Overseas Operations (Service Personnel and Veterans) Bill (First sitting)
The Committee consisted of the following Members:
Chairs: † David Mundell, Graham Stringer
† Anderson, Stuart (Wolverhampton South West) (Con)
† Atherton, Sarah (Wrexham) (Con)
† Brereton, Jack (Stoke-on-Trent South) (Con)
† Dines, Miss Sarah (Derbyshire Dales) (Con)
† Docherty, Leo (Aldershot) (Con)
Docherty-Hughes, Martin (West Dunbartonshire) (SNP)
† Eastwood, Mark (Dewsbury) (Con)
† Evans, Chris (Islwyn) (Lab/Co-op)
† Gibson, Peter (Darlington) (Con)
† Jones, Mr Kevan (North Durham) (Lab)
† Lewell-Buck, Mrs Emma (South Shields) (Lab)
Lopresti, Jack (Filton and Bradley Stoke) (Con)
† Mercer, Johnny (Minister for Defence People and Veterans)
† Monaghan, Carol (Glasgow North West) (SNP)
† Morgan, Stephen (Portsmouth South) (Lab)
† Morrissey, Joy (Beaconsfield) (Con)
† Twist, Liz (Blaydon) (Lab)
Steven Mark, Sarah Thatcher, Committee Clerks
† attended the Committee
Douglas Young, BAFF Executive Council member (past Chairman 2006-2016), British Armed Forces Federation
Michael Sutcliff, Chairman, Armed Forces Support Group
Hilary Meredith, Chairman, Hilary Meredith Solicitors Ltd
Major Bob Campbell
Public Bill Committee
Tuesday 6 October 2020
[David Mundell in the Chair]
Overseas Operations (Service Personnel and Veterans) Bill
Before we begin, I have a few preliminary announcements. Please switch all electronic devices to silent. Tea and coffee are not allowed during the sittings. As I indicated before the sitting, please adhere to the social distancing requirements for the room.
Today we will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication, followed by a motion to allow us to deliberate in private about our questions before the oral evidence sessions. In view of the time available, I hope we can take these matters without debate. I call the Minister to move the programme motion standing in his name, which was discussed yesterday by the Programming Sub-Committee for the Bill.
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 6 October) meet—
(a) at 2.00 pm on Tuesday 6 October;
(b) at 11.30 am and 2.30 pm on Thursday 8 October;
(c) at 9.25 am and 2.00 pm on Wednesday 14 October;
(d) at 9.25 am and 2.00 pm on Tuesday 20 October;
(e) at 11.30 am and 2.00 pm on Thursday 22 October;
(2) the Committee shall hear oral evidence in accordance with the following Table:
Date Time Witness Tuesday 6 October Until no later than 10.30 am British Armed Forces Federation Armed Forces Support Group Tuesday 6 October Until no later than 11.00 am Hilary Meredith Solicitors Limited Tuesday 6 October Until no later than 11.25 am Major Robert Campbell Tuesday 6 October Until no later than 3.00 pm Professor Richard Ekins, Policy Exchange Dr Jonathan Morgan, University of Cambridge John Larkin QC, Policy Exchange Tuesday 6 October Until no later than 4.00 pm Association of Personal Injury Lawyers Centre for Military Justice Tuesday 6 October Until no later than 5.00 pm Liberty Human Rights Watch Thursday 8 October Until no later than 12.15 pm Cobseo - the Confederation of Service Charities The Royal British Legion Thursday 8 October Until no later than 1.00 pm General Sir Nick Parker Thursday 8 October Until no later than 3.15 pm Princess of Wales’s Royal Regiment Association Thursday 8 October Until no later than 4.00 pm His Honour Judge Jeff Blackett, Judge Advocate General
Tuesday 6 October
Until no later than 10.30 am
British Armed Forces Federation
Armed Forces Support Group
Tuesday 6 October
Until no later than 11.00 am
Hilary Meredith Solicitors Limited
Tuesday 6 October
Until no later than 11.25 am
Major Robert Campbell
Tuesday 6 October
Until no later than 3.00 pm
Professor Richard Ekins, Policy Exchange
Dr Jonathan Morgan, University of Cambridge
John Larkin QC, Policy Exchange
Tuesday 6 October
Until no later than 4.00 pm
Association of Personal Injury Lawyers
Centre for Military Justice
Tuesday 6 October
Until no later than 5.00 pm
Human Rights Watch
Thursday 8 October
Until no later than 12.15 pm
Cobseo - the Confederation of Service Charities
The Royal British Legion
Thursday 8 October
Until no later than 1.00 pm
General Sir Nick Parker
Thursday 8 October
Until no later than 3.15 pm
Princess of Wales’s Royal Regiment Association
Thursday 8 October
Until no later than 4.00 pm
His Honour Judge Jeff Blackett, Judge Advocate General
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 6; Schedule 1; Clauses 7 and 8; Schedule 2; Clause 9; Schedule 3; Clause 10; Schedule 4; Clauses 11 to 16; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 22 October.—(Johnny Mercer.)
That subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Johnny Mercer.)
That, at this and any subsequent meeting at which oral evidence is to be heard, the Cttee shall sit in private until the witnesses are admitted.—(Johnny Mercer.)
The Committee deliberated in private.
Examination of Witnesses
Douglas Young and Michael Sutcliff gave evidence.
We will now resume our public sitting to hear evidence from Douglas Young from the British Armed Forces Federation and Michael Sutcliff from the Armed Forces Support Group. Both join the sitting remotely. May I confirm with Douglas and Michael that they can both hear us?
Douglas Young: Yes, I can, Chair.
Michael Sutcliff: Yes, Chair, I can hear you.
If at any point during the meeting when members of the Committee ask you questions you cannot hear them, please indicate so that we can make the necessary arrangements.
I remind all Members that questions should be limited to matters within the scope of the Bill. We must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 10.30 am.
Do any members of the Committee wish to declare any relevant interests in connection with the Bill?
To err on the side of caution, I should say that I have served on overseas operations. I have also made a successful claim against the Ministry of Defence for my injuries during service.
I am a former member of the Association of Personal Injury Lawyers, who are one of the witnesses.
Will the witnesses please introduce themselves for the record? We will start with you, Douglas.
Douglas Young: I am Douglas Young, the former chairman of the British Armed Forces Federation. I am still a member and a member of its executive council. I have been asked by colleagues to present evidence today on behalf of the British Armed Forces Federation. We did submit detailed responses to the Ministry’s consultation last year.
Michael Sutcliff: Good morning, everybody. My name is Michael Sutcliff. I am the chairman of a small group called the Armed Forces Support Group, based up in Lancashire. Our worries are a conglomeration of things. We are a signposting group, and questions have been coming in regarding the Bill. Basically, it is déjà vu—we are here again. This has happened a number of times, and we would like to know how confident you are of getting these things through.
Thank you for introducing yourselves. I think there are some issues with the audio, because some Members are indicating to me that they cannot hear well what you are both saying. I propose asking Chris Evans to begin asking questions, and we will hope that we can improve the audio as we go along. If Members feel that the audio is unsatisfactory, we will pause proceedings to see what we can do.
Both my questions are directed at both of you. The first question of the day is, does the MOD do enough to provide a duty of care to those service personnel who go through investigations and litigations at the moment?
Douglas Young: In our opinion, the answer is no. Undoubtedly, the MOD has improved steadily. A lot of work has been done, but we are simply appalled by the experiences of some people who have absolutely been through the wringer for many years. One case, in particular, has only just come to an end, with a report by the Iraq fatalities inquiry. You can absolutely weep at the experiences of Major Robert Campbell and others who have been subjected to repeated investigations. Baroness Hallett’s report was very clear that everyone involved in the British forces’ deployment was completely innocent, and yet people say their lives have been ruined. That is awful. It has been recognised that a lot of work has been done, but it has not helped people who were already in the wringer. We certainly very much welcome the stated aims of this legislation.
Michael Sutcliff: I have to agree with the previous speaker. There is a great disappointment, Mr Chairman, that over the years there has been absolute chaos with this. If you look at the situation where Phil Shiner was allowed to spuriously bring all those cases so many times, this begins to really rot the trust within the MOD. A lot of senior officers seemed to have sloping shoulders at one time. Hopefully, these things are getting better. I take the case of the Major who has, I think, been lined up 14 times—14 times he has been exonerated, and here we go again. As I said earlier, we seem to be looking at this situation that has been gone through a number of times, and hopefully this time will be successful.
Douglas Young: We said that it should be 10—I think 10 is the absolute cut-off and the absolute longstop. That certainly was an option in the MOD’s original consultation. If you introduce shorter time limits, even more attention will have to be given to investigation and recording at the point that something occurs. I accept that this has been improved—I have no doubt that it has—but of course we are not currently subject to the intensity of operations, compared to the theatres where these cases first arose.
If you have a very short time limit of, say, five years, then there must be a huge effort in everyone’s interests— in the interests of potential victims, but also very much in the interests of the personnel involved—to absolutely record everything and to interview people. It can be an absolute pest, and it can be very grim going through all that, but it has got to be done at the time, rather than relying on people’s recollections afterwards, when, of course, they may have gone through a whole series of incidents during a six-month tour or longer and it can be very difficult to pick one out. So investigation and recording will be even more important than ever if you reduce the longstop time limit. I think we support the 10 years.
Michael Sutcliff: Just doing a quick poll, the team up here in the north seem to go for five to seven years, although I do not disagree with the previous speaker. But one of the dangers that there appears to be that, if you give it too long, the memories fade. We are struggling with memory-fade systems on the Bloody Sunday situation—that is a very good example.
If there is an accusation, it needs to be examined quickly and it needs to be sorted. But first of all—this is the difficult bit—somebody, somewhere, has to verify that it is real and it has not been made up by somebody, because there has been too much of that.
Michael Sutcliff: I cannot give you any examples of that. Talking among the team that we look after here, I have not heard of or seen any association with that sort of behaviour, so it would be unfair for me to comment on something that I really do not know about.
Douglas Young: There certainly are a number of very legitimate reasons for delaying. One would be simple concealment—perverting the course of justice and deliberate attempts to withhold evidence. Another one is where victims or complainants become aware of some evidence only later on because witnesses have been moved by the exigencies of war—they are refugees in another country or they are in a refugee camp—and people never had the chance to obtain information until after a substantial delay.
Of course, the other side of that is that people are then vulnerable to stories that are not actually true. If something happens in a crowd, for example, bereaved relatives later become aware of different stories flying about among that crowd that may not be true. That is the other side of it. But there are legitimate reasons for possible delay, because we are always assuming that, following our well-intentioned intervention supporting another country in operations, there will then be a period of peace and organisation, which may not actually be the case.
Douglas Young: References to the battlefield are sometimes misleading. A battlefield is a very specific thing. Quite often, when these sorts of issues have been discussed over the past few years, commentators talk about the battlefield in relation to everything that happens anywhere in the deployment area. There is no doubt that if you are deployed anywhere, you are in harm’s way, and your possibly peaceful base environment may actually become a battlefield at very short notice—there is no doubt about that. Being in harm’s way is different from normal life in the peaceful United Kingdom, but, quite often, commentators have discussed these issues as if everything consisted of fighting through the enemy objective, which is a very long way, for example, from injuries or illness that occur in barracks or in other areas directly controlled by the United Kingdom forces. I do not know whether that answers your question.
Michael Sutcliff: I agree. The term “battlefield” is often misleading. The battlefield could mean the backstreets of Basra or Belfast. It could mean the peacekeeping guys out in the far beyond place where we have them at the moment, where, theoretically, there is no war but where, sooner or later, the rebels will come out of the bush. Those are battlefields. Identifying a battlefield only as somewhere with tanks, aircraft, ships and everything else is incorrect. To answer your question, this should be very wide ranging—safely.
Douglas Young: The aim is that fewer personnel and veterans will be dragged through them in the future. Personally, I have had limited involvement with individuals who have been supported by the British Armed Forces Federation, although I have certainly spoken to individuals. I have some experience myself that is sensitive and which I cannot go into.
There is no doubt that talk about being dragged into an investigation is accurate. However willing one might be to serve the ends of justice and truth, it is a strain, and it hangs over you for a very long time. It forces you to continuously go back over what at the time was a stressful, difficult and challenging event. It possibly causes one to have to review one’s own actions and decisions in a confusing situation, because nobody does everything absolutely right when things are going wrong.
One is faced with a mixture of getting approaches out of the blue—a phone call saying, “We’d like to talk to you about this, that or the other” or “Something is coming up,” which can come at you at any time—and also dates that you know about, such as a court hearing on a particular date. All that, even for a perfectly innocent witness, hangs over you for a very long time. That is part of criminal justice, and armed forces personnel are not the only ones who may have to face this, but it has a real cost. The fact that one is really only a witness does not get you off the hook.
I believe that there has been a lot of exaggeration in the language used about claims. People have often spoken about a vast number of prosecutions. I think all of us—lay people, ordinary soldiers—understand prosecutions as criminal prosecutions. In fact, there have been very few of those, which we all know about, relating to recent operations. Some of these so-called prosecutions are actually civil claims by members of the armed forces and veterans. We have to be aware of exaggerated language. However, it is a strain and a stress, and being caught up in long-running investigations can have an impact on one’s family as well.
Michael Sutcliff: My personal situation regarding this is that I act in my role here as the welfare officer. Without going into too much detail, I can tell you about two individuals who were both involved with serious fighting and who both caused death to the opposite number—in-house. The fact that they had been through the wringer a few times was fairly obvious when you listened to their options—it was either them or the other. At the end of the day no charges were made, but the pressure put on those two guys was appalling.
On the other side, I have two guys who, even today in their early 70s, are looking over their shoulders and sleeping not too well at night, waiting for a knock on their door. I do not think the knock is going to come, but nevertheless, this situation is out. That is in a tiny little place where I live, so what is happening out in the big wide world, I do not know, but it is not very satisfactory. I hope that gives you a reasonable answer, sir.
Douglas Young: I think six years is a reasonable presumptive time limit for civil payment, and corresponds pretty much to the legal system in the different parts of the United Kingdom, but we would be concerned about the absolute longstop. As I mentioned before, claims of this type often originate during conflict or in post-conflict periods, when the claimants may be refugees or internally displaced persons. Perhaps a robust administrative payment system operating in-theatre would help to speed things up, because, clearly, some people have perfectly legitimate claims that should be met, and claims do not always imply criminal liability, which is what we are sometimes led to believe.
Imposing an absolute time limit places armed forces personnel claimants themselves at a disadvantage compared with civil claimants in ordinary life, where the court has discretion. Of course, the Minister has made it perfectly clear, absolutely correctly, that the time limit for this particular part of the Bill only starts to run at the point of knowledge. That is completely understood. That point of knowledge, diagnosis or whatever, could be many years later. Nevertheless, I would have a worry about an absolute longstop as proposed.
Michael Sutcliff: I take your point there, sir. Funnily enough, I am ex-Navy, and a number of my colleagues now are beginning to pick up the old asbestosis problem—I cannot remember the posh name for it—
I can’t either.
Michael Sutcliff: They are being compensated for it, so you are right that if we had a very early backstop, they would have lost that. Not being the lawyerly mind, I do not know whether you can split the two things up. Let us just take the asbestos as an example, which is a workplace situation that was or is found particularly in the Royal Navy, and the difference between that and an action situation. I do not know whether you can divide the two, but on one side, I am looking at the fact that you do not want it to go on forever, and on the other side, of course, in the example that we are talking about, forever is needed before you suddenly find you have it. That is the best muddled answer I can give you.
Douglas Young: Various aspects of the covenant may be engaged by this legislation. Whenever we mention the covenant, it is worth saying that the stated aim of the legislation is to improve the position under the covenant, or to be guided by the covenant in removing what is considered to be unfair treatment of members of the armed forces compared with other, ordinary people who are never subjected to quite the same lengthy legislation. But there is certainly the argument that restricting the right of armed forces personnel and veterans to sue their employer for an injury or illness caused by a fault during their employment is against the military covenant, so there are two sides to that.
Michael Sutcliff: I entirely agree. The covenant is fairly new, and as we progress and go through this, we will have to tweak it here and there. I see what is in front of me in the Bill as quite positive, but we need to look at these little things to ensure that service personnel are not limited or restricted any more than civilians should be. The idea of the covenant is to help and support you in the civilian life you have just entered, so having sticking blocks in it is not a good idea.
Douglas Young: There is no doubt that the Bill and its principles have been widely welcomed. I think a lot of people will see the headline that, as promised by the Government, action is being taken to put a stop to the industrial level of claims. As I mentioned before, I think there is some exaggeration behind some of that, although there is absolutely no doubt that many have suffered disgracefully and that should never have happened. However, I have some doubts about the scale of what is involved.
The Ministry has at times understandably encouraged the idea of prosecutions and welfare, and some of it is claimed by members of the armed forces. Let us not forget, of course, that there are perfectly genuine and reasonable claimants who have sought compensation for something that did happen to them, but across the board I would say there is a qualified sigh of relief. A lot of people welcome it.
I have seen pretty strong views against as well, and these views are not all from, if you like, the usual suspects who are suspicious of the armed forces or not particularly sympathetic to the armed forces. Some of the criticism has come from people with a lot of relevant experience. For example, the field marshal and the general who wrote the letter were described by some as “meddling generals”, and they probably knew very little about the two individuals concerned, who certainly know what a battlefield looks like and the consequences of putting people in harm’s way. I want to encourage this Committee in its scrutiny of the Bill in case of unintended consequences, or even intended consequences, that might trick the Ministry of Defence but might not be quite what those involved are looking for.
Michael Sutcliff: From our point of view, it starts with a big hope. We have been here before, as I said at the start, as there have been several attempts. They all seemed to be Ministers saying, “We are going to do this, that and the other,” and then suddenly some bug is found somewhere and it never happens. There is a hope that this is going to go through. I take the great point just made to the Committee: please scrutinise the Bill as carefully as you can. Often the MOD is seen as the enemy of its men, which is the wrong way to see it and really is a bit of an issue. Do not let the Leigh Days of this world anywhere near it, because they will screw it up.
The object of the exercise is to look after your service and ex-service personnel in the best way you can. If you read the papers about a number of MPs voting against it, I hope you will see that there is concern out here in the big wide world and we are at your mercy—do a good job.
Douglas Young: I think we have touched already on the dire mental health effects of repeated investigations, for example, and even simply of participation in combat operations. The British Armed Forces Federation has been involved in many of these issues. In campaigning about mental health in the armed forces in the past, we have given evidence to a parliamentary inquiry into healthcare for members of the armed forces. I have some experience myself, because I am a qualified caseworker and office bearer in a major national charity that supports armed forces personnel, veterans and their families.
Not all mental health problems among the armed forces and veterans are attributable to combat; there are many other factors. There can be a different pattern in illness between armed forces people and people outside. Obviously there is a huge overlap, but they can present slightly differently.
Years ago, not long after BAFF was formed, we had the case of an individual who had sought psychiatric support through the NHS. He had been assigned to take part in group therapy. In the group therapy he described the incidents to which he attributed his illness, but after a while he was asked to stop coming because he was making all the other patients worse. There is a need for targeted mental health support where people are willing to accept tailored support. Of course, some people may not wish to be in any way associated with the armed forces, even though their problems may be attributable to that.
We certainly support everything that has been done. Things have improved. The Ministry of Defence has been doing a lot in this area, as have charities such as Combat Stress, but there is always more to be done. I frequently meet people—not directly through that, but at veterans breakfasts and the like—who are clearly suffering. It is a huge problem, which we need to understand and perhaps not exaggerate. The vast majority of people who have served in the armed forces are very effective future employees, marriage partners and so on. They tend to do well. Our veterans are not all weighed down by problems.
Michael Sutcliff: To answer your question from my end, I have been doing this job for about 16 years now. I would put it this way: the stress from being in the armed forces is very different from that of the outside world. What does it do to marriages? In some cases, of course, it breaks a marriage, and it would be quite wrong to say that it does not. There are an enormous number of very supportive wives out there who help their husbands through. Certainly, if the family is mixed up and falling out, it affects the children.
I have to tell you that, from my personal point of view, I was not suffering from anything other than the fact that I joined the services at 15 and came out at 30-something into the big wide world. My wife and I were strangers—that was an example. It worried me so much some years ago that I have actually taken a course on service mental health, so that I can understand myself. [Inaudible.]
I agree that it is getting better. There are a number of groups out there that can help in this situation. The local NHS here is very good. We have some good doctors. We operate here in our little world. The door is open and we say, “If you have a problem, come and talk to us about it.” We get people who do that. We have dragged one or two back from the brink, which I am very happy about, but it is not thousands. Do not get too carried away with that. I have spoken to the local colonel and he said to me, “Everybody thinks that every soldier, sailor and airman has PTSD, and it works out at about 3% of us.” However, that 3% goes back to Cyprus and everywhere else—there is a lot in the 3%.
We are doing better, and we can do better. All of us are beginning to understand things better, and there are clever people out there coming up with good ideas every day. Hopefully that gives you the situation. But yes, obviously it destroys families and puts great stress and strain on them—there is no getting away from that.
Michael Sutcliff: The quick answer to that from me is yes.
Douglas Young: Given that endless investigations and the fear of prosecution—sometimes unfounded fear—have had an effect on individuals’ mental health and that of their families, it follows that if that at least can be reduced, then fewer people will suffer from the same deleterious effects on mental health.
Do you agree, Mr Sutcliff? I think you said yes earlier.
Michael Sutcliff: I agree 100%. They let these things run on and on forever, going round and round in circles. It is utter nonsense and has destroyed many people, so yes, they will be cutting out, and that is good.
Douglas Young: [Inaudible.]
We did not hear the start of your answer, Mr Young. Will you start again? We had a technical issue.
Douglas Young: There have been very serious allegations concerning the approach taken by investigators earlier on, under the IHAT investigation. We do not know fully the truth of those, but certainly in cases investigators who had no actual police powers acted excessively. I do not believe—or, certainly, I have not been told—that that sort of thing has been happening more recently.
The Bill should not affect that, except perhaps by removing scope altogether, but it will not have a direct effect on the treatment by investigators arriving at the door. It is an important area, and the Ministry of Defence, in so far as it has not already done so, should certainly take that on board.
People who are being investigated or engaged as potential witnesses have said that they do not feel supported by the MOD. The MOD arranges them—in some cases, they have some legal support—but the MOD is not actually on their side. I can understand that—you cannot tell a witness what to say—but a number of people have written, and I have now heard it myself directly, about how they did not feel adequately supported by the MOD. Sometimes, if they were still serving, they were told, “Well, your unit should be supporting you,” but that unit might not be the one that they have a particular connection with. The question of support and attitudes towards potential witnesses and suspects requires close attention, but is perhaps not directly addressed by the Bill.
Michael Sutcliff: I have not seen that. We have had a couple of instances here. One guy had literally barricaded his house. He was worried about these guys turning up, but they never did. It took a while to calm him down. I have a couple of chaps who are still a little worried about a knock on the door, but they have not come. But I have not heard about these people knocking about for a while—at one time this was hitting the headlines quite often, but it is not at the moment. Of course it has an effect on people, and it is wrong. It is not being done properly.
Douglas Young: I have no direct experience of a member of the British armed forces who has been accused of torture; I have no direct knowledge. I have personally interviewed a very recent victim. I say “very recent”; it was years ago, but he had very recently been tortured by foreign armed forces and I saw his injuries.
I have very serious concerns about torture being treated differently from sexual offences—that sexual offences have been singled out as not subject to the same time limits that torture is. I would say that the two broad areas of offence are very similar. They may take place for base motives. They are certainly inappropriate. They are about using power against someone who has no control over the situation. And they very often take place behind closed doors, so it may be very difficult to take evidence—if torture or sexual offences have occurred within a base, other people in the area may not know about it at the time. So I have very serious concerns about the exemption, if you like, for torture and it being treated differently from sexual offences. The suggestion is that that is for reasons of political correctness: “Sexual offences? Oh no, we must keep them aligned, but torture we won’t oppose.” I do have worries about that.
Michael Sutcliff: My answer is that I have absolutely no experience of it and have not heard any comments from any of my colleagues or visitors, so it would be unfair for me to comment.
That is a very fair answer. Thank you very much, gentlemen.
We are tight for time, so I will call Carol Monaghan next, and then, if we can, we will squeeze in Liz Twist and Stuart Anderson, who have both indicated a wish to speak. Gentlemen, could you, at the other end, give short, sharp answers as well?
Douglas Young: I cannot quantify it, but I certainly have seen a suggestion that a large proportion of actual claims has been on behalf of forces personnel—[Inaudible.] Only the MOD can really answer that. I have mentioned before my concern about some of the language. Lawfare actually exists and it is a threat, but many of the cases are not lawfare at all in the sense of being employed by bad or malicious actors in order to make things difficult for the United Kingdom. Many of the cases are not like that at all. If people feel that they have a claim, they will make a claim. It is exactly the same in this country. Why wouldn’t you, if you were in Basra or Helmand and you thought you had a genuine claim? People exaggerate. I have absolutely had experience of that in the Balkans. People tell stories and it is difficult to get to the truth.
Douglas Young: “Industrial scale” refers to large numbers. The numbers mentioned by the MOD are high. I would like to see the breakdown and how many were settled, in which case presumably there was something in it, and how many were not by indigenous residents but by members of our armed forces.
Douglas Young: I think six years is a reasonable presumptive time limit, but the absolute limit, the longstop, should be longer than that.
Douglas Young: On the first point about coming to light, we are all right with that. The time limit only starts at that point. I do not have any experience of facts that came to light.
Michael Sutcliff: The example I gave you is exactly that. I can see it for everyday injury, but when you are using equipment, machinery and things like that—this problem with asbestos literally only started raising its head many years ago. To be fair, the MOD dealt with that very fairly. There are always exceptions to the rule. You should be able to make a submission as something that arrives and is seen by the necessary medical people or scientists as an issue. I am not sure that that answers your question, but you cannot just shut things down like that, or else we would have been in trouble.
Gentlemen, this will be the last question, so if you could both answer succinctly, that would be helpful.
Douglas Young: One thing about a shorter period is that, properly described by the MOD and by lawyers and others, a shorter time, if properly used, would actually remind people that the clock is ticking and that they need to get in. So there is that case for shortening that limit, but we should be careful.
Michael Sutcliff: I accept that. That is a reasonable comment.
Thank you, gentlemen.
Thank you to the witnesses. We have reached the end of the time. I apologise to the two Members who wished to put questions but were unable to do so. Thank you, gentlemen, for joining us and engaging with the technology successfully.
Examination of witness
Hilary Meredith gave evidence.
We are now going to hear from Hilary Meredith, of Hilary Meredith solicitors, who is joining us in person. We have until 11 am for this session. Hilary, could you introduce yourself for the record, please?
Hilary Meredith: Yes, I am Hilary Meredith.
Thank you. As you have seen from the previous session we have some logistical issues, because Members who wish to question you will have to move to a seat where there is a microphone, or we have a standing microphone just behind you. I hope that you will bear with us as we move forward with those logistics. The two Members who have indicated that they wish to question you during this session are Emma Lewell-Buck and Carol Monaghan. If there is anyone else—Sarah Atherton, I will take you as well. So, Emma.
I want to be on every question, Chair.
I suggest that we might logistically arrange for people who do want to ask questions, or anticipate asking questions, to be at the table where they would have access to a microphone. It makes it so much easier. Emma Lewell-Buck, I call on you to start the proceedings.
Hilary Meredith: No, I do not, and that is one of my issues with the Bill—that it mixes civil and criminal law together.
Hilary Meredith: One of the issues with the Bill is that we need to look backward to find out how we got into the present situation, before we can cure it. Most of the criminal allegations arose out of civil proceedings by Iraqi foreign claimants against the Ministry of Defence. Great caution needs to be taken when criminal allegations arise out of a compensation cheque carrot being dangled. For that reason alone there needs to be a separation with the two—criminal and civil law.
Hilary Meredith: I think that leads on to it: because many of the criminal allegations arose out of a civil compensation claim, great caution should have been exercised. I cannot believe that extra care was not taken, and under those circumstances I can quite see there should be a presumption against guilt. It was not helped by the Ministry of Defence then paying cash to civilians in Iraq by way of compensation, which almost indicated guilt. That led on to the criminal prosecutions.
Hilary Meredith: I am against any cut-off, to be honest. I think the reason why the cases became historic is not the date of the accusation—any of the criminal accusations under human rights law, for example, came within 12 months of the incident taking place. It was the prolonged procedure that was bungled afterwards that made those cases historic. It is the procedure and investigation in the UK that need to be reviewed and overhauled, and not necessarily a time limit placed on criminal or civil prosecutions.
Also under that heading, I have an issue with the longstop applying to civil cases where personnel are overseas on operations and military personnel have a longstop placed on their claims as well. I understand that that has been put in on a equitable basis, so that if there is a longstop for a criminal prosecution, it also has to apply to civil law, but I am not sure about that.
Hilary Meredith: The answer to that is that I do not actually know. I think that lawfare instance came mainly from one or two lawyers. Phil Shiner was a one-off. He brought civil claims for compensation first, and as a result of that the prosecutions followed. If we had a robust procedure for investigating those cases and, for example, an independent advocate who has the back of the individual member of the armed forces and supports them, many of those cases would not have been advanced to the point that they were, with the subsequent criminal allegations.
Thank you, Chair—I will leave it there so others can come in.
Thank you for observing the microphone requirement. I call Stuart Anderson.
Hilary Meredith: I think the overarching view of the Bill is correct, but there does need to be protection in place. When criminal prosecutions arise out of civil compensation cheques being dangled, there should be a presumption of innocence and no prosecution should really take place without extra care and caution.
I think that the time limit is a bit of a red herring, to be honest. We do not need time limits on it; most of the allegations were brought in a timely manner. I have searched to see whether our courts ever exercise their power of discretion under the Limitation Act for human rights allegations—they have to be brought within 12 months. I cannot find a single case on a preliminary investigation in which the courts have extended a 12-month time limit under the Human Rights Act. I can see one case where they have extended the date that time begins to run, and in multiple proceedings, that is not at the beginning of the process but at the end.
For example, under IHAT, it was only in June this year that we found out that of those 4,000 vexatious criminal claims, there was not a single prosecution. In those circumstance, if a member of the Armed Forces wishes to bring their own human rights claim for lack of a speedy trial, that time runs from June this year.
Hilary Meredith: The investigations that took place following the civil claims were shambolic to be honest. I know that you will hear from Robert Campbell after me; he would have liked to have been heard in the European courts, because our system was so shambolic and went on forever. That is a very extreme viewpoint to take—we cannot investigate properly in this country.
The Royal Military Police need special training. You have to understand that they are investigating crimes overseas and in a war zone. It is extremely difficult. It may be that they take training from, for example, the Metropolitan police on investigating crimes. It is a very difficult area to investigate. We need to have a robust system of procedures to investigate crimes, rather than putting time limits on it.
Hilary Meredith: For example, if I can use the case of Major Campbell, the investigation against him included a drowning in the river in Iraq. That allegation came within a year of the incident. He was told by his commanding officer not to worry about it because it would be cleared—it would be sorted. Then began a process where over 17 years, he was investigated 11 times for the same incident. That is the shambolic system of procedure that we are operating in this country and that is what needs to be reviewed and overhauled.
Hilary Meredith: I think the original investigation was by the Royal Military Police. It was perceived that they were not independent enough, so the IHAT team was formed. Under the IHAT team, we then had this terrible form of investigation through Red Snapper, which Parliament has heard about before. Its methods of investigation and what it put those accused through was quite horrific. Had there been an independent advocate that had the backs of the individual members of the armed forces—not the Ministry of Defence, which cannot act; there is a conflict—there would have been a buffer between the Red Snapper team and the IHAT team and the individual person. I think that would have solved a lot of mental health issues as well.
Hilary Meredith: There is a difficulty putting a time limit on the Human Rights Act—I do not even know whether we can do that constitutionally, because it is a European convention. If there is a six-year time limit on criminal allegations, I have concerns about that. I think most of those criminal allegations were brought well within time anyway; as I said, it is the process that was wrong.
For civil claims against the Ministry when people are injured or killed in service overseas, I do not think a longstop should be applied. There are tremendous difficulties in placing people in a worse position than civilians. In latent disease cases—diseases that do not come to light until much further down the line, such as asbestosis, PTSD, hearing loss—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.
Thank you very much. Thanks for your answers.
Hilary Meredith: That is a really interesting point, actually. I had not thought of a time limit on investigations. Certainly under the Human Rights Act, there is a right to have a speedy trial, and that did not happen in these cases. There were no speedy trials. A limit on the time that an investigation takes would, I think, be really welcomed. Sorry, I cannot remember your second question.
Hilary Meredith: Parliament had an inquiry into what support they were given. Basically, there was none. It is not so much the serving personnel, but the veterans—there was no telephone number for them to phone. At one point, I was told, “Phone the Veterans Agency.” The Veterans Agency deals with pensions. If you are arrested and in a police cell at midnight, you cannot phone a pensions department for help. The penny dropped when I said that to the Ministry of Defence.
If someone was appointed independently from the Bar Council or the Law Society, and it was freely advertised, even given to personnel before they go on operations, then they would have a telephone number to phone for support and advice. I think that is crucial. The process of the investigation may have been reduced if they had had an advocate in their corner, questioning why this was going on for so long.
Hilary Meredith: I think that part 2, on the time limit, should be taken out and scrapped completely. It is the time limit for the procedure. It went on too long, with multiple investigations. We have not got our system right there. In fairness, the decision in the Al-Skeini case that opened the floodgates to the Human Rights Act applying overseas, outside our territory, took us all by surprise. It took the MOD and everybody by surprise. We were not geared up for the consequences of that.
Hilary Meredith: I worry that it is not, actually. I think the Bill will have a rough passage if that part is not tailored slightly. There is a presumption not to prosecute where the allegations of crime arise out of a compensation cheque carrot being dangled, but in the majority of these cases the MOD are paying compensation. Payment of £145,000 was made to the father of the drowned boy in Major Campbell’s case, indicating in Iraq that there was guilt there. Why was that payment was made, who authorised it and why was it so much—it is a huge amount of money—when he was exonerated completely? Some 4,000 allegations of criminal activity under IHAT were completely dismissed, without a single prosecution. Why was the MOD paying out compensation?
Hilary Meredith: I think those payments fuelled the allegations of crime. Maybe there should be a review of why large amounts of money are paid in compensation when there is no guilt there.
Hilary Meredith: I am not quite sure I understand the question.
Hilary Meredith: I think there are two issues. The Human Rights Act civil cases were brought for abuse and detention. When you look at the charge sheet, there are masses—hundreds—just as abuse and detention. The civil human rights were brought by the Iraqi civilians against the Ministry of Defence. That, then, culminated in human rights criminal activity against individual members of the armed forces. Which takes precedent? I think you will have to ask a constitutional lawyer, but my concern is that if we are putting time limits on the Human Rights Act 1998, I am not sure if in the UK we have the power or authority to do that. A constitutional lawyer would be able to advise you better.
Hilary Meredith: Nobody.
Hilary Meredith: No, there was nobody there to help them.
Hilary Meredith: No, and I think one of the issues that the members of the armed forces have is that they have to step out of the military environment into civvy street and find a civilian lawyer or even know that they are allowed to find a civil lawyer, there was no information there for them. That is why I am suggesting there should be an independent civil advocate from the Bar Council or the Law Society with criminal knowledge to help them.
Hilary Meredith: I do not know. I am not a criminal lawyer, but I think that many of those—imagine that you are completely innocent and you are accused. First, there are so many different laws now that affect you on the battlefield, so many different conventions, and then throw in human rights as well. It is a difficult, complex scenario.
Hilary Meredith: Going back to the Al-Skeini case: the decision that opened the door for human rights in a foreign territory where we had control, and the situation where we had control was detaining prisoners. Of those who claimed civil compensation—I keep using Major Campbell’s case. That was not in detention but that was somebody who was said to have drowned in a river. These prosecutions just go on and on. I have forgotten the question.
Hilary Meredith: As a result of those civil claims that were brought—I do not know how many civil cases were brought against the Ministry of Defence; it would be interesting to know—they led to over 4,000 accusations of crime under the IHAT team, which happened to be investigating. Of those 4,000, there was not a single prosecution.
Hilary Meredith: I understand that, out of the 4,000, there were possibly 30 worth investigation. Of those 30, it was whittled down to around five, and of those five, there was insufficient evidence to say whether there was any issue or not. Somewhere along the way, somebody decided that the British military were “rotten to the core” and they were not given a chance, so they were almost guilty before being proven innocent. That is where the presumption against prosecution is so important.
Hilary Meredith: There are two scenarios, depending on whether you are still in service or you are a veteran. If you are a veteran, there is nothing—there is no chain of command. A number of times, the MOD said to me that veterans can go and see the chain of command, and I say that they are retired and are veterans, so there is no chain of command, or their commanding officer has retired. Who do they contact? If you are in service and have a good commanding officer, you can go and seek help through them. I know that the Army legal services tried to help in some instances, but I think there is a conflict of interest with the Army legal services protecting the Ministry of Defence and trying also to protect individuals.
Hilary Meredith: That is one thing I considered. The remit of the ombudsman would have to be extended to do that. To look into 4,000 falsely brought accusations is a big job. Whether the ombudsman has the resources and the remit would have to be looked at, but I think that is a good idea.
Hilary Meredith: If their remit is extended and they could cope with the volume, yes, definitely. My idea is for an independent person, which the ombudsman is, or somebody from the Bar Council or the Law Society, or even a panel appointed on a rota basis that could assist.
Hilary Meredith: I agree; it is extremely difficult. When I am putting forward an independent person, I am talking about somebody in civvy street, which would be even more difficult. Unless you sign up to the Official Secrets Act and there is a full cards-on-the-table procedure, it would be very hard to defend.
Hilary Meredith: The time limit, on the face of it, is welcomed by most veterans and military personnel, but the reading of it is a concern. For example, time limits will be introduced if military personnel serving overseas are killed or injured in service. Putting a time limit on that puts them in a worse position than civilians. That alone outweighs the prospect of a time limit on a criminal prosecution. Most criminal prosecutions were done in a timely manner. It was the process that caused them to be historical. Differentiating between the two and sorting out the process is more welcome than actually putting a time limit on an allegation.
Hilary Meredith: In civilian cases, with the date of knowledge of, for example, of PTSD, you may consider that there is something wrong post service, but it can take up to 15 years for PTSD to actually raise its head. An example of that is the young men and women who came back who have lost limbs. People were surviving triple amputations and went on to do fantastic things; they climbed mountains, they skied, they had great prosthetics—they all did remarkably well. But as the ageing process takes place, they cannot walk on prosthetics; they become more wheelchair-bound, they put on weight, the Invictus games is not available to them, and that is when PTSD sets in. PTSD is not just the diagnosis; it is the date you realise it is connected to service, and 15 years down the line it can be difficult to differentiate between, “Yes, there is something wrong with me,” and, “Ah, but it’s also connected to service.” It is the causation issue—the service caused the PTSD.
Thank you, Hilary. With that, we have reached the end of the time period that was allocated for your evidence. On behalf of all the members of the Committee, we are very grateful to you for the evidence you have given and for bearing with us and the logistics we have to follow to comply with social distancing. Thank you very much for your evidence.
Examination of Witness
Major Bob Campbell gave evidence.
Our next witness is Major Bob Campbell, who is giving evidence remotely using sound only. We have until 11.25 am for this session. Major Campbell, could you just confirm to me that you can hear me, and could you speak so that we know you can hear us?
Major Campbell: I can hear you fine. I will just say that I have hearing loss in both ears, so may I ask for the questions to be spoken clearly? You do not need to shout, but just speak clearly, and then we will probably get through this more quickly.
Excellent. You are pre-empting my good self in giving that instruction to those asking for evidence. Major, could you just confirm your name formally for the record?
Major Campbell: My name is Robert Campbell, former Army officer.
Thank you very much, sir. I have four Members who have indicated that they want to ask questions: Stephen Morgan, Kevan Jones, Carol Monaghan and Stuart Anderson. If anybody else wants to ask a question, please indicate. I will go first to Stephen Morgan, who I am sure will follow the Major’s instructions.
Major Campbell: No, there was none. Depending on which investigation you wish to address, in the early investigations under the Royal Military Police we were told just not to think about it and to get on with stuff. No concession was given to us in our day-to-day duties. Later on, when the Aitken report was written in 2008, we were not approached prior to the publishing of the report; I heard about it on the radio like everybody else, while I was driving home. It is rather unpleasant to discover on the radio that your own Army accuses you of killing somebody in Iraq, three years after you have already been cleared of that allegation.
Moving forward to the later investigations, there was a civil claim made by Leigh Day in 2010, in which we were ordered to give another statement and we were ordered not to seek our own legal advice by the Treasury Solicitors. We ignored that instruction: we got our own legal advice, and we declined to assist the Ministry of Defence in defending the civil claim, because frankly we thought they had rather a cheek after previously accusing us of committing that offence.
When IHAT came in 2015, I had just started my intermediate officer education at staff college. I knew IHAT was going to come and arrest me and question me, so I approached the course colonel to ask whether I could defer the course, because I had to concentrate on this allegation. He wrote to me in an email, “Based on the version of events you have described to me, which would doubtless be corroborated by your colleagues, I do not believe you have anything to fear. Given the utter discrediting of Iraqi witnesses in al-Sweady, I believe you can take further confidence. I know this is extremely unsettling business for you, but I would urge you to try to put it to one side and focus on this course. That in itself will be a distraction and help you get on with your life.” So, to briefly answer your question, no, we were not offered any type of meaningful support other than some rather unhelpful advice to try not to think about it.
Major Campbell: No. Again, that last instance was my direct line manager—okay, it was slightly different from the normal chain of command because I was on a course. Their belief was—this is what kept being told to me—if you have done nothing wrong, you have got nothing to fear. While I tried to explain to them, “Look, I have been through many investigations and, trust me, they are very, very unpleasant” they would not have it.
I pushed it up the chain of command to Army headquarters, and again they were not really interested in helping. They expressed to me that they were being told by the directorate of judicial engagement policy not to get involved. In terms of hindering me, if you like, I was appalled to discover that the Army personnel centre had handed over my service and medical records to IHAT without my knowledge or consent.
Apart from the military chain of command, I wrote to Penny Mordaunt, Mike Penning, Mark Lancaster and the Secretary of State, Michael Fallon, in response to some of their public statements in order to correct some things they said that were not entirely accurate when they were making claims that everybody was fully supported. They all responded back to me, “You don’t understand—we have to do this because we have to be seen to be doing something.” The impression I got was that me and my two other soldiers being multiply investigated was necessary for the reputation of the United Kingdom or the Army.
Major Campbell: The Army is a large and compartmentalised place. For example, when public statements are being made about these investigations, nobody actually checks with us or our solicitors if they are indeed true. Certainly, Brigadier Aitken did not think to check with us or our solicitors if we might wish to dispute anything that he was going to write in his report. He wrote retrospectively that our case was included in another load of cases, some of which were true and some of which, I believe, were false. However, I think a greater degree of a direct communication would have been better.
I also suggested in my letter to Michael Fallon that an officer at least of colonel rank should be set up somewhere like Army headquarters—I will focus on the Army because I am not too sure about the other two services—to be the one-stop shop for anybody who is under investigation. I was told that that was not necessary. Both Michael Fallon and Sir Stuart Peach in the Defence Sub-Committee on this matter said there is no need for such a thing because there is the chain of command, which will do everything. The chain of command folded at the first hurdle. The administrative process in place to apply for our legal fees to be reimbursed failed at the first hurdle, because the form did not have a box for an IHAT investigation.
On top of that, there was just to be no concession on how we were supposed to conduct ourselves in our day-to-day life. Because there was no single point of contact, we had nowhere to address our concerns. I had a very tedious series of correspondence, again with all those people I just named, who all responded, “If you’ve got a problem with it, complain to IHAT.” That is not the most helpful piece of advice.
Major Campbell: In terms of legal protections of soldiers, I would not change anything in terms of historic allegations, let me make that point clear. Had the Bill been in place during my case, it would have meant, at the absolute worst, that our torment would have ended in 2009, and neither IHAT nor the Director Service Prosecutions would have had any method of dragging it out further. For me and my two soldiers, SO71 and SO72 as they are cited in the IFI report, that would have meant that we could have at least enjoyed the last 11 years in peace.
Secondly, if the Bill had been in place during my time, Leigh Day would not have been able to bring about false allegations. That would never have got off the ground. I am no legal expert, but if the Bill was in place, it would make the vexatious, scattergun, “throw a thousand allegations at the wall” process unprofitable, and people like Leigh Day and Phil Shiner would have to find some other human misery to exploit.
The last point about this hard stop of five years is that it would be a useful device, because it would focus the minds of the MOD and the investigators. It was the MOD that dragged it out for the last 17 years. If they had this hard stop, they would have to really focus and decide whether they are going to prosecute or not. Putting them under a bit of pressure would have saved us a lot of angst in the years past.
Major Campbell, thank you for your answers.
Major Campbell: I fully welcome the Bill, both in its intent and in its content. Again, in my amateur legal opinion, there may be a legitimate argument to be had over whether the Attorney General is the correct address in terms of being the final arbiter of further prosecutions, due to the advice he gives to the armed forces on the legality of a conflict.
My other slight concern is that previous Attorneys General have done us no favours at all. Lord Goldsmith had a lot on his shoulders for how we ended up in Iraq and the manner in which we conducted operations there. When I appealed to Jeremy Wright, and when he gave evidence to the Defence Sub-Committee on this several years ago, he took the view that this was an entirely fair process and that there was absolutely no reason to stop IHAT or even to scrutinise it any further than necessary.
The last point I would make about the Bill is that I cannot really adhere to some of the arguments against it. When I wrote to all these people, such as the CGS, the Adjutant General and previous Ministers Mordaunt, Penning, Lancaster and Fallon, they would all express a variation of, “Well, we have to be seen to be doing something.” I do not believe that public relations and being seen to be doing something are a good enough reason to destroy a soldier’s life or to drive them to suicide. I do not think that is morally acceptable in any way, but apparently they thought that was a price worth paying.
To answer your question, yes, I support the Bill. There may be some minor tweaks here and there, but, in principle, and in the absence of anybody doing anything to help us in any way, it has my full support.
Major Campbell: From my very unscientific survey of veterans, I think that generally—in my orbit—the Bill is welcomed. If the words of the Bill are not welcomed, the principle of attempting to improve the lot of veterans and service personnel is welcomed. There is deep anger and distrust between the veteran community and the MOD. It is all very well for the MOD to blame Phil Shiner and Leigh Day for this, but it was the MOD that carried out the repeated investigations.
To answer your question, I think that if the Bill were to be squashed, it would send a very depressing message to the veterans community—probably one that has been felt quite harshly by the Northern Ireland veterans—that we are not important enough to get any type of assistance when facing legal assault.
Thank you for your comments, and thank you again for your service.
Major Campbell: I think that is a false allegation, and I will tell you why. Again, when I wrote to all these people—even internally within the Army—I was told repeatedly that if IHAT was interfered with in any way, the International Criminal Court would swoop in and clamp us in leg irons, and we would all be off to The Hague. Michael Fallon repeated in the Defence Sub-Committee that he had no power to stop such investigations and that, if he were to do so, the ICC would get involved.
I decided to test that theory, and I wrote to the chief prosecutor of the ICC, Ms Bensouda, asking in exasperation whether I, SO71 and SO72 could surrender ourselves to the ICC rather than go through several more appalling years at the hands of the Ministry of Defence. Ms Bensouda responded that our allegation does not fall within her remit, because her job is not to prosecute individual soldiers; her job is to prosecute commanders and policy makers for the most grave crimes. In her orbit, manslaughter, which is what I was accused of, is not a war crime. It is a domestic crime—a regular crime, as opposed to what she would normally deal with. I reported that rejection to the Ministry of Defence, which continued to repeat that the ICC would fall in.
The second point I would make is, what would be so terrible about the ICC being involved? We kept getting told that the ICC has a bit of scrutiny over IHAT and is keeping a very close eye on it. Personally, I do not have a problem with that. Like I said, the ICC was not going to ruin our careers, the ICC was not going to harass our families, and the ICC was not going to go and bully soldiers who had left the Army for a witness statement—not even a suspect’s. The ICC would conduct itself professionally, and it would have no incentive—no financial incentive—to drag things out for years, like Red Snapper, which provided most of the detectives to IHAT, did. Finally, the ICC would probably not use the investigative technique that IHAT used, which was to pay Phil Shiner’s gofer to be the go-between between them and witnesses because IHAT was too scared to go to Iraq.
So regarding the whole spectre of the ICC, first, I do not find it remotely as scary as people make it out to be and, secondly, it is completely false, because I attempted, with my two soldiers, to surrender ourselves in order to spare us another several years of the MOD fannying about, and the offer was refused. So to answer your question, I do not see that as an issue at all.
What I would say, though, is that I think I understand why the Government would be reluctant for the ICC to be involved, because the scrutiny would not be on Tommy Atkins; the scrutiny would be on General Atkins and Minister Atkins. Those are my thoughts on the ICC.
Clearly, a lot of this is still very raw for you, and you have talked about the MOD dragging it out over the last 17 years. Can you tell me how you think this Bill will actually tackle the MOD’s actions and inactions, which you have been subjected to over the last 17 years?
Major Campbell: Like I said in the previous response, if there was a time limit within which these things can be actioned, then I feel that a higher level of scrutiny and decision making would be necessary to make them work. I also think that the kind of dithering manner in which this process has been carried out to date would be nullified. If there is a time limit within which they have to get on with it, get it done right the first time and get the correct legal advice, I think that would improve matters no end.
Major Campbell: That is a good question, because I do not know. The reason I say that is that I do not believe that there is a police force in the United Kingdom that would be able to carry out such a contested, political and adversarial investigation. If you think about the way that it has been done in the past, when IHAT got this group of ex-detectives who were used to domestic crime, and they are asked to investigate an allegation in a country they have never been to, in a culture they do not understand, in a combat environment they have never experienced and in a language they do not speak, I just think that you are already on a hiding to nothing if those are your parameters.
I do not know how a war crimes investigation can be done effectively while hostilities are ongoing. For example, if there was an allegation against our forces in Syria, I really do not understand how you are supposed to be able to gather good evidence in an area that may be occupied by the regime, Russia or ISIS, and I do not understand how you would achieve the right level of evidence. But what I do know is that the way they did it in the past was an absolute shambles.
This needs to be a very short answer, Major Campbell.
Major Campbell: I would argue yes, because otherwise, if you make it longer, you are just handing another incentive to the Leigh Days and Phil Shiners of this world to drag it out, because they have got absolutely nothing to lose. All of their funds are provided by the taxpayer, and all of the funds of the claimants are provided by the taxpayer. They can take a punt, and it is a win-win for them.
We do have a time limit, which I am afraid we have reached, Major Campbell. But again, on behalf of all the members of this Committee, I thank you for your evidence this morning. Thank you very much indeed.
Major Campbell: Thank you.
The Chair adjourned the Committee without Question put (Standing Order No. 88).
Adjourned till this day at Two o’clock.
Overseas Operations (Service Personnel and Veterans) Bill (Second sitting)
The Committee consisted of the following Members:
Chairs: † David Mundell, Graham Stringer
† Anderson, Stuart (Wolverhampton South West) (Con)
† Atherton, Sarah (Wrexham) (Con)
† Brereton, Jack (Stoke-on-Trent South) (Con)
† Dines, Miss Sarah (Derbyshire Dales) (Con)
† Docherty, Leo (Aldershot) (Con)
Docherty-Hughes, Martin (West Dunbartonshire) (SNP)
† Eastwood, Mark (Dewsbury) (Con)
† Evans, Chris (Islwyn) (Lab/Co-op)
† Gibson, Peter (Darlington) (Con)
† Jones, Mr Kevan (North Durham) (Lab)
† Lewell-Buck, Mrs Emma (South Shields) (Lab)
Lopresti, Jack (Filton and Bradley Stoke) (Con)
† Mercer, Johnny (Minister for Defence People and Veterans)
† Monaghan, Carol (Glasgow North West) (SNP)
† Morgan, Stephen (Portsmouth South) (Lab)
† Morrissey, Joy (Beaconsfield) (Con)
† Twist, Liz (Blaydon) (Lab)
Steven Mark, Sarah Thatcher, Committee Clerks
† attended the Committee
Professor Richard Ekins, Head of Judicial Power Project, Policy Exchange
Dr Jonathan Morgan, Fellow, Reader in Law at Corpus Christi College, Cambridge, and one of the authors of the Policy Exchange Report, Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat (2005)
John Larkin QC, former Attorney General for Northern Ireland from 2010 to 2020, and author of the Policy Exchange Research Note on the Overseas Operations Bill (September 2020)
Ahmed Al-Nahhas, Secretary, Military Special Interest Group, Association of Personal Injury Lawyers
Emma Norton, Director and Lead Lawyer, Centre for Military Justice
Martha Spurrier, Director, Liberty
Clive Baldwin, Senior Legal Advisor, Human Rights Watch
Public Bill Committee
Tuesday 6 October 2020
[David Mundell in the Chair]
Overseas Operations (Service Personnel and Veterans) Bill
The Committee deliberated in private.
Examination of Witnesses
Professor Richard Ekins, Dr Jonathan Morgan and John Larkin QC gave evidence.
I hope that Professor Ekins can now hear proceedings. Will witnesses say for the record their name and designation, so that we may confirm that we can hear you?
Professor Ekins: I am Professor Richard Ekins. I am head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government at the University of Oxford.
John Larkin: I am John Larkin QC. I am in private practice now in Belfast—[Inaudible.]
Your sound is not very clear, Mr Larkin, so I am going to see whether we can have that adjusted. Will you repeat what you have just said?
John Larkin: I am John Larkin QC. I am counsel at the Bar of Northern Ireland, and practising there.
Please try to get as close to your microphone and to speak as robustly as you can.
John Larkin: I apologise in advance, Chair. I am afraid that you have the alarming choice of seeing me leering forward or perhaps not hearing me. We will sacrifice aesthetics in favour of audibility.
We will take hearing you—that is our priority. If our two witnesses online will bear with us on the logistics, we are joined in the room by Dr Jonathan Morgan. Dr Morgan, will you introduce yourself for the record?
Dr Morgan: Hello. I am a reader in English law at the University of Cambridge and a fellow of Corpus Christi College. As you might be aware, I co-authored with Richard Ekins a paper called “Clearing the Fog of Law” for Policy Exchange in 2015. I imagine that that is why I am here, but you might be able to tell me better.
Excellent. I am going to call Kevan Jones to start the questions, and I would ask that he and others indicate whether they are addressing a question to a specific witness or to all the witnesses.
Perhaps, if the question is to everyone, we will start with you, Dr Morgan, in the room, and then go to Professor Ekins and Mr Larkin.
Dr Morgan: My expertise is in private law—so, tort law—and I imagine that we will come on to that later. There, you have time limits of three years, six years, one year. In my view, there is no ultimate principled way of defending a particular time limit. Five years is obviously some kind of compromise. Ten years was originally proposed; that has been reduced to five. There seems to be no logical answer, certainly, as to that particular time period. It is a balancing act.
Professor Ekins: I agree with everything that Dr Morgan has just said. All I would add is that I presume five years has been chosen with a view to allowing a sizeable period of time to pass during which—[Inaudible]—can be brought in the customary fashion. After five years, a somewhat different regime obviously applies, although it might be too strong to call this a cut-off period. There is always something somewhat arbitrary about procedural time limits. As Dr Morgan said, three years and six years are used in civil law; the criminal law does not tend to do this so often, so I do not think this is a salient number—to my knowledge.
John Larkin: I agree. There is no magic in the number five; that is a matter of policy choice.
Dr Morgan: On the second of those questions, which is whether the Attorney General’s decision not to prosecute could be challenged in court, I think that, yes, absolutely there is a risk of that, and I think the Minister, in a letter that he wrote to the Defence Committee, accepted that that was the case, but expressed the view that the courts would have to take account of the context that it is a quasi-judicial decision, and that they should respect the Attorney General’s decision. But I suspect that it is very strongly likely that it would be reviewed. How successful that would be is hard to say in the abstract, but it could be challenged, in my view.
Dr Morgan: Criminal procedure is not my area, but I am not aware of any others in UK law. There are references to limitation statutes in other jurisdictions. I think that the example given is that, in French law, there is a 30-year period, which is very much longer and which apparently does not apply to war crimes, so that is almost the mirror image of what is in the Bill.
Dr Morgan: It says that only exceptionally will there be a prosecution, so it is not a total amnesty after the five years. But even having the presumption after a time period is, as far as I am aware, unique in English criminal law. When we are talking about tort law, which is much more my area, limitation periods are absolutely standard, but in criminal procedure it is much more exceptional. I think that is why this has received so much more attention, media attention and public criticism than the civil law proposals.
Professor Ekins: As Jonathan Morgan says, there are precedents elsewhere for statutes of limitation in the criminal sphere in other jurisdictions, but they have not been a feature of English law, although, of course, this is quite a soft statute of limitations in so far as it provides no obstacle or bar to prosecutions after the five years. It certainly does not stop investigations. In fact, if one were to make a criticism of the Bill, one might say that it places no obstacle on continuing investigations, which might be thought to be one of the main mischiefs motivating of the Bill. If there has been no investigation, the fact that there is an investigation, and cogent evidence arises of a crime, will tend to beat back the presumption against prosecution, if one wants to call it the presumption against prosecution. So it is not quite right to my mind to say this is putting the cart before the horse and deciding against prosecution before one investigates.
In relation to the Attorney General and consent to prosecute, there are two stages. One is the prosecuting authority deciding whether or not the prosecution is warranted, and the Bill looks at some of the factors that should be taken into account in making that decision. That might be one way to think about part 1 of the Bill—it is framing the determination by the prosecuting authority. In addition to that, the Attorney General’s consent is required. They are not necessarily the same stage or the same act.
As to whether the Attorney General giving or withholding consent—more likely the withholding, although I suppose either—will be challenged in the courts, I think, very likely, yes. How much risk is there? I think that is an open question. I think there must be some risk that there will be a Human Rights Act challenge arguing for a narrow and restrictive reading of the Attorney General’s power to give or withhold consent, and that might end up requiring the Attorney General to give consent in circumstances where one might not otherwise expect it. It is possible the courts will not take that course, but I think it is a risk that parliamentarians should be aware of.
John Larkin: Yes. I am in agreement with Professor Ekins. Classically, the decision of an Attorney General to give consent to prosecution has been subject to very light-touch review. Here, although it is described in the clause heading as “Presumption against prosecution”, it is really more the establishment of an exceptionality test, and that of course gives a handle to anybody seeking to challenge the Attorney General, because what is or is not exceptional will be a matter ultimately for judicial determination. I think that challenges are almost inevitable, but they are by no means to be regarded as inevitably successful. I think the approach of the courts—one can see that in the Supreme Court challenge a year or so back to the certification by the Director of Public Prosecutions for Northern Ireland in the Dennis Hutchings case—tends to be associated with the bestowal of a good deal of latitude to the responsible law officer.
John Larkin: The law is full of operative presumptions, from time to time, but the precise model here is something that I have not seen either in the UK or elsewhere.
Professor Ekins: I do not think the UK has tended to legislate about the decision to prosecute. There are a great many statutory requirements for Attorney General’s consent before prosecuting, so that is by no means unique, but the legislating to frame the prosecutor’s decision as to whether to initiate the prosecution is unusual.
Professor Ekins: Not to my knowledge, but it is difficult to sever it from the point about time. There is a difference between a Bill that does what you see in part 1 from day one and a Bill that does so after a certain period of time has passed, which is why the Bill refers, understandably, to the importance of finality if you have an investigation and further evidence has arisen. Those are all considerations that a prosecutor might well take into account anyway; it is just that Parliament is requiring them to be taken into account, framing when and how—[Inaudible.]
It is slightly different from that, I would argue, because it is presuming that you will not prosecute at the outset, which I think is difficult. Thank you very much.
John Larkin: I possess no qualifications to judge the reputational effectiveness of the Bill and its impact on military operations. What I have said to Policy Exchange is that many of the criticisms of the Bill are quite misplaced. It is not a blanket amnesty; in fact, it might be regarded as a fairly modest, proportionate measure.
Professor Ekins: I suppose the best case one can make for the positive benefit of the Bill is that it may provide some assurance to personnel. If no application has been made after five years, they are unlikely to be prosecuted. However, in one sense that is too strong, because if cogent evidence arises, it can be investigated. It probably will be—there is no bar to it in the Bill—and it may well result in a decision to prosecute.
Having said that, prosecution is the major risk for people who have been serving on operations abroad. It is a major problem in relation to Northern Ireland—we have been getting prosecutions 40 or 50 years after the fact, which are very difficult to conduct fairly, and which understandably cause an enormous amount of stress. In recent years, the problem in relation to people who have been serving abroad has been, in a sense, a seemingly never-ending cycle of investigation and reinvestigation. The Bill does not really do anything about that, so in that sense it will not provide much help.
I should have referred to as “professor”—sorry, I did not want you to feel left out. Doctor Morgan?
Dr Morgan: The answer is, up to a point. It really depends on what kind of allegations we want to defend service personnel against. In the Second Reading debate, there were many references to Phil Shiner—we can take him as shorthand for spurious claims being brought. But you might say that if spurious claims are brought within six years, if it is a tort action, or within five years, if it is leading to a criminal prosecution, the Bill is not doing anything about those. It is not doing anything about promptly brought spurious claims. Indeed, it seems to me that the Shiner claims were actually brought promptly. There were many problems with them—namely, that people were making up the evidence—but they were not being brought many years later.
The Bill addresses one particular problem: very old and stale allegations being revived after a long period, which are either brought as a tort damages claim—that is part 2 of the Bill—or lead to criminal prosecutions, which is part 1. It seems to me to be part of a solution to what is actually quite a big and complex problem with a number of different strands in it. It is not the total solution, but it addresses that aspect of it.
John Larkin: I have given my view on that. The short answer is that it does not.
Professor Ekins: I agree with John.
Dr Morgan: I think “blanket amnesty” is a very overblown way of putting it, if we are talking of criminal prosecutions after the five years. It is establishing presumption, and that is what should be referred to. Having said that, the stronger the presumption is against prosecution, the closer it approaches that. The weaker the presumption is, the less protection it gives to the service personnel in question. So there is obviously a balancing act, but, as it stands, I do not see it as an amnesty; that is a misdescription.
Professor Ekins: To my mind, the major problem of the Bill—this is a major absence, but it would be quite a substantial policy change to introduce it—is that it does not really address the extraterritorial application of the Human Rights Act. That is the main driver behind some of the difficulties we have seen in the last 10 or more years in a whole range of ways. That includes requiring continued investigation and litigation—sometimes from enemy combatants relying on the Human Rights Act while UK forces have been in the field. The Bill could be improved—although, as I say, it would be a major change—by limiting the extraterritorial application of the Human Rights Act.
That would be, in a sense, restating the position that our senior judges understood before the European Court of Human Rights extended how jurisdiction was understood. I think that would also be much more consistent with the way in which Parliament understood the Human Rights Act when it was enacted in 1998. The ECHR and the Human Rights Act really have been extended by a series of problematic judgments, and a Bill on this subject could usefully roll that back. That might mean that the Human Rights Act simply applies in the United Kingdom, or alternatively—this may be more plausible as a prospect for enactment—it might allow for limited extraterritorial application, in the limited way that was understood to be possible in 2003 when the European Court of Human Rights gave a significant judgment on the point, as well as by the House of Lords and the Supreme Court in the years to follow. That would address the problem of being unable to stop investigations and being exposed to litigation that requires the continuation of investigations, when the Government think that that is unfair to the personnel. The Bill does not address that—save, perhaps, by encouraging Ministers to derogate from the ECHR.
John Larkin: There is a lack conceptual clarity in part 1—[Inaudible.]
Mr Larkin, we are sorry but we are not hearing you very well. Do you want to try to speak a bit closer to your microphone?
John Larkin: There is a lack of conceptual clarity in part 1 of the Bill with respect to the prosecutorial task. As the Committee will know, the prosecutor’s task breaks down into two parts. First, they ask themselves whether the evidential test is met. If it is, they consider whether a prosecution would be in the public interest. That is the approach taken in all three UK jurisdiction—[Inaudible.]
We are still struggling, I am afraid.
John Larkin: Clause 1 of the Bill puts no time limit on assessment of the evidential test. But then, when one looks at clause 3, subsections (1) and (2) tend to reduce the person’s culpability. Culpability is at the core of criminal liability—it is synonymous with criminal liability. There may be value in amending the Bill to permit the prosecutor to take a global view.
The Public Prosecution Service for Northern Ireland, in its code for prosecutors, permits the public prosecutor to take a view based on the public interest test, sometimes—exceptionally—in advance of full consideration of the evidential tests, so if one has a sense from the beginning that the case is going nowhere, one should not have to go through what might seem to be a very empty exercise of none the less carrying out the evidential test in full. There could be an expressed power, by amendment, given to prosecutors to determine in advance of consideration of the full evidential tests. As you rightly note, clause 3(1) sits ill with clause 1’s exception of the evidential consideration.
Are you happy to do that, Mr Larkin? We did not hear all of what you said. Members may have got the general thrust of what you were saying, but we did not get the detail.
John Larkin: I am happy to do that. It is a technical point, so it might be of assistance to Committee members if it were reduced to writing.
Thank you for that.
Dr Morgan: I would approach the question in two ways. One would be, “How would I improve this Bill?” and the other would be, “What would I do if I was starting with a blank sheet of paper?” You would get two quite different answers, but I will start with the second one.
Let us have both approaches.
Dr Morgan: Okay. To start with the second one, it seems to me that the problem in this area is lawfare or the judicialisation of war—whatever you want to call it. The extension of the European convention on human rights into this area as a result of the European Court’s decision in Al-Skeini, and the decision of our Supreme Court in Smith v. Ministry of Defence, which confirmed that and extended the law of tort into the battlefield, led to the erosion of combat immunity. To me, that should be the priority for any legislation on this difficult and multifaceted problem.
The section of the Bill that partly deals with the issue is the derogation provision and the duty on the Minister to consider derogation. It is not a duty to derogate; it is a duty to consider doing it, which is putting into statute the Government’s policy. It seems to me that that is valuable, although it does not change very much.
In its consultation paper published in June 2019, the Ministry of Defence said it was going to look at restatement of combat immunity, hand in hand with a no-fault compensation scheme for service personnel to pay damages on the full tort measure. Those two things should go together. I regret that last month, in reply to the consultation, it said that legislation on the issue is
“not being taken forward…at this time.”
I think it should be. The priority should be to restate combat immunity and, hand in hand with that, to have no-fault compensation for service personnel on the full compensation measure that you get if you bring a claim in law.
If that were done, it would help with the problem about the shorter limitation periods for tort claims—damages claims—that was raised several times at Second Reading. The British Legion has been quoted several times saying that that breaches the armed forces covenant. I do not want to get into that particular debate, but there is no question that service personnel might, in some fairly unusual situations, find their ability to bring damages claims caught by the proposals in part 2 of the Bill as it stands.
If the Ministry of Defence took forward the proposal that it called “Better combat compensation,” to have full compensation through the armed forces compensation scheme, those worries would fall away. If there was full compensation available without the need to bring a tort claim or negligence action against the Government, any limitations on the time periods for bringing tort claims would be an irrelevant question for service personnel.
Those are two reasons why I would revive what seems to have been the Ministry of Defence’s approach at one point, which was restating combat immunity and ensuring full, no-fault compensation. If you want me to give more detailed comments on the provisions of the Bill I can do that, but I would approach the issues in a quite different way than in the Bill that we have.
Dr Morgan: The proposal to make that switch is in the joint paper produced by Richard Ekins, Tom Tugendhat and myself that I mentioned at the start. We said in that paper that that there is a case for having a more generous strand within the armed forces compensation scheme applying to those soldiers who cannot bring tort claims at law. In other words, if Crown immunity in warfare were to be revived—the Government already have the statutory power to do that, they do not need an Act of Parliament—and it was decided that you cannot bring claims at all, there would be a case for having a more generous approach within the armed forces compensation scheme to those people. I would not necessarily say the whole armed forces compensation scheme should be upgraded—I am aware of how expensive that would be. If we are going to restrict tort claims of a certain sub-category of injuries to service people, then it would be a good idea to balance that out by having full compensation.
Dr Morgan: Yes. I confess that I have not looked at the limitation rules of the armed forces compensation scheme. It certainly does ensure cover.
Dr Morgan: It also gets away from what we see in Smith v. Ministry of Defence: the allegation that the Land Rovers were not the right ones. Once you go to court investigating that in a negligence claim, it is getting into areas that should not be dealt with by a court in a negligence claim, it seems to me. If you are going to stop people from bringing such claims, you had better give them at least as good a compensation scheme without them needing to prove fault. That was our argument in the paper five years ago.
Dr Morgan: I was going to comment on Major Campbell; I read about him in the newspaper on Saturday. It seems to me that his case would not have been addressed by these proposals. He was prosecuted in 2006 about an alleged offence in 2003, so that would have been within the five-year period for bringing the prosecution. It is only in 2020, after 17 years, that he has finally been cleared. The point was made in the Second Reading debate by a number of Members that perhaps the real vice is not so much very late prosecutions but the continued investigations by the Ministry of Defence without necessarily leading to a criminal prosecution at all. If I have understood the facts of Major Campbell’s case, it rather shows how a five-year soft cut-off for prosecutions is not going to solve that kind of problem at all.
Dr Morgan: There is a rule in criminal law that if you have been tried in a criminal court for an offence and you are either acquitted or convicted, you cannot be tried again. That is double jeopardy. What I do not understand is why the double jeopardy rule is not applying, by analogy, to these repeated investigations within the Ministry of Defence. That needs to be urgently addressed, and it is not within the Bill. Maybe the Bill cannot do everything, but the Campbell case shows that there is a gap.
Dr Morgan: Yes. Whether this needs fresh legislation or whether it can simply be done by changing the rules, I do not know. I know what Professor Ekins will say, which is that because the Human Rights Act requires investigations into deaths, we are currently limited in what we can do. Perhaps he will comment on that.
Professor Ekins: I am sure the Ministry of Defence has had many failings across the years, but in one sense it needs to keep investigations going and to be open and avoid plodding along. It has done a lot under the threat of litigation—sorry, the reality of litigation—where it is exposed to a duty to investigate in accordance with changing standards over time. Something similar has happened in Northern Ireland, which John Larkin knows much more about than I do. It has been a particular feature of the legacy and the legal cases around Afghanistan. Those conflicts were fought on a pretty sound legal position and on the understanding that the European convention did not apply. The ordinary rules of the law around conflict and service law applied, yet subsequent decisions about investigation or not investigating have been challenged in the domestic courts by way of the Human Rights Act. I cannot see how we deal with that prospect recurring over time without addressing the territorial reach of the Human Rights Act.
The Bill deals with the issue incidentally and in part in so far as derogation, if there is derogation, in advance of future conflicts might help, and in so far as there are time limits on Human Rights Act applications or proceedings. That might deal with some of the risk of historical allegations being made and investigations rolling on. In terms of the problem of people being investigated repeatedly and a prosecution never being mounted, that is not a problem the Bill deals with directly, although I think it probably is the main mischief.
John Larkin: I agree with Professor Ekins that the Bill is somewhat silent on the duration and repetition of investigations. In some cases, that leads to real mischief. It is not much fun for anyone to be finally vindicated after 10 or 12 years have elapsed. They would much rather be vindicated promptly—this applies both in terms of ordinary criminal civil justice as well as in the issue of service personnel—after a thorough and expeditious investigation.
Dr Morgan: It is the point I made, so I agree that it will not solve all of the problems as it stands.
Professor Ekins: Yes, it is a real concern.
John Larkin: I think it is wrong to see a so-called independent investigation as the answer. The issue is not the independence or otherwise of the investigation. In fact, investigations are substantially independent at present. The issue is efficiency and the fairness of what is investigated.
Who are you addressing the question to?
I would welcome feedback from each of the witnesses. How would you limit the territorial reach of the Human Rights Act within this legislation? You mentioned it as a point, and I wanted to hear how you would do that.
Dr Morgan: The Human Rights Act would have to be amended to say that the Act itself did not apply extraterritorially. Parliament could do that; what Parliament cannot do is of itself reverse the decision of the European Court of Human Rights. The nearest thing to do is for the Government to derogate using the process in the European convention. Those powers are already there in the Human Rights Act.
Dr Morgan: In my view, this is nothing to do with the European Union. This is purely a European convention matter, so Brexit, thankfully, is out of the picture on this particular issue. It is purely a decision of the European Court of Human Rights in Strasbourg, which extended the extraterritorial reach of the convention in the Al-Skeini case.
There are two things that one could do about it. One is to derogate in future conflicts, which the Government have said they will consider doing. Another thing is for the Government vigorously to fight cases, such as Hassan v. United Kingdom, where the Government rather successfully argued that the European convention should be interpreted in line with the law of armed conflict or international humanitarian law.
Those are two things that one could do. A third thing, which would require fresh primary legislation, would be to amend the Human Rights Act so that domestic UK courts may only hear claims relating to things that happen within the territory of the UK. That will not stop the Strasbourg Court from hearing claims against the UK. Parliament cannot unilaterally change the meaning of the European convention on human rights, but it can change the meaning of the Human Rights Act. Richard Ekins is more expert than I, so I would like him to answer.
John Larkin: May I come in on that point? The Member is referring, I think, to decision 2/15 of the Court of Justice of the European Union—[Inaudible.]—incompatible with the European treaty. Many of us smiled at that decision, because it showed the Court of Justice of the European Union was not particularly enthusiastic about being subject to the jurisdiction of the Strasbourg Court—[Inaudible.]—
Were you able to hear that answer, Joy?
When you write to us on the previous point, Mr Larkin, will you also set out your thoughts on the question that has just been asked? We come to you, Professor Ekins.
Professor Ekins: It was a surprising decision of the Court of Justice of the European Union, holding that the EU was not really able to make a treaty commitment to join the ECHR. It shows that the EU legal order guards its legal autonomy jealously, but I do not think that it helps in this context.
In answer to the question about how one limits the territorial reach of the Human Rights Act, one thing would be to include a clause in the Bill that amends the Human Rights Act to specify its territorial reach. That could be the more limited reach of only applying in the United Kingdom, or it could effectively restate the position as it was held by the European courts in 2003 and accepted by our senior judges for many years thereafter, that the convention applies in the United Kingdom and in some very limited extraterritorial circumstances. I drafted a provision to that effect, if anyone is interested, in submissions to the Defence Committee and in other papers to the Policy Exchange. It is open to question, obviously, but it is certainly possible to frame a limitation in a clause that could be adopted in the Bill. It is not impossible; it depends on whether Parliament wishes to do so.
As Dr Morgan says, though, that would not change the UK’s position in relation to Strasbourg, the European Court of Human Rights. Derogation is an important addition to the meaning of the Human Rights Act. If you want to deal with the prospect of continuing litigation, investigations and reinvestigations, you have to address the scope of the Human Rights Act. The same thing is true in relation to Northern Ireland and those historic allegations as well. The intention is that that should be dealt with in a separate Bill.
Does any other Member wish to question the witnesses?
Thank you for coming to this session. We referred to Major Bob Campbell previously, and I wanted to follow on from the point made by Carole Monaghan and the evidence given by Major Campbell. He said that he gave evidence after several years of being investigated and reinvestigated, and he wrote to the International Criminal Court to ask them to prosecute him. The ICC actually refused that request. On Second Reading—I am sure you all witnessed the debate—a number of concerns were raised relating to veterans being hauled before the International Criminal Court as a result of the Bill being passed. Do you expect any veterans to be put before the International Criminal Court if the Bill goes ahead?
Dr Morgan: There is a risk that it could happen. I have read the Government’s comments on this, and they point out that prosecutors will remain independent, that it is not an absolute bar, and that it is not an absolute amnesty. All of that is true; but if, in a particular case, a war crime is alleged against a person and it is after five years, and the prosecutor decides not to bring a case because it is not sufficiently exceptional, then in that situation there must be a risk either that the International Criminal Court would seize jurisdiction, or that another member state could apply for extradition of that veteran.
Professor Ekins: I am not an expert on the International Criminal Court, but it is probably correct to stay that there is a risk. That said, prosecutors have a discretion as to whether to bring prosecutions even without the Bill. If a decision is taken not to prosecute in a particular case, then there is a risk that the ICC may take a different view. The ICC should not be taking over prosecutions if the UK—as I think it will even if the Bill were enacted—remains a country that does take its obligations seriously, that does investigate credible cases promptly and that does retain a system of deciding which cases to prosecute, rather than having a rule that they will all be prosecuted regardless of strength of evidence or other considerations such as the passage of time. There have, however, been types of cases in which the ICC has proved to be somewhat political in its decision making. It might turn on who the prosecutor is at the relevant time. It probably does increase the risk. If you ask me whether I expect there to be prosecutions before the ICC, I would say, “Not really,” but that is amateur speculation and not bankable.
John Larkin: I think the risk is modest because, as the Committee knows, offences that are excepted from the reach of clause 1 include genocide, crimes against humanity and war crimes as defined in articles 6, 7 and 8 of the Rome statute respectively. Given that those are not subject to the five-year exceptionality rule, I think it is quite likely that those more serious offences would be prosecuted domestically, because they would benefit from the five-year exceptionality filter.
Dr Morgan: It would have to fall within the definition of war crimes, so one hopes that it is unthinkable that credible evidence of this would ever be laid but, if it were—this is a hypothetical situation—if such evidence existed, because it related to events a long time before, perhaps long before five years, and if the sole reason for not prosecuting was the change that the Bill is making, namely that it was after the five years, then the risk is there. It is probably quite small because, as you say, the kind of situation that will trigger the ICC jurisdiction we all hope would never happen anyway, but that does not mean it cannot.
Dr Morgan: The only point that I would add is that the fact that what is being proposed is internationally unusual I think increases the risk. I probably agree with Mr Larkin that the risk is modest, but I think the fact that it is a five-year time period, which to my knowledge is not visible in any other signatory state of the ICC, increases the risk.
Professor Ekins: The ICC should be focusing on allegations of atrocities, widespread wrongs and so on, rather than on what you might call manslaughter or questions of where the allegations are much more fine-grained, such as excessive force and so on, but there is a risk that the ICC does not always observe the limits that we apply in law to its jurisdiction. There have been instances of somewhat politically motivated decision making. There might still be a modest risk of the ICC going into the kinds of case that are likely to arrive at a place where a decision is made that it is not worth prosecuting because of particular circumstances, a lack of evidence and so on. The risk is probably quite—[Inaudible.] This will only arise if after five years a prosecutor decides that the public interest in prosecuting is not really there. I think it would only be possible for the ICC to justify intervention if there is a sufficiently strong case that would result in a conviction, and disagree about the public interest. That would sound like a surprising ground on which to debate a disagreement on whether a prosecution is warranted. I think it is possible but not very likely.
John Larkin: My point is that genocide, war crimes and crimes against humanity are not subject to the five-year time limit, so if the evidence emerges at eight years, for example, the process envisaged by this Bill—exceptionality assessment—simply does not apply; it will be determined as if it had occurred last week. That is an important point that is lost in legal—[Inaudible]—the international—[Inaudible]—of the Bill, but it has not been sufficiently appreciated that part 2 of the statute of Rome makes an exception for genocide, war crimes and crimes against humanity. They will be prosecuted if the evidence exists domestically, and therefore the risk of a lance corporal being hauled in front of the International Criminal Court seems to me to be fairly minimal.
Dr Morgan: indicated assent.
I think you have to speak as an answer, Dr Morgan, because we cannot otherwise hear what it is.
Dr Morgan: Retrospection is obviously going to add a further layer of controversy on top of this. The question really is whether it should apply to Iraq and Afghanistan after this lapse of time. If you believe that the Bill is the right solution to the problem, then it seems to me odd that that is not being proposed, but I am not convinced it is the right solution to the problem, so I am not going to argue for it to be retrospective.
Dr Morgan: We have to wait and see what it says. It would be curious if the Northern Ireland situation and the Iraqi and Afghan situations were dealt with in a different way on that issue of retrospection, so I agree with your point.
Professor Ekins: I would question the premise of the question, because as I read the Bill, it does apply to actions taken in the past. It will not foreclose prosecutions or proceedings already under way. It is a procedural change; if the Bill were enacted, say, tomorrow, a prosecution brought the day after that, more than five years after the events in question, would be subject to the regime in the Bill. I think it will apply to Iraq and Afghanistan, save insofar as there are prosecutions that have been initiated or proceedings that are under way. It will not apply to ongoing legal proceedings, but it will be a question sometimes, if I wanted to continue proceedings, where it might apply.
John Larkin: The Bill is, as Professor Ekins has said, significantly retrospective. If one looks at clause 15(6), it says:
“None of the provisions of Part 1 applies to proceedings instituted before the day on which the provision comes into force.”
Sorry, I think you were looking away from the microphone when you answered.
John Larkin: Clause 15 makes it clear that the Bill does not apply where proceedings have begun or are under way before the day it comes into force, but if they are not under way—[Inaudible]—clearly defined rules can crystallise shortly thereafter, and—[Inaudible]—subject to the exceptionality—[Inaudible.]
I think we are going to ask for that answer in writing, as well. The Minister has a very quick question—
I am happy to pass on it; it has been answered by Dr Ekins.
Thank you very much indeed. If no one else has any further questions, we have reached the end of the time allocated. I thank each of the witnesses for their evidence and for being with us in the technical circumstances. Mr Larkin, I am very sorry that we were not able to hear some of your responses; if you are able to write to the Committee on the matters we have come back to you on, that would be very helpful indeed.
John Larkin: I am happy to do that, Chair.
Examination of Witnesses
Ahmed Al-Nahhas and Emma Norton gave evidence.
Before we move to our next set of witnesses, I should say that in the event that there is a Division in the House during this session, which there could be—this is for the information of the witnesses as well—we would initially suspend the sitting for 15 minutes. If the vote takes longer than that and Members cannot get back, we will deal with that pragmatically.
We are now joined by Ahmed Al-Nahhas and Emma Norton. Mr Al-Nahhas, perhaps you could say who you are so that we can confirm that we can hear you. I know from my mispronunciation of your name that you can hear me.
Ahmed Al-Nahhas: My name is Ahmed Al-Nahhas. I am a representative of the Association of Personal Injury Lawyers, which is a not-for-profit organisation that campaigns for victims of injuries and negligence. I am also a solicitor advocate.
Emma Norton: My name is Emma Norton. I am the director and lawyer at the Centre for Military Justice. I have developed a dry cough in the last two days, which is why I am appearing virtually—I apologise in advance for any coughing that I may do.
Thank you very much in advance for giving evidence today. I will ask Emma Lewell-Buck to start the evidence session.
Ahmed Al-Nahhas: No, APIL’s position is that the Bill does not afford that. We acknowledge the good intentions behind the Bill. However, in respect of part 2 of the Bill, which I am here to discuss—the civil claims aspect—we believe that it strips service personnel and veterans of certain rights in relation to civil claims and their rights under the European convention on human rights.
Emma Norton: I would agree with that and I will not repeat it. I would say that one of the major flaws in the Bill is that it does not address the issue of the investigations that gave rise to all the problems that we are dealing with today. I think you heard that in the previous evidence; it has been a thread that has been running throughout the evidence that the Committee has heard today.
Ahmed Al-Nahhas: I may pass that question to Emma, who is here primarily to deal with those issues in respect of investigations. My remit is in respect of civil claims.
Emma Norton: I think there were very serious problems with the original investigations that took place into the allegations of harm in Iraq and Afghanistan. That is what made it relatively easy for courts to find that, time and again, fresh investigations needed to be conducted, which then gave rise to further litigation. The responses from the Ministry of Defence to those adverse findings did not go far enough. The investigations that we had had time and again never got to the bottom of what had happened.
As witnesses have said, the longer period of time that you get between the event and the investigation, the harder it is to get to the bottom of what happened. If we were serious about really addressing the issues that Mr Campbell and other veterans have described, we would be looking at what kinds of systems and structures that we could build now and that would ensure that this does not happen again. What kinds of investigations could we set up and design that could function in the context of overseas operations? I am afraid that until that happens, these problems are going to recur and I do not think the Bill addresses them.
Emma Norton: I am happy to say that I would, personally. That would have been a sensible way to go about it—to have a consultation that would really hear from individuals who had been directly affected by investigations, as well as victims, and to speak to experts who can talk to the challenges of building a really good system of investigations overseas, because it is really difficult and we do not underestimate that. There are lots of things that could be done and could be done better.
There was a service justice review, and I know we are expecting some further responses to the recommendations in that review, but that was published in February and it had taken two years to get to. That contained some really interesting ideas about how we could improve service policing and the quality of prosecutorial decision making. I know that there are lots of other ideas—ideas about maybe getting greater degrees of civilian oversight and input into military policing overseas, or possibly having judicial oversight of decisions to detain insurgents and reviews of those kinds of decisions. It would have been more sensible to have those discussions first and then look at what was needed by way of amendments to the criminal law. It feels very much—we have heard this a couple of times today—that this is a cart before the horse situation.
Ahmed Al-Nahhas: I would add my agreement to that. APIL’s concern is that the impact assessment does not go far enough and is not clear. I would welcome a pause so that a proper impact assessment can be taken and further expert evidence explored.
Thank you both. My colleague, Kevan Jones, wants to come in quickly on investigations as well.
Emma Norton: I do not think you can have a set time limit for an investigation. I think an investigation needs to take as long as it takes, as long as it is being conducted expeditiously. The problem with the original responses to allegations of really serious abuse overseas was that those allegations were not responded to sufficiently, certainly in accordance with our convention-compliant obligations, which are that they needed to be sufficiently independent, sufficiently well-resourced, sufficiently prompt, adequate—all those kinds of things. I do not think that setting an arbitrary time limit on what would be criminal investigations is necessarily helpful. If we think about how police conduct criminal investigations domestically, although there are time limits in terms of issues around police bail and things like that, there are no hard and fast time limits within which police need to complete those investigations, although obviously they should do them as quickly as possible, because otherwise the defendant is prejudiced.
Emma Norton: In terms of how that would function overseas, I can see the benefit. It may be that when you have sufficient levels of civilian input into those investigations or oversight into those investigations, or judicial oversight into decisions to detain in theatre, then that may not be necessary; you could inject that level of requisite independence in those ways. This is something that would really benefit from a wider consultation with experts in criminal law and procedure, who are experienced in criminal law and procedure but also in the challenges of having investigations overseas. We have not had that.
Ahmed Al-Nahhas: I am sorry, I cannot comment on criminal matters.
Emma Norton: I am not an expert in international criminal law, but if an otherwise credible allegation of a war crime was not proceeded with because of the Bill, that by definition increases the risk that those matters would be taken up by the ICC. That is something, of course, that our Judge Advocate General Jeff Blackett has very real concerns about and has spoken about. I know a lot of others also have very serious concerns about that.
We have heard a lot about veterans and their understandable fear and anxiety. We have heard less from very senior and formerw members of the armed forces who are really concerned about these provisions—the criminal side of the Bill as well as the civil side—and feel they are not in accordance with the Army’s values and standards. The message the Bill will project to the rest of the world about how the Army wishes to conduct itself is really serious, and they feel quite despairing about it. I was speaking to a former brigadier this morning who served 36 years, and he said that he was really ashamed of the Bill. So I think there is a real concern.
Thank you both very much.
Emma Norton: What is necessary is for what happened in the past never to happen again—definitely. I just do not think that the Bill will fix it, for the reasons I have given. I will not go over them again, but they go to the lack of willingness inside the MOD to look at those allegations at the time.
I think we are in a different place now. The MOD has learned a huge amount from all those errors. I would say that the MOD has learned from some of the litigation; there have been some very positive outcomes from that, and that is missing from the debate. I just do not think that the Bill fixes those problems sufficiently.
Emma Norton: Hilary Meredith mentioned this morning that the ombudsman could have a role here. I think she was looking at whether some sort of compensation or ex gratia payment scheme could be made or some form of redress could be given to the soldiers subjected to this cycle of investigation. That was a really interesting idea. I know that, separately, the ombudsman is very under-resourced, so that would need a whole separate discussion as well.
The interplay with the service justice system is something you should ask the Judge Advocate General about when you speak to him later, because—obviously—he has huge amounts of experience of issues arising where somebody is not convicted of the main charge but is perhaps convicted of a lesser charge under the court martial.
Ahmed Al-Nahhas: Good afternoon. I think it is a feature of military claims that service personnel are largely unaware of their legal rights to bring a civil claim. I often find in my own practice—many of our members have also reported this—that they will, in fact, be misinformed of their legal rights. This may be because there is confusion in their chain of command. Indeed, we have heard of many cases in which the chain of command will misinform them and say that they should wait until the end of their service before bringing a civil claim, which usually means that they are out of time by the time they bring a claim. In other cases there is confusion between civil claims and the armed forces compensation scheme, which is a separate, no-fault scheme, which has a much longer period of time in which to apply—normally seven years. In answer to your direct question, I think they are very unaware and, in fact, a lot of the time they are misinformed.
Emma Norton: Just that that is entirely my experience as well. I have not advised people about overseas claims, but I advise them about claims arising in other respects, and that is a very, very common observation, yes.
Ahmed Al-Nahhas: There is often a delay. In fact, I have dealt with many hundreds of inquiries, or at least many of the lawyers who APIL and I work with have dealt with many hundreds of inquiries, that are many, many years out of time. You will have calls from service personnel who have just finished their 22 years in service, and they will call up and inquire about the opportunity to bring a civil claim, and you have to tell them that actually they are about a decade out. So, it does vary, but more often than not they are quite a few years out of time.
Ahmed Al-Nahhas: Absolutely—forgive me for interrupting you, but absolutely I think they could. In fact, at the moment I do not think that they do anything to inform service personnel of their rights to bring a civil claim. I am not suggesting that as an organisation they should be shouting from the rooftops and saying to service personnel, “You should really explore your opportunity to sue us”. However, I think that the Ministry of Defence has an obligation under the armed forces covenant to be fair to service personnel. They do provide them with information about the AFCS, but, as I said, there is a much longer period of time to claim under that scheme.
I think that we also need to bear it in mind that service personnel are quite unique legal creatures in a way. For example, they are not allowed, if we are comparing them to civilians, to join a trade union. So, if you were a civilian and you were injured, you might speak to your trade union and get some advice about what claims you might bring. They may even point you in the direction of a solicitor. That often does not happen with service personnel. So, yes, I think the MOD needs to address this and be fairer with service personnel about the information available to them.
Ahmed Al-Nahhas: I think that the Bill, as drafted, is potentially in danger of breaching the armed forces covenant, and I will explain why. As I mentioned earlier, service personnel are quite unique legal creatures. They do not actually have the same legal rights as civilians. So, just to take an example, service personnel have very limited rights to bring a claim in the employment tribunal, save for issues such as discrimination. However, if this Bill were to be passed, they would not—beyond the six-year longstop—be able to rely on section 33 of the Limitation Act 1980 in respect of civil claims. They would not be able to bring those claims, which may be worthy but are actually brought very late in the day, whereas civilians might have the opportunity to use section 33 of the 1980 Act.
Of course, the other aspect of the Bill is the stripping away of reliance on the European convention of human rights. So, in many senses, if this Bill were to pass, service personnel would have less civil rights and less human rights. By analogy, they will have less rights than a prisoner, so I do not see how that squares with the armed forces covenant. I am very concerned about that.
Ahmed Al-Nahhas: If I may, I will answer your question in two answers, because I think that there are two parts to it. The first is the difference between the date of knowledge and the date of diagnosis. The date of knowledge is the date when the courts will infer that a claimant realises that they have a significant injury and makes the connection between that injury and the person whose fault it was. The three-year time limit in civil claims starts from that date of knowledge. A date of diagnosis is a factor that may be taken into account when the court considers the date of knowledge. The court may assume that, if somebody is diagnosed with a condition and is told by a doctor what they have, that will move them a long way toward obtaining their date of knowledge. I think that there has been some confusion about that in some aspects of discussions.
Could I ask you to repeat the second part of your question, please?
How clear cut are those questions about the date of knowledge and the date of diagnosis?
Ahmed Al-Nahhas: They are not clear cut at all. In fact, they are incredibly complex, because it is about the date of knowledge relating to a particular claim by that particular service person in their circumstances. The facts will change from case to case. You cannot prepare arguments for this sort of thing. You have to assess their merits on a case-by-case basis. They are very complex arguments, and they may well lead to satellite litigation within civil claims.
I wish not to take up too much time on this question, but I will just explain that normally in civil claims you issue a claim and it will proceed on the way. It will take a certain amount of time, evidence will be exchanged and you will end up in trial. When you have date-of-knowledge arguments or limitation arguments, it may well encourage the courts to order a split trial, or indeed the parties to apply for one, so that this issue of the deadline is determined first. That invariably leads to increased costs, in my experience.
Ahmed Al-Nahhas: Invariably. The MOD has very robust lawyers who do a good job. Like any lawyer, they look to take advantage of the law and to act in their client’s best interests. I am certainly not suggesting that they are doing anything wrong by using these arguments. However, I have never had a case—never—in almost a decade of litigating exclusively against the Ministry of Defence in which limitation is an issue and the lawyers have not raised it or sought to take advantage of that argument in order to either strike out my client’s case or to negotiate a settlement downwards. My answer to your question is: invariably.
Ahmed Al-Nahhas: That is a difficult question to answer. I think it will definitely have an impact. I do not think that the impact statement that has been released really explores it fully, because it ignores a large proportion of civil claims brought against the Ministry of Defence, which may include elements of overseas operations.
If I can give you just a quick example, the impact study does not take into account noise-induced hearing loss claims. These are complex claims that may involve exposure to harmful noise at any point of the serviceperson’s service, and at different points of overseas operations in different countries. The impact study that has been released ignores all of those claims. In the last year alone, I think the figures released by the Ministry of Defence suggested that 1,810 claims relating to noise-induced hearing loss were brought against the MOD.
My answer to your question is that I think there will be an impact, but we do not know the extent of that impact, and that needs to be explored further.
Thank you. I want to ask Ms Norton a few more detailed questions. Are you okay? You look as if you are suffering.
Emma Norton: I am okay. I am muting myself, but I am okay.
Emma Norton: We are talking about civil claims. I am not aware of any evidence that the courts cannot do that. They do it all the time; it is a fairly standard part of civil law procedure. Civil procedure rule 3.4—I think—says that if a claim discloses no reasonable prospect of success, the defendant can apply for strike-out, and the strike-out can be given. There are some really good examples of that happening where the MOD has been the beneficiary. A good example was the second batch of the Kenya litigants’ claims, which were thrown out a few years ago now. Something like 40,000 claims were dismissed on the basis that they were too old and it would be unfair on the defendant, which was the Ministry of Defence, to defend the claims because it no longer had the evidence available to have any reasonable prospect of defending them. The courts are perfectly capable of striking out stale claims and they do it all the time.
I want to pick up on a couple of Ahmed’s points, which were excellent. The point about the Limitation Act is really important. The Limitation Act contains a range of different criteria that, in my opinion, are duplicated by the new criteria that are set down in the Bill. Section 33 of the Limitation Act enables the court to consider whether allowing the claim out of time is going to prejudice the defendant, in particular, or anybody else. It requires the court to have regard to all the circumstances of the case, which would include the fact that the claim arose from overseas operations, and all the difficulties and complexities of that environment. I think the courts have more than enough powers.
Emma Norton: No, they do not, and I respectfully disagree with the previous witnesses on that issue.
In the Smith case, which Dr Morgan cited, the Supreme Court made it very clear that the principle of combat immunity is absolutely sound. In that case, the Ministry of Defence was trying to expand combat immunity to cover a range of factors that the court said were never intended to be covered by that. It was just heat of battle, in theatre. The families of the deceased—remember, they were young soldiers who got into those Land Rovers, or other vehicles that had been procured, and suffered dreadful injuries and death—wanted to challenge the decisions made by individuals back here in Whitehall, behind a desk, to procure that equipment for use in Iraq. That was the decision that they wanted to challenge. All the court said was that combat immunity did not go that far. It has not been chipped away or reduced. So no, I do not agree with that.
Ahmed Al-Nahhas: I am not going to comment on the criminal aspect, but from my perspective there is a need to protect service personnel from spurious criminal claims, which we are looking into. That brings forward a lot of people who want this Act in place. I am not sure whether that is the incentive behind part 2 of the Bill, which is the civil aspect.
I can share with you, as a representative of APIL, that many of our members have many hundreds of clients who are service personnel. I have been doing this for a long time. The people we act for come to us seriously injured and needing compensation. The tools that are available to us as lawyers are the civil claim route and the Human Rights Act. If you start taking those rights away from veterans and service personnel then you will be, in my view, doing them an injustice.
I do not envy you. I can see that this a fierce debate and there are different sides to the argument. I would caution that that should be a sign to all of us that there should be a pause to the Bill and further exploration. I wonder to what extent the confusion is caused by the fact that the Bill tries to do two things. It tries to resolve the issues in respect of criminal law and it also addresses civil issues, which are incredibly different. That is a cautionary word that I would pass to you.
Emma Norton: We heard some compelling and moving testimony this morning. I was particularly struck by the gentleman from the British Armed Forces Federation—in fact, both witnesses spoke about the fear in the veteran community about being dragged off to court and having knocks on the door at 3 o’clock in the morning. Both of them indicated that they felt that that fear was ill founded and based on misunderstandings of what is actually happening.
Looking at the number of prosecutions that have actually been brought, let alone the number of convictions, it is quite stark. It is a very small number, and it is not reflected in the level of fear and anxiety in the veteran community. I do not underestimate that, but I think the question becomes: what do we do to meet that fear and anxiety? How do we reduce it? We reduce it by being honest with them about the real extent of the problem and by addressing the causes of the problem, which were the failures, early in the day, which the Minister acknowledged—the early failures to investigate these allegations. Had that happened, the unfairly accused would have been exonerated years ago and the victims would have had justice as well.
That is my concern about the Bill: veterans think that they want it, and I understand that, but I am not entirely sure. Indeed, the previous witnesses all agreed that it does not address the issue of investigations—the Attorney General for Northern Ireland has said it does not address the issues of investigations.
You say these things amplify the fear. The veteran community is very small, so we all know someone who is expecting a knock on the door. That is really amplified, because there is a brotherhood and sisterhood that has gone through the forces. When one person is affected, everybody is affected. Nothing has been brought in so far, and now we are at the start point. A major fear I have is that I keep hearing people saying stop. It has taken decades to get here. I do not know how long I will be a politician, but if I have a long career, we could still be saying stop, because people will never find a perfect Bill.
I hear what you are saying, but I think it goes against what the veteran community wants and is crying out for. As you have heard today, and with the greatest respect—I value what you are saying—every person we are seeing has a different view on this. As politicians, we need to find the best way to get the Bill through. If the Bill were to be stopped, I know the absolute lack of trust and heartbreak that the veteran community would feel. We have to use what we have and move that forward. I respect what you have said, but I felt that it was important to express how the heart of the veteran community is feeling about this.
Emma Norton: I do understand that. You say that every person that has appeared before you has a different view; in fact, it has been a running thread throughout all of this. Everybody seems to agree that the problem is the lack of independence in those early investigations, and we still have a lot of questions, and need to have discussions, about how to improve that. If we addressed that, it would be a much safer basis to proceed and face the future. It would also be litigation-proof for the MOD; if you have investigations that are solid, independent and secure, they would be litigation-proof. That would be good for the victims, and it would be excellent for the soldiers.
Ahmed Al-Nahhas: Yes, I believe so. What you are giving veterans with one hand, you are taking away with the other. That is a confused approach to legislation, and I am very concerned about it. Does that answer your question?
Emma Norton: I do not have much to add to that, except to say that I agree and that it is quite extraordinary that part 2 will only benefit the Ministry of Defence, and the Ministry of Defence is the defendant in all those claims. That is quite extraordinary.
Ahmed Al-Nahhas: There is definitely a risk with any hard stop. APIL’s main concern is that taking away the flexibility of section 33 is a real danger. You are touching on accountability here; I heard your question to the previous academics about that, and it is important.
May I share an example from a case of mine? It was the wife of a serviceperson who died in Iraq in 2005. At the time he died—he died in a Snatch Land Rover due to an improvised explosive device—she had no idea whatsoever that the Ministry of Defence was culpable in any way. It was not until more than a decade later, when the Chilcot report came out, that fingers started to be pointed towards the Ministry of Defence. That report stated that the provision of Snatch Land Rovers was woeful and put service personnel’s lives at risk.
The wife later sought to bring a civil claim for her and her children. At that stage, 10 years after the death, her claim was already technically out of time. We had further delays because she was dealing with cancer and going through treatment. That sounds like quite an exceptional case, but we have had similar situations—I brought a claim that technically was out of time, and if this Bill had been in place, that claim could not have proceeded. The claim was settled for several hundred thousand pounds, and brought her some justice and some compensation.
I mention that example for two reasons. First, you are talking about the accountability of these investigations that take so long; secondly, adding to that the complexity and problems of a Bill that introduces a longstop is opening the doors to some real problems here.
Emma Norton: May I make a quick point on that? Another thing that is overlooked is the benefit of some of this litigation that we are discussing now to soldiers and the MOD more widely. The Snatch Land Rovers are a good example of that, because those Land Rovers are no longer used in those kinds of conflict. If those families had not brought those claims, we would not be in this much-improved situation. That is an example of the positive outcomes of litigation, and that is worth reminding you of.
Ahmed Al-Nahhas: Yes, potentially. It would not encourage people to come forward and bring claims. It is normally a very brave lawyer who takes on a case that is out of time in the first instance; the reason section 33 is there is that it allows flexibility only in the most exceptional of cases. If you were to take that away and introduce this Bill, you would see less litigation on these issues. Emma raises an important point; it is certainly my experience and the experience of our members that it is primarily through litigation that organisations such as the MOD listen and change. That is one of the aspects of removing those protections that causes us great concern.
Ahmed Al-Nahhas: That is one of the big problems with this Bill: it will encourage a great deal more argument. As I said in my answer to the previous question, I think the Ministry of Defence will seek to use this Bill to strike out claims. Using noise-induced hearing loss as an example, as you did, that is a very typical injury that service personnel suffer. They normally get compensated through the AFCS, but where there is negligence, they can get significant compensation. By “negligence”, I mean where the Ministry of Defence has, for example, not provided sufficient training or sufficient equipment to protect that serviceperson’s ears.
Those exposures to harmful noise can happen throughout a career. It becomes very complex, because as a lawyer you are investigating the entirety of someone’s career, with their medical records in one hand and their personnel file in the other. You are looking at overseas operations, maybe in Iraq or Afghanistan, and you have to explore whether they were exposed to a certain level of noise that may have been harmful. If I can put it simply, they are complicated enough as they are. Introducing this Bill will only do two things: it will increase the challenge to service personnel in bringing claims, and it will complicate claims unnecessarily.
Emma Norton: No, I do not have anything to add on that. I was just going to say that there are often references to the armed forces compensation scheme, and it might be worth briefly mentioning on behalf of service personnel how dreadful they find it to try to operate that scheme. Ahmed has more experience of this than I do, but a lot of my clients have described to me how bureaucratic, difficult, slow and stressful it is, and it is true to say that the awards you would generally expect to recover from that scheme are significantly lower than those you would expect to recover if you succeeded in court. Ahmed will correct me if I am wrong about that, but I think it is a point worth making.
Ahmed Al-Nahhas: I am struggling, to be honest with you. As Emma pointed out, this is all about civil claims that are brought against the Ministry of Defence; it is not about civil claims that are brought against service personnel, so I am really struggling to find any advantage for service personnel. When you are stripping away their access to section 33 of the Limitation Act, you are ignoring those exceptional cases in which a judge may think, “You know what? This case is out of time, but there are really good reasons why we should proceed with it.” It may be for reasons of accountability, which we have touched on, or it may be because that particular claimant deserves some justice. When you start stripping that away and then start stripping away the protections under the Human Rights Act, service personnel are left vulnerable—more vulnerable than civilians, more vulnerable than prisoners. I do not understand what advantage they are getting out of this.
Emma Norton: I agree with that. I do not have anything to add to that.
Ahmed Al-Nahhas: There are, sir. They are published by the MOD on an annual basis. The MOD split the figures according to the type of claim that is being brought. What you are looking for is what they term employer’s liability claims. The figures are available online. I am happy to provide them, but I am sure you have quicker access to them than I do.
Ahmed Al-Nahhas: They do split them. I do not have them to hand, unfortunately, but they separate them out, so maybe you will glean more from that. I am sorry that I cannot assist further. My understanding is that the Bill will affect the vast majority of the civil claims that are brought against the Ministry of Defence, which are the employer’s liability claims. The main provisions that the MOD break them down into are non-freezing cold injury claims, which are a mainstay of civil claims that are brought, and are in relation to negligent cold exposures, and noise-induced hearing loss, in relation to negligent exposure to loud noises. The others relate to industrial disease—things like asbestos—and then they have a quota that is defined as “other”. With a freedom of information request, we may be able to dive a bit more into those statistics. I hope that helps.
Ahmed Al-Nahhas: That is a very good question. It depends on what they agree with their lawyer. In the industry, the norm is to provide something called a conditional fee agreement. Where you can establish that a claim has good prospects of success, you may, as a lawyer, offer a service person’s family, in relation to your example, a CFA, where you do not charge them unless you win. It is conditional on certain terms. These days, there are a lot of rules that regulate how much lawyers can charge. Normally, for example, and taking a rule of thumb, they cannot exceed the damages that you recover for the individual. In the past, there were fewer constraints on the extent of lawyers’ fees.
There are lots of lawyers out there who are specialists and who offer no win, no fee agreements to service personnel and their families. The only way that service personnel or their families may be required to pay legal costs normally is that they sometimes have to pay a chunk of their costs, related to what lawyers would define as unrecovered costs, which are things that they cannot recover from the Ministry of Defence, but as long as the claim is successful, in this context, it would be the Ministry of Defence that pays the lawyer’s bill. I hope that answers your question.
Yes, thank you.
Ahmed Al-Nahhas: It depends on the terms offered by the lawyers. They can vary, typically between 15% and 25% of the damages that are recovered. There are certain caps, but that is typically what you might find in the industry.
Ahmed Al-Nahhas: As I am representing APIL, I would not be able to share specific numbers, but I am very happy to share my experiences on section 33. I would say that it is a small fraction of cases that are pursued that will have to rely on section 33.
Ahmed Al-Nahhas: To give you an idea, it may be that two out of 100 cases that we manage would be at risk of being out of time—maybe 5% at most. On whether or not you succeed with a section 33 argument, well, the only time I went to court on a section 33 argument, I lost. I took it to the Court of Appeal, and I lost there, too. I think that might indicate to you how difficult it is to succeed there. The judges really do not engage in a liberal application of section 33.
As a lawyer, if you are partaking on a case that is out of time, you need to be brave, and it is very rare. Often or not, in some of these cases where there is a section 33 argument, they may be settled along the way, but the fact that the claim is out of time might be a factor that affects the settlement figure. I hope that answers your question.
Ahmed Al-Nahhas: In answer to your direct question, yes, it is incredibly rare that you use it, but that is dependent on the lawyer and whether they are willing to take on riskier cases. On the whole, it is not something that lawyers engage in easily. But the key about section 33 is that you will come across those cases, like the one I explained earlier involving the widow of the serviceperson, where they are demanding justice. They are worthy cases, and you use section 33 because that is the flexibility in the system. That is the conduit through which judges can achieve justice, even if you are out of time.
Ahmed Al-Nahhas: That depends on the definition of win. What is interesting is that most of the claims—civil claims in this area—will tend to settle. The MOD will publish, with the same document I mentioned earlier, the figures in respect of settlements that it pays out. I think that last year it spent £131 million in respect of compensation and legal costs. I do not think it has separated what is legal costs—
Ahmed Al-Nahhas: I could not give you an accurate estimate here. I am a representative of APIL, representing hundreds of solicitors across the country in this field. It may be that I can provide written evidence, if that would assist the Committee.
That would be welcome, thank you.
Ahmed Al-Nahhas: Of course. I am sorry that I could not assist you immediately.
Ahmed Al-Nahhas: I have no idea. They may need to rely on charity. They may need to rely on family. They have very limited options. Actually, they often have a big challenge: they need to find a specialist in this field to begin with, because it is not easy to sue the Ministry of Defence and it is not easy to understand the specialties and complexities of such cases. They will often go to another lawyer for a second opinion, and one hopes that that lawyer would take on their case, but there are no guarantees, and particularly on cases that are out of time. You may be going around the houses to tens of lawyers who will all say to you, “I’m really sorry, but you are out of time. There is nothing I can do for you.” That is one of my concerns with the Bill.
Ahmed Al-Nahhas: I would say, on average, in my own practice, probably between 70% and 80% of inquiries that come in will be rejected because they are out of time. Forgive me, that is anecdotal and off the top of my head. I was not expecting that question but, if it gives you an idea, the vast majority of the inquiries we get are from people who are frankly out of time.
Ahmed Al-Nahhas: It should not—it definitely should not. You are taking away legal rights from service personnel who already have fewer legal rights as it is. You really are stripping the tree there.
If no other Member wishes to ask a question, I thank both our witnesses for their contributions to the Committee this afternoon. Thank you very much indeed.
Examination of Witnesses
Martha Spurrier and Clive Baldwin gave evidence.
Martha Spurrier: Hi, everyone. I am Martha Spurrier and I am a lawyer and the director of the human rights organisation Liberty.
Clive Baldwin: I am Clive Baldwin, senior legal adviser with the international organisation Human Rights Watch. It is perhaps also relevant to the Committee that I was previously involved in training the UK armed forces and other armed forces on detention practices and international law.
Thank you. We are expecting a vote in the House imminently; I will have to suspend proceedings for about 15 minutes in that event. We will begin the questioning with Chris Evans.
Given that the Government have managed to exclude sexual offences from the Bill, do you see any reason why torture should not similarly be excluded?
Clive Baldwin: No, there should be no reason. Not just torture but other international crimes should not be excluded, particularly war crimes, crimes against humanity and, indeed, any other international crimes, such as enforced disappearances that the UK is obliged to investigate and prosecute. For the reasons given by the Secretary of State, sexual offences have no place in armed conflict, and neither does torture or war crimes. The exemption should be very clear. Even in international crimes, particularly war crimes, it is a very clear principle of international armed conflict law that there should be no statute of limitations on war crimes, because of the difficulties in investigating them. Anything that starts to look like a statute of limitations on war crimes risks the UK violating its international obligations.
Martha Spurrier: I entirely agree. I cannot see any legal or moral justification for not including torture and other war crimes in that schedule.
Clive Baldwin: The triple lock, as it is set out, is quite worrying, particularly for those international crimes, because it seems to be creating a block to prosecution. The first element is the five-year limit, together with the presumption against prosecution, which is quite unique. I am not aware of any other country having something similar, especially for those international crimes.
The third part of it—the increase in the powers of the Attorney General—is a position that we at Human Rights Watch have objected to for some time. The Attorney General is an unreformed legal position that essentially remains a member of the Government and should therefore have no role in determining individual decisions on prosecutions, although of course the Attorney General still has some of those powers. The increase in the power to effectively block prosecutions gives the risk of all this appearing to be a political attempt to make it extremely difficult in an exceptional situation—as the draft Bill says—for war crimes, torture and other international crimes to be prosecuted.
The second element in the triple lock is the taking of facts into account. Those are relevant factors—the situation on the ground and the situation of forces personnel—but those are situations that should be taken into account anyway, particularly when prosecuting war crimes, as war crimes are designed to be crimes that apply on the battlefield and in situations of armed occupation. There are many other issues that should be taken into account as well, not least the need for justice, the seriousness of the offence and the seniority of the person responsible.
Martha Spurrier: On the stated intent and whether the triple lock is a rational answer to that stated intent, as far as I understand it the stated intent of this Bill as a whole is to deal with so-called vexatious claims. It is clear from the statistics that it is not a significant number of civil claims that are, in fact, properly termed as vexatious. Of course, it is also important not to conflate civil and criminal cases. There is not really such a thing as a vexatious criminal case. That would bring suggestion that the state was abusing its powers in prosecuting something, and I do not understand that that is being suggested.
The way to meet that stated intent is to deal with the inefficacy of investigations as they currently stand; it is not to impose a triple lock on dealing with very serious crimes committed by military personnel. That deals with an entirely different proposition, one that we say is deeply problematic—that there is no justification for the five-year time limit, no justification for a list of factors to be taken into account by a prosecutor, which exclude things like the public interest in upholding the accountability of the military and the public interest in victims having their voices heard, and there is no public interest in there being an Attorney General’s veto in what is often a very highly politicised context.
The triple lock does not meet the stated intent, but in and of itself it is not something that Liberty and other organisations can stand by, because it amounts to a chilling effect on prosecutions for serious crimes and effectively a culture of impunity in the armed forces.
Martha Spurrier: Absolutely. If you have a triple lock on prosecution, it must be right that your intention is to make prosecutions harder to bring. If you have been the victim of an injustice, whether that is because you are a civilian victim abroad or you are a serving man or woman who has been the victim of an abuse of justice by the UK military, those three locks on you getting justice could very easily act as a bar. They are an additional three hurdles that an ordinary, if you like, victim of crime would not have to cross in order to seek justice, accountability and punishment for what they have suffered.
Clive Baldwin: Absolutely. Particularly in the situation of crimes that may have been committed overseas, it is very difficult for victims to achieve justice, for many understandable reasons, in those cases. This makes it even more difficult, in that after five years it becomes the exception rather than the rule to prosecute. This is just focusing on part 1, the criminal side. It does run the serious risk of creating injustice.
Clive Baldwin: No, I am not aware of any international law or even system that has something like that. Some countries have statutes of limitations—absolute time limits for the prosecution of minor offences, or relatively minor offences. Certainly, when it comes to war crimes, as I have said, there is a very strong international law, under the law of armed conflict, that there should be no limitation period for war crimes.
As you say, this is quite a strange law. It would create a very strange situation and I think, as Martha was saying, that it will have a very chilling effect, not just on prosecutions but even on criminal investigations, because those doing the investigation will know that there will be a presumption against prosecution.
Clive Baldwin: Internationally, there are standards, as with the independence of the judiciary, that prosecutors should be independent and not subject to interference by politicians or Ministers on individual cases. Of course, Ministers may be at the head of the prosecution system. Some countries do this better than others, and there are very different types of systems. In the United States, for example, Attorneys General are elected, which creates its own political problems. However, the move has generally been very much towards making prosecutors, and that prosecutorial decision to prosecute or not, as robustly independent as possible.
One country that had a similar system to the UK was Kenya. When it had a major constitutional reform, it made sure that the Attorney General became a very apolitical, non-political position, because of the importance of the Attorney General in making these decisions about prosecutions.
Clive Baldwin: Yes. As an organisation that works very closely on international criminal justice, including with the International Criminal Court, I would say that this Bill, unamended, would probably significantly increase the risk of UK service personnel and others facing investigations from the International Criminal Court, or perhaps in other countries, on the principle of universal jurisdiction for international crimes such as war crimes and torture—universal jurisdiction being that principle that a crime like torture should be prosecuted anywhere. There is a duty under international law that countries have to criminalise, or make it possible to prosecute, or extradite, anyone suspected of torture found in their territory.
The Bill, unamended, would increase that risk because it does not exclude all forms of international crimes—war crimes and torture. The International Criminal Court and others will consider whether the UK is willing and able to genuinely prosecute such offences, and given that the Bill would include those offences, would create this triple lock and would create effectively a presumption against prosecution after five years for those offences, it creates the serious risk that the UK would not be considered willing to prosecute offences after five years. That would increase the risk that the ICC or other countries would seek to prosecute such offences.
Martha Spurrier: I agree. The phrase to remember is that, when looking at whether to prosecute, the ICC will think about whether the home country is willing and able to bring forward a prosecution. If you have a stated legislative intention from Parliament, with a triple lock and with a schedule that you have said you are not going to include torture and war crimes in, that telegraphs pretty clearly to the ICC and others that the UK Government and UK prosecutors are unwilling and unable, and therefore that those prosecutions would have to take place elsewhere.
The Bill obviously extends beyond the traditional battlefield. Are you thinking of areas where we have deployed UK troops on peacekeeping missions and they may or may not have committed offences there? That is just an example.
Clive Baldwin: It is difficult to say; I have not seen any indication from the Government of where they would intend this. Of course, if the Government made a very specific commitment to exclude all international crimes, they could exclude new international crimes. Enforced disappearances would be one, and perhaps others that might arise and that the UK may sign up to. However, I worked for several years in Kosovo on justice issues during the peacekeeping operations and, as you mentioned, in situations of peacekeeping many issues arise about day-to-day crimes—traffic offences, even, and elsewhere—that the Government may or may not choose to exclude, depending on the nature of the peacekeeping mission.
If a peacekeeping force is part of building a justice system and there is a functioning justice system in the country, it may be that the Government may choose to make some of those crimes part of it. On a wider picture, giving that power to the Secretary of State, when it is done on an ad hoc basis, mission by mission, will produce uncertainty and lack of clarity about what crimes will be prosecuted. That is something it is quite important to be really clear on, because if anything is amended in the Bill now, it is a very clear and simple statement that no international crimes are part of this Bill; they are all excluded.
Martha Spurrier: The danger of secondary legislation for lawyers is, of course, that, as the Committee will be aware, it simply does not receive the parliamentary scrutiny that primary legislation would. The very real concern with this delegated power is that, as Clive said, you could end up taking away or adding really serious international crimes; you could also conceivably say that the Minister might, by secondary legislation, make changes to the Human Rights Act. That would be pretty unprecedented in parliamentary terms. We have seen over the past few months with the coronavirus regulations how much the state can do without parliamentary authority. We are deeply concerned about the extension of the use of secondary legislation to make such substantive changes that will impact on people’s rights.
Clive Baldwin: No, for the reasons you say. My organisation works a lot on these situations of violent conflict and the intersect between human rights law and the law of armed conflict, and we are seeing a breakdown in what is the beginning and the end of an armed conflict, what is the battlefield and what decisions are made in which country—you mentioned drones, but there are other decisions made within a country, and cyber-warfare is coming.
The artificial distinction of an overseas operation with a clear beginning, a clear theatre and a clear end is one that is very much breaking down. The distinction of when an armed conflict begins and ends is becoming murkier in many ways, especially non-international armed conflict. The idea of having one rule for overseas operations and one for domestic operations will be increasingly artificial, and that lack of clarity about the real application of such situations and such laws will be another danger of this Bill.
Martha Spurrier: The definition, as Clive says, is unclear but it is also over-broad. In my mind, there is no justification for including in that definition things such as peacekeeping missions. What the definition should be focused on is restricting those powers to active hostilities, which could then include, as you say, a future-looking way of envisaging modern warfare, but should still be restricted only to active hostilities. There is simply no justification for taking these extraordinary powers any wider.
Clive Baldwin: Speaking from personal experience in Kosovo and Bosnia, and from the experience of my organisation, the rules and laws that apply to overseas armed forces in these operations vary very much from time to time. You may have formal peacekeeping operations, where the armed forces have to act as domestic police officers and do domestic policing work, or you may have a strange and unclear overlap. To some degree, that was the situation in Iraq in the last decade, especially as the occupation formally ended after one year in 2004, although British forces remained for four or five years after that with special powers. Sometimes you have stated forces agreements between countries, and sometimes you do not, so it is very unclear. The actual criminal law, and crimes that have been committed by forces or that are alleged to be committed by forces also vary from war crimes in the battlefield to war crimes in occupation, but if you—[Interruption.]
We cannot hear you, Mr Baldwin, because we have a Division in the House of Commons that requires the bell to ring. I am suspending the sitting for 15 minutes and we will come back to your answer to that question. The Clerks will remain in the room, so if there are any unexpected issues they will remain in contact with you.
Sitting suspended for a Division in the House.
We are formally resuming proceedings. I ask Chris Evans to continue his line of questioning. When Mr Jones comes back, I will ask him whether he wants to resubmit the question that he asked before the suspension.
Clive Baldwin: If the Bill were made retrospective, and I think it is not quite clear whether it would be for existing investigations that have not proceeded to prosecutions, but even if it were, I think that creates even more problems. With the ICC, there is currently a preliminary examination, which might then proceed to an investigation, for the reasons previously stated. More broadly, we would say that the Bill does not fix any of the problems about criminal investigations, because part 1 is trying to limit prosecutions, and there have been so few prosecutions in any event. We would say the problem recently in Iraq and Afghanistan lies with the lack of prosecutions dealing with the evidence that some more crimes—limited, but some—were committed. That has been the problem.
Martha Spurrier: I agree with Clive. The Bill is a huge barrier to victims, as I have said, whether they are civilian or service personnel seeking justice. It has no bearing on the problem that it is purporting to solve and it will make accountability for human rights violations and serious crimes harder. To make it retrospective would simply enlarge the scope of what is already going to be a bad law.
Clive Baldwin: Not at all. We have been following and looking at the issues in Iraq, particularly, and in Afghanistan, and not just with the UK, but also with other countries. The problem on the criminal side is that the military criminal justice system has not shown itself fit for purpose in these particular situations of overseas investigations, which are very complex. We need a system that is fair, speedy for size, transparent, effective and independent. We would say that you start with trying to look at the problem and fixing that, so that there are investigations on the criminal side first that are as speedy as possible and fair. Once you fix that, you can look at what other measures might be needed. This problem starts with the prosecution side, which, as I said, has not in itself been the issue, because there have been so few prosecutions.
Martha Spurrier: That is absolutely right. The answer to the stress faced by service personnel is to deal with investigations: to make them thorough, to make them independent, to make them fast, to get them done to a high standard, and also to offer proper support to service personnel and victims. You heard from Major Campbell today, and he has been clear in his public statements that he does not feel that the Ministry of Defence supported him through the repeated investigations he faced. Presenting the Bill as a solution to what people like Major Campbell have faced is, frankly, offensive to the trials he has been through. It is not an answer to that problem. Nowhere on the face of the Bill does it deal with investigations.
Clive Baldwin: To answer the second question on the law of armed conflict, you say “pushed to the limit”, and, as I said on one particular element, if it starts to look like or resemble a statute of limitations on war crimes, that does violate a basic principle of the law of armed conflict. If you are suggesting that anyone would then feel that they could push any other crimes, or commit crimes with impunity, that may or may not be the case, but it would certainly encourage people to delay investigations to cover up, which is something that we have seen in Iraq and Afghanistan.
Also, the UK has a fairly poor record in actually prosecuting crimes committed overseas, despite there being public inquiries and investigations. Only when you have some of the clear cases of torture being prosecuted do people become aware of what is or what is not torture. One example from Iraq relates to torture practices, such as sensory deprivation and hooding, that the UK said in Northern Ireland 40—then 40, now 50—years ago were unacceptable, and should not recur. They started recurring in Iraq. You might say that that was because there has not been a clear prosecution of such cases as torture. It took an English judge in one of those civil claims in the past few years to say that these practices should have no place in the 21st century. That is why you need some litigation. Of course, the innocent and the accused who have not committed any crimes also get tarred with the same brush if these investigations go on and nobody gets prosecuted. You need a prosecution to clearly identify the few people responsible for war crimes, and to make sure that those individuals are held responsible and not the armed forces as a whole.
Martha Spurrier: Clive has covered the second question, so I will take the first one. When you start with a Bill that does not deal with the problem you are trying to solve, it is quite difficult to answer the question of how to make it deal with that problem. There are lots of practical things that the Government could do to try to make investigations better. The recommendations from the Service Justice System review would be a good place to start: issues about things such as independence and fast pace, and doing basic investigative things like taking witness statements promptly, gathering forensic evidence effectively, and so on. All of those things can and should be done, and they should be a matter of priority. The Bill cannot and will not do any of those things.
You could amend the Bill to knock off some of its most egregious aspects. You could include torture, war crimes and crimes against humanity in the schedules. You could remove the triple lock by taking away Attorney General consent, by removing the presumption against prosecution in relation to the time limit, and by balancing out the factors that a prosecutor would have to consider before proceeding with a prosecution. That would not cure the Bill and would not make it a good piece of legislation, either from the perspective of accountability, justice and human rights, or from the perspective of trying to solve the problem that the Government purport to be wanting to solve.
Clive Baldwin: To clarify, I was not saying that it would encourage it. I am responding to the question that seemed to be saying, “Would it lead to anyone trying to stretch the law of armed conflict?”. If a law creates impunity for offences and makes sure no one gets prosecuted, it may make those offences more likely. I would repeat that torture was admitted but never prosecuted in Northern Ireland in the 1970s, and the same techniques—the same type of torture—was repeated in Iraq in the 2000s. That is because you need prosecutions. You need people to be aware that they will face prosecutions for an offence. If they perceive that an offence will not be prosecuted after five years, it will make it more likely even for the investigations to be delayed to that moment and for offences not to be seen as, very clearly, “This is criminalised. This is unacceptable. These are crimes that will be prosecuted.”
Clive Baldwin: I do not think anyone would be briefed. When I was involved in training the armed forces in detention we were very clear, and everyone was very clear—these are the crimes. What has been interesting, as well, though, is that there are some elements which are just, traditionally, not being prosecuted in the United Kingdom. One of the keys is that senior people do not get prosecuted for war crimes in the United Kingdom—senior military people, even Government Ministers—under the principle of command responsibility, which is an international element of war crimes. It was put into the International Criminal Court Act 2001 in the UK, but to my knowledge and others’ no one has even been investigated under that.
It was only when I used to brief people in this country and other countries about that element, people sit up and take notice, because it makes people aware that as a commander you could be criminally liable if you fail to prevent war crimes or if you fail to prosecute them. It is elements like that—you only become aware of that when you actually see people being prosecuted for it and know that it is liable. Again, if it comes after five years it is much more difficult and there is a presumption against prosecution: that is why the words matter. Something like a presumption against prosecution—it sounds like it would be very difficult, it would be exceptional, to prosecute. That would send a very difficult message, both internally and externally in the rest of the world.
Martha Spurrier: I absolutely would support a Bill that protected service personnel, because, as I am sure you know, Liberty has done a lot of work supporting military personnel and their families to find justice. What I think about this Bill, as I have said, is first that it is setting up a solution to a problem that is often mis-stated; and then the solution does not fit the actual problem.
In my view what service personnel need, to be protected, is to have an absolute assurance that any investigation that they face will be dealt with fairly and independently, and to an extremely high standard. One would hope, therefore, that that would mean that they do not have repeat investigations hanging over their heads for many years, which obviously is an unenviable and miserable situation for any human being to find themselves in—but that Bill will not deal with this.
I appreciate the lens of saying that it will create a culture of impunity, in the sense that I do not think anyone is suggesting that you would go out to the battlefield and commit a crime in the hope that you could delay being noticed for five years; but the fact is that there are plenty of reasons why five years might elapse before an effective independent investigation can be undertaken, either to exonerate someone who has wrongfully been accused, or to convict them. That could go for torture survivors, for example, who are often not able to come forward for a number of years because of the trauma they have faced, and for serving military personnel, who often do not feel able to come forward, including if active hostilities have been continuing for that whole period of time.
I do not think it is about saying, “Well, let’s just bin the Bill, and then do nothing.” There are plenty of constructive things that one can and should do in order to support military personnel. I just do not think that this Bill achieves those things.
Clive Baldwin: It is important to distinguish between the three types of investigation that the MOD and service personnel have faced in the last 20 years. One is public inquiries, which should be about the general situation and general problems. They should be for learning lessons and to find out the truth about what went on. There are then civil claims that are brought against the Ministry of Defence, sometimes by service personnel and sometimes by others who have claimed to be victims, some of which have been upheld and some of which have not. Then there are criminal investigations.
I am not sure about this Bill. Improving investigations would be better done in a wholescale reform of the military criminal justice system, which we hope will happen in the next armed forces Act and has been promised for many years, that is based on rights, fairness to the accused, those investigated and alleged or real victims, and some basic human rights principles, such as double jeopardy, which has already been mentioned. Generally, no one should be prosecuted twice, once finally acquitted or convicted for the same offence, and they should not face repeat investigations for the same offence.
Strengthening of those conditions and some fundamental principles, not just of human rights law but of English tradition, such as habeas corpus, having judges control detention and having every detainee brought before a judge, not only deters abuse but protects those doing the detention, because they can say, “We had a record and the judge controlled the detention.” Records made at the time make it much easier to investigate afterwards. There are a lot of recommendations for the justice system. They are probably better done in a military justice reform Act rather than in this Bill.
Martha Spurrier: I agree with Clive. There are plenty of good and constructive things that one could do to the military justice system in order to make it fairer for all concerned. This Bill does not do that.
There is a danger in saying that the way to cure the deficiencies in the Bill is to effectively add a section on investigations. That would deal with the fact that investigations are missing, but it would not deal with the fact that what you have in the rest of the Bill is a system being set up that creates a culture of impunity in the armed forces. It means that bringing criminal prosecutions for the most serious offences imaginable will become much harder. That is why I think both Clive and I are now saying that this simply is not the vehicle.
This Bill cannot be cured by adding things in about investigations. That is something that will have to be done separately. There is a real danger of losing focus on the egregious parts of this Bill, which will damage the standing of the armed forces abroad and damage the UK’s reputation as a leader in human rights. That is why you have seen many people, including people from the military, coming out with grave concerns about this Bill, whether you take Lord Guthrie or the Judge Advocate General. These are people with high standing in the military who have real concerns about what this piece of legislation could do to the integrity of the British armed forces.
Clive Baldwin: On the international side, which is what my organisation works on—I will be brief, because Liberty’s focus is on this—there are many reasons why claims, brought both by members of the armed forces and by others in different parts of the world, may take some time. We have seen them on rendition cases and others in the last year. It is partly because people may not be aware of damages in a case, or because evidence did not come out, as the only people aware of the crimes that may have been committed were those who suffered them and the persons who were responsible, or because other types of claims could be made. There are many reasons why, particularly for overseas operations, flexibility around time limits would be vital in order to secure justice.
On an international level, particularly when it comes to torture, there are quite a lot of international standards that say countries need to give an effective remedy to people who suffer torture allegations. It needs to be a fair system. Sometimes it is not possible to have trials—this has been mentioned about the Kenya cases from 70 years ago—but it still needs to be a fair system that has a degree of flexibility. Something that looks like a very hard time stop perhaps risks creating some severe injustice.
Martha Spurrier: As someone who has practised law and argued these kinds of cases before judges, equitable is the watchword. Bright-line rules, in the context of what are often extremely complicated textured cases, very rarely give out justice or achieve something equitable for either victims or perpetrators. The courts have a whole range of powers available to them, in [Inaudible] and beyond, to prevent cases from being brought—be it before or after a time limit—if those cases are unmeritorious or are being brought for abusive reasons. For example, you can have your legal aid certificate removed, or your claim can be struck out. You can have your funding withdrawn if any dishonesty offences are proven. There are a whole array of tools that judges can and do use routinely to make sure that justice is done, and that includes justice being done in a timely fashion.
The danger of putting a hard stop is that the kinds of cases that you have alluded to—whether you are talking about noise-induced hearing loss, some other complicated medical issue or an issue entirely beyond the control of any of the parties to the litigation. That case, falling three days the wrong side of that rule, would not be heard even it was a meritorious case. That seems to me to be arbitrary injustice. What should instead continue is judicial discretion over what is equitable for both parties. Of course, both parties will be represented and they can—and, believe me, they do—argue very forcefully on both sides, either to extend or not extend time limits. Again, it feels to me as though people speculate that this is a problem that exists in the justice system, but it is certainly not one that is statistically significant or that I have ever experienced as a lawyer.
Martha Spurrier: Sorry, could you say that again?
Martha Spurrier: Yes, in the sense that at the moment, everyone is equal before the law, and that is how it works. You can pitch up and argue that a case should be struck out because it is out of time, or that it should not be struck out because it is out of time. There is no weighting according to whether you are a civilian, a claimant, a defendant or a member of the armed forces. Of course, the proposal in the Bill is that civilians will be disadvantaged more greatly than service personnel by the longstop. That is an unjustifiable weighting in favour of service personnel, in the same way that the weighting works on the criminal side, where presumption goes all in favour of military personnel and all against victims of military crimes.
Mr Baldwin, do you have a view on that?
Clive Baldwin: I have nothing to add to what Martha said.
Martha Spurrier: If the six-year time limit came in, it would benefit the Ministry of Defence and the Government, because these claims are, by and large, being brought against the Ministry of Defence, either as an employer or as a detaining official, or against the Government as a policy maker. It is absolutely critical that the forces of the state—again, I have acted for countless individuals and families where bringing a claim against the state is no mean feat. You are usually against a range of senior and powerful lawyers, and any additional disadvantage that you face makes it incredibly difficult to seek justice. So, unquestionably, this is a power that plays in favour of the state, and state agencies, and plays against individuals, whether those individuals are service personnel or civilians.
Clive Baldwin: To add to that, it is so clear, when it comes to civil claims, because they are public claims, that the beneficiary of any limit to those powers would be the British Government and normally the Ministry of Defence, because that is what the claims are made against. That includes service personnel bringing claims; it includes people in other countries bringing claims who in some cases have been the subject of abuses. That is the beneficiary. Of course, you still have to have a fair trial, but in most cases it is going to be the MOD.
When it comes to the investigations, the Government, when it is a civil claim, which is not against individual personnel, have a duty of care towards their personnel and ex-personnel. Those are not investigations and claims against those individuals; they may have to give evidence and that has its own degree of severe stress, but it is not a claim against individuals. That is why it is so important to separate the public law issues, the civil claim issues, and the criminal law issues.
Clive Baldwin: On the broader issue of derogation from human rights, that is part of human rights law; that is part of the European convention. It is actually something I proposed in Kosovo 20 years ago—that there would be a derogation then to reflect the realities of the situation and still be able to detain people according to the law. It is also important to realise that derogation is not exempting anyone from human rights law; it is just modifying it to deal with emergency situations. That is the case particularly on detention: it does not remove the need for detention according to law. It does not remove the need for habeas corpus, to bring someone before a judge. It could mean that someone is before a judge within weeks rather than days, perhaps. This does not mean that human rights law does not apply.
Could I just—
Clive Baldwin: Sorry, it is extremely complex.
Clive Baldwin: Effectively, Governments always have to consider derogation, so I do not think that legally it changes anything. Human Rights Watch proposed some years ago to Government that they should consider this when dealing with the issue of detention overseas. You have to prepare it—I do not know of any situation where a Government has actively declared a state of emergency, which is what you need for derogation, in another country, and a lot of these situations are multinational peacekeeping and other operations, so you cannot really have one rule for the UK armed forces and one for others, normally.
So it is quite a complex situation. Also, derogation changes the law; it changes the law that applies, so again, it should not be done by just a secondary declaration by a Minister or Secretary of State. It would need a change in law. But we would say that preparing for these situations, preparing for detention in armed conflict or peacekeeping, and having a law that is clear is something that people have been saying that the armed forces need for the last 20 years. The armed forces I know say that they want clarity when they go to detain, which means knowing what law they should apply, how they detain and to whom they should apply. Giving them that clarity in advance would be of great interest. Derogation, when applied properly, is a strengthening of human rights law. It is not an exclusion of human rights law, but only when it is applied carefully, properly and not by just some ministerial fiat, as it could risk becoming.
Martha Spurrier: As Clive says, the power to derogate is a really critical part of the human rights framework; it is the power to suspend rights or to restore rights, and that is why it is tied to a state of emergency. Writing that requirement to consider into the Bill, on a narrow view, changes very little in relation to the legal position.
The concern, of course, is when you take a wider view and look at this Bill as a whole, which very much signals the desire to water down the human rights arrangements; and then you look at the wider agenda more generally, which is a Government with a manifesto commitment to update the Human Rights Act and an ongoing process to look at access to judicial review, and whether certain Government decisions should be shielded from that mechanism of accountability.
So, our concern is not so much about the narrow wording of that clause, but about a culture of watering down Executive accountability that crops up manifestly in this Bill but also in other places in the Government’s agenda, which we would say overall will make it very much more difficult for ordinary people—be they soldiers or civilians—to hold powerful people to account.
Thank you both. No further questions from me, Mr Mundell.
I will call Carol Monaghan, because we can go on until 5.15 pm, and I want Carol to have the opportunity of asking her questions.
I just want to ask a few questions about part 2 of the Bill. In the briefing sent by Liberty and Human Rights Watch, Amnesty International and I think a few other organisations, one thing it says is,
“It is notable that by far the largest proportion of claims against the MOD between 2014 and 2019 were brought by service personnel seeking compensation for injuries.”
I asked the last witnesses about this, as well. Have we got a Trojan horse situation, where part 2 of the Bill has been snuck in off the back of part 1, so veterans and personnel think this Bill is about helping them, but in actual fact it is putting barriers in their way?
Clive Baldwin: The submission was actually from Liberty and Amnesty; I will not have Human Rights Watch take credit for that. However, in some ways, absolutely, by removing the power of anyone, or by having this backstop, to take action against the Ministry of Defence, it will definitely affect members of the armed forces. So, for some it will be removing protection.
Martha Spurrier: This Bill protects the MOD and the Government much more than it protects anybody else.
Martha Spurrier: Yes, I think there are plenty of circumstances in which there would be entirely fair and honest reasons for not starting a claim promptly. The one example that I have already alluded to is the case of noise-induced hearing loss, where an injury may develop over a matter of decades of service, and the date of knowledge may occur after the six-year time limit has already elapsed, and then you may be prohibited from bringing a claim for really no good reason.
That is why you need to be able to have flexibility in the hands of the judiciary when considering these claims. That is not to say that claims that could have been brought promptly but were not should be allowed to proceed; maybe they should not be allowed to proceed. However, that is not what this longstop will do. This longstop will just create a bright line that creates injustice for people who fall the wrong side of it, even though they may have perfectly good reasons for doing so.
Clive Baldwin: Just to add that, although some time limits on civil claims are quite common in systems, there needs to be that element of flexibility or fairness. Can we imagine situations in which there are good reasons not to bring claims within that time limit? Quite a few, particularly for overseas operations in which, as we said, the situations are complex and people may not even be aware of their rights, or rights to bring a claim, until later, or even until they have left the armed forces. That is why the overriding principle has to be one of fairness. People may need to justify why they are bringing a claim later than they could have done, but they may have good reasons to do so, and the judiciary needs that element of flexibility to respond to those situations.
Clive Baldwin: Quite possibly. You would have to ask the veterans. The idea is that the Bill will protect veterans, but as we said, on the civil side, it will clearly take away some rights, and on the criminal side, it will not stop investigations; it may stop prosecutions, but very few have been happening anyway. It increases the risk of international criminal investigations against members of the armed forces and others if the UK does not appear to have a credible system of prosecution of international crimes. Yes, the Bill, in its current state, does not seem to strongly protect veterans and other members of the armed forces from some of the real injustices that some of them have suffered.
Martha Spurrier: I agree with that proposition. The Bill does nothing to deal with slow, ineffective or unfair investigations, which is what service personnel are complaining about. Certainly, the families and the people who Liberty has represented are often bringing cases against the Ministry of Justice or against the Government after years of banging their head against the wall of institutional power. The Bill will do nothing to help those people seek justice and accountability.
If there are no further questions, I thank our witnesses, on behalf of the Committee, for their evidence this afternoon. That brings us to the end of our oral evidence session today. The Committee will meet again in this room at 11.30 am on Thursday to take further evidence.
Ordered, That further consideration be now adjourned. —(Leo Docherty.)
Adjourned till Thursday 8 October at half-past Eleven o’clock.
Written evidence reported to the House
OOB 01 David Lloyd Roberts, MBE, LLM and Charlotte Harford, PhD