 2010, the MOD established the Iraq Historic Allegations Team, to ensure that credible claims were properly investigated. The IHAT received a total of around 3,400 allegations of unlawful killings and ill treatment between 2010 and 2017—a period of seven years. However, in February 2017, the Defence Committee published its IHAT inquiry report, which notably criticised the team for alleged inefficiency and lack of professionalism. It called on the MOD to close it down and to provide financial and other support to UK servicemen under investigation. On the same day as the release of the inquiry’s report, the Defence Secretary announced the closure of the IHAT, ahead of the original schedule, citing IHAT’s own forecasts that the team’s caseload was expected to reduce to about 20 investigations by the summer of 2017. The IHAT was permanently shut down on 30 June.

The MOD said that military operations in Iraq have resulted in nearly 1,000 compensation claims for unlawful detention, personal injury and death, and about 1,400 judicial review claims, seeking investigations and compensation for alleged human rights violations. An investigation by the BBC “Panorama” programme and The Sunday Times found that the UK Government and the armed forces might have covered up the killing of civilians by British troops in Afghanistan and Iraq. The MOD has strongly rejected the allegations of cover-ups. I bring that up because it was a MOD investigation into a conflict that lasted eight years, and then seven years into that investigation it was shut down because of what it was doing.

The real problem we have is that the Bill does not stop the cycle of investigations. Restrictions apply solely to prosecutions. If we were to ask most people who have been investigated time and again, they would say it is the investigation that has caused the problems. Unless we resolve that, the Bill does not ensure that allegations are properly investigated and resolved—this is the point, Mr Stringer—within a reasonable period. As I have said, service personnel would benefit from a focus on prompt and thorough investigations, rather than simply a limitation on prosecutions. That is why the amendments are so important. The investigations have to be judge led.

I agree that we have to resolve concerns about uncertainty and the delay for soldiers and litigants. On the other side, there are the victims. Some claims may have to go over five years for sound reasons. Injury may become problematic only after five years of post-traumatic stress disorder. Luckily, we live in a world where we have a better understanding of mental health and we are far more sympathetic to problems. In another life—14 years ago—I worked for Lord Touhig, who was involved when he was a Defence Minister with the shot-at-dawns. I am very proud that the last Labour Government granted them a pardon. I hope we never see a return to the bad old days when people were shot for alleged cowardice, when really they were suffering from terrible mental health problems.

That is what we have to guide ourselves with in this Bill. We face a mental health crisis. I was encouraged earlier when I moved the motion about UAVs, as the Minister accepted there was an issue of post-traumatic stress disorder and the need for more research. I know he has worked very hard in that area and I look forward to some of the outcomes of the work he is doing. I pay tribute to him for his work on that.

We have to accept that many of these claims will take longer. In some of these cases, it may take a long time for evidence to be gathered and to come to light, especially when we are dealing with complicated areas of law or complicated parts of operations in theatre. The Minister should look again at the five-year rule and make it 10 years, but it is more important that, alongside that, we look at how the investigations are conducted.

We should consider any time limit on prosecutions to be an intolerable barrier to justice. It is notable that the proposed five-year period halves the time period for prosecutions from the proposal of 10 years consulted on by the Ministry of Defence last year. A five-year limit makes it likely that the relevant overseas operation will still be in progress—I used the example of Iraq and Afghanistan at the beginning of my speech. That means investigations may have to be limited to while we are active in hostilities. That, again, is a barrier to justice.

The Judge Advocate General of the armed forces, Jeff Blackett, warned the Defence Secretary that this provision

“would encourage an accused person to frustrate the progress of investigation past the five-year point to engage a high bar for prosecution”.

When the Minister responds, I hope that he can lay out some guidelines on how we can stop anybody frustrating justice in that way.

Is not an obvious way of doing that to adopt the new clause I spoke to, which would give judicial oversight?

I alluded earlier to our good friend Lord Touhig, who advised me to always be careful of taking interventions, because they can ruin the end of your speech. I feel that that has happened here.

It is important to remember that the overwhelming majority of repeat investigations or delayed prosecutions in recent years have, as my right hon. Friend said, been the direct result of failures by the MOD itself. It is an issue within the MOD that needs to be resolved—whether it is a cultural issue or a rules-based issue, it needs to be resolved. I agree with what the Minister is trying to do because there are too many veterans, ex-servicemen and women, who are living in fear of repeat investigations. If they are living in fear of that, we must ask why these investigations are repeated over and over again, causing not only stress to their mental health but putting intolerable strain on their families.

Rather than measures that tackle the real reason behind the investigations that delay prosecutions, the Bill proposes unprecedented legal protections that will create a legal regime that mandates impunity for serious offences and, above all, inequality in law for the victims of abuse in our forces. Severely restricting the application of criminal law for certain categories of people accused of having committed offences including international crimes would violate the principle of equal application of the law, which is what our legal system is based on.

A multitude of sources suggest that crimes were committed on a large scale in Afghanistan and Iraq. That happened at least partly due to systemic issues—for instance, in 2013, in R. v. the Secretary of State for Defence, the UK High Court held that

“there might have been systemic abuses and that such abuses may have been attributable to a lack of appropriate training.”

If the problem is appropriate training, it is not a legislative solution that we need but a systemic solution from within the Ministry of Defence. In its 2018 report, the Ministry of Defence working group on systemic issues said that it considered:

“there was sufficient evidence to conclude that assaults in detention had occurred, and may have been systemic.”

International law imposes certain obligations on the UK, including the obligation not to put in place a legal framework that severely restricts or makes impossible the investigation and prosecution of serious crimes under international law committed in armed conflict, irrespective of where those crimes were committed. The proposed legislation severely limits the possibility of opening a full investigation in respect of Iraq or Afghanistan. Any measure that significantly limits the possibility of prosecuting international crimes, whether referred to as a statute of limitations or a statute of presumption against prosecution, risks undermining the UK’s hard-won role as a champion of the international rule of law and hence its ability to advance its agenda.

The hon. Member for Wolverhampton South West made the point, in respect of the lack of training, that the real pressure is not on the chain of command but on the men and women in the frontline. Does my hon. Friend agree that, unfortunately, it is they who find themselves in these cases rather than those higher up in the chain of command who have equal responsibility for some of the actions?

I agree; it is often ordinary squaddies or ratings who find themselves in these circumstances simply because they were following orders. If we are talking about training, we do live in a different world, a modern world. I have already spoken about our shot-at-dawn campaign, which my right hon. Friend is involved in. We have to realise that our modern armed forces are constantly evolving in a changing world, and our training should reflect that, whether it is for an ordinary rating or top brass in the armed forces. It is important that we focus on training. The Government have the numbers and they will pass the Bill, but the way to change the culture of ongoing prosecutions is to start with the training of our troops, whether in command or on the front line.

To return to the point I was making, the code for Crown prosecutors already has ample criteria to provide guidance on whether prosecution should take place. This includes an evidential stage, followed by a public interest stage. The evidential stage concerns an independent prosecutor’s assessment of whether there is a realistic prospect of conviction. The public interest stage guidance involves considerations such as the seriousness of the alleged offence, the level of capability of the offender, the circumstances of and the harm caused to the victim, the suspect’s age and maturity at the time of the offence, the impact of the offending on the community, whether prosecution is a proportionate response and whether sources of information require protecting.

The Ministry of Defence and the Government more broadly should ensure that adequate legal safeguards are in place for service personnel and veterans, including access to legal counsel, and other internationally recognised due process and fair trial standards. The legal protection of current and former service personnel is best served by a framework that facilitates prompt—this is the third time I have said this—and adequate investigation, which would clear anyone wrongly suspected of having committed the crime without risk of undue reinvestigation and at the same time ensure accountability for those guilty of crimes.

No one is above the law. If crimes are committed, they should be prosecuted and the full weight of the law should come down on those responsible. Many investigations—this is the key point about the clause—have been so weak and ineffective that they resulted in judicial findings which led to the need for them to be reopened or restarted, or for more robust procedures to be put in place. It is not appropriate to impose a limit for bringing claims in relation to personal injury or death where people are seeking damages in respect of sorrowful events that took place outside the UK; to do so breaches the rights of the victims.

The Government have sought to claim that these reforms are needed to stop legal cases relating to UK actions where that is not appropriate, but the Bill’s definition of overseas operations, to which these provisions apply, is too broad, as it covers

“peacekeeping operations and operations dealing with terrorism, civil unrest or serious public disorder, during the course of which members of Her Majesty’s forces come under attack or face the threat of attack or violent resistance.”

The Minister referred to my amendment dealing with that point. It is striking that the Bill’s presumption against prosecutions would appear to apply to any and all operations that deal in terrorism. The provision would cover a wide range of covert activates that are subject to little or no public or parliamentary scrutiny, and of which MPs may have no knowledge at all. This could include so-called training SIS operations carried out with a range of foreign security forces, or indeed operations of the kind that UK became involved in during the war on terror, when Parliament’s Intelligence and Security Committee found the UK maintained a corporate policy of facilitating rendition of detainees and was involved in hundreds of cases of torture and mistreatment.

In our evidence session, Clive Baldwin of Human Rights Watch said that

“we are seeing a breakdown in what is the beginning and the end of an armed conflict, what is the battlefield and what decisions are made in which country—you mentioned drones, but there are other decisions made within a country, and cyber-warfare is coming. The artificial distinction of an overseas operation with a clear beginning, a clear theatre and a clear end is one that is very much breaking down. The distinction of when an armed conflict begins and ends is becoming murkier in many ways, especially non-international armed conflict. The idea of having one rule for overseas operations and one for domestic operations will be increasingly artificial, and that lack of clarity about the real application of such situations and such laws will be another danger of this Bill.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 67, Q135.]

I support my right hon. Friend the Member for North Durham in his amendments and I hope that the Minister will think on what has been said this afternoon, and answer some of the questions that we have put to him.

I am delighted to answer some of the questions that have been laid out. I have spoken at length about the “five to 10 years” issue in dealing with previous amendments, but I will look to answer some of the questions raised and then speak to clause 1 in general.

We ask a huge amount of our service police. Investigations on overseas operations are inherently dangerous, and the risk of gathering evidence on operations must always be balanced with the risk to the lives of our investigators. To suggest that the service police pursue unmeritorious or vexatious investigations in those circumstances is to do a huge injustice to those brave men and women who do this dangerous work, and we do not.

To understand new clause 6, it is necessary to go through it line by line. Proposed new subsection (1) seeks to apply the clause to,

“any investigation by a police force into alleged conduct as described in subsection 3 of section 1.”

Clause 1(3) applies—

Order. I asked hon. Members at the beginning of the meeting to respect social distancing. I am sorry, Minister; please continue.

Clause 1(3) applies where,

“the alleged conduct took place (outside the British Islands)”,

at a time when the person was “subject to service law” under the Armed Forces Act 2006, and “deployed on overseas operations.” There is no further limit on the remaining provisions of the proposed new clause, which means they must therefore apply to all investigations on overseas operations committed by service personnel. For context, there were in the region of 3,000 service police investigations in Iraq and 1,000 in Afghanistan. The majority of those will have been committed by persons subject to service law. It is not considered feasible for such numbers of investigations to be brought in front of a judge, and to do so would undoubtedly add further delays to the process.

Proposed new subsection (2) states:

“The police force investigating the conduct must place their preliminary findings before an allocated judge advocate as soon as possible, but no later than 6 months after the alleged offence was brought to their attention.”

The service police are independent. That independence is enshrined in law in section 115A of the Armed Forces Act 2006. It is common practice for them to consult prosecutors in the course of an investigation and for that discourse to shape an investigation, but this is discourse, not direction. Any obligation on the service police to police their investigation before a person who has control over the final determination of that matter seriously compromises the independence and is therefore contrary to section 115A.

New clause 6 states that the allocated judge advocate may order an investigation to cease should it be determined,

“that no serious, permanent or lasting psychological or physical injury has been caused”—

presumably by the alleged conduct. Again, it would be hard to determine whether that was the case without investigation, a matter complicated by being on overseas operations. Proposed new subsection (3)(b) gives the judge advocate the power to order that an investigation should cease if it is determined,

“that the evidence is of a tenuous character because of weakness or vagueness or because of inconsistencies with other evidence, and that it is not in the interests of justice to continue an investigation”.

That proposed new paragraph is equally problematic; only in the most clear-cut cases can the police produce evidence entirely without some area of weakness or vagueness. Difficult operational investigations are particularly prone to those problems, but the relationship with the prosecutor will allow them to be explored and the progression of the investigation adapted accordingly. Furthermore, inconsistency with other evidence is a factor in all investigations and is what the trial process is created to explore. For a judge advocate to be placed into such a process, rather than relying on the relationship between police and prosecutor, risks adding delay to the investigation, and for a judge to order the cessation of an investigation risks cutting it short where evidence has not yet been gathered due to the complex nature of operational inquiries.

Finally, proposed new subsection (3)(c) seeks to give the judge advocate the power to direct the timetable and extent of further investigation if it is determined that there is merit in the complaint. However, the clause does not specify whether the judge advocate would have continued oversight, or some ability to enforce the timetable and direction. Again, that would place an additional burden on police who, in an operational theatre, responding to operational events, would now have an added layer of bureaucracy placed on them by someone who is not deployed and cannot possibly understand the unique pressures experienced by the deployed police officer. That would remove the discretion that all police officers must have to carry out prompt, independent and effective investigations, and hamper their decision making. That is not the same as the police relationship with the prosecutor, and here I return to my point about discourse versus direction. Discourse allows the police to retain the discretion so vital to acting in response to events; direction fetters their decision making.

The proposed clause is based on the false premise that police carry out unmeritorious or vexatious investigations. It would undermine the relationship between the police and prosecutors and fetter the police in the conduct of investigations in difficult circumstances. It would place an additional and unnecessary cog in a system that does not need it.

New clause 7 fails to take account of the processes involved in investigations. It fails to make clear the difference between an investigation and a reinvestigation and it fails to understand the processes involved in gathering evidence. The proposed clause applies where a person has been acquitted of an offence relating to conduct on overseas operations. It is assumed that this envisages a situation in which a person is acquitted at court martial, but it should be noted that it could also apply to a matter that is heard at a summary hearing in front of a commanding officer, following on from an investigation that did not involve the police. It also applies where a determination has been made by a judge advocate that an investigation into an offence should cease, which, as I have already stated, risks prematurely cutting short an investigation whose progress is impacted by its being an operational investigation.

The new clause proposes that there be no further investigation into the alleged conduct unless compelling new evidence becomes available and an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong that there is a real possibility that it would support a conviction. I will take this step by step.

An investigation is a hard thing to define in law. It starts when inquiries begin, and its purpose is to determine whether what little information there is to start with is credible, and to gather more evidence in support of that. The process of finding out whether evidence is compelling is called an “investigation”. It is hard to see how, people having been told to cease an investigation, no further investigation—whether new or a continuation of the earlier investigation—can be commenced unless some form of compelling new evidence becomes available. The only way the police can determine whether the new evidence is compelling is by carrying out the investigation that they are not allowed to carry out. This becomes a circular issue.

Additionally, no further investigation into the alleged conduct may be carried out unless the allocated judge advocate determines that the totality of the evidence against an accused, which presumably has had to come from some sort of investigation that the police are not allowed to conduct, is sufficiently strong that there is a real possibility that it would support a conviction.

Not at this stage.

Where a person has been acquitted and new evidence comes to light, it would be necessary for there to be a further investigation before a prosecutor could determine whether a new prosecution could and should be brought. That is not a decision for the police; it is a decision for the prosecutor. To prevent the investigation would prevent a prosecutor from having the information that they need to make that determination.

Unfortunately, new clause 7 is not clear enough to allow a real debate on what it is seeking to achieve. The only way the police can determine whether new information is “compelling” or “sufficiently strong” to “support a conviction” is to carry out an investigation. A thorough investigation is important. As I said earlier, it can serve to exculpate, which is a good thing for the reputation of our armed forces, as well as to incriminate. The Bill should not, and does not, seek to fetter the police from carrying out investigations. It seeks to ensure that prosecutors are in a position to make prosecutorial decisions based on information that can be gleaned only through thorough investigations.

With the discourse between prosecutor and investigator, a balance must be struck between further investigation and the realistic prospect of conviction, and this includes the measures in the Bill that the prosecutor must take account of.

Not at this stage.

However, this does not need further clauses that seek to fetter that discourse. It needs the lightest touch, which is achieved through the balanced and established relationship between police and prosecutor.

Obviously, the Minister is probably more familiar with the Bill than I am. I just getting a little bit lost on his comments here. Is he saying that the only time that new evidence comes to light is through an investigation? That is just not the case. Sometimes evidence appears when there is not an ongoing investigation. Also, is he saying that, in that case, when new evidence comes to light, an investigation should not happen? For my benefit and perhaps that of other members of the Committee who are not as familiar with the Bill as he is, could he please explain where in the Bill there is a limit on reinvestigation at this moment?

I am happy to address the point about reinvestigation, because there are no circumstances in which anybody could arrive at the Ministry of Defence with an allegation of criminality or whatever it might be and we could not investigate it. There is a difference between investigations and where those investigations start impacting the lives of veterans, which is what the Bill seeks to deal with and which is why we have drawn the line where we have. We are not saying that new evidence comes only from investigation, but, as I have outlined, new clause 7 introduces an element of oversight that is simply not practicable to what we are trying to do. I have outlined that the 3,500 cases in Iraq and 1,000 in Afghanistan, and it is not practicable to do that and to ensure there is a speedy resolution, that evidence is preserved, that if people have done wrong we can prosecute them in a timely manner and so on. I am happy to have a further conversation with the hon. Lady about that later.

In summing up the clause stand part debate, the Government do not consider the armed forces to be above the law. Whenever they embark on operations overseas, our armed forces must abide by the criminal law of England and Wales, as well as international humanitarian law, including as set out in the Geneva convention. Our personnel serve with great dignity, courage and commitment. The vast majority undertake the difficult and often dangerous tasks we ask of them in accordance with domestic and international law. However, in the circumstances where our service personnel fall short of the high standards of personal behaviour and conduct that is required and expected of them, it is vital they are held to account. That is one of the reasons we are not proposing an amnesty or a statute of limitations for service personnel and veterans as part of the measures. Of course, 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. However, that is not always possible in the circumstances of overseas operations.

I fully appreciate what the Minister says about being bound by criminal law in England and Wales. However, having gone through the process himself, is he confident that when someone is recruited into the armed forces, they are fully aware of their legal obligations and that the training meets those needs?

I thank the hon. Gentleman for that pertinent question. Extensive efforts have gone down over the years to make sure our people understand the rules within which they should operate. There clearly have been challenges in some of the training regarding detentions and so on, as has been found out through various court cases. I have always talked, on Second Reading and even before the legislation came to the House, about how the it is one of a series of measures. One such measure is about investigatory standards, another is about education and how individuals’ lives are affected, because it is not in anybody’s interests for us to do the legislation and for people not to understand. I am more than happy to share with the hon. Gentleman how much work we have done in that space.

I will not. Repeat investigations of alleged historical offences or the emergence of new allegations of criminal offences relating to operations many years ago can make the delivery of timely justice extremely difficult. It can also leave our service personnel with the stress and mental strain of the threat of potential prosecution hanging over them for far too long. The measures in part 1 of the Bill are key to providing reassurance to our service personnel and veterans about the threat of repeated criminal investigations and potential prosecution for alleged offences occurring many years ago on overseas operations. The purpose and effect of clause 1 is to set the conditions for when the measures in clause 2 and 3 must be applied by a prosecutor in deciding whether to prosecute a criminal case or to continue with the proceedings in a case. It should be noted with reference to clause 1(2) that the measures do not affect the prosecutor’s decision as to whether there is sufficient evidence to justify prosecution. The first stage of the prosecutorial test will therefore remain unchanged. Clause 1 therefore details to whom and in what circumstances the measures will apply.

I am very grateful to the Minister for giving way. When we consider his summing up, critically with reference to new clause 7(2)(a), does he not recognise that some of the evidence given by Judge Becket in response to his hon Friend the Member for Wrexham creates an ambiguity in terms of our partners in military activity? For example, Judge Becket referred to the murder of six Royal Military Police in Iraq and noted that if new evidence was brought forward, and the Government of Iraq had the same legislation, there is every possibility that the people responsible would not be prosecuted.

I assume that the hon. Gentleman is talking about Judge Blackett, who is the Judge Advocate General. He made some keen points. I have met Judge Blackett and we have tried to incorporate his work in the Bill, where appropriate. The idea that new evidence is presented and we do not prosecute is simply not the case. With reference to the six individuals killed at Majar al-Kabir in 2003, if new evidence is presented in that case, we would expect the Iraqis to prosecute. If new evidence emerges in cases against servicemen and women, they can still be prosecuted beyond these timelines. The legislation is simply bringing integrity and rigour to the process.

No, I am going to make some progress.

Under the Bill, the first condition establishes that the measures will only apply to members of the armed forces, both regulars and reserves, and to members of British overseas territory forces operating as part of UK forces when deployed on operations outside the British Islands, as defined in clause 7. Although we do deploy other Crown servants and contractors on overseas operations, those individuals are not deployed on front-line military operations and are not ordinarily exposed to the same risks and dangers as service personnel. It is not therefore appropriate to extend the protection provided by the measures in part 1 for our service personnel and veterans to other Crown servants or contractors.

The first condition in the legislation also requires that the alleged conduct occurred while the person was deployed on an overseas operation during which personnel came under attack or faced the threat of attack or violent resistance. Operations conducted outside the UK are vastly different from those conducted inside the UK. Within the UK, the military only ever operate in support of the civil authorities. With the exception of Operation Banner, which was an absolutely unique circumstance, UK operations rarely, if ever, require our personnel to operate in the same sort of hostile, high-threat environments they face on overseas operations. Excluding Northern Ireland, there are no outstanding historical allegations relating to operations in the UK.

Be assured that we have not forgotten our Northern Ireland veterans. The Secretary of State for Northern Ireland will be bringing forward separate legislation to address the legacy of the past in a manner that focuses on reconciliation, delivers for victims and ends the cycle of re-investigations into the troubles in Northern Ireland, which has failed victims and veterans alike. That will deliver on our commitment to Northern Ireland veterans.

The second condition for the measures to apply is that the alleged offence must have occurred over five years ago, with the start date being the date of the offence. Where an alleged offence occurred over a period of days, the start date will be the last day of that period. It is vital that investigations into historical allegations are brought to resolution without undue delay. To provide greater assurance to our brave servicemen and women, we consider five years to be the most appropriate start point for the presumption.

Just before I collect the voices of Members as they vote, if the clause is voted for, it means that the first clause is agreed to and then becomes part of the Bill to report to the House. The other new clauses and amendments that were grouped with it will be voted on when they are reached. I hope that is clear.

Question put, That the clause stand part of the Bill.

Clause 1 ordered to stand part of the Bill.

It is not an important point—it is a difference without real meaning—but the normal procedure is not to abstain but to have no vote.

Clause 2

Presumption against prosecution

Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss new clause 1—Ability to conduct a fair trial

“The principle referred to in section 1(1) is that a relevant prosecutor making a decision to which that section applies may determine that proceedings should be brought against the person for the offence, or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”

This new clause replaces the presumption against prosecution with a requirement on a prosecutor deciding whether to bring or continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.

Both clause 2 and new clause 1 can be debated. We will not vote on new clause 1 until the end of the Bill when the new clauses are considered. At the end of this debate, I will collect voices for a vote on clause 2. The Minister has moved clause 2 formally. If there is any debate, he can respond. The new clauses will be moved formally when we get to them, but they can be debated now.

Clause 2 is quite an important part of the Bill. I am sorry that the Minister did not allow me to ask him about his investigation point, because it has an impact on this clause. He said that there is no similar system of judicial oversight for investigations, but I have to say that there is. For example, the police will often refer cases to the Crown Prosecution Service prior to the conclusion of an investigation for advice on whether more information is needed to meet the threshold for a prosecution. That is one of the points that I was going to make if he had allowed me to intervene. Whatever his civil servants have written to him, I suggest that they look at that comparison and what that would have done.

It is interesting that the Minister said that he met the Judge Advocate General and tried to incorporate things. I would like to know what in the Bill was changed after his meeting with Judge Blackett. I cannot see anything, but if the Minister wants to give us that, either now or later, that would be fine.

The presumption in clause 2 is for it to be exceptional for a prosecutor to determine that proceedings should be brought in relation to an offence committed by members of the armed forces when deployed on operations abroad. On that presumption against prosecution, I think we will have real problems, as we have referred to already, with regard to our international standing. I ask for your guidance, Mr Stringer: am I allowed to speak to new clause 1, even though it is not being moved?

New clause 1 is before us for debate. The Shadow Minister may or may not wish to press it when we get to the new clauses, but it is before us for debate now.

New clause 1 states:

“The principle referred to in section 1(1) is that a relevant prosecutor makes a decision to which that section applies may determine that proceedings should be brought against the person for the offence or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”

We have already discussed this, but if a material time difference were to prevent someone from getting a fair trial, I do not think that anyone would deem it fair to prosecute them for a crime. That has been an issue in civil law. For instance, certain historical sexual abuse cases have been very difficult to determine. There is a balance between the case for the prosecution to, quite rightly, get justice for the victim, and for the accused to receive a fair trial given the lapse in time. The new clause makes a fair suggestion.

In the case of Major Campbell, the circumstances were very difficult. The differences between service justice and civilian life include the unique circumstances in which individuals operate and, as I have said, the fact that they serve overseas, where evidence and witnesses must be gathered. We must ensure that the accused gets a fair trial. I want this Bill to make the process fairer and more just for accused individuals in those unique circumstances. I keep coming back to that point: the circumstances are unique and very different.

I support new clause 1. I accept that it might not be expertly drafted, but if the Minister is sympathetic towards it, I urge him to at least ask a civil servant to redraft it so that it can be brought back as a Government amendment, or to suggest another way in which the proposal can be brought into effect. Judging by his attitude, I doubt he will do that for any of the proposed amendments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He went on to say:

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

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

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

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

I will answer the point about the Judge Advocate General first. He is able to comment on all areas of policy that have a direct impact on his role within the service justice system and the management of the military court system, but the measures in part 1 of the Bill impact on the prosecutorial process. As such, we felt it was more important to focus on engagement with the independent prosecutors, the Crown Prosecution Service and the Service Prosecuting Authority, which were all engaged in the process.

As I have said already, I have met the JAG and have looked at his recommendations, and we continue to look at how we can take forward his suggestions in order to improve the process of service justice. More will come on that in due course.

The Minister has referred to who he consulted when drawing the Bill. Can he expand on their comments, and is it possible to produce them as evidence for the Committee?

We have already published a response to our consultation, which was widely available for everybody to see. We have also published a response that contains a lot of the conversations around this. As I have indicated, we have engaged with a number of different parties and have arrived at the decision that this was a fair and proportionate line to tread in order to achieve the effects that we are trying to achieve.

I am going to speak to new clause 1, and then I will happily give way.

Our intention with the measures that we have introduced in part 1 of the Bill was to ensure that we could provide the utmost reassurance to our service personnel and veterans in relation to the threat of repeated scrutiny and potential prosecution for alleged offences occurring many years ago on overseas operations. This has meant seeking to have a balance in introducing protective measures that would set a high threshold for a prosecutor to determine that a case should be prosecuted, as well as ensuring that the adverse impact of overseas operations would be given particular weight in favour of the service person or veteran, but which would not act as an amnesty or statute of limitations, would not fetter the prosecutor’s discretion in making a decision to prosecute, and would be compliant with international law. We have achieved that balance in the combination of clauses 2 and 3. We are providing the additional protection that our service personnel and veterans so greatly deserve, while ensuring that, in exceptional circumstances, individuals can still be prosecuted for alleged offences.

New clause 1 would effectively replace the presumption against prosecution with a requirement in clause 1 that the prosecutor should consider only whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial when coming to a decision on whether to prosecute. This not only removes the high threshold of the presumption, but seeks to replace it with a consideration—whether the passage of time would prejudice the chance of a fair trial—which is likely to already be considered by the prosecutor when applying the existing public interest test. We have never suggested that service personnel or veterans have been subject to unfair trials. We have sought instead to highlight not only the difficulties, but the adverse impacts on our personnel, of pursuing allegations of historical criminal offences. Justice delayed is often justice denied, for defendants and for victims. I believe that clauses 2 and 3 provide the appropriate balance between victims’ rights and access to justice, and the requirement to provide a fair and deserved level of protection for our service personnel and veterans. Removing the presumption in the way the new clause proposes would simply remove that balance.

I am sorry to interrupt the Minister’s flow, but clearly, ensuring that justice and fairness are done is crucial. We heard a number of comments from Judge Blackett on the process. I know the Minister has met Judge Blackett, but was that before or after the legislation was prepared?

I did not meet Judge Blackett before the legislation was prepared, for the reasons I have outlined. We thought it far more important to focus on engagement with the independent prosecutors, the Service Prosecuting Authority and the Crown Prosecution Service. Like I said, I have met him and heard what he has to say, and we heard his evidence last week.

Having subsequently met Judge Blackett and heard his evidence, did the Minister make any changes to the legislation as drafted, or does he propose to make any such changes?

No, because that would be to pre-empt the judge-led review of how we protect the Department, configure ourselves and develop the capability to deal with lawfare. Judge Blackett gave his view, but in our judgment it was better to engage the independent prosecutors, the Crown Prosecution Service and the Service Prosecuting Authority. That is what we have done—we engaged in a wide public consultation—and I believe that where we have arrived is fair and proportionate.

If the Bill were not legislation relating to the armed forces, it would have been given prior oversight by either the Attorney General for England and Wales, the Attorney General for Northern Ireland or, for Scotland, the Lord Advocate or the Advocate General. Will the Minister tell the Committee why the Judge Advocate General was excluded from that process for this legislation?

The Secretary of State wrote to the Judge Advocate General on 14 May 2020 acknowledging that, because of the 100-day election commitment to introduce the Bill, it was not possible for the legal protections team to complete the usual level of stakeholder engagement that we would usually seek to undertake post-public consultation.