Consideration of Lords amendments
I beg to move, That this House disagrees with Lords amendment 1.
With this it will be convenient to discuss the following:
Government amendments (a) to (o) in lieu.
Lords amendment 2, and Government motion to disagree.
Lords amendment 3, and Government consequential amendment (a).
Lords amendment 4, and Government motion to disagree.
Lords amendment 5, and Government motion to disagree.
Lords amendments 6 to 8.
Before moving to the main meat of my speech, I wish to formally put on record my thanks to my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer) for his fantastic work on veterans’ issues for many years and his work in getting the Bill to this point. I know that he will share my satisfaction that, with a following wind, it will make further progress today.
Importantly, although it is not in the scope of the debate, I would like to confirm to the House that a Bill will soon come forward from the Northern Ireland Office that will protect our Northern Ireland veterans of Operation Banner and address the legacy of the troubles. I know that this will be of sincere interest to many Members here today.
I thank the brand-new Minister for allowing me to intervene. That is very good news indeed, and I look forward to it. If that does not happen, we have second-class veteran soldiers, because those who have served abroad are first-class in the way they are treated, and those of us who served many times in Northern Ireland would be second-class.
I thank my right hon. and gallant Friend for that intervention. I acknowledge his significant service on operations in Northern Ireland, and I know that he will share my keen expectation that we will, through legislation, in due course, deliver the protection that our Op Banner veterans so richly deserve.
I congratulate the Minister on coming into his post and very much look forward to working with him, as I did with his predecessor. I wish him well. Obviously, we owe a great debt to those who have served in Northern Ireland, including the right hon. and gallant Member for Beckenham (Bob Stewart). I reiterate that we in the Democratic Unionist party and Unionist people as well want to put on record our thanks to all those who served and made a contribution. We very much look forward to that legislation coming through, which we feel is only correct and right for everyone.
I thank the hon. Member for that intervention and I agree entirely with him. Those who have served are the finest among us, and this Government are resolutely committed to delivering through legislation the protections that our veterans of the troubles of Northern Ireland deserve.
I turn to the Government amendments in lieu of Lords amendment 1. The Lords amendment adds a new subsection to clause 6 that has the effect of excluding genocide, crimes against humanity, war crimes and torture offences from the measures in part 1 of the Bill. In proposing the Government amendment to include genocide, crimes against humanity and torture in schedule 1, I repeat what has been said many times during the passage of the Bill: the decision to exclude only sexual offences from the measures in part 1 did not mean that the Government would not continue to take the international obligations in respect of other offences extremely seriously. I should like to reassure hon. Members once more on that point. The United Kingdom does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law. However, the Government have listened to the very real concerns expressed by many in both Houses. I would like to express my thanks to Lord Robertson of Port Ellen for his constructive and collegiate approach on this issue.
I congratulate the Minister on his appointment. I very much welcome the concession he has just announced, but why are the Government retaining the presumption against prosecution in the case of war crimes, because that leaves open the risk of UK troops in future being summoned to the International Criminal Court? Surely nobody wants that.
I am grateful to the right hon. Gentleman for that intervention. I think he will derive reassurance from the remarks that I am shortly about to make, so I ask him to bear with me.
These concerns are that, by not excluding other serious offences, the Bill risks damaging not only the UK’s reputation for upholding international humanitarian and human rights law, including the UN convention against torture, but the reputation of our armed forces. Although we can be absolutely reassured that our armed forces would never resort to acts of genocide or crimes against humanity, and that it would be extremely unlikely for individual members of the services to be charged with such offences, not explicitly excluding these offences from the Bill is clearly an omission that must be rectified, and I am therefore happy to propose that now.
In addition, in order to prevent any further perceived damage to the UK’s reputation in respect of our ongoing commitment to uphold the rule of law and our international obligations, particularly the UN convention against torture, the amendment would add torture offences to the list of excluded offences in schedule 1. The intent of the Bill as drafted is to ensure that the part 1 measures will apply to as wide a range of offences as possible in order to provide reassurance to our service personnel that the operational context will be taken into account in relation to allegations of criminal offences on historical overseas operations. Excluding further offences beyond those of genocide, crimes against humanity, torture and sexual offences would, however, undermine that reassurance by excluding a considerable list of offences from the application of the measures in part 1. We believe that we can take this approach safe in the knowledge that the prosecutor retains their discretion to make the appropriate decision about whether to prosecute a service person on a case-by-case basis, including in respect of other serious offences. The presumption, therefore, against prosecution is a high threshold; it is not a bar.
In proposing this amendment, which will see the exclusion of a greater number of offences from the measures in part 1, the Government believe that it is appropriate to also propose the removal of the delegated power in clause 6, which allows the Secretary of State to amend schedule 1.
May I also welcome my hon. Friend to the Front Bench? It is an overdue promotion.
May I bring him back to this question of war crimes? He will talk about the Henry VIII clause in a minute, but I want to bring him back to this question. Many of us who are emotionally very supportive of the Bill and, indeed, its successor in respect to Northern Ireland do not want to see, under any circumstances, British soldiers brought before the International Criminal Court. That would be a shame on them and a shame on our country. The International Criminal Court’s chief prosecutor has made it plain that, in the event that we hinder—and this would be a hindrance—the prosecution of war crimes, they would see it as appropriate for them to bring the prosecution. Much of this is a fantastic improvement, but that seems to me a fairly sizeable hole in the improvement.
I take my right hon. Friend’s point, but the point to bear in mind is that nothing in the Bill will hinder a prosecution of that sort. What we must bear in mind is that the prosecutor retains the absolute discretion to prosecute if there is a serious allegation. The prosecutor will take into account the severity of the crime, but removing any more categories from the Bill would unnecessarily weaken the reassurance to service personnel and veterans. We must remember that it is a high threshold and not a bar. I hope that he is reassured by my words.
I accept the sincerity with which the right hon. Gentleman makes his point. The bottom line is that, because the prosecutor will retain the agency to pursue a prosecution in the event of a grave allegation, that will provide for the required investigation. It will not make more likely the ICC pursuing a prosecution of a member of our armed forces. I hope that he takes reassurance from the fact that this is a high threshold, and not a bar, to prosecutions. If there is a case to answer, the prosecutor will make sure that it is answered.
I shall conclude my remarks in relation to Lords amendment 1 by saying that these proposed amendments go a very long way to addressing the concerns of the House of Lords in respect of relevant offences. I therefore urge that these amendments be accepted in lieu of their Lordships’ amendment 1.
I will move now to Lords amendment 2, which seeks to introduce artificial timelines for the progress of investigations, including what appears to be an arbitrary cut-off point at six months for referral to the Service Prosecuting Authority, and a power for the Judge Advocate General to make directions in respect of investigations. The Government do not support introducing any such legislative limitations on the investigative process, not least as they would bring the real risk that to do so could lead to a contravention of our domestic and international legal obligations. They would also bring inconsistency of approach as these limitations would not apply to service police investigations in the UK, or to those conducted by civilian police forces.
I am also strongly of the view that it would be premature to propose any changes to the investigative process while Sir Richard Henriques’s review of investigative processes in relation to overseas operations is still in progress. I will briefly set out the key reasons why the Government are resisting the Lords amendment.
The timescales in the amendment are operationally unrealistic. They do not take account of the nature of investigations on overseas operations and could put us in breach of our international obligations to investigate serious crimes effectively. Where the service police have reason to believe that an offence may have been committed, they have a legal duty to investigate it. Artificial timelines and restrictions placed on them in respect of the conduct of investigations would clearly prevent them from carrying out effective investigations and impinge on their statutory independence.
Subsection (2) includes a requirement for referral of investigations to the service prosecuting authority and sets an arbitrary timeline for that. However, a referral threshold—the evidence sufficiency test—already exists in the Armed Forces Act 2006. Furthermore, section 116 of that Act contains a statutory obligation on the service police to consult the service prosecuting authority before deciding not to refer certain serious cases.
I welcome the Minister to his position—it is a long overdue promotion and a vast improvement on what went before. He said that the Henriques investigation will make recommendations. In Committee, I tabled a series of amendments that would get to the heart of the matter. The real issue in the Bill is the length of investigations. I accept that it should not be arbitrary. In Committee, I proposed that investigations would have to be brought before a judge to ensure that at least there were grounds for them to continue. If the idea is to let the Bill go through now and make changes later, surely we should make them in this Bill rather than miss that opportunity.
I am grateful for the right hon. Gentleman’s intervention and note his long-standing interest in the Bill and the issues more broadly. We must have confidence in the Henriques review. I do not believe that there is a tension between a good outcome for the review and the necessity of passing the Bill in good order. However, if the right hon. Gentleman writes to me with those concerns, I would be pleased to write to Justice Henriques to suggest that he include them in the scope of his inquiry.
I am grateful for the Minister’s offer to do that, but the problem, which I will address later, with the Bill is that it is being done ad hoc. The Minister’s predecessor promised that investigation would be in the Armed Forces Bill. Lo and behold, it is not and has been kicked into the review. If we are really to address the issue of veterans being reinvestigated, the problem is the length of the investigations, not whether there should be prosecutions at the end. That is a judicial test. That is the mess that the Government have got into with the entire process.
I entirely agree with the point that the right hon. Member for North Durham (Mr Jones) just made. The issue starts with the investigative mechanisms inside the Ministry of Defence. My hon. Friend does not need to take it just from us; he should look at the comments of Justice Blackett, who, as a former JAG, was expert in the matter and understood it all too well.
I acknowledge the contributions of both right hon. Members. I agree that the length of investigations is the recurring problem, but I point out that since the early days of our military involvement in Iraq and Afghanistan, our ability to carry out rigorous and timely investigations has radically improved. That should be borne in mind when we consider the Bill.
Closing down or restricting the investigative timeline as subsection (3) of the Lords amendment would do raises the risk of contravening our legal obligations to investigate allegations of serious crimes effectively and presents the serious risk of the ICC determining that we are unwilling or unable to investigate alleged offences on overseas operations properly. An effective investigation is led by the evidence, on a case-by-case basis, not carried out under the shadow of arbitrary timescales.
Furthermore, and of equal concern, is that we could also fail to clear the names of our own forces or fail to provide much needed closure to the families of deceased personnel if investigations are curtailed in this way. Lords amendment 2 would introduce a novel role for the Service Prosecuting Authority and for the Judge Advocate General to make direction in relation to investigations. Neither of those new roles is necessary.
While we accept that there may have been shortcomings in some of the early investigations in Iraq, that is simply not the case now. All elements of the armed forces, including the service police, have come a long way since then. Lessons have been learned. Processes, policies, training and education have all been updated to reflect the experiences of those early days and matters that have arisen since. Lords amendment 2 is therefore not only unnecessary, but unworkable and would seriously risk the UK’s failing to meet its legal obligations. I therefore strongly urge the House to reject it.
Lords amendment 3 removes clause 12 and will mean that future Governments are not required by statute to consider whether to make a derogation under article 15 of the European convention on human rights in relation to significant overseas operations. The ability under article 15 to derogate in appropriate circumstances will remain, and the Government will still have the freedom, when committing the armed forces to significant operations, to derogate from the ECHR. That is why the Government have agreed to Lords amendment 3.
Lords amendment 4 carves out claims by service personnel and veterans from the limitation longstops in part 2 of the Bill. The urge to give special consideration to our service personnel who make great sacrifices to serve us is noble, but I believe that the amendment is unnecessary, not only for reasons that I will come on to, but because it would be discriminatory to single out service people in this way.
The limitations longstops in part 2 of the Bill have been introduced to help address the difficulties the MOD has faced in defending civil claims arising from historical overseas military operations, as the longstops provide greater legal certainty and greater certainty to service personnel and veterans that they will not be called upon many years after operations have ended to give evidence about potentially traumatic events relevant to a claim. That is at the heart of protecting our service personnel and veteran community against the legacy of lawfare as experienced following operations in Iraq and Afghanistan.
What is also important for service personnel is that these measures may also help reduce criminal investigations many years or decades after operations have ended. That is because in future, the longstops will likely encourage any civil claims to be brought sooner, and any associated criminal allegations are also therefore likely to be investigated sooner.
Lords amendment 4 concerns the fact that the limitation longstops in part 2 would apply to service personnel and veterans and civilians alike. However, I strongly believe that the impact on our service personnel and veterans would in practice have been minimal. The vast majority of service personnel and veterans already bring timely claims. Our analysis of the relevant figures indicates that around 94% of claims from service personnel and veterans arising from operations in Iraq and Afghanistan were brought within six years of the date of the incident or the date of knowledge. What that means is that any carving out of claims by service personnel from the longstops would have very little practical impact.
It is true that based on our analysis of historical claims, 6% of service personnel brought their claims after six years from the date of knowledge or incident. The Government clearly have a role to play in ensuring that potential claimants know about the measures we are introducing in the Bill. We will therefore make service personnel aware that a claim in connection with an overseas operation will have to be brought within the relevant time periods.
The Minister has said he does not want to discriminate against people, but with this measure he is discriminating against members of the armed forces. He refers to claims being brought against the MOD, but a lot of those cases are actually brought by members of the armed forces. He says that 6% will potentially be discriminated against, and we heard evidence about that in Committee.
I will give the Minister one practical example. The Snatch Land Rover case came before the courts way after the fact, because it came out in the Chilcot review. Families were able to take those cases forward outside of the limitation time. There is an idea that somehow people can get a case out of limitation times without very good arguments, but that is difficult. What this measure is doing is taking the rights that we all share as individuals under the Limitation Act 1980 and saying that they do not apply to people who have served in our armed forces. That is wrong.
I do not share the right hon. Gentleman’s analysis. We have to bear in mind the fact that 6% is a small number. However, it is still too high, and we will work to get it down to zero.
It is worth reminding ourselves that the limitation longstops will cover only a small subset of the personal injury claims brought by current and former service personnel against the Ministry of Defence—those connected with overseas operations. Additionally, personnel will continue to have access to the armed forces compensation scheme. Let me conclude by confirming that part 2 of the Bill will not breach the armed forces covenant, which states:
“Those who serve in the Armed Forces, whether Regular or Reserve, those who have served in the past, and their families, should face no disadvantage compared to other citizens in the provision of public and commercial services.”
The primary focus of the covenant is to help ensure that service personnel and veterans are not disadvantaged in comparison with civilians in the same position. Indeed, the longstops in part 2 will apply in the same way to all claimants bringing claims connected with overseas operations against the MOD, whether they are military personnel, civil servants, contractors or local nationals. Everyone, military or civilian, who is deployed on an overseas operation is treated equally in that respect. I therefore urge the House to reject the amendment.
Lords amendment 5 would require the Secretary of State to establish a duty of care standard for current and former service personnel and, where appropriate, their families, and would require the Secretary of State to provide an update in the armed forces covenant annual report. I would like to begin by saying that we take our responsibilities to our service personnel and veterans extremely seriously. On Tuesday 13 April, the Secretary of State published a written ministerial statement setting out as a matter of record the support that is, and will continue to be, available. First, that makes clear that service personnel are entitled to receive legal support where they face criminal allegations or civil claims that relate to actions taken during their service and where they were performing their duties. Legal advice and support are also available whenever people are required to give evidence at inquests and inquiries, and in litigation.
Secondly, a range of welfare support and mental health support is routinely offered to all service personnel. The potential impact of operations on a serviceperson’s mental health is well recognised, and there are provisions in place to help manage and mitigate those impacts as far as possible. Additionally, the Office for Veterans’ Affairs works closely with the MOD and Departments across Government, the devolved Administrations, charities and academia to ensure that veterans’ needs are met.
Significant progress has been made to ensure that our service personnel and veterans have access to a comprehensive package of legal, pastoral and mental health support, so we believe that it is unnecessary to establish a statutory duty of care. Not only is Lords amendment 5 unnecessary but it could result in unintended consequences, and would be likely to lead to an increase in litigation, which would mean more of our people being subject to potentially lengthy and stressful court proceedings, which is profoundly undesirable and contrary to the Bill’s objectives. Notions of moral and pastoral duties are extremely difficult to define adequately, and there is a real risk that attempting to do so in legislation would lead to more, rather than less, litigation and greater uncertainty. We are concerned that as allegations may occur in operational theatres involving commanding officers, the Royal Military Police and service personnel, the amendment might have unintended consequences that would undermine our operational effectiveness. The Government are clear about their responsibilities to provide the right support to our personnel, both serving and veterans, and to seek to improve and build on that wherever necessary. I do not believe that setting a standard duty of care in the Bill is necessary, so the Government cannot support Lords amendment 5.
Lords amendments 6 to 8 are minor and technical, and are simply drafting improvements. All in all, I urge the House to accept the Government amendments in lieu of Lords amendment 1, and to reject Lords amendments 2, 4 and 5 so that we can fulfil our solemn obligations for greater legal protection for our service personnel and our veteran community.
I congratulate and warmly welcome the Minister for Defence People and Veterans to this, his first—and, I am sure, not the last—Front-Bench role. It is at this point that, as the departmental Whip, he might have wished he had paid more attention to the content of the debates on the Bill than to winning the votes, but he brings a wealth of expertise to his post from six years in the Scots Guards and from serving as the Member of Parliament for Aldershot, and I think the House has already heard this afternoon that he will make a very good fist of his new role. We wish him well.
We will miss the hon. Member for Plymouth, Moor View (Johnny Mercer) in a mixed sort of way. He has been a roadblock to reason during the passage of the Bill through Parliament, but no one can fault his passion or his sense of mission. His letter of resignation last night to the Prime Minister lays bare the failings of the Government, not just across the breadth of veterans’ concerns, but in the very character of the Prime Minister and his Government. In it, the hon. Gentleman said:
“we continue to say all the right things”
“fail to match that with what we deliver”.
I am glad to have heard the new Minister say today that the Government promise legislation on Northern Ireland shortly. We will look hard at that, but when it comes to dealing with the legacy of the past in Northern Ireland, we remain committed to the only way forward, which must be based on the Good Friday agreement, and in particular on the broad consensus reached at Stormont House with victims at its heart.
The Minister was probably responsible for this as the Whip, but I am delighted to say that, unlike the previous stages of the Bill in this House, we have plenty of time this afternoon to deal with the Lords amendments. I pay tribute to the peers who led on each of the four amendments before us: Lord Robertson of Port Ellen on Lords amendment 1; Lord Dannatt on Lords amendment 5; Lord Thomas of Gresford on Lords amendment 2; and Lord Faulkner and Lord Tunnicliffe on Lords amendment 4. Each of the amendments had strong Crossbench backing, each had the most senior military members of the Lords signed up and each was passed with a big majority in the other place. I say to Government Members that not a single Conservative peer spoke in favour of the Government or against these four amendments during the last stage in the House of Lords. I hope that gives them pause for thought about just how isolated their Ministers are on these amendments and how they have failed to convince an ever-widening group of distinguished individuals, experts and specialist groups about the Bill.
I believe that if the right hon. Gentleman consults Lords Hansard, he will see that Lord Mackay was speaking to another amendment. I am talking about the four main amendments that are before us today.
I know there has been a long-running problem. The Labour party accepts and recognises the problem of baseless allegations and legal claims arising from Iraq and Afghanistan under both Labour and Conservative Governments. But the Bill, unamended, is not the solution, even though we have worked hard from the outset to forge consensus on the changes needed to make the Bill into legislation that best serves the interests of British troops, British justice and British military standing in the world. I take a perhaps old-fashioned view that it is our duty in this House and the other place to make this legislation fit for purpose, and ensure that it is a new legal framework for this country when we have in future to commit our servicemen and women to conflict overseas.
I thank and pay tribute to the work of the organisations that have been most active in helping parliamentarians in both Houses during the passage of this Bill with their expertise and views. Those organisations include Freedom from Torture, Reprieve, the Royal British Legion, the Centre for Military Justice and the Association of Personal Injury Lawyers. I also pay tribute to Members on both sides of this House, particularly the 15 who served with our Front-Bench colleagues on the Public Bill Committee and who have contributed so fully to the debates that we have had so far.
Let me turn to the Lords amendments on which I will concentrate. The reason that no Tory peers spoke in support of the Government on these amendments is because the Bill just does not do what it says on the tin—that is, protect British forces personnel serving overseas from vexatious legal claims and from repeat investigations.
I turn to Lords amendment 2. More than 99% of the 4,000-plus allegations against our troops arising from Iraq and Afghanistan would not have been affected at all by this Bill, because it relates only to the prosecution’s process and the prosecutorial system. That is why Lord Boyce, former Chief of the Defence Staff, said:
“The Bill’s significant emphasis on presumption against prosecution as a way of relieving some of the stress of legal proceedings”
is misplaced, and that,
“it is the investigation and reinvestigation process that…so…wears people down.”—[Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1170.]
I turn to Lords amendment 4. Part 2 of the Bill strips forces and forces’ families of their current rights to civil justice and compensation if they suffer injury or even death as a result of MOD negligence. That is why Lord Stirrup, also a former Chief of the Defence Staff, said:
“It seems strange to me that a Bill with the avowed purpose of providing government reassurance to service personnel seems intent on preventing those very personnel from seeking redress from that same Government.”—[Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1222.]
I turn to Lords amendment 1. The presumption against prosecution after five years increases the risk of British service personnel being dragged before the International Criminal Court. That is why the former Judge Advocate General—the military’s most senior legal figure—said in evidence to the Bill Committee itself:
“What it actually does is increase the risk of service personnel appearing before the International Criminal Court.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 117-18, Q234.]
Of course, the ICC’s chief prosecutor has indeed written to the Defence Secretary while the Bill has been in Parliament
“to ensure that the exemption clause extends to all crimes within the jurisdiction of the Court”.
Otherwise it would “render such cases admissible” before the International Criminal Court.
I turn to Lords amendment 3. I am pleased that the Government have accepted the case for removing clause 12, which would have required Ministers to consider derogating from the European convention on human rights before committing British troops to overseas conflicts. We challenged this with a Labour amendment at the very earliest stage of the Bill’s passage through the Commons. The decision to drop the clause reasserts the UK’s commitment to an important treaty that Britain played a leading role in drafting. It is important too in allowing an avenue of justice for both British forces personnel and for victims.
Let me turn to the core of the debate and concern in the House of Lords, which is Lords amendment 1 and the Government’s counter-proposals before the House this afternoon. The Secretary of State’s decision to accept parts of Lord Robertson’s amendment to exclude torture, genocide and war crimes from the presumptions is welcome, and it is testament to the efforts of Lord Robertson, many other groups and, indeed, Members of this House. I pay particular tribute to the right hon. Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Barnsley Central (Dan Jarvis), who together have banged the drum about the importance of torture not being carved out from provisions in the future.
The acts that Lord Robertson and so many Members of the upper House were concerned about are illegal and immoral. Under all circumstances, they must be investigated and, if there are grounds for the allegations, there must be prosecutions and punishment. The Minister talked about rectifying an omission with the Government’s amendments in lieu of Lords amendment 1. However, the Government are still picking and choosing some of the crimes that are covered by the Geneva conventions. Today they have picked out torture and genocide, but they are excluding the more general case of war crimes.
Torture and genocide should never have been included as offences within this Bill. Like sexual offences, there is no justification—there can never be justification—for them, so the decision now to exclude them is certainly a good step forward, and we welcome it and will support the Government’s amendments in lieu of Lords amendment 1. But can I urge the Minister, in the time between the consideration of these Lords amendments in this House and their being discussed again in the other place, to accept in full those crimes specified in Lord Robertson’s amendment 1, including war crimes, as excluded offences?
Clearly those are the arguments we made in Committee, asking why sexual offences were excluded but these very serious crimes were not. If the Government have given way on two, I have not yet heard an explanation from the Minister as to why war crimes are not going to be excluded. It is not only right that they should be excluded but, in terms of the UK’s international reputation, it would save a lot of embarrassment. I want to avoid, and I think everyone wants to avoid, members of our armed forces ending up in the International Criminal Court.
Indeed, my right hon. Friend makes an important point. I have touched already on the risk that this will undermine Britain’s international reputation for fully upholding and adhering to many of the international rules and laws that we were instrumental in drafting and creating after the second world war. The Minister describes torture and genocide as omissions from the provisions of the Bill, and he rectifies that with his proposed amendments in lieu of Lords amendment 1, but it is not clear, as my right hon. Friend says, why other crimes covered by the Geneva conventions, particularly war crimes, are still omitted, because exactly the same arguments apply to those as to the ones the Government have rightly conceded on and reflected in their amendments in lieu.
Let me spell it out for the Minister. Article 8 of the Rome statute says that war crimes are:
“Grave breaches of the Geneva Conventions”.
This dates back to 1949, just after the second world war. These grave breaches include:
“Wilful killing… Wilfully causing great suffering, or serious injury… Compelling a prisoner of war or other…to serve in the forces of a hostile Power”.
That is important because, as both the Judge Advocate General and the chief prosecutor of the International Criminal Court, and Members on both sides of the House this afternoon, have made clear, not excluding these offences makes it more likely that British soldiers risk being prosecuted and pursued in the ICC.
As my right hon. Friend rightly said, it is also about our adherence to and respect for international law. If we ourselves meet the highest standard of legal military conduct, we can hold other countries to account when their forces fall short. If we do otherwise, it compromises our country’s proud reputation for upholding the rules-based international order that Britain itself has helped to construct since the days of Churchill and Attlee.
I ask the Minister and his colleagues in the MOD, when the Bill returns to the other place, to include war crimes as excluded offences, along with the other exclusions that he lists in his amendments in lieu of Lords amendment 1.
I think the right hon. Gentleman thought I was trying to trick him when I said that Lord Mackay had voted for Lords amendment 1. The point I was making is that Lord Mackay is a previous Law Officer—a very senior Law Officer in a Tory Government —and he voted for George Robertson’s amendment, reinforcing its force, not undermining it.
I am so grateful that I gave way again to the right hon. Gentleman. He rightly believed that I thought his challenge was intended to trick me. I thought he was arguing—this was not my recollection, but I was not entirely certain because I do not have the Hansard record in front of me—that Lord Mackay had not spoken out against the Government’s position and had not supported Lord Robertson’s amendment. My main point—this gives me an opportunity to repeat it—is that no Conservative peer spoke up for the Government and against the amendments we are discussing this afternoon.
I hope that gives not just Government Back Benchers but those on the Front Bench pause for thought about just how isolated the Government are on these issues and how, during the passage of the Bill, they have failed—this is certainly not the responsibility of the Minister—to convince a wide range of experts and specialist groups, and the forces themselves, particularly those with service experience, that they are doing the right thing in this Bill.
Lord Mackay is a very old gentleman, and I am a historian—of adequate standard only. Surely, the conduct of the British troops in the second world war—the trusted Tommies—gave us the moral authority that we used at the Nuremberg war trials, something that Lord Mackay will remember himself.
This debate gets richer with every intervention I take, which probably suggests that I should stop talking and allow others to contribute. If the hon. Gentleman feels he is only an adequate historian, I am an inadequate historian. I did not know that. It has helped the strength of the argument that I am trying to make, as well as the information that the House has this afternoon.
I thank my friend the shadow Secretary of State for giving way. I have been tussling in my mind with why a war crime is different from torture, crimes against humanity or genocide, but I have come to understand—probably because I am a bit silly or stupid—what a war crime is. An example of a war crime is getting a whole load of the enemy when they have surrendered, putting them up against a wall and shooting them. That is a war crime, and I think it is quite a good thing that we should be against that.
The right hon. and gallant Gentleman has experience of conflict. I do not know whether a legal mind, which mine certainly is not, would regard that as wilful killing, but as such, it is probably an act that is beyond the categories of specific crimes cited in the Government’s amendment that excludes them from the provisions of the Bill. That underlines the case I am making, for which I am grateful to the right hon. Gentleman, that that category of Geneva convention-defined crimes, including war crimes, really must be excluded from the presumption in this Bill; otherwise, we face the risks that we are discussing this afternoon of exposing our forces to potential action from the International Criminal Court, which none of us wants to see, and of dragging down the reputation of this country for upholding in full and fully adhering to the international rules and standards of military legal conduct.
I turn to Lords amendment 2, on investigations. I said earlier that the Bill does not yet do what it says on the tin. We were told that this Bill would bring an end to the harassment of forces personnel through repeated legal claims, but because it deals only with prosecutions and not with investigations, it will not do that. Only 27 prosecutions arising from Iraq and Afghanistan have been registered, yet 3,400 allegations were considered by the Iraq Historic Allegations Team and 670 from Operation Northmoor. Therefore, less than 1% of allegations were prosecuted. The problem here is investigations: the serious, consistent problems that lie in a system of investigation that has proved to be lacking in speed, soundness, openness and a duty of care to alleged victims or the troops involved. Those are all problems well before the point of decision about prosecution, which is the point at which the provisions of this Bill kick in.
The Minister describes the proposals in Lords amendment 2 as somehow premature and cites Henriques. I am aware, of course, that the Government have set up a review on this, but there have been three reviews already and he might want to ask his officials to dig them out for him. There have been three reviews in the past five years, with at least 80 recommendations on investigations that the Government could act on now. The Minister and his predecessor promised us that investigations reform would be a matter for the Armed Forces Bill, as my right hon. Friend the Member for North Durham (Mr Jones) has said, yet when that Bill was brought before the House nothing was included.
I have sympathy with the Lords amendment on investigations, but I think that the new clauses 6, 7 and 8 that I tabled in Committee would have been far better. My new clause 8—I think it was that one—sought to put a time limit on minor investigations; they could go before a judge and be dismissed, and that would reduce the numbers. The other thing is the need to have judicial oversight of the investigations. That is not saying that we do not investigate things; it is about having rigour in ensuring that investigations are being done in a timely way, and can carry on if more evidence needs collecting, and that, likewise, reinvestigations can be opened only where a judge determines that new and compounding evidence is brought forward. That is the gaping hole still in this Bill even if we agree to the Lords amendment, which I have sympathy with. Without that, my right hon. Friend is right: this Bill does not pass the Ronseal test, because it does not do what it says on the tin.
My right hon. Friend is right to say that there is a gaping hole. This is the gaping hole in this Bill, and it could be fixed. It could be fixed in the way that was proposed and passed to us by the Lords in their amendment 2. I guess the Minister might want to ask his officials to dig out my right hon. Friend’s new clauses 6, 7 and 8 from Committee, because, having served in this House for a long time with him, I can bet strongly that those new clauses will resurface in debate on the Armed Forces Bill, because once he gets his teeth into something, he is reluctant to let it go.
My right hon. Friend is correct, but the problem is that the previous Minister promised that investigations would be part of the Armed Forces Bill and, lo and behold, they were not there. The Government have therefore had two chances to put this right and clearly have still not done it.
Indeed. Madam Deputy Speaker, I am not going to get tempted on to the Armed Forces Bill any further in case you call me to order. Let me address my remarks to this Bill and these Lords amendments, particularly Lords amendment 2.
I have to say to the Minister that I am pleased that the Secretary of State has now taken a personal interest in this Bill, because that is helpful all round and I hope it will ensure that we can see it go smoothly on to the statute book. Lords amendment 2 proposes a tried and tested mechanism to improve investigations. It is not arbitrary, as the Minister told the House earlier. It is not a time limit; it ensures timely, not time-limited investigations. It is not unrealistic, because it has been tried and tested in civilian law. This is one of the reasons why the former Judge Advocate General is so keen on it. I am conscious that the Secretary of State believes that the proposals in Lords amendment 2 are somehow novel or that they may prejudice independent investigations. So I say to the Minister, and I have communicated this today to the Secretary of State, that they are not novel and they will not prejudice the independence of investigations, for the following reasons.
In civilian law, which is the model and the principle that we take here, there is in section 127 of the Magistrates’ Courts Act 1980 a six-month time limit on investigations for certain offences. It establishes the target, if we like, not a hard limit, and focuses the mind of the investigators. That is the principle that Lords amendment 2 seeks to establish.
On prejudicing independent investigations, the principle of judicial oversight of investigations has already been established, not just in civilian law but in military practice. I quote the former Judge Advocate General, who said in evidence to the Public Bill Committee:
“I introduced something called ‘Better Case Management in the Court Martial’, towards the end of my time as the Judge Advocate General. That puts time limits on investigations. The most important thing about it is that a case, early on, goes before a judge, and a judge then sets out a timetable of what various things should do.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 116, Q231.]
In other words, it is not novel and does not prejudice the independence of investigations. It is a principle that is already established in the military system and established in statute in the civilian system. I hope the Minister will therefore accept the intent of Lords amendment 2, and that it is workable, is certainly in scope, is implementable and gives us the opportunity to fix really long-standing problems. I hope that he and the Government will start to see our proposals in this area as being additional to the current content of the Bill, not a direct challenge to it.
Let me move on to Lords amendment 4 and part 2 of the Bill. I cannot for the life of me I understand why the Government are asking their Back-Bench Members to support something that will strip away the existing rights of forces personnel and their families. It seems to me to be simply wrong for those who put their life on the line serving Britain overseas to have less access to compensation and justice than the UK civilians whom they defend or, indeed, their comrades whose service is largely UK-based.
Lords amendment 4 to part 2 of the Bill was designed to ensure that claims by troops or former service personnel are not blocked in all circumstances after six years, as they would otherwise be under the Bill. There are already safeguards in the Limitation Act 1980—at not just six years but three years—but this Bill now penalises a group of people by applying to them a unique deviation from that Act. It clearly constitutes a disadvantage for those armed forces personnel, their families and the veterans affected, and it directly breaches the armed forces covenant, as the director general of the Royal British Legion confirmed himself in evidence to the Public Bill Committee. Frankly, it really does beggar belief that Ministers are looking to strip from forces personnel and their families their right to justice—to penalise them instead of protecting them.
Let me put this into perspective, because I have sometimes heard Ministers dismiss this issue as affecting such a marginal, small group of people that it does not matter. Some of the cases that have eventually secured justice are deeply moving, deeply troubling and would have been blocked by this Bill. Numbers matter, but they are not the only criteria. Nevertheless, in the most recent financial year, the number of claims by forces personnel against the MOD for injuries was 2,796—up 70% on five years previously. Almost nine in 10 of those claims were for noise-induced hearing loss.
In speaking of hearing loss in evidence to the Public Bill Committee, the specialist forces solicitor Hilary Meredith said—and this points to the problem with the hard block after six years:
“In latent disease cases…it is not just about the diagnosis. Many people are diagnosed at death. It is about the connection to service. That connection to service may come much later down the line, and by that time they will be out of time to bring a claim.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 18, Q30.]
It is plain wrong, and I hope that the Government will, at this late stage, reconsider giving those who put their lives on the line for Britain overseas less access to compensation than the UK civilians they defend. Since 2007, there have been at least 195 cases of troops that would have been caught by the Bill and prevented from pursuing a successful claim.
Does my right hon. Friend agree that the only people who will benefit from this Bill are the lawyers? I cannot for the life of me think why a Government would want to put into statute something that will discriminate against former members of our armed forces. This will clearly be a test case in litigation, and I cannot see what justification the Government will use when that litigation goes ahead for why they have scooped out a certain section of our society away from the Limitation Act, as he outlined. It would be better if they gave up now, rather than spend a lot of time later on—which they will—when this gets tested in the courts.
My right hon. Friend says that he cannot see why the Government are pursuing this, but the director general of the Royal British Legion could. When he spoke to the Public Bill Committee, he said:
“I think it is protecting the MOD, rather than the service personnel”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q163.]
He is right. When my hon. Friend the Member for Portsmouth South (Stephen Morgan) pressed him and asked whether it would breach the armed forces covenant in his view, he said:
“That is what we think, yes.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 84, Q155.]
I turn to the last of the four main amendments at hand today, Lords amendment 5, which was moved in the other place by Lord Dannatt and is on the duty of care. One of the things that struck me most when talking to troops and their families who have been through the trauma of these long-running investigations is that they felt cut adrift—cut adrift from their chain of command and from the Ministry of Defence. The Public Bill Committee heard really clearly from Major Campbell. He gave dramatic evidence, and I am sure that the Minister has followed this; in fact, he was on the Committee, so he will have been there. When Major Campbell was asked what support the MOD gave him, he simply replied: “there was none.”
Of course, for veterans, it is even worse. For them, there is nothing—not even the chain of command—there for them. Although some of the previous decisions that the Government have taken—for instance, to cover the legal costs of those involved in the Iraq Historic Allegations Team investigations—were welcome, there should be and there can be a higher standard to reach for us in this regard.
When Lord Dannatt moved this amendment successfully in the Lords, he said:
“Defence priorities change; the fortunes of military charities fluctuate; Ministers come and go; but the law does not change. Amendment 14 would bring into law the good ideas and intentions of well-meaning Ministers and officials with whom we are currently united in common cause but who are strangely reluctant to enshrine the fruits of their endeavours in a Bill which will become an Act of Parliament and thus part of our law—a law to protect our people for all time from vexatious investigations and prosecutions.”—[Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1244.]
The former Veterans Minister wrote in his resignation letter last night:
“I remain genuinely appalled by the experiences of some of the Nation's finest people who have served in the Armed Forces.”
I say to the Minister, we can do better than this duty of care, particularly when the MOD has forces personnel and veterans subject to investigation or prosecution. I hope he will now accept this, so that we can establish a new duty of care standard and that legal, pastoral and mental health support is made available as a matter of course and a matter of duty by the MOD for those who are put under pressure and under investigation or prosecution.
I am coming to my conclusion, Madam Deputy Speaker. We are now legislating for the future. The Bill is not a framework that is fit for that future point when we must again commit our forces to conflict overseas. The Government are still getting important parts of the Bill badly wrong. I continue to believe strongly that, ultimately, the Government, Labour and the armed forces all want the same thing: we want to protect British troops and we want to protect British values. That is not, and should not be, a matter of party politics.
I end today as I ended our debates on Report back in November by saying this: it is late, but it is still not too late for Ministers to think again about the best way both to protect service personnel from vexatious litigation and to ensure that those who do commit serious crimes on operations abroad are properly prosecuted and punished. I urge the Minister and the Government to do just that in the very final stages of this Bill in Parliament.
May I declare an interest as a trustee of a regimental association? Let me reinforce my congratulations to the Minister at the Dispatch Box. I, too, in my time, have gone from the omertà of the Whips Office to the garrulousness of the Dispatch Box. It is not an easy transition, and he has carried it off with aplomb and class, and I look forward to a great future for him. What he has not been able to do for himself is manufacture time between his appointment and the consideration of these matters.
I will speak solely to Lords amendment 1—Lord Robertson’s amendment. I will broadly support the Government today with some caveats that the Minister will hear in a minute, but on the other amendments—in fact on all the amendments—I recommend right here and now to the Lords that, when we send them back, they send them back modified to take on board some of the intelligent comments that we have heard from across the House. The Minister then should look very hard at accepting them, because, next time around, I would be inclined to support the Lords amendments, as they have been very considerate in the way that they have presented them.
I also know from my experience as a Minister quite how difficult it is to undertake a 180 degree turn on a massively central point in a Bill. I commend the Government for doing almost exactly that on Lords amendment 1, because it reflects very closely what I and the hon. Member for Barnsley East (Stephanie Peacock) put forward on Report. However, it is an almost 180 degree turn, but it is one that was plainly needed. As the right hon. Member for Wentworth and Dearne (John Healey) has said, it was supported by the most august panel of people in the Lords that one could possibly pick for a subject such as this: six Chiefs of the Defence staff—people who do not willingly vote against the Government of the day; an ex-Secretary-General of NATO; a former head of MI5; two former independent reviewers of terrorism legislation; a former National Security Adviser; and several other senior military figures.
The bishops often vote against the Government. This is something where the military securitat—as it were—do not vote against the Government. They are people whose patriotism is unquestionable and whose knowledge is unparalleled in this area, so the Minister should pay great attention to them and take notice.
The aim of the Bill, as we have heard several times, is to shield our military personnel from being pursued by vexatious claims—I was going to say something rude about lawyers. It is a proper and worthwhile ambition and one that we should fully support. The Government have rightly made it clear—and this is the point on which I support them—that torture and genocide can never be acceptable and have excluded them from a five-year presumption against prosecution.
However, even with these concessions, there remains a fundamental problem. The Government have failed to exclude war crimes from the list of offences, as has been made clear by the Opposition spokesman. I asked the Minister whether he would clarify for me how he distinguishes between war crimes, torture, and genocide as subjects properly excluded from the Bill. Although he made a very skilful response he could not do it and I do not think anybody could do it. As my right hon. and gallant Friend the Member for Beckenham (Bob Stewart) made plain, war crimes include wilful killing: in the case he raised, the wilful killing of prisoners; the wilful killing of innocent civilians; and wilfully putting people through miserable pain or suffering. All those things are, quite properly, war crimes. They are, quite properly, things we would be held to account for by the rest of the world, let alone our soldiers being held to account by our courts and our judicial procedure.
I firmly believe that we cannot protect our own soldiers without correcting that exclusion. That is not just my opinion; it is the opinion of many of our experienced military leaders. Take Lord Robertson, the former Labour Minister—he was both Defence Secretary and NATO Secretary-General—who authored the amendment. He argued that the Bill would create
“a two-tier justice system in which troops acting for us abroad would be treated differently from other civilians in society.”—[Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1190.]
That cannot be right and that cannot be just. Indeed, it is not what our troops stand up for. It is not what they fight for. When they go abroad to fight, they do so because they stand up for our civilised values, and this is one of them. There is a certain quirk to that.
The Bill must give confidence to military personnel, complainants and other countries that the United Kingdom remains a stalwart upholder of the rule of law. There can be no greater test of our national character and no more important measure of our moral fibre than maintaining the highest of standards in this most difficult of tasks. We must get this right. If we get it wrong, we will be in the shameful position—this was made clear several times by the Labour party spokesman, the right hon. Member for Wentworth and Dearne—of putting our troops at risk of being summoned before the International Criminal Court. The chief prosecutor of that court wrote to the Secretary of State for Defence. When I saw the account of that, I wrote to the chief prosecutor and received a clarification. War crimes are plainly in the court’s sights. If somebody is alleged to have been guilty of a war crime and we exercise the presumption against prosecution as stated in the Bill, they will end up in front of the ICC. That is quite clear to me. That is not a risk, but a certainty.
In Committee, we spoke at lot about the famous case of Marine A. Under this measure, that individual would not have been prosecuted after five years, but it is clear that he would have ended up in the International Criminal Court for what he did. He would not have been given the hearing he had in this country, not just in terms of the fairness of our judicial system but also on appeal, taking into account the specific nature of the reasons why that incident occurred. To me, it would be absolutely awful if such individuals were found before an international court, rather than a court in this country.
Yes, murdered is the right word.
What would that lead to? It would lead to members of the British military being arraigned before a court that is traditionally used for arraigning tyrants and people we would view as monsters. What would that say about our nation’s moral compass? I shudder to think how people would use it. Of course, those who would use that impugning of our position would be our opponents, who themselves have no moral compass. They would be the first to use it against us. It would embolden our adversaries and be a bad day for Britain.
I say this to the Minister: I will support the Government today, even though I am unhappy with that exclusion, because they have made a major concession in areas on which I and the hon. Member for Barnsley Central (Dan Jarvis) pressed them. However, I will also say to the Minister that if the Lords send it back again and insist on the exclusion of war crimes, I will vote for it next time and I will encourage my many colleagues who are concerned about the Bill to vote that way, too. The Minister cannot invent time, but it will give him time to look at all the amendments and think through carefully what is really in the interests of our soldiers and our country. On that basis, I support it.
I congratulate the Minister for Defence People and Veterans. Many Members across the House are not only pleased by his elevation to the Front Bench, but relieved to see him there. I wish him all the best in his new role.
A major frustration for those of us involved in earlier stages of the Bill and in Committee was the refusal of the former Minister to consider even the most reasonable and uncontroversial amendments. That meant that the Bill sent to the Lords was fundamentally flawed. What we have back is a slight improvement on a flawed Bill, rather than what we were looking for, which was a competent piece of legislation. The Bill was sold as legislation that would tackle vexatious claims, but throughout its passage the evidence we received, both written and in Committee, pointed to the problems arising from flawed investigations. Nothing in the Bill will improve service justice, and much of it will damage the UK’s international reputation.
We rightly expect our personnel to conduct themselves with the highest professional standards, and the vast majority do. Let me take this opportunity to thank them for their service in what is often a challenging and dangerous environment. We must have robust systems for investigation that are understood, and in which personnel, Members of the House, our allies worldwide, and members of the public have confidence. That is the importance of this issue. We must be able to stand by the Bill and say, “This will do what it says on the tin.” I do not think we are convinced of that yet.
We welcome Lords amendment 1 from Lord Robertson, but although the Government’s proposed amendment in place of that removes the presumption against prosecution for torture, crimes against humanity and genocide, as many have already said—I think we will hear more about this—it retains the presumption against prosecution for war crimes. The right hon. Member for Beckenham (Bob Stewart) has already given us a graphic illustration of what that means and why war crimes must be included. The Minister has tried to explain this issue, and I commend his efforts to explain that the prosecutor will retain agency, but we should not be leaving it to the prosecutor. We should be getting this right in the Bill, and ensuring it is correct at this stage.
There is no justification for protecting those accused of war crimes. The problem is what such a measure does for our international reputation, and we should not have to stand up in this place to point that out—it is blindingly obvious. War crimes also come under the jurisdiction of the International Criminal Court, so despite the efforts of Lord Robertson, the revised Government amendment still leaves troops at risk of being hauled in front of the ICC. That is one of the big problems with the Bill.
The Government’s amendment is an improvement on their original position, but it is far from satisfactory. I hope the Minister will take that point away and consider it. When the Bill returns to the Lords, I hope they will throw it back at us again. We have to get this right, and the Bill just needs the inclusion of that provision for it to be strengthened significantly.
Moving on to Lords amendment 2 from Lord Thomas, while we support the amendment, this brings us back to the manner in which investigations are conducted. The Bill was an opportunity to overhaul the system that is in place for investigations and, sadly, this seems to be an opportunity lost. Unless we establish proper structures and processes for investigations, and that will include independent investigators—we cannot be marking our own homework on this—I worry that personnel will remain vulnerable to repeated investigations and, indeed, investigations by the ICC.
The Minister made comments about the timescale of investigations involved under the amendment, saying that they were unrealistic. I have some sympathy for that position and understand the point that he is making. Many of us do not understand what it is like to be in the theatre of war under which these investigations would be carried out. However, some timescale, some independence and some urgency around investigations would result in a system in which we could all have a bit more confidence.
Does the hon. Lady agree that Lord Thomas’s amendment 2 and the issue of duty of care, which has been touched on repeatedly in this debate, if not dealt with properly, could act, first, as a disincentive to serving personnel staying on in the services and, secondly, as a major disincentive to future recruitment?
I thank the hon. Gentleman—yes, of course. We heard evidence directly from Major Robert Campbell in the Bill Committee, who has gone through 17 years of hell, of repeated investigations. There is no doubt that people looking at that—serving personnel and potential serving personnel—will consider their future career.
The hon. Lady is right, but the missing point in this is investigations. It was heartbreaking to hear Robert Campbell’s evidence to the Committee, but if the Bill goes through as it stands, there will be nothing to stop another case like Campbell’s going forward in future. This has been sold as a way of stopping vexatious claims and investigations, but without change in investigations, it will not do that.
And in fact could make it worse. If we throw the ICC into that as well, potentially, we could have a much worse situation for personnel who are facing prosecution.
On Lords amendment 3, any derogation from the European convention on human rights for future overseas operations would have set a damaging precedent for an international treaty—an international treaty that this country played a major role in drawing up. These proposals would have undermined the protections that the UK was so integral to establishing. We welcome Lords amendment 3 and are pleased that the Government have accepted it. It is one of those common-sense ones that should not have needed to come to this stage, but we have got there, so we are thankful for that.
On Lords amendment 4, I spoke on Second Reading and in Committee about the issue of the time limit on claims. One thing that was raised was that some personnel are told, while they are still serving, that they are unable to pursue a claim, which is false, or they are told by those higher up the chain of command that they do not have a valid claim. The nature of the armed forces is that, for many serving personnel, if they are told by their superiors that they are not able to do something, they will accept that. It is only when they find out years later that, actually, they do have a valid claim and they are able to pursue it, they will be able to take action, but with this six-year limit, that is problematic.
We very much welcome Lords amendment 4, but it does not go far enough. As has already been mentioned, it in effect creates an unfair two-tier system in which MOD civilian employees, or indeed the families of deceased personnel, will not be able to make claims beyond the six-year limit. So we will be supporting the amendment, but it is disappointing that it only applies to members of the armed forces.
The Government had the opportunity to strengthen Lords amendment 4 by widening it to apply to all, but instead they are rejecting it entirely so that everyone has the time limit applied. We have heard about those with hearing loss, and again I spoke in Committee about an individual whose significant hearing loss could not be pinpointed to one event and had got progressively worse. Certainly, the six-year limit would have caused problems for that individual to pursue a claim, as it would for claims relating to post-traumatic stress disorder, because that can manifest itself very differently in different people and it may be many years later.
I know the time limit is supposed to be from the point of diagnosis, not from the point of first symptoms, but even at the point of diagnosis the link would still need to be made to service, and if that was not done in a timely way, it would prevent further progress of a claim. Another such issue I have spoken about is that of the nuclear test veterans, who 60 or 70 years on are still looking for stuff, but they would be prevented from making any claims under this. It is notable that we should be making it easier for our personnel to make claims against the MOD when the MOD is seen to be negligent, but as has already been said, this legislation seems to be crafted specially to protect the MOD, not the personnel themselves. We should all be quite concerned about that, so we will be supporting Lords amendment 4 today.
Finally, on Lord Dannatt’s amendment—Lords amendment 5—which ensures care and support for personnel involved in investigations, I cannot see why every Member of this place should not be supporting it. I know the Minister has spoken about the reasons why the Government are not supporting this, but if all these structures are in place just now, why do we still have personnel who are not getting that support at the moment? If that support is already there and is not working, then we do need something, and if it has to be statutory, then it should be statutory.
I will finish my comments by saying that I hope, with the change of Minister, that we do see a change of attitude. I know it will surprise Government Members, but occasionally Opposition Members may have points that are worth consideration. We are not always out to get you, although I will not be putting that on social media. I think there has to be an acknowledgment and a recognition of the experience that Members across the House can bring to legislation, particularly legislation such as this. I will, finally, just thank the Minister for his input today, and we certainly look forward to working with him in the future.
Let me begin by warmly congratulating my hon. Friend the Member for Aldershot (Leo Docherty) on his promotion. He started his Government career as the Parliamentary Private Secretary to me, so I congratulate him in particular on overcoming that disadvantage and acquiring a job that I know he will enjoy, and I am sure he will do it extremely well. I congratulate him too on the way he has handled the business this afternoon. It is no easy task to deal with something this complex, and certainly not when given it at almost a moment’s notice.
I want to follow on from what my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) has said. I support the Government’s move to change their approach to Lords amendment 1, but like my right hon. Friend, I am concerned about whether they have gone far enough. Like everyone who has spoken so far and I am sure a large number of people more broadly, I support the intention of this Bill. It is clearly the right thing for us to do collectively to offer what reassurance we can to armed services personnel that they will not be pursued through the courts for offences that are either illegitimately alleged or interminably investigated. I also take the points that have been made about the need to improve investigation. However, like my right hon. Friend, I want to confine my remarks to Lords amendment 1 and the Government’s amendment in lieu.
The intention of any legislation is important, but just as important, if not more so, is what effect it is likely to have. Its intentions will only be supported if we avoid that legislation being counterproductive and make sure that its contents are inherently logical and consistent. I will make some remarks about both those things.
First, this Bill would clearly be counterproductive if, in seeking to reduce the prospect of domestic prosecution, it increased the prospect of international prosecution at the International Criminal Court. That is a real risk. My time as Attorney General involved attempting to make sure that the IHAT—Iraq Historic Allegations Team—process was as efficient as it could be, and I would not pretend that we succeeded. It was an extraordinarily difficult process that dragged on for an extremely long time, but it was, for most of us involved, the lesser of two evils, because we knew that if there was not an adequate process for the investigation and pursuance of such allegations domestically, there was a real risk of that process being undertaken by the International Criminal Court, which, for all its many advantages, if anything was taking longer to deal with cases. Given that the objective of the Bill is to remove the shadow of impending investigation and prosecution over our service personnel, it would clearly be counterproductive to move that obligation to the International Criminal Court instead. I know that my right hon. Friend the Secretary of State has been in contact with the ICC. He may want to make contact again to confirm that the suggestions the Government are making about the robustness of their provisions in the amendment in lieu will be accepted by the ICC.
As I say, I welcome the Government’s move insofar as it goes, but that brings me to my next concern, which is about internal consistency of this legislation. The Bill installs additional restrictions on bringing a prosecution against a member of the armed forces. It does not—it is worth restating this point—involve a prohibition on such prosecution, in any case, and it would be wrong to misrepresent it in that way, but its restrictions apply only to what is described as a relevant offence. There are certain offences included in that description and certain offences specifically excluded. If we amend the Bill in the way that the Government seek through their amendment in lieu of Lords amendment 1, offences specifically excluded would include crimes of genocide, crimes against humanity, and torture. Again, I support that change.
However, the Bill as it stands also includes, as others have mentioned, a range of sexual offences. That includes rape and serious sexual violence as well as some offences that come further down the scale of seriousness. That is important. My concern about lack of consistency arises if we are to put in place additional restrictions on prosecution of war crimes, some of them very serious, as my right hon. Friend the Member for Beckenham (Bob Stewart) has mentioned, but do not impose those additional restrictions on a variety of sexual offences, some of them far less serious. The Minister could of course argue that it is not the seriousness of the offence in this context that matters most—perhaps what matters most is the likelihood of those offences arising in vexatious complaints—but it would help if he gave us some further explanation and detail in his concluding remarks.
It is worth being clear about how the Bill operates on a prosecutor’s decision making; it does not operate on all of the so-called prosecutorial test. As hon. Members will know, there are two stages to a prosecutor’s consideration of a case. The first is the evidential stage to look at the evidence before the prosecutor and determine whether the evidential test is met—whether, in effect, there is a better than 50% chance of securing a conviction. The Bill does not operate on that part of the prosecutor’s work. It operates only on the second and subsequent test—the process is sequential—which is whether it is in the public interest to prosecute.
Two matters arise from that. First, if we are determining which offences to bring within the rubric of the Bill on the basis of their seriousness, it is worth recognising that if an offence passed the evidential test—if the prosecutor considered that a war crime had a better than 50% chance of getting a conviction—in most cases, I suspect it would be in the public interest to prosecute such an offence. Why then make it harder to do so when we do not intend to make it harder in relation to less serious—at least apparently—offences?
If, on the other hand, we are concerned about the likelihood of a vexatious complaint being made, it is again worth recognising that, in that sequential test, the evidential part comes first and it is much less likely that a spurious or vexatious allegation of a war crime would get as far as discussion of the second test—the public interest test—which is the point at which the provisions of the Bill apply.
There are reasons for us to be cautious about whether the Bill as the Government would have us amend it retains the sort of internal consistency and logic that all legislation of this kind should have, especially when its primary purpose is to offer reassurance about the way it will operate.
Like my right hon. Friend the Member for Haltemprice and Howden, I support what the Government have done so far, but I have reservations about whether they have gone far enough. I will listen with interest to my hon. Friend the Minister when he winds up the debate, but I believe that further consideration of internal consistency will be required to put the Bill in the place we would all like it to be.
It is a privilege to follow the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright). I begin by declaring an interest as a British Army veteran. I also want to take the opportunity to congratulate the Minister on his appointment and welcome him to his important new post.
I rise to speak in a virtual sense in support of Lords amendment 1, which aims to remove torture, genocide, crimes against humanity and war crimes from the scope of the Bill. For the record, and I am grateful to the shadow Secretary of State for referencing it, the Lords amendment builds on the amendment that the right hon. Member for Haltemprice and Howden (Mr Davis) and I tabled on Report in November. That amendment was roundly defeated by the Government.
I was genuinely relieved to read the comments coming out of the MOD yesterday stating that torture, genocide and crimes against humanity would join sexual offences in being excluded from the Bill. I recognise that the Government disagree with Lords amendment 1 and have tabled a suite of amendments in lieu. The Government’s alternative is not perfect, but it is a welcome concession for several reasons, not least because last month, the Government published their long-awaited integrated review, which under a section entitled, “Our force for good agenda”, states that the UK will ensure that the principles and values on which our legal system is built
“remain a global standard.”
It would have proved difficult, if not impossible, to square the ambition of those words with the original version of the Bill. It is worth reflecting on how we arrived at this point.
The relevant offences aspect of the Bill generated near-universal opposition—not quite to the level that we have seen with the European super league over the past 48 hours, but considerable opposition none the less. The amendment passed last week was moved by someone who had served as both Secretary of State for Defence and Secretary-General of NATO, and it was supported by an impressive cohort, several of whom have lifelong ties to defence and security. The group included no fewer than six former Chiefs of the Defence Staff, who between them have contributed more than 200 years of service. Supporters also included a former Chief of the General Staff and a First Sea Lord, a former director general of MI5 and a former national security adviser. We have also seen a former Commander, Land Forces and a Judge Advocate General publicly condemn this element of the Bill, as have the Joint Committee on Human Rights, the UN High Commissioner for Human Rights and, perhaps most concerningly, the chief prosecutor of the International Criminal Court, who warned that cases involving British troops might have been brought before the ICC. We should pause and consider what that might have meant. This is something I have been deeply worried about, and it has been raised on numerous occasions since the Bill was published. We are a proud signatory to the Rome statute, and Ministers should never risk our troops being dragged before the ICC alongside dictators and tyrants.
I know the strength of feeling and high regard that all Members of this House have for those who serve in our armed forces and, sadly, we are all too familiar with stories of our service personnel being hounded for years. No one is denying that there is a problem, and lives have undoubtedly been ruined as a result. I have said consistently throughout the Bill’s passage that we must address the deficiencies of the investigative process and provide those under investigation with our full support.
To conclude, Lords amendment 1 is the international standard. The Government’s counter falls short of that. For instance, torture is excluded, which is a welcome move, but mutilation and inhuman treatment are not. As a reminder, the ICC has warned that the exemption clause should extend to all crimes within the jurisdiction of the court, meaning that the possibility of British troops finding themselves before the court has not completely disappeared. While I still do not believe that the Bill will achieve its stated aim, I am pleased and relieved that concessions have been made. However, I urge Minsters to accept Lords amendment 1 in full, because we can never use deeply regrettable instances of failure to renege on our commitment to the rule of law.
It is a great pleasure to follow the hon. and gallant Member for Barnsley Central (Dan Jarvis). It would not be right to talk about the Overseas Operations (Service Personnel and Veterans) Bill without mentioning my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer). While the circumstances surrounding his departure are regrettable and sad to me, I wish to commend him for his fantastic contribution, hard work and passion. I cannot think of a single Minister who has given so much of himself, worn his heart on his sleeve or driven his cause harder. We now have legislation in place in an area where previously we had none, and I want to issue to my hon. Friend a public and heartfelt thank you on behalf of all the veterans community.
I would also like to welcome the new Minister for Defence People and Veterans, my hon. Friend the Member for Aldershot (Leo Docherty), to his place. As my friend and neighbour in Aldershot, he is perfectly placed to take on challenges ahead. He has done his time in the Whips Office, he has done his time in uniform and he is also a veteran. He is the perfect combination.
While my good friend is blowing smoke up the backside of the new, excellent Minister, I have to say that I have a real worry. In the Ministry of Defence, we are now stuck with two woodentops and one black mafia, with two officers from the Scots Guards and one from The Rifles. I am a bit worried about where the rest of us will fit in.
I thank my right hon. Friend for his intervention; he has stolen my thunder, because I have a similar theme. As a long-standing member of the new Minister’s association in Aldershot and a former commanding officer of a proud regiment in Aldershot, I will be keeping a close eye on him while supporting him as best I can. I know that Aldershot will be very proud of him.
I am a bit concerned that, as my good friend, the right hon. Member for Beckenham (Bob Stewart), mentioned, the MOD has not two but three infantry officers at the helm. My admiration for Jeremy Quin, the procurement Minister, goes up by the day. [Interruption.] No, he is not an infantry officer. As the veritable quartermaster for the MOD, my good friend Jeremy will, I know, keep an eye on any daring adventures and keep them in check within the MOD.
Thank you, Madam Deputy Speaker. The point is well made and well taken.
I made it clear on Second Reading that the Bill is a good Bill. I voted it through because it was the right thing to do. My view has not changed, despite the Lords amendments that have been introduced. People would be amazed by the hysteria and shock in my inbox from people attacking the Bill from every angle. But I want to make something absolutely clear. The supposition in some quarters that British troops are predisposed to wantonly commit war crimes in operations, or that the UK has given them a green light or a get-out-of-jail-free card is absurd. The MOD already has one of the most effective and robust service justice systems in the world, and I can tell the House as someone who has served on eight operational tours that we have the best-led and best-trained soldiers in the world.
We have a great record in this area and nothing will change. That is why I am less worried about the exclusion of war crimes. The presumption against prosecution does not affect in any way the UK’s ability to conduct investigations or prosecutions. It is a higher threshold, not a bar. However, in deference to those who spoke so eloquently, both on Second Reading and on Lords amendment 1, and the views of many in this place, I note that the MOD is seeking to exclude more serious crimes such as torture, genocide and crimes against humanity from the five-year rule, which I welcome.
Lords amendment 2 sets out a new process for investigations. It introduces timelines for them and gives a direct role for prosecutors in investigations. Personally, I do not like the phrase, “artificial timelines for the progress of investigations”, or the power of the Judge Advocate General to intervene. Furthermore, the limitations in the amendment do not apply in civilian life to police force investigations, meaning this would create an anomaly. I am therefore comfortable with the Government’s position and I urge the House to reject the amendment.
Lords amendment 3 removes from the Bill the duty to consider derogation from the convention. The Government have noted that article 15 of the European convention on human rights provides that states may temporarily suspend relevant human rights obligations. The removal of clause 12 would not prevent the Government from making a conscious decision when committing armed forces to overseas operations. I am therefore comfortable, as we maintain the capability to deploy soldiers abroad and derogate, that we are in the right place. So, again, I support the Government’s position on Lords amendment 3.
Lords amendment 4 excludes action brought against the Crown by serving or former service personnel from the limitation measures introduced by part 2 of the Bill. The impact of new limitation periods on the ability of service personnel to make claims will be minimal. The longstops in part 2 have been introduced to offer greater legal certainty, as well as greater certainty to service personnel. So I agree again that the amendment should be opposed.
Amendment 5 requires the Secretary of State to lay before Parliament, within six months of the Bill receiving Royal Assent, a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations; it also requires an annual report. As someone who knows, I can tell the House that service personnel are entitled to legal support at public expense when they face criminal allegations and civil claims. Legal support is also available when people are required to give evidence at inquests, to inquiries and in litigation. In addition, the Armed Forces Bill is bringing the armed forces covenant into statute, and medical support available to all soldiers and veterans is unrivalled. And let us not forget mental health. The Government are now throwing money at this problem, and we are getting better all the time. I agree with the Government that the amendment is neither viable nor necessary.
This is a good Bill, and the Government’s concessions today make it even better, but the rest of the Lords amendments, in my view, should be rejected.
It is, as always, a pleasure to follow the hon. Member for Bracknell (James Sunderland), who serves expertly as the chair of the all-party parliamentary group on veterans. It is appropriate that he has sought to recalibrate the dangerous notion that could arise from some of our considerations about the ongoing, genuine and sustained efforts that our armed forces make as they serve our country.
On behalf of my party, I congratulate the new Minister for Defence People and Veterans on his appointment. I know him well. We have served together in the Select Committee on Defence, and I know he will be a true champion for veterans. It would be inappropriate were I not to mention the hon. Member for Plymouth, Moor View (Johnny Mercer). He was elected at exactly the same time as me, I made my maiden speech immediately after he made his, and we served together on the Defence Committee. I do not think that anyone in this House would question his passion or his commitment to veterans. Yesterday was a difficult day for him, but he should take comfort from knowing that he has stood steadfast by the commitments he gave to veterans who served in Northern Ireland.
I was interested to hear the Minister, at the start of today’s proceedings, indicate that the Northern Ireland Office will bring forward a Bill that offers equivalent protection for veterans who served in Northern Ireland. Last night, the hon. Member for Plymouth, Moor View wrote that the Government are good at saying the right thing, but perhaps not so good at delivering. We need to see action. That commitment to provide for veterans from Northern Ireland was given to the House in a written ministerial statement on 18 March last year—the day that this Bill, the Overseas Operations Bill, was introduced. Thirteen months later, we are still waiting, eager and interested to see the detail. There is genuine concern, Should there be an attempt to provide equivalence between those who served our country— those honourable service personnel who stood against tyranny and terrorism—and terrorists, I hope that it will not find favour in this House.
I thank the Government for their movement in the light of Lords amendment 1. We will support the amendment, as we think that, in totality, it captures the range of issues that were fairly outlined by the hon. Member for Barnsley Central (Dan Jarvis) and the right hon. Member for Haltemprice and Howden (Mr Davis). It is important that we ensure there is no suggestion or no cause for concern that our armed forces personnel would be engaged in activities such as torture, crimes against humanity, or war crimes and genocide. That is where I differ from the Government. I hope that they will reflect honourably on the fears relating to war crimes in particular. Having moved on the other three issues, I ask that the Government do the same on war crimes as well.
I ask the Minister, when he sums up, to reflect again on the comments he made about Lords amendment 5. A duty of care on legal, pastoral and mental wellbeing is not something that Government should fear. I think I heard the Minister indicate that there was potential to impact upon the operational effectiveness of our armed forces should the amendment pass, but I cannot see that cause for concern. I ask him to give that renewed consideration and reflect on it in his closing remarks.
On the other Lords amendment, 2, 3, 6, 7 and 8, we will support the Government. We have welcomed this Bill. We recognise the need for it. We want to see an end to vexatious prosecutions. In supporting some of the amendments and in asking the Government to go a little farther, we will keenly work with the new Minister as he embarks on his role, not only on the concluding stages of this Bill, but on honouring the commitments that he and his colleagues made, in their manifesto and to this House, on protecting veterans from Northern Ireland.
May I reiterate my congratulations to my very good friend and now my former Whip, who had a very difficult job of keeping me in order? Best of luck to the next one—bring ‘em on. Well done. I am really pleased for him. I am also saddened. The one thing about my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), a good friend of mine, is that he led all the time with his heart. He was trying his very best to do the right thing for his constituents and for the armed forces. It was good, too, that he was a commander gunner, rather than a woodentop or member of the black mafia.
I have given evidence in war crimes trials and in trials that involved crimes against humanity and genocide—not torture, but those two—and I am slightly concerned that we have not put war crimes into this Bill. After all, there are plenty of war crimes that are well documented from the second world war, such as Wormhoudt, on 28 May 1940, where 80 mainly British soldiers from the 2nd battalion the Royal Warwickshire Regiment and the 4th battalion the Cheshire Regiment, both regiments that have gone now, were stuck in a wooden hut and machine gunned. Grenades were then thrown in at them. This was done by the 1st SS division Leibstandarte SS Adolf Hitler. That is a clear war crime. But, sadly, we are not immune from some criticism. In the second world war, some of our submarines did machine gun survivors in the water. Some of our soldiers did rape and kill civilians in Normandy and in Germany. And, I am afraid, the British Army was involved in similar instances in Malaya and in Kenya. I will not go further on this. I am not trying to blame anyone, but I think the crime of war crime should be in this Bill. I will be voting for it, but I hope that the Government will think again on the subject of war crimes. Everyone is nodding because it makes sense.
My last paragraph or so is fundamentally to reinforce something that I know my friend the Minister is fully on board with. The Ministry of Defence cannot escape its responsibility to look after veterans from Northern Ireland. I know that the Minister has got that point. I also know that it is not the MOD that is in the lead on this; it is the Northern Ireland Office. I really believe that very shortly we will have some good news—I hope so. When this Bill goes through, as I have mentioned already, we will have two grades of veterans: those who are better protected in the matter we are discussing today, and those who are not. Those who are not will broadly be classified as Northern Ireland veterans, which others here can classify themselves as, too. I think I have said enough. Thank you very much, Madam Deputy Speaker.
I refer the House to my entry in the Register of Members’ Financial Interests. While it is an absolute honour to follow the right hon. Member for Beckenham (Bob Stewart), it is also a tough gig in defence debates, but I will do my absolute best in the time that I have.
I will speak to Lords amendments 4 and 5 and the new clauses they would insert into part 2 of the Bill. Many of our witnesses in the Public Bill Committee called for this section of the Bill to be scrapped altogether. Before I turn to the amendments, I also want to add my welcome to the Minister, who is no longer in his place. He will know the frustrations felt by many of us who sat on the Public Bill Committee at his predecessor’s obstinance in the face of expert evidence and personal testimonies. Like others, I sincerely hope for a change in approach, because our forces and veterans would have been better served by well considered and evidenced legislative changes, not this confused hash of a Bill. The Government have rightly identified that there is a problem and a need to provide greater legal protections to armed forces personnel and veterans serving overseas, but they have drafted legislation that makes the problem worse, all in a hurried effort to match the sweeping rhetoric of their 2019 general election campaign.
Lords amendment 4 inserts a new clause that would ensure that our armed forces retain the same rights as civilians in bringing civil claims against the Ministry of Defence. As drafted, the Bill, whose central aim we are told is to provide greater legal protections to armed forces personnel, includes provisions to do the exact opposite and disadvantage our personnel and veterans by introducing a hard six-year cut-off for any compensation claims, including for personal injury and death, all by amending the Limitation Act 1980. The Government claim that this will stop any baseless claims, yet there are already provisions in the Limitation Act to strike out any such baseless claims.
Worse still, the Bill allows the MOD to strike out not just baseless claims, but rightful ones, too. When it comes to dates of diagnosis and knowledge, such as with PTSD or hearing loss, or when it is difficult to establish facts in the context of armed conflict, claims cannot always be made within six years. The Government’s own impact assessment from last year shows that at a minimum, 19 injured or bereaved members of the forces community who made claims from operations in Afghanistan and Iraq would have been blocked from doing so had this legislation been in place. One member of our brave forces being blocked from a claim is completely out of order, never mind 19.
Crucially, we do not know what will happen in the future, but it is likely that there will be drastic unintended consequences, and we do know that with this Bill, our forces will have less protection than civilians. There is simply no justification for introducing this time limit when such a measure currently does not exist.
Unamended, this part of the Bill will only benefit the Ministry of Defence, yet the Ministry of Defence will be the defendant in all these claims. That is a clear conflict. The Government have shamefully created legislation that protects them from legitimate legal claims while preventing forces personnel from access to justice.
The new clause under Lords amendment 5 would introduce a duty of care for service personnel. I am completely at a loss as to why the Government would reject and oppose care standards for service personnel involved in investigations or litigation arising from overseas operations. Anyone who has experience of being under prolonged or repeated investigation, especially when they are innocent, will know how utterly career-ruining, life-ruining and crushing it can be to be in that position. The defence that the Armed Forces Bill is the best place to address the issue simply does not cut it, because that legislation is not yet in place. This Bill will be soon. It is a dereliction of duty for MPs to accept glaring gaps in legislation on the promise that the issue may or may not be rectified in future legislation.
As we have heard from other Members, there remains nothing in the Bill that will solve the problem of repeated investigations. Without the Lords amendment, there is nothing in the Bill that will afford our forces and veterans a duty of care when undergoing such investigations. I would appreciate it if the Minister fully explained why the Government feel that, after our forces personnel and veterans have put themselves in harm’s way for all our sakes, they do not deserve legal, pastoral or mental health support at a time of heightened stress and worry.
Finally, as I did on Report, I urge all Government Members to look beyond the rhetoric and political spin, read the legislation and consider the noble Lords’ amendments and new clauses carefully, before they vote with their Whip and put our armed forces and our veterans at a gross disadvantage.
I congratulate the Minister for Defence People and Veterans, my hon. Friend the Member for Aldershot (Leo Docherty) on what must have been a massive overnight essay crisis or the worst sort of Sandhurst show parade. I will be amazed if he can keep his eyes open for the next couple of minutes, but my contribution will be short.
I welcome the Government’s sincere efforts, led by my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), to deal with these vexatious legal actions. Having listened to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), it strikes me that there is now an opportunity to listen to the bishops, the former Secretary-General of NATO, the admirals, the air marshals, the generals, the right hon. Opposition Members, the hon. Member for Barnsley Central (Dan Jarvis) and a former Attorney General. We must renew our efforts in support of Northern Ireland veterans, including some soldiers with whom I served elsewhere.
More generally, on these crimes—about which, I regret to say, I very, very nearly know rather a lot—no British soldier should ever be any doubt whatever that if they commit these crimes, they will be liable for prosecution by our courts for the rest of their lives.
It is a pleasure to follow the hon. Member for Gravesham (Adam Holloway). I wish to take this opportunity—I try do this from time to time, Mr Deputy Speaker—to remind the House that one of my children is serving in the armed forces, as is my son-in-law.
I offer my personal congratulations to the new Minister, the hon. Member for Aldershot (Leo Docherty). We do not know each other well, but I am somewhat biased as my late brother-in-law served with the Scots Guards and I would not dream of calling them the woodentops; they are a very fine regiment indeed.
It would be churlish of me not to give credit where it is due: as so many others have said, the Government’s move on Lords amendment 1 is most welcome. My party and others in all parts of the Chamber will welcome this change of heart. We feel we have been vindicated for our efforts to press the Government.
I could say many different things in this debate, but I wish to dwell on just one point—it is interesting how sometimes a speech will come into one’s head as the debate proceeds. I would not describe myself as coming from a military family, but my grandfather served in the first world war, as did his four brothers, two of whom died, and my father served in the Fourteenth Army in the second world war. Although, as the right hon. Member for Beckenham (Bob Stewart) pointed out, bad things have been done by our soldiers, I was brought up in the belief—one to which I still hold dearly—that the British armed forces had the very highest standards and a well-deserved reputation for fairness and decency in the way that they conducted themselves. That reputation won us friends at that time and for the future and gave and gives us a position of moral strength that has served this country incredibly well for a very long time. To throw that away by not absolutely outlawing torture would have been a a reprehensible backward step, especially as torture has been illegal in this country for more than 300 years.
The right hon. Member for Wentworth and Dearne (John Healey) quoted Lord Stirrup, and I would like to add a quotation with reference to Lords amendment 1. Lord Stirrup said:
“Our Armed Forces personnel in general exercise incredible judgment and restraint in the most dangerous and trying circumstances, but it would be unreasonable to expect that they should be entirely free of the faults and frailties that are part of the wider society from which they spring. When such crimes are suspected, they should be investigated thoroughly—and the investigation process itself would certainly bear improvement—and, if the evidence is sufficient, the perpetrators should be prosecuted.”—[Official Report, House of Lords, 20 January 2021; Vol. 809, c. 1199.]
Indeed, I would argue that in more recent times, this country’s agreement to and participation in the torture inquiry on the Iraq war continues to underpin this high moral position. It is as simple as this: whatever the results of the inquiry, and even in the event of an accusing finger being pointed at British personnel and action being taken accordingly, the fact is that our armed forces will be better for it, and we will still be on that moral high ground.
In the other place, my party, led by my colleague Lord Thomas of Gresford, voted for an amendment that would require the investigations process to be timely and comprehensive, to avoid repeated investigations against service personnel without compelling new evidence or information. The Government were defeated on that amendment, and that is because, as other Members have said, the drawing out of this process is incredibly bad for not just the person involved but their families.
That takes me neatly to the duty of care. Anyone involved in investigations must have access to the legal, pastoral and mental health support that they need. I am glad to see that Lords amendment 5 extends national standards of care and safeguarding to the families of those under investigation. As I said in my earlier intervention, if we do not get recruitment right for the armed forces, we are in danger of eventually having no armed forces at all. We have to staff our armed forces. If potential recruits are discouraged by what they see as their terms and conditions of employment, they will stay away. If people in the armed forces take a look at what might happen to them and the lack of support they might get, they will walk—it is as simple as that.
It is almost certain that the other place will return the Bill to us with amendments. I give credit where it is due. I think the Minister is a breath of fresh air, and I welcome him to his place. I hope that he and all the reasonable Members on both sides of the House will look at what the other place sends back to us very seriously indeed and act accordingly, because at the end of the day, it is about the good of our armed forces and the defence of the realm, and we live in an unsafe world.
May I take this opportunity to congratulate the Minister on his appointment and wish him well in his new role? I want to express my support for Lords amendment 5, which calls for the Secretary of State to
“establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations”.
Our servicemen and women lay their lives on the line for our freedom. Likewise, their families give so much to this nation. In return, we ought to provide them with wraparound care—legal, pastoral and mental health support—whether they are subject to investigation or not. However, in the context of the Bill, it is worth expressly stating that provision in the legislation.
I know from speaking with veterans who have served in Operation Banner in Northern Ireland that the physical, emotional and financial strain of facing investigation is significant. For many, that impact starts well before the knock on the door comes, and it lasts for months and years. Who among us in this place could cope with such a threat and withstand the stress and strain that comes with it? That is why the provisions of Lords amendment 5 are so important. It is a lonely path—an isolated place—to be facing such uncertainty. We must ensure that legal, pastoral and mental health support is provided.
While I make mention of conversations I have had with veterans of Operation Banner, of course those veterans, who served with such bravery and sacrifice in Northern Ireland, remain in peril from vexatious prosecutions. This Government have not, as yet, fulfilled their commitment to afford veterans of Operation Banner the same protections afforded through this Bill to those who served overseas. That is wrong, it is inequitable and it must be addressed—not by lip service and warm words, because we have had enough of those, but by action.
I commend the hon. Member for Plymouth, Moor View (Johnny Mercer). He can rightly be termed honourable, because he has honoured his word, having said that he would not stay in position if the veterans who served in Northern Ireland were left behind. Although I welcome the Minister’s remarks on Northern Ireland in his opening speech, it is becoming a trend for this Government to promise one thing—to give their word on matters relating to Northern Ireland—and then do the exact opposite. That reflects poorly on those making those pledges, on this Government and on this place.
One thousand, four hundred and forty-one soldiers lost their lives in Operation Banner. The magnitude of the threat faced by those who served and survived is clear. They need the same protections as those who served elsewhere. This is an opportunity for the Minister to make his mark—to do what is right by those who served, risked life and limb, and stood as a human shield between good and evil in Northern Ireland during Operation Banner.
I start by congratulating the Minister for Defence People and Veterans, the hon. Member for Aldershot (Leo Docherty), on his promotion. I welcome him to his new role.
Article 8.2 of the Rome statute of the International Criminal Court defines the term “war crimes” in two ways: as “grave breaches” of the Geneva convention or
“serious violations of the laws and customs applicable in international armed conflict”.
Under those two headings, the article provides 31 different offences. Here are just some examples:
“Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives”;
“Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion”;
“Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments”;
“Committing outrages upon personal dignity, in particular humiliating and degrading treatment”.
I list some of those crimes because if we accept only the Government’s proposal, instead of the amendments from the other place, they will remain “relevant” offences under the Bill. I am incredibly sceptical about there being a presumption against prosecution just because a crime was committed abroad, but it is unclear to me why anyone would support a time limit or presumption against prosecution specifically on the charge of attacking defenceless towns or killing people who have surrendered. Why rule out torture but not physical mutilation or scientific experiments on enemy combatants?
The concessions that Ministers and the MOD have made on torture, genocide and crimes against humanity are very welcome, but they do not go far enough to ensure that some of the worst crimes a person can commit are excluded. I agree with the many Members who have signalled that adopting Lord Robertson’s excellent amendment, Lords amendment 1, wholesale would be the best approach to uphold our international reputation.
On the issue that Ministers say the Bill addresses—the wellbeing of veterans—it also falls well short. My right hon. Friend the Member for Wentworth and Dearne (John Healey) mentioned Lord Boyce’s remarks, and I will reiterate them. A presumption against prosecution helps no one. The issue that needs to be dealt with is the investigation and reinvestigation of cases. The Lords amendments provide a mechanism for dealing with those reinvestigations, yet the Government are opposing them. At the same time, Ministers propose to make it harder for veterans to bring cases against the MOD and oppose any attempt to provide a duty of care to ex-service personnel involved in legal cases.
Without the Lords amendments, the Bill fails across the board and falls well short. Instead of playing politics with human rights, the Government should guarantee access to justice for all victims of war, from the victims and survivors of war crimes to those ex-service personnel failed by the MOD. That is why I will vote for the Lords amendments today.
Diolch yn fawr, Mr Deputy Speaker. The Bill as it stands is frankly damaging to our armed forces, as it removes the protection of the law from many who have suffered injustice while serving our country, and it means war crimes may go unchallenged and that they might be dragged into the International Criminal Court.
As it stands, the Bill is bad for our international reputation and, indeed, for those who so gallantly protect our country because, unfortunately, it will stop people bringing legitimate cases of negligence, bullying and worse against the Ministry of Defence that are over six years old, while at the same time turning a blind eye to cases of war crimes and torture that are over five years old, all in the name of reducing the number of so-called vexatious cases.
In the case of Iraq, there have been 1,000 supposedly vexatious cases in the past 17 years. Of those, 330 have been settled—in other words, the Government have paid up and accepted liability. Some 414 remain ongoing—in other words, the Government have not applied for them to be struck out as being vexatious—and 217, only 217 out of 1,000, have been withdrawn or struck out. Many of them have been unmeritorious as opposed to vexatious, by which I mean they have been poorly pleaded or there have been errors of law. That is no surprise, because the Government have made savage cuts to legal aid. Many soldiers do not have law degrees and are traumatised by the experience about which they are bringing their case. There were about 10 unmeritorious cases in 17 years, which is fewer than the number of Government cases that have been rejected in court. Perhaps the Government should put their own house in order.
Let us also remember that, at the moment, the courts will not hear cases of historic facts unless they pass the test of being equitable—in other words, that fairness requires it—so we do not need the six-year limit. What is more, claimants face substantial costs to the Ministry of Defence in cases that are found to be unmeritorious, which is a clear deterrent.
We now have a situation in which the MOD can delay evidence in the name of national security and evade prosecution for negligence or worse. A constituent came to me who had been on an exercise with the military, and he had been hooded, stripped and tortured. He ended up with post-traumatic stress disorder, alcoholism and basically a lifetime of mental health problems, and we are still trying to get compensation. Clearly his case would be ruled out by the Bill.
There is the famous case of an Army cadet who was sexually abused by her instructor, and she did not bring it up until she was an adult. Again, the six-year rule would have meant that her case was not heard. There is the case of a Territorial Army officer who was subjected to racist abuse over many years, to which his superiors turned a blind eye. That case would not have been heard under the six-year limit. The cases go on.
I have no hesitation in supporting the Lords amendments on the duty of care, on the facility for cases to be reopened by the Director of Service Prosecutions when new evidence emerges, and on the facility for members of the armed forces to bring civil claims against the Ministry of Defence.
Finally and crucially, the Bill bans the prosecution of war crimes, including murder and torture, after five years, which is appalling, especially as it can take decades to investigate some of these crimes. We all know what happened after the second world war, for instance. The Government can sit on evidence for years. In a particular case in Britain, which involved the execution of unarmed civilians by British special forces, they sat on the evidence for more than a decade. We cannot justify a blanket pardon for war crimes and torture after five years of their happening, otherwise we will end up in the International Criminal Court in The Hague.
I very much support the amendments from the Lords that try to make the Bill a bit better. In essence, though, my view is that the Bill was not necessary and that it should have been completely scrapped, which is why I voted against it in the first place. None the less, I urge Members to vote for the Lords amendments today.
I followed the process of this Bill through the House and, at every point, I voted against it and stood in opposition to it. The Bill has deeply worrying implications for Britain’s standing worldwide and risks further eroding the rights of those living in countries where Britain has a military presence.
The Bill is completely contrary to the values that I hold dear: justice, the rule of law, human rights, peace and a total abhorrence of the inhuman treatment of fellow human beings. I am glad that these views are shared with my colleagues in the other place who voted overwhelmingly across parties in support of measures to address some of the most concerning elements of the Bill.
Although the Government made a belated U-turn yesterday on the exclusion of torture, genocide and crimes against humanity from the Bill, that has been a disappointing and partial change. The Government’s amendment failed to exclude war crimes from the scope of the Bill. By choosing not to exclude from the Bill crimes identified by article 8.2 of the Rome statute of the International Criminal Court in its totality, the Government’s partial amendment will leave many crimes—inhuman treatment, biological experiments, murder, mutilation and cruel treatments, to name just a few—subject to the presumption against prosecution in the Bill. That was clearly not the Lords’ intention when passing Lords amendment 1. We do not send our troops abroad to commit war crimes. We must hold our armed forces to higher standards than this and be willing to prosecute any cases where their behaviour falls short of our shared values. It will be a grave mistake to fail to exclude these war crimes from the five-year limit and will send a signal that we condone crimes of this nature.
Without these Lords amendments, the Bill would effectively legislate to decriminalise war crimes committed by our armed forces. That would be a grave injustice and a moral stain on our international reputation, and would put UK service personnel at risk both in the field and of prosecution in the International Criminal Court. It is for those reasons that I will vote to support Lords amendment 1, tabled by former Defence Secretary and NATO Secretary-General, Lord Robertson of Port Ellen, which excludes torture, genocide, crimes against humanity and, crucially, war crimes from the scope of the Bill.
That brings me to Lords amendment 4, which would eliminate the time limit for current or former service personnel to bring claims against the Ministry of Defence. During discussions with veterans and the Royal British Legion in Wales, they voiced a deep-seated opposition to the Government’s proposal on this matter, which would weaken the key avenue for service personnel to access proper compensation by introducing an unnecessarily brief time window for them to pursue claims. This is inappropriate as some conditions can take years to manifest or be properly diagnosed, such as post-traumatic stress disorder.
The Royal British Legion has rightly expressed grave concerns that the six-year longstop could be a breach of the armed forces covenant. The Government proposal does nothing to protect service personnel or veterans or to expand their rights, but rather serves to shield the Government from criticism. It is vital that we take steps to protect the wellbeing of soldiers and allow them to exert their rights. For these reasons, I support Lords amendment 4, which would remove any restrictions on the time limits for actions brought against the Crown by service personnel.
In a statement following my vote against the Bill on First Reading, I said that, in my view, it undermines the UK’s good standing in defence of human rights and the historically leading role that we have played in the fight against international war crimes. While I welcome and support the Lords amendments and urge others to vote for them, I have not changed my view of this Bill. Serious problems remain, and while supporting the Lords amendments, I cannot support this Bill in its entirety as, in the words of Justice, it would go against
“the interests of service personnel, victims and the UK’s reputation as a country governed by the rule of law.”
As my colleague Baroness Chakrabarti, who has taken a principled stand and fought tirelessly against this Bill from day one, has said, this Bill is a violation
“not just of human rights, but of the rule of law itself and that fundamental principle of equality before the law…which is supposed to be a principle that even conservatives hold.”
Yesterday, the Government at last agreed to table an amendment to exclude torture, genocide and crimes against humanity from the scope of the Overseas Operations (Service Personnel and Veterans) Bill before us today. While I am thankful for this, the fact that such provisions were considered in the first place is outrageous, and raises a number of red flags about the Bill’s intent and its remaining contents, especially in the context of the recent chilling Covert Human Intelligence Sources (Criminal Conduct) Act 2021.
It is great that the Government now agree that torture should never go unpunished—I take this opportunity to pay tribute to the tireless campaigners who have forced this U-turn on them—and I am pleased with the Government amendment to exempt genocide, torture and crimes against humanity from these new legal safeguards for British troops serving overseas. However, the Government amendment fails to exclude war crimes from the scope of the Bill, which will leave UK service personnel at risk of prosecution in the International Criminal Court.
Unless this Bill is changed, it will undermine the country’s commitment to the Geneva conventions and other international treaties by bringing in a presumption against prosecution after five years to cover torture and other war crimes. In that light, I am pleased to speak in favour of Lords amendments 1, 3 and 4, and I appeal to the humanity of Members across the House and ask them to join me in voting for them. These amendments are an absolute basic threshold for ensuring that this legislation does not damage the rights of overseas victims of crimes and of service personnel.
However, we must be clear that the Bill as a whole remains highly problematic for the UK’s adherence to domestic and international human rights norms. Unamended, it would damage the standing of the armed forces by acting contrary to established legal norms both domestic and international. By introducing a threshold that would be near impossible to meet, as claims for many serious crimes are made after five years, it would afford effective impunity for UK overseas military operations in many regards.
Indeed, the Bill signals that rather than adhering to a strict human rights framework in the rules of engagement, the UK is prepared to relax—or worse, disregard—protection from many serious crimes. It risks contravening the UK’s obligations under the European convention on human rights and other legal instruments. It would also restrict the ability of servicepeople to bring claims for personal injury and death during the course of overseas actions. Rather than protecting and enhancing the rights of service personnel, it would weaken their key avenue for justice.
As it currently stands, this Bill could also prevent British armed forces personnel from holding the Ministry of Defence to account when it fails to equip troops properly or makes serious errors that lead to the death and injury of British forces overseas. As was raised by the Royal British Legion when it gave evidence, it may also breach the armed forces covenant. We must be absolutely clear where our troops and those leading them have breached the law. From Northern Ireland to Iraq, they must be held accountable and justice must be served. The Bill in its current form threatens to undermine this principle, while also undermining support for current and former service personnel.
I take this opportunity today to call on the Government to think again and take time to make further changes to the Bill to overhaul investigations, set up safeguards against vexatious claims that are consistent with our international obligations, hold all war crimes to the same judicial standard, and guarantee troops retain their right to compensation claims when MOD failures lead to the injury or death of our forces overseas.
It is a pleasure to be called in this debate.
First, I want to take the opportunity to acknowledge the birthday of the head of our armed forces, Her Majesty the Queen. When I put on the Ulster Defence Regiment uniform in Operation Banner, it was done to serve Queen and country, and I still honour her today, on the Floor of the House. Our thoughts and prayers remain with Her Majesty and the royal family on this very, very difficult milestone day.
This issue is difficult and complex. The obligation to fulfil our duty under article 2 of the ECHR is vital. Among the chatter I have heard, there seems to be confusion between a legal investigation following appropriate procedures and an investigation that gives what the family feel to be the right result or justice. This Bill is not designed to be the answer to every death involving a member of the armed forces; it is designed to ensure that the killing was unlawful and is still able to be prosecuted. At the same time, it protects against the sustained, erroneous and vexatious prosecution of service personnel such as those who served in Iraq, Afghanistan or Northern Ireland.
As DUP spokesperson on human rights, I welcome the Government changes to the provisions regarding torture as suggested in Lords amendment 1 to clauses 6 and 7. The Government’s acceptance of this in their own proposals is welcome, as is clarification as to why war crimes have continued to be exempted. I look to the Minister for some clarity on that. I have further questions on Lords amendment 4 regarding the ability of service personnel to make a claim against Government. I have been struck by the Royal British Legion’s reasoning in the briefing sent to me. The shadow Minister mentioned this, as did many others. We are all aware of new clause 13, “Restrictions on time limits: actions brought against the Crown by service personnel”. That amends part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the part imposes in respect of actions relating to overseas operations. It could therefore potentially go some way to addressing the issues raised by the Royal British Legion, other external experts and members of both Houses in relation to the impact of part 2. Again, I seek clarity on this.
My next point will be of no surprise to anyone in this Chamber—equivalence of service personnel. For those who currently serve or who have served in the past, we have, as is the title of Lords amendment 5, a “duty of care to service personnel”. My hon. Friends the Members for Belfast East (Gavin Robinson) and for Upper Bann (Carla Lockhart) both mentioned this. It is really important for those of us who have served in the armed forces and those who represent Northern Ireland in particular. It is so simple and yet so effective, and unfortunately patently untrue. There is a duty of care to service personnel, unless of course they were called to serve in Northern Ireland.
At this stage, I wish to personally thank the former Minister for Veterans and Defence People, the hon. Member for Plymouth, Moor View (Johnny Mercer), for his honourable actions, his passion and his commitment in the job that he had, and also for the help that he gave some of my constituents personally. I would not want to embarrass him by saying it here in the Chamber, but he really did reach out to some of my constituents in a very, very personal way. I really appreciate that and I want to put it on record.
We have today not parallel legislation where we are working through the kinks, but nothing for those brave personnel who served in Northern Ireland. I asked the Minister earlier about the legislation in respect of protection for Northern Ireland. I do not want to embarrass him but I am going to tell him what I saw as I was sitting here just before I was called. Tracey Magee says:
“NIO source tells me there are no plans to bring forward legislation in the Queens Speech on NI veterans ‘at this stage’.”
To be fair to the Minister, who I respect greatly and have affection for, if that is the case, then we really have to address this issue. If it is not in this Queen’s Speech, then when will it be? If he does not mind, I am going to hold his feet to the fire on this one and say that we really need to have a commitment on legislative time and a timescale to work towards. I have no doubt whatsoever that he is committed to this, but we need to have the involvement of Government and the Northern Ireland Office and to see it the Queen’s Speech. We need to be reassured. If there is a legislative programme, then we need it to be confirmed today and to be told what it is. That is breaking news in the past few minutes.
No matter how the republican agenda seeks to rewrite history to make it appear that there is no difference between a terrorist whose every action is a crime, and whose causing of loss of life can only be murder, and a serving member of the armed forces who may cause loss of life while legally carrying out duties, let me be quite clear: they are not the same. Legislation needs to be in place to ensure that that is not the case.
There is much in the Bill that is right and proper, but I find it harder and harder to understand and support those who persist in belittling and traducing the Unionist people of Northern Ireland. The passing of the Bill will not be complete, and will not have the full assurance and confidence of everyone in this great United Kingdom of Great Britain and Northern Ireland, unless those who served in Northern Ireland have very same rights—every soldier who served, every family who grieved. Across this great United Kingdom of Great Britain and Northern Ireland, every MP no doubt has in their constituency families of those who served and died as a result of their service in Northern Ireland. For them, for the MPs in Northern Ireland, for my party and for the people of the Province, we want to be assured that legislative change will come in the House from this Government and that it will be forthcoming soonest. We want to hear about it right away.
The Bill aims to address issues that rightly need to be addressed on potential vexatious investigations and litigations, but was the Bill needed? No, it was not needed. All those issues could have been addressed in the Armed Forces Bill, which is currently going through the House. The Bill was brought forward, as my hon. Friend the Member for South Shields (Mrs Lewell-Buck) said, as a clear piece of election gimmicking and as part of the worst aspects of what we have seen from the present Conservative party trying to get culture wars going.
We saw that on Second Reading in the wind-up from the hon. Member for Plymouth, Moor View (Johnny Mercer). Somehow, to criticise the Bill in any way meant that you were in favour of ambulance-chasing lawyers and against our brave servicemen and service- women. I take great exception to that. In June, I will have been in the House for 20 years. I think most people know that I have a long record in this House, like other Labour Members, of speaking up and arguing for members of our armed forces. It is worth reminding the House that many of the people who would be affected by the Bill are from northern constituencies—Liverpool and everywhere else. They are proud members of the armed forces and they need protection. The Bill is fundamentally dishonest, because it does not do what it claims to do.
Members have congratulated the hon. Member for Plymouth, Moor View today. Let me put this on the record. I have had my disagreements with him, but I do not for one minute question his integrity or passion in trying to get everything right for members of the armed forces. However, I have to say that the way he took this Bill and the Armed Forces Bill through was his way or no way. He was not prepared at all to countenance any view that was different from his, even when, on many occasions, it was completely wrong against the evidence we took.
Likewise, I understand what has been said about the hon. Gentleman’s campaign in Northern Ireland. It is one that I sympathise with, but he now tries to portray himself as a great champion of Northern Ireland veterans. He said last night, “Politics does this”. Well, I say to him, “Wake up. You are a politician. You were in a position to do something about it and you didn’t.” Not only did he stop the Armed Forces Bill taking written evidence from Northern Ireland veterans, but he voted against my amendment to look at Northern Ireland veterans in the Armed Forces Bill. So I shall take no lessons from him on that.
The key problem with the Bill is this: if we want to stop vexatious investigations and litigation the way to go about it is to address investigations, but the Bill is silent on that. In Committee I tabled new clauses 6, 7 and 8, which would have addressed investigations. The hon. Member for Plymouth, Moor View told me that investigations would be not be considered in this Bill but that they would be included in the Armed Forces Bill. Lo and behold, when I was on the Select Committee on the Armed Forces Bill, I found that investigations were not included because they are now part of the long-term review. That is a gaping hole in this Bill. That is why I welcome Lords amendment 2.
We took a lot of evidence in Committee, including from Jeff Blackett, the former Judge Advocate General, whom I know well. He said that
the fact that there is a presumption against prosecution would not stop the knock on the door and the investigation. That is the whole point. The presumption against prosecution does not stop the investigation”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 127, Q275.]
If the Bill goes through unamended, it will not stop those investigations.
The Lords have proposed a sensible way forward. I would have preferred the new clauses I tabled, which provided for case management, whereby investigations that were not going anywhere would be thrown out. The hon. Member for Bracknell (James Sunderland) claimed that that would mean treating members of the armed forces differently from the way people are treated under common law. It would not mean that because the Magistrates’ Courts Act 1980 does exactly the same for minor offences. If investigations are not done within six months, they get thrown out. Such an amendment would give judicial oversight of the investigation process. That is a big hole in the Bill.
If we do not accept Lords amendment 2, the hole will remain. It is not the Minister’s fault—he has just come into the post. He said earlier that we do not know when the review on investigations will report. When it does, we will doubtless have to bring legislation back to make the amendments. Yet everyone knows what the problem is, so we should act now and amend the Bill. If the Government are not happy with the Lords amendment, they should come forward with something that improves the Bill. I tried at length in Committee to do that, but again, the hon. Member for Plymouth, Moor View was right about everything and everyone else was wrong. He would not accept any amendments or even discussion of the issues.
The other contention is that the Bill will protect members of our armed forces from prosecution. It will not, and I commend Lords amendment 1. If a member of the armed forces commits a crime, should they be tried? Yes, they should, but it should be done in this country. I do not want members of the armed forces to be taken before the International Criminal Court. If we do not include war crimes in the Bill, that is exactly what will happen. Earlier, I raised the case of Marine A, in which an individual shot an unarmed, dying member of the Afghan Taliban. He was tried in a military court and found guilty. On appeal, evidence was rightly given about his mental state and the sentence was reduced. That was a war crime in my opinion, and if that case had taken over five years, the individual would have gone off to the ICC and I do not think he would have got the justice and fairness that he rightly got from the British system.
Unless we change the Bill, it will lead to British servicemen and women finding themselves before the ICC. Telling members of our armed forces that somehow the Bill will protect them when it clearly will not is just being dishonest with them. I welcome the movement from the Government, but we have to include war crimes and have a clear indication that British servicemen and women will not end up in the ICC. That is not because we want to protect ambulance-chasing lawyers but because we want to protect members of our armed forces, many of whom come from my constituency and many others represented by Members across the House.
I never got an explanation in Committee of part 2 and the covenant. As my hon. Friend the Member for Liverpool, Riverside (Kim Johnson) said—and the Royal British Legion is quite clear on this—this is a breach of the covenant. We are creating a situation in which members of the armed forces will not have the rights that we all have under the Limitation Act, so I support the change that has been brought forward. As I said in an intervention, my fear is that if the Bill goes through unamended, this will get changed in court anyway. People will challenge it, so all we will do is end up paying a lot of expensive lawyers to deal with the challenges. It cannot be right that we treat members of our armed forces—people who have served their country—in this way.
I come back to the debate on Second Reading. Those of us who raised objections to the Bill, or, in some cases, voted against it were deemed to be against members of our armed forces. I am sorry, but I am not sure that the idea of this Bill giving fewer rights to veterans than ordinary members of the public have is standing up for veterans. It might be that many individuals on the Government Benches have not read the Bill in detail. I have to say, that I have heard some nonsense from Opposition Members on some aspects of the Bill, and I do not agree with that either. However, if the Bill is to go further, it can be improved very simply. Stick the issue around investigations in and adapt the provisions so that war crimes are covered. Adopt either this amendment or bring back another amendment on excluding veterans, in terms of part 2. At least we would then have a bit of legislation that does what it says on the tin, rather than just the various claims that have been made.
Finally, I am passionate about the issue of Northern Ireland veterans, as is the hon. Member for Strangford (Jim Shannon), and it does need addressing. Again, we were promised it in the Armed Forces Bill. I attempted during that Bill to at least take evidence from Northern Ireland veterans about the issues, and the Government voted against it. I even tried to do a clever thing that I do sometimes and asked, “Well, could we have written evidence?” The Government were not even having that, including the great champion for Northern Ireland veterans, the hon. Member for Plymouth, Moor View (Johnny Mercer), who said, “No, we’re not having that. We’re not having any discussions at all.” In Committee, I moved an amendment asking the Government to do not just a report on the issues that affect Northern Ireland veterans, but a wider piece around mental health and other issues affecting them. Again, that was voted down and vociferously opposed by the hon. Member for Plymouth, Moor View, so I will take no lessons from him about standing up for Northern Ireland veterans. However, as I have said, this issue does need to be addressed. The worst thing we can do in politics—I have seen this over the years—is promise things that we are not going to deliver. As the hon. Member for Strangford just said, if there is no Bill on this issue in the Queen’s Speech, a lot of Northern Ireland veterans will say, “When is it going to come?” It is just dishonest if something is promised to people that will not then be delivered, so I urge the Government to consider that point.
I urge colleagues to support the amendments. I urge the Minister to look at investigations, even at this late stage, to see whether we can get that in if the Bill comes back during ping-pong. That would improve the Bill. I just wish the current Minister had been there during consideration of this Bill and the Armed Forces Bill because I think we would have had a more fruitful consideration of amendments, and real change. I just say to Government Members—the Minister knows this, because I know him well—that there are Opposition Members who want to stand up for our armed forces and help members of our armed forces. Just because we are in a different political party does not necessarily mean that we are against everything that is being put forward. I know that the Minister will work in a cross-party way because he has a record of doing that. I finish by wishing him well and I look forward to some constructive engagement with him as Veterans Minister, because, at the end of the day, I think there is pretty good consensus across the House on the fact that we want to do the best for members of our armed forces and veterans.
Thank you very much, Mr Deputy Speaker. I thank colleagues from across the House this afternoon for their considered contributions. I have listened with humility and interest, and I deeply appreciate the constructive tone from the shadow Secretary of State, the right hon. Member for Wentworth and Dearne (John Healey), and colleagues on both sides of the House.
A number of colleagues expressed concern about the list of excluded crimes, including the shadow Secretary of State, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), the hon. Member for Glasgow North West (Carol Monaghan), my right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright), the hon. Member for Barnsley Central (Dan Jarvis), my right hon. Friend the Member for Beckenham (Bob Stewart), my hon. Friend the Member for Gravesham (Adam Holloway), the hon. Members for Sheffield, Hallam (Olivia Blake) and for Swansea West (Geraint Davies), and the right hon. Member for North Durham (Mr Jones).
Let me make it clear that the presumption against prosecution created by part 1 does not prevent investigations or prosecutions for any category of crimes. It creates a higher threshold for prosecution, not a bar. It therefore does not prevent the UK from investigating crimes of any nature, whether they are in or out of the list of excluded offences in schedule 1. I have listened with sympathy to the concerns of many hon. Members that failing to expand the list of excluded offences makes UK service personnel more likely to face prosecution by the International Criminal Court, but it does not. Cases are only admissible to the ICC when a state is unwilling or unable to investigate or prosecute, so the presumption against prosecution created in part 1 does not prevent investigation, and cases can still be prosecuted. We will therefore not be considered by the ICC to be unwilling or unable to investigate and prosecute war crimes.
Several Members expressed concern about the duty of care, including the hon. Members for Belfast East (Gavin Robinson), for South Shields (Mrs Lewell-Buck), for Caithness, Sutherland and Easter Ross (Jamie Stone), and for Upper Bann (Carla Lockhart). The Ministry of Defence takes very seriously its duty of care for service personnel and veterans, for whom there already exists a comprehensive range of legal, pastoral, welfare and mental health support, details of which can be found, as I have mentioned, in the Secretary of State’s written ministerial statement of 13 April. The Lords amendment carries a risk of unintended consequences, including a possible increase in litigation, which would be contrary to the Bill’s objectives. I can reassure the House that the MOD and the Office of Veterans’ Affairs work closely across all Government Departments and the devolved Administrations, and with charities, to ensure that the welfare needs of our service personnel and veterans are met. We have come a long way on the welfare provisions for veterans and our service personnel, but we will continue to work tirelessly to ensure that we get this absolutely right.
This is without the scope of the Bill, but I feel obliged to reiterate my earlier comments about our approach to Northern Ireland veterans. In response to inquiries from the hon. Members for Strangford (Jim Shannon) and for Upper Bann, my right hon. Friend the Member for Beckenham and others, I can confirm that I expect, with confidence, legislation very soon from the Northern Ireland Office, and I look forward to keeping hon. Members updated in that regard.
I hope that I have been able to provide additional clarity and reassurance on the many issues that have been covered this afternoon. I hope that the House will agree to the Government amendments in lieu of Lords amendment 1, and disagree to Lords amendment 2, 4 and 5. I hope that the whole House agrees that the Bill will deliver an important step forward in the commitment of the Prime Minister and the Government to give our finest defence asset—our people—and our veteran community the protection they so richly deserve. I commend it to the House.
I am expecting Divisions—more than one. I remind everybody that there will be eight minutes for the first Division and five minutes for each Division subsequently.
Lords amendment 1 disagreed to.
Government amendments (a) to (o) made in lieu of Lords amendment 1.
After Clause 7
Investigation of allegations related to overseas operations
Motion made, and Question put, That this House disagrees with Lords amendment 2.—(Leo Docherty.)
Lords amendment 2 disagreed to.
The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
More than three hours having elapsed since the commencement of proceedings on consideration of Lords amendments, the proceedings were interrupted (Programme Order, this day).
The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F).
After Clause 12
Restrictions on time limits: actions brought against the Crown by service personnel
Motion made, and Question put, That this House disagrees with Lords amendment 4.—(Leo Docherty.)
Lords amendment 4 disagreed to.
The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
Duty Of Care To Service Personnel
Motion made, and Question put, That this House disagrees with Lords amendment 5.—(Leo Docherty.)
Lords amendment 5 disagreed to.
The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
Lords amendments 3 and 6 to 8 agreed to.
Government consequential amendment (a) made.
Motion made, and Question put forthwith (Standing Order No. 83H), That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments 2, 4 and 5;
That Leo Docherty, Michael Tomlinson, Jack Brereton, John Healey and Carol Monaghan be members of the Committee;
That Leo Docherty be the Chair of the Committee;
That three be the quorum of the Committee.
That the Committee do withdraw immediately.—(Tom Pursglove.)
Question agreed to.
Committee to withdraw immediately; reasons to be reported and communicated to the Lords.
In order to observe social distancing, the Reasons Committee will meet in Committee Room 12.
That concludes consideration of Lords amendments to the Overseas Operations (Service Personnel and Veterans) Bill. I suspend the House for three minutes.
Business of the House (Today)
That, at this day’s sitting, the Speaker shall put the Questions necessary to dispose of proceedings on the three Motions in the name of Mr Jacob Rees-Mogg relating to the Committee on Standards’ recommendations on confidentiality in the House’s standards system and sanctions in respect of the conduct of Members not later than 90 minutes after the commencement of proceedings on the motion for this Order; such Questions shall include the Questions on any Amendments to the Motions selected by the Speaker which may then be moved; these Motions may be proceeded with, though opposed, at any hour; and Standing Order No. 41A (Deferred divisions) shall not apply.—(Scott Mann.)