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Public Bill Committees

Debated on Tuesday 20 October 2020

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

The Committee consisted of the following Members:

Chairs: David Mundell, † Graham Stringer

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

† Atherton, Sarah (Wrexham) (Con)

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

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

† Docherty, Leo (Aldershot) (Con)

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

† Eastwood, Mark (Dewsbury) (Con)

† Evans, Chris (Islwyn) (Lab/Co-op)

† Gibson, Peter (Darlington) (Con)

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

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

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

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

† Monaghan, Carol (Glasgow North West) (SNP)

† Morgan, Stephen (Portsmouth South) (Lab)

† Morrissey, Joy (Beaconsfield) (Con)

† Twist, Liz (Blaydon) (Lab)

Steven Mark, Sarah Thatcher, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 20 October 2020

(Morning)

[Graham Stringer in the Chair]

Overseas Operations (Service Personnel and Veterans) Bill

Before we begin, I remind members of the Committee that I expect social distancing to be respected; I will stop proceedings if I see people breaking the social distancing rules. Members must remember to switch electronic devices off or to silent. If colleagues have prepared speaking notes, it would be helpful to our colleagues at Hansard if you emailed them to hansardnotes@parliament.uk.

We will continue our line-by-line consideration of the Bill. The selection list for today’s sitting is available on the table.

Clause 3

Matters to be given particular weight

Amendment proposed (14 October): 1, in clause 3, page 2, line 20, leave out

‘(so far as they tend to reduce the person’s culpability or otherwise tend against prosecution)’.—(Mr Kevan Jones.)

This amendment would ensure that, in giving particular weight to the matters in subsection (2), a prosecutor may consider whether any matter tends to reduce or increase culpability, tending against or in favour of prosecution respectively.

Question again proposed, That the amendment be made.

I remind the Committee that with this we are discussing the following:

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

‘(bb) the public interest in maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces;’.

This amendment would ensure that a relevant prosecutor gives particular weight to maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces.

Amendment 4, in clause 3, page 2, line 33, at end insert—

‘(bc) the nature of the alleged conduct, in particular whether it engaged the obligations of the United Kingdom under Articles 2, 3, 4 or 5 of the European Convention on Human Rights;’.

This amendment would ensure that particular weight is given by a prosecutor where the alleged conduct engages the UK’s obligations under Article 2 (right to life), Article 3 (prohibition on torture and inhuman or degrading treatment, Article 4 (prohibition of slavery and forced labour) or Article 5 (prohibition of arbitrary detention) ECHR.

Amendment 5, in clause 3, page 2, line 33, at end insert—

‘(bd) whether the person had command responsibility for the alleged conduct, and to what extent;’.

This amendment would ensure that particular weight is given by a relevant prosecutor where the person had command responsibility for the alleged conduct.

Amendment 13, in clause 6, page 4, line 13, at end insert—

‘(3A) A service offence is not a “relevant offence” if it is an offence whose prosecution is required under the United Kingdom’s international treaty obligations.’.

This amendment would exclude the prosecution of serious international crimes (such as torture, genocide, crimes against humanity, and certain war crimes) from the limitations otherwise imposed by the Bill.

Amendment 58, in schedule 1, page 12, line 6, at end insert—

‘13A An offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Geneva Conventions).

13B An offence under section 134 of the Criminal Justice Act 1988 (torture).’.

This amendment adds to Schedule 1 specific reference to existing domestic offences in relation to torture, genocide, crimes against humanity, and grave breaches of the Geneva Conventions, in a similar way to the treatment of sexual offences.

Amendment 6, in schedule 1, page 12, line 38, leave out paragraph 17 and insert—

‘17 An offence under Part 5 (Offences under domestic law) of the International Criminal Court Act 2001 as it relates to the law of England and Wales.’.

This amendment would mean that all offences listed in Part 1 of the International Criminal Courts Act 2001 as they related to the law of England and Wales would be excluded offences, without restriction.

Amendment 59, in schedule 1, page 12, line 39, at end insert—

‘(za) an act of genocide under article 6, or’.

This amendment would ensure that acts of genocide are also excluded from the Bill, alongside sexual offences.

Amendment 60, in schedule 1, page 12, line 40, leave out

‘a crime against humanity within article 7.1(g)’

and insert

‘a crime against humanity within article 7.1(a)-(k)’.

This amendment would ensure that crimes against humanity are also excluded from the Bill, alongside sexual offences.

Amendment 61, in schedule 1,page 12, line 41, leave out from beginning to end of line 2 on page 13 and insert—

‘(b) a war crime within article 8.2(a) (which relates to grave breaches of the Geneva Conventions).’.

This amendment would ensure that grave breaches of the Geneva Conventions are also excluded from the Bill, alongside sexual offences.

Amendment 7, in schedule 1, page 13, line 12, leave out paragraph 20 and insert–

‘20 An offence under Part 5 (Offences under domestic law) of the International Criminal Court Act 2001 as it relates to the law of Northern Ireland.’.

This amendment would mean that all offences listed in Part 1 of the International Criminal Courts Act 2001 as they related to the law of Northern Ireland would be excluded offences, without restriction.

Amendment 62, in schedule 1, page 13, line 13, at end insert—

‘(za) an act of genocide under article 6, or’.

This amendment would ensure that acts of genocide are also excluded from the Bill, alongside sexual offences.

Amendment 63, in schedule 1, page 13, line 14, leave out

‘a crime against humanity within article 7.1(g)’

and insert

‘a crime against humanity within article 7.1(a)-(k)’.

This amendment would ensure that crimes against humanity are also excluded from the Bill, alongside sexual offences.

Amendment 64, page 13 [Schedule 1], leave out lines 15 to 18 and insert—

‘(b) a war crime within article 8.2(a) (which relates to grave breaches of the Geneva Conventions).’.

This amendment would ensure that grave breaches of the Geneva Conventions are also excluded from the Bill, alongside sexual offences.

Amendment 8, in schedule 1, page 13, line 28, leave out paragraph 23.

This amendment is consequential on amendments 6 and 7.

Amendment 9, in schedule 1, page 14, line 5, leave out paragraphs 27 to 30 and insert—

‘27 An offence under Part 1 (Offences) of the International Criminal Court (Scotland) Act 2001.’.

This amendment would mean that all offences listed in Part 1 of the International Criminal Courts Act (Scotland) 2001 would be excluded offences, without restriction.

Amendment 65, in schedule 1, page 14, line 7, at end insert—

‘(za) an act of genocide under article 6, or’.

This amendment would ensure that acts of genocide are also excluded from the Bill, alongside sexual offences.

Amendment 66, in schedule 1, page 14, line 8, leave out

‘a crime against humanity within article 7.1(g)’

and insert

‘a crime against humanity within article 7.1(a)-(k)’.

This amendment would ensure that crimes against humanity are also excluded from the Bill, alongside sexual offences.

Amendment 67, in schedule 1, page 14, leave out lines 9 to 12 and insert—

‘(b) a war crime within article 8.2(a) (which relates to grave breaches of the Geneva Conventions).’.

This amendment would ensure that grave breaches of the Geneva Conventions are also excluded from the Bill, alongside sexual offences.

Amendment 12, in clause 15, page 9, line 21, at end insert—

‘subject to subsection (2A).

(2A) Before making regulations under subsection (2), the Secretary of State or Lord Chancellor must lay before Parliament the report of an independent review confirming that the Act is in full compliance with the United Kingdom’s international treaty obligations with respect to the prosecution of war crimes and other crimes committed during overseas operations.

(2B) This Act shall cease to have effect at the end of the period of five years beginning with the day on which it is brought into force, unless the Secretary of State or Lord Chancellor has, not fewer than four years after this Act has come into force, laid before Parliament the report of a further independent review confirming that the Act remains in full compliance with the United Kingdom’s international treaty obligations with respect to the prosecution of war crimes and other crimes committed during overseas operations.’.

I have nothing further to add, Mr Stringer, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4

Section 3: supplementary

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

This clause goes to what we heard in the evidence session is the missing part of the Bill: investigation and what warrants particular types of investigation. We heard from numerous witnesses, including Judge Blackett and General Nick Parker, that what is missing from the Bill is any scope of investigation. I have tabled new clauses to limit and have control over investigations, because, as Judge Blackett said, the problem with the Bill is that it looks at the process from

“the wrong end of the telescope.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 120, Q246.]

It looks at the prosecution end, rather than the investigation end.

In a previous sitting, Major Campbell gave very moving evidence about reinvestigation. Clause 4 goes to the heart of that, but it does not answer the issue. If we ask, “Will this stop reinvestigation?”, the answer is no it will not—what is meant by a new investigation or new evidence is left open-ended. The clause defines “relevant previous investigation” as one

“carried out by an investigating authority”.

That paragraph, at least, is straightforward. The police, service police or some other body have investigated, so we may tick that box as a way of not going into reinvestigation.

The next paragraph defines “relevant previous investigation” as one that

“has ceased to be active”.

The problem we heard in evidence was that of active investigations; the issue was whether new evidence had come forward later in respect of the same incident. That was the problem in Major Campbell’s case—although one incident had been investigated, other things had also come in later. Hilary Meredith, I think, said that the real problem was not that a crime had been committed but that the Ministry of Defence had got into a process of paying out compensation to individuals, which was seen somehow as an indication of guilt, when clearly it was not.

Paragraph (1)(c) then continues the definition of a “relevant previous investigation” as one that

“either did not lead to any decision as to whether or not the person should be charged with an offence, or led to a decision that the person should not be charged with any offence.”

Again, that is pretty clear—it is thought that the investigation has been completed. The problem is that it is in the Bill, rather than there being some judicial oversight of the process so that not only the victim but the accused can have some reassurance—that there is no new evidence. That would be a better way to do things. In the Bill, the issue of what is new evidence or what investigation has taken place comes down to a judgment call.

Personally, I think a better way of addressing the issue was outlined by Judge Blackett. We should have a de minimis approach to the small cases, as under the Magistrates’ Courts Act 1980. Then, clearly, we should have judicial oversight of an investigation, and new evidence could be assessed. If a case had been going on for a while and an individual came forward saying that there was new evidence, that would go before a judge, who could deem that there was new evidence and the investigation should go further or that there was not and that it should go no further.

The problem with the clause is that it tries to address that issue but does not describe the mechanism for who makes the decision. If there were to be judicial oversight of what new evidence was, that would be fine, but as it is the issue is about who makes the decision. Are we going back to a situation that was common in the UK until we had the Crown Prosecution Service: the police investigated, made a decision on prosecution and took it forward? Who should make the decision? That former situation was not right because the police would decide what their evidence was and could take forward a prosecution. Under clause 4, I presume, it would again be down to the police to decide that.

I would prefer some clarity about who is making the decision about the new evidence because the key to stopping the abuse that has been going on is not prosecution—the way to do it is to stop the repeated reinvestigation that has taken place. We heard throughout the evidence sessions that, in the small number of cases that led to actual prosecutions, the timescale was very quick—I think Judge Blackett said that, in Marine A’s case, it was 18 months. I cannot remember the other case that Ms Meredith raised.

As my right hon. Friend was speaking, I thought of an anomaly. The Bill now strikes out claims on the Ministry of Defence after six years. However, if new evidence comes to light and there is a criminal conviction for the same offence, there could be a situation in which a criminal court imposes compensation when the MOD has already struck the claims out. How does my right hon. Friend see clause 4 squaring that circle?

It does not, and that comes to one of the other problems with the Bill: it combines both criminal and civil. As I think Ms Meredith said, that is the problem, in terms of what we are trying to achieve. If we keep the longstop for six years on civil claims, a situation would arise whereby they would not go forward, although potentially they could even after six years under clause 4.

The other thing put forward by the Bill’s supporters is that it will somehow stop investigation of our servicemen and women for cases that they do not think have substance. However, it does nothing of the sort. I learned a long time ago in politics that the worst thing we can do is promise things and then not deliver after raising people’s hopes. The problem with the entire Bill, especially on investigations, is that people will think that we could never get another case like Major Campbell’s. I am sorry, but we can. A lot of the veterans believe what is being said—that the Bill will stop investigations—but it will not. It will not stop investigations within the six-year period. It will not even do so afterwards, because, as we have already heard, cases will go to the International Criminal Court and others.

Clause 4(1) states:

“For the purposes of section 3(2)(b), where there has been at least one relevant previous investigation in relation to the alleged conduct, evidence—

(a) is not “new” if it has been taken into account in the relevant previous investigation (or in any of them);

(b) otherwise, is “new”.”

Again, we get to dancing on the head of a pin about what is new evidence. There have been some complex cases, certainly from Iraq. If a witness comes forward many years later with a piece of evidence saying that they were there, who makes the determination on what is new evidence? That will make the investigation more difficult, because what will be deemed as new evidence? Who makes that judgment call?

We are not dealing with house burglars, are we? We are dealing with very complex cases in other countries, where there are cultural and language difficulties. Sometimes, six years might have passed. The passage of time can not only affect the securing of evidence; it would also affect judgments about people’s memory, which has always been the case with civil cases in this country, let alone in a war zone.

I understand what clause 4 is trying to do, but, like a lot of things in the Bill, it leaves a lot of loose ends. As I said, it will lead to a lot of disappointment on the part of veterans who think that somehow reinvestigation will not happen. Likewise, victims will perhaps feel that new evidence or evidence that they have put forward is not being taken seriously.

Thank you, Mr Stringer, for chairing the Committee so well.

Again, there were a lot of inaccuracies in what the right hon. Member for North Durham said. The Department can never be in a position whereby, if allegations were made, it could not investigate them. That is not a lawful position, so the idea that we can legislate to stop investigations is entirely false. We have heard Bob Campbell give evidence in this Committee: his case, in the worst-case scenario, would have ended in 2009.

I will in a minute, because both I and Bob Campbell have really got into the weeds of this legislation. I am interested in how the right hon. Gentleman has a different view and thinks that it would not have helped Bob Campbell in any way. I would love him to explain how he arrives at that position.

Major Campbell is in a very different situation. He has lost all faith in the system and actually wants cases to go direct to the International Criminal Court, which I do not agree with. But I did suggest, if the Minister was listening on the new clauses that I tabled for the last sitting—new clauses 6 and 7—that we need a system of both case management and judicial oversight. That would actually speed up the process and ensure that justice was being done. This is not about stopping investigation; it is about timely investigation.

Order. Before I call the Minister, it now seems timely to remind people that interventions should be short and to the point.

Again, it is not true to say that Major Bob Campbell wants all cases to go to the International Criminal Court; that is simply not true. He tried that to demonstrate a point, but it is not his view that everyone should just go to the ICC.

I saw in the newspapers over the weekend, again, a lot of absolute garbage about this Bill. I have made my position clear from the beginning. I have come in for a lot of criticism from the right hon. Gentleman about not working together on the Bill. I have been very clear that where there are places where we can improve the Bill—within the art of the possible, working within what is factually true—I will do that, but that is yet to happen.

The Minister states that he wants to improve the Bill and work with others. Why is it, then, that we have yet to see any amendments at all come forward from the Minister to the Bill?

That is very simply because there is no way, at the moment, that I have been presented with anything that is legal, within the art of the possible or within the strategic aims of the Bill that would actually improve it. It is as simple as that.

But that is not the case, is it? One issue that has come out, both in evidence and in amendments that I have tabled, is about investigations, and that is not covered in the Bill. I accept that the amendments that I tabled may not have been perfect, but if the Minister had at least given an indication that the issue would be looked at, that would have been a movement forward. But he has completely deaf ears on this.

Again, that is completely untrue, because I have repeatedly spoken, years before anybody else in this House, about the standard of investigations—investigations that were going on under the right hon. Gentleman’s watch when he was an Armed Forces Minister. Those investigations, I said—this has been quoted to me time and again—had not been up to standard, but that is not part of this legislation; it is part of an armed forces Bill that is coming forward next year. I have been absolutely ruthless in terms of dealing with the Department on its standard of investigations, which I reiterate were under the right hon. Gentleman’s watch.

I will not give way again. I cannot take in people saying, “We would like to see these pieces in the legislation,” when the whole point of this legislation is dealing with the abuses that we have seen over the years; it is not about investigations. People saw an announcement last week that we are having a judge-led review of how the Department does that. We will get the investigations right, but this Bill is very clearly about overseas operations and the situations in which we found ourselves, which actually resulted from when the right hon. Gentleman was a Minister in the Department.

I was not actually in government. It was under the coalition Government, so the Minister should get his facts right.

That is nonsense. Ours really started in 2009. [Interruption.] We can keep this going all day, Mr Stringer. There is so much fake news coming out, I can just bat it back at every opportunity. We will move on to clause 4 before we get out of hand.

Clause 4 provides the meaning of “relevant previous investigation” and “new” evidence as used in clause 3(2)(b). This is to ensure that when considering the matters to be given particular weight, the prosecutor understands the circumstances in which they must give particular weight to the public interest in a case coming to a timely and final resolution: in other words, finality. Subsection (1) provides the definition for “relevant previous investigation”. A relevant previous investigation is one that was carried out by an investigating authority—that term is defined in clause 7—or is no longer an active investigation. It has ended, and is an investigation at the end of which the individual was not charged. That is all set out in subsection (1)(a) to (c).

Subsection (2) defines “new” evidence as that which has not been taken into account in a relevant previous investigation. This definition is intended to provide for situations such as when new witnesses or new information emerges after an investigation has been completed, and where evidence becomes available that could not have been available at the time of a previous investigation, where subsequent developments in forensic techniques bring to light evidence that is genuinely new.

The Minister is being very generous in giving way. I want to revisit a previous point. He stated that it is not possible to address investigations in the Bill. I am at a loss as to why not. It is in our gift in Committee to change the Bill and improve it. Why won’t he?

Of course, anyone can add an amendment to any piece of legislation, but this Bill clearly deals with lawfare and the vexatious claims that came out of Iraq and Afghanistan. We will see more stuff on investigations in the Armed Forces Bill. People can add anything to any legislation. We all know that, but the place for that particular measure is in the Armed Forces Bill, which will be forthcoming next year.

Time after time we heard from witnesses, and we had further pieces of evidence submitted yesterday, which the Clerk has circulated. Witnesses have pointed to the centrality of the investigation process. Having a robust and timely investigation is absolutely central to the efficacy of what the Minister is trying to achieve in the Bill. Will he reconsider looking at the investigation? It is good that we have the inquiry, which was announced in the written ministerial statement last week, but will he commit to looking at investigations?

I have already said in Committee that I will not do it this way round, and I said that before I came to the Department. The reality of politics is that we have this time allocated to get through the Bill. It is my job to make sure that the investigatory processes are watertight and that the end state results in good investigations, but a non-abuse of the system.

I want to clarify something. It is easy to blame the previous Labour Government, but I think I was right to say that IHAT started in November 2010 under the coalition Government and not the previous Labour Government.

That inquiry started in 2010, but the al-Sweady inquiry and others started before then. I am not blaming any Government. I am just pointing out the hypocrisy of the right hon. Gentleman’s intervention. Anyway, I beg to move that clause 4 stand part of the Bill.

I was just coming to that. Minister, will you withdraw the accusation of hypocrisy?

I am grateful. Thank you.

Clause 4 ordered to stand part of the Bill.

Clause 5

Requirement of consent to prosecute

I beg to move amendment 10, in clause 5, page 3, line 23, leave out “Attorney General” and insert “Director of Public Prosecutions”.

With this it will be convenient to discuss the following:

Amendment 11, in clause 5, page 3, line 26, leave out “Attorney General” and insert “Director of Public Prosecutions”.

Amendment 22, in clause 5, page 3, line 29, at end insert—

“(c) where the offence is punishable with a criminal penalty by the law of Scotland, except with the consent of the Lord Advocate.”

Amendment 24, in clause 5, page 3, line 29, at end insert—

“(3A) Where the consent of the Attorney General is sought under subsection (2) or (3) above, the Attorney General must prepare a report containing his reasons for granting or withholding consent, as the case may be, with reference to sections 1 to 3 of this Act, and must lay a copy of this report before Parliament.”

I will speak to all three of the amendments in my name and that of my hon. Friend the Member for West Dunbartonshire. Amendments 10, 11 and 22 address the issue of the independence of the decision to grant or withhold consent to prosecution. The Attorney General is, by the nature of the position, a political appointment. Therefore, tying in the prosecution of potentially serious incidents to a politically motivated individual is at least unethical and at worst dangerous.

If we are the healthy democracy that we boast of being, there has to be independent oversight of these investigations. To maintain justice and continue to uphold the rule of law, those decisions cannot be made by the Attorney General. That role should be carried out in England by the Director of Public Prosecutions and in Scotland by the Lord Advocate.

In effect, with these amendments, we are asking the Minister to decide whether the actions of the MOD itself require further investigation. To give an example, that would be like asking the Health Secretary to decide whether a patient had grounds to seek redress for cases of medical negligence. Are the Government really in the business of marking their own homework?

Of course, we all understand why the Government have chosen to press ahead with this Bill. I think we all, regardless of the robust debate that has taken place, have sympathy with the purpose of this Bill, but the manner in which it is progressing is concerning a lot of us. Many parts of this Bill would not address the issues faced by our service personnel. However, having the Attorney General preside over decisions to prosecute will potentially leave a shadow of doubt hanging over some service personnel. Is that really what we want?

I watched the previous exchange; for anybody watching Parliament just now, it was rather unedifying, to say the least. At the start of this process, the Minister said he wanted—[Interruption.] Even as I am saying that, and trying to say it in a generous spirit, the Minister mumbles to himself and makes comments. I was a teacher by profession, and I can tell hon. Members that I would be taking the Minister to task if he behaved like that in my class. He could at least have the decency to listen while a point is being made.

At the start of this process, the Minister said he wanted to listen and that he was happy to take on good ideas. I have yet to see any evidence of that. I am at a loss as to how we actually improve this Bill. Is the Minister so confident in the absolute perfection of this Bill that not only will he not accept any amendments from the Opposition, but he has not tabled any amendments from his own colleagues? I have never seen this in a Bill before. It is unheard of.

Going back to my amendments, there must be independence in the decision-making process. That would give clarity and increase public confidence in the process that is undertaken. Surely, if this Bill is so good, the Minister has nothing to fear from a politically unbiased head considering the evidence and making decisions on whether to prosecute.

I thank the hon. Member for Glasgow North West for the amendment. I am not sure that I totally agree with it, although I agree with the spirt of it. The hon. Lady is trying to ensure judicial oversight of these decisions. Her recommended route is the Crown Prosecution Service, and she is right, in that that is at least a judicial process that is separate from the Attorney General, who is a political figure.

Coming back to my remarks about clause 4, the reason the CPS was set up in the first place is because it was the police who investigated and then also took the decision to prosecute, so the CPS was brought in, quite rightly. Has it improved the system? Yes, it has. Do we always agree with what the CPS comes up with? No, we do not, and I doubt whether we always would in every legal case. However, as the hon. Lady said, that does not mean that the process is weak in any way. It means that it is legally robust.

The hon. Lady is suggesting the CPS, but my concern relates to the service justice system. I would rather the Advocate General decided, although I say that in the same spirit as the amendment. The other concern, which a number of witnesses raised, is about the role of the Attorney General as a political appointee. I think Judge Blackett mentioned that in its recent judicial reforms Kenya has made its Attorney General politically independent for that exact reason: so that the position is seen as being above politics.

That is important, because in the case Marine A, which has been raised before, there was a lot of publicity at the time in the newspapers and campaigning about why that person was being prosecuted, often without knowing what had occurred or having seen the video or other evidence that was put forward. If the Attorney General had been the final arbiter of whether to prosecute in that case, they would have come under huge political pressure not to prosecute, and that would not be right.

The other side to this is our standing in the world. If we are to have a system where we properly investigate alleged crimes and have a fair process to decide who to prosecute, then ultimately, although there are other issues in the Bill that raise problems, if it is down to a political appointee whether someone is prosecuted, the International Criminal Court and others would take a dim of that, in the sense that it would be a political decision, not a judicial decision.

It is interesting to look at it from the angle of someone who has been through the process. When Major Campbell gave evidence to the Committee, the hon. Member for Wolverhampton South West asked him:

“Thank you, Major Campbell. It is an absolute disgrace…Will you confirm whether you welcome the Bill or whether you are against it?”

Major Campbell went on to say:

“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.”

He then went on to be quite disparaging, because of his frustration, which I think we all understand:

“My other slight concern is that previous Attorneys General have done us no favours...Lord Goldsmith had a lot on his shoulders…When I appealed to Jeremy Wright, and when he gave evidence to the Defence Sub-Committee…he took the view that this was an entirely fair process”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 24, Q54.]

He was concerned about the role of the Attorney General.

I argue that the Advocate General would be a more appropriate person because they are judicially independent and there is not therefore this idea that they can be influenced in any way politically, but I am also concerned, as I have said before, that the Bill will undermine our service justice system. Anything that takes this aspect out of the control of the service justice system, weakens it, which I certainly would not support.

The Attorney General of Kenya, for example, is now non-political, so if the Minister is really thinking about how to improve the Bill—although I do not think he is; he just wants to ram it through in its present form—he should consider small tweaks like that. He says, “We’ve got this Bill, and that’s it; we’re going to do all the investigation stuff later, in the armed forces Bill,” but I am sorry, there is no reason why he could not have insisted on it being in this Bill as well. This point is particularly problematic for our international reputation and also fairness, and it goes back to the point about the entire process, in that its strength comes from having independent judicial oversight.

It is a pleasure to serve under your chairmanship, Mr Stringer. After the events of your beloved Manchester United’s visit to the north-east, I hope you had a very happy weekend—although I notice that we have a number of Members from the north-east here, so it probably upset them.

I rise to speak in support of amendment 24 in the name of my hon. Friend the Member for Portsmouth South. The amendment asks that any decisions to prosecute or not prosecute service personnel who are under investigation be explained by the Attorney General, by her presenting her reasoning in a report to Parliament. If the Government are unwilling to allow decisions to be made by the director of public prosecutions and insist on adding a political element to decisions, they must be scrutinised.

On several occasions, this Government have been charged with attempting to avoid necessary scrutiny and having a habit of waving things through. Amendment 24 simply asks them to do the right thing and allow Parliament to do its duty. In our constitution, Parliament has to play a full part in any legislative initiatives and any investigations. The former Attorney General for Northern Ireland says that the Attorney General is accountable to Parliament. If the Government agree that that is correct, they have a duty to explain decisions that the Attorney General makes on prosecution in order that Parliament fulfils its constitutional duty to scrutinise. If those decisions are to be politicised, let us do it properly. As the amendment suggests, it would be most appropriate that the decisions be explained by a report presented to Parliament, which should set out the full reasoning and rationale behind the decision that the Attorney General makes. That would ensure transparency of the entire process.

Legal academics and experts in the field, as well as previous Attorneys General, have voiced concerns over the role of the Attorney General in the Bill. They are worried that it is adding a political element to a judicial process in an entirely unnecessary way. The former Member for Beaconsfield, Dominic Grieve—I see his successor over there; I welcome the hon. Member for Beaconsfield to the Committee—who was the coalition’s Attorney General, has raised concerns over the Bill. He criticised the Bill for being

“an exercise in public relations rather than reasoned change”.

He gave a multifaceted critique of the Bill, including the role of the Attorney General. In his opinion, the way in which the role of the Attorney General has been written into the Bill is a politicised safeguard. It is hugely important that the Attorney General always acts independently of any political consideration and has only one thing in mind: the public interest.

I am sure that you, Mr Stringer, would call me to order if I began to debate the role of the Attorney General in the past, but, simply put, the Attorney General provides legal advice to the Government. If, however, the Government are reluctant to publish the advice, that is a huge concern to the public.

Does my hon. Friend agree that this Government and the previous one have been reluctant to allow Parliament to see that advice and have had to be brought kicking and screaming to produce it for our scrutiny of the decisions?

The decision not to present the rationale, what advice was taken and how the Government arrived at their decision have eroded trust in politics and have been a problem for as long as I have been in the House. We have an opportunity with the Bill to start to rebuild trust in the decisions that the Government make. I hope that that Government will take that on board.

The Attorney General should be required to publish a report on the findings to reassure Parliament and the public that a decision has not been a political one. Many of the issues we have had in the past few years—the north-south divide and Brexit and remain—would have been avoided if the advice had been published and made transparent and fair. When we are making decisions, especially about our service personnel—some of the bravest people in this country—we must ensure that the public interest is at the heart of decision making. Dominic Grieve believes that the fact that the courts can review a decision by the Attorney General may create more litigation rather than reduce it and simplify the process. There is already a backlog of court cases, and we do not want to add to it.

Would the hon. Gentleman advocate the next Labour Government making the Attorney General’s position independent? Would he be convinced that any report produced by the Attorney General in Parliament and scrutinised by Parliament would not be looked at in a party political way by the Opposition?

The hon. Gentleman has a lot of experience in this area. If I was Chair of the Backbench Business Committee, he would just have talked himself into a debate on the Floor of the House. If he will forgive me, I shall stick to the amendment, because as I said earlier, we should have at least a 90-minute debate in Westminster Hall on that point.

The concerns expressed by Dominic Grieve have been echoed by His Honour Judge Jeffrey Blackett, who stated that

“the decision of the Attorney General to prosecute or not prosecute certain cases is likely to lead to judicial reviews and, as Mr Grieve stated, more litigation.”

In the Bill’s evidence sessions we heard from the most recent Advocate General of the Armed Forces. He expressed deep concern that this decision should be taken away from the Director of Public Prosecutions:

“My concern about the Attorney General’s consent is that it undermines the Director Service Prosecutions. If I were he, I would be most upset that I could not make a decision in these circumstances.” ––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 125, Q267.]

It is quite clear that by taking this responsibility away from the Director Service Prosecutions the Government intend to assert a certain level of political control over these decisions. I hope that when the Minister responds he will give us a full explanation.

This is a risky decision from the Government. If they do not comply with the Geneva convention in making such decisions, that could add to the reputation, which they appear to be determined to establish around the world, that the UK no longer respects international law.

Does my hon. Friend agree that by inserting, as the Bill does, a politician into that prosecutorial process, questions will be raised about our obligations under international treaties where there should be independent judicial oversight, not political decisions?

That goes back to my earlier point. As my right hon. Friend says, inserting a politician would mean only more cases where the courts are asked to review the decision of the Attorney General, which would have the knock-on effect of clogging up the courts when we do not need that. It could be nipped in the bud simply by producing a report.

Disregard for international law is not only wrong but sends the wrong message to the British public and the rest of the world. Some have argued that it will even put our service personnel in more danger. Sir Malcolm Rifkind, QC, an ex-Defence Secretary, warned that the Bill will put soldiers at greater risk if Britain is seen to ignore international law. In a letter to Downing Street, he wrote:

“It would increase the danger to British soldiers if Britain is perceived as reluctant to act in accordance with long established international law.”

Similarly, Lieutenant Colonel Nicholas Mercer, who was a senior military adviser, said that the Bill

“undermines international humanitarian law while shielding the government”.

While the Government may be able to shield themselves from blame, soldiers may find themselves in the International Criminal Court, whose jurisdiction will be triggered if the Government chooses to avoid prosecuting. In fact, Judge Blackett raised that concern with the Committee. He said that

“the Attorney General has to consent to prosecuting any International Criminal Court Act 2001 offence—that is, genocide, crimes against humanity or war crimes. Under section 1A(3) of the Geneva Conventions Act 1957, he has to consent to prosecuting any grave breaches of that Act, and under section 61 of the Armed Forces Act 2006, he has to consent if a prosecution is to be brought outside of time limits.”––[Official Report, Overseas Operations (Service Personnel) Public Bill Committee, 8 October 2020; c. 125, Q267.]

If the Attorney General must consent in those circumstances, what is the need for a political appointee to be involved in the decision making? Why not allow the Director of Public Prosecutions or the Advocate General in Scotland to make the decision?

That leads to concerns that the Government intend to break international law and politicise prosecutions. If that is the Government’s plan, it must be scrutinised by the House so that we can understand the reasoning. Ultimately, the public deserve to know why the Government would deem it fit to break international law and damage the reputation of our troops serving abroad.

Another voice we were grateful to hear from in our evidence sessions was that of General Sir Nick Parker. He added a further concern about the damage to Britain’s reputation if we are not seen as a country that respects international law, which will not only damage the reputation of and endanger our troops serving abroad but have more complex results. He said:

“If there is some doubt about this—”

the willingness of the UK to break international law and the Geneva convention—

“and we are viewed in the international community as being prepared to operate outside norms, there is an implication for the people who will have to command in the international community.”— [Official Report, Overseas Operations (Service Personnel) Public Bill Committee, 8 October 2020; c. 99, Q203.]

He expressed concern about not knowing whether that would affect the willingness of other countries to work with the UK armed forces. If other countries are less willing to work with our forces, that creates additional problems for our troops. He later said

“I believe that we need to be consistent with our coalition partners. All I would add is that you cannot predict who your coalition partner will be, because we do not know whom we will be fighting with in the future.” [Official Report, Overseas Operations (Service Personnel) Public Bill Committee, 8 October 2020; c. 100, Q206.]

Today’s friend is quickly tomorrow’s enemy. Therefore, there must be that certain consistency provided by international norms.

Consistency is of concern not only in the Bill’s potential to break the Geneva convention but in the role of the Attorney General. The Attorney General’s role has played out very differently under its very different office holders, which has sometimes led to controversy.

Dominic Grieve stated that the requirement of the Attorney General’s consent to prosecute after the five-year time limit can provide some reassurance to the public that the matter has been fully looked at. The role and decisions of the Attorney General come under public scrutiny. The pressures on Members of this House should not be a factor in legal decisions such as whether to prosecute, and the Attorney General ought to be seen in the capacity of a career lawyer rather than as a politician, which is something the hon. Member for Filton and Bradley Stoke alluded to earlier. Yet the title and role—[Interruption.]

Order. I did say in the introduction that if Members breached the social distancing rules, I would stop proceedings.

It is important that we set an example, Mr Stringer.

The title and role of the Attorney General is often entwined with politics, which complicates the matters of transparency. By its very nature, the role of the Attorney General is controversial, and has been in the legal world for a long time. The Attorney General has a role both as a professional lawyer and as a political advisor. Although many Attorneys General have taken the view that political distance gave their legal advice more credibility, others have been involved in party politics. From the scrutiny of Attorneys General in the 1920s to our current Attorney General, the role has always been controversial. Our current Attorney General generated a lot of debate over advice given to the Government on Brexit, as did her predecessor over the proroguing of Parliament. Further back, it is not just a party political issue. I do not have to go into the whys and wherefores of what the Labour Government went through with the legal advice over Iraq and Afghanistan. Again, before anybody wants to intervene, that is a debate for another time.

I am glad the Minister nods in assent.

The present Attorney General has been accused of advising on legal matters from a political standpoint. The Scottish National party’s Attorney General spokesman, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), has accused our Attorney General of putting her political loyalties ahead of her loyalty to the rule of law when it should be the other way round. If the role of the Attorney General is seen as a political one, involving them in this Bill politicises—

Does my hon. Friend agree that if we have the Attorney General involved in this, matters will end up in the courts? Again, it raises a false flag to servicemen and women that somehow this will stop prosecutions. If something is overturned by the Supreme Court or whatever, the prosecution will still go ahead, so the longstop is not achieved.

It is not. I would like the Minister to answer this conundrum that I came up with when I was listening to my right hon. Friend’s very good speech earlier. The trouble that I see with the Attorney General being involved is that if we have a civil case that is ruled out after six years, according to the Bill, and we have new evidence that emerges from the previous case—this is an important point—the Attorney General then decides to prosecute. That person is then found guilty of a crime and damages are given out. We have a situation where we have a criminal court giving compensation for a case that has already been struck out. That is an anomaly in the Bill that I hope the Minister will address because it is a concern. Given the mixed opinions on the role of the Attorney General, and the general cloudiness of what their role and priorities ought to be, the requirement to produce reports on their decisions to prosecute or not seems entirely sensible.

Would it not also be the case that we would not know how the Attorney General made a decision in terms of legal thresholds and suchlike? There will be a political decision, and there is no guidance in the Bill on what the important factors would be for an Attorney General to make his or her decisions.

From a legal perspective, it is really important that when an Attorney General gives their advice, they do that through the process of legal precedent, statutory interpretation or whatever we want to call it. It is extremely important that when the Attorney General arrives at Parliament with their advice, they have a very strong legal argument. They have consulted academics or leading lawyers, presumably in the area of human rights, and they have crossed all the t’s and dotted all the i’s, and when they come before Parliament, they are confident in their decision. That is why it is extremely important that a report is presented, because at least they can cross-reference how they arrived at the decision. It also gives confidence in the decision. If the case does end up in court, they are standing in a stronger legal position than they would be if they had not released that advice.

As there is a long-standing worry about the balance between law and politics in the role of the Attorney General, it surely makes sense that the Attorney General, if they are to be involved in this Bill at all, is required to publicise the decision. That would ensure that prosecutions covered by the Bill continued to be legal matters or could be at least scrutinised by other bodies to regulate them. It would ensure that party politics was not placed above the law.

It is a judicial process that the Government are concerned with. It should not be politicised or manipulated by party politics in any way, shape or form. If the Government feel the need to grant the power of decision over prosecution to the Attorney General rather than an independent legal body such as the Director of Public Prosecutions, the process must be entirely transparent, so that all those involved can clearly see the thinking behind the decisions. There is no reason why that information cannot be shared. It should and must be subject to parliamentary scrutiny.

I thank the hon. Member for Islwyn for his very thoughtful contribution. I will address some of those points.

First, let me come to the points raised by the SNP. I will not call it “hypocritical”, because that would be out of order, but the irony of being lectured about behaviour in debates by the hon. Member for Glasgow North West, who has repeatedly screamed at me at the Dispatch Box, is not lost on me in any way. I have no ribs left from laughing at the SNP’s position on defence matters. The idea that it is possible to have a constructive debate from such a false position is ridiculous, but I will address some of those points in my comments.

Dominic Grieve and Nicholas Mercer are people who have contributed. I do not know whether Members expected those who had overseen the disaster of things such as IHAT, who had overseen those processes, to come in and say, “This was a good idea.” I never expected that. Nicholas Mercer was not some senior legal adviser; he was a brigade LEGAD, and there were many brigades in Iraq. His evidence, a number of times, has been called into question. Dominic Grieve was a Member of this House. I have huge respect for him. But he, as Attorney General, oversaw some of these horrendous experiences that some of our people went through. Of course they are not going to be supportive of changing that scenario, because they did not do that when they were in charge. I respect that that was their decision, but we have come in on a very clear promise to end the unfair nature of this process.

I understand that it is combative; I understand that it is contested, but it is about time that someone came here with the voice of those who actually go through the process and was at the head of this debate, rather than those who are managing it and ultimately, in my view, have no real idea what it is like to walk in the shoes of those who serve on operations or who are dragged through these investigations.

When it comes to the Attorney General’s consent—

I accept what the Minister is saying, but let us be honest: it was not just Dominic Grieve as Attorney General; the Government oversaw the IHAT system. As for the point the Minister makes, I do not for one minute question his intent in trying to do the right thing, and I support him in that. The only problem I have is that, in proposing what he does, he has a deaf ear to things that could actually improve the situation and get the Bill right so that it does what he is trying to achieve.

That is a matter for debate, and that is the whole point of why we are here.

Clause 5 requires the consent of the Attorney General for England and Wales or the Attorney General for Northern Ireland before a case of an alleged offence committed by a serviceperson more than five years prior on an overseas operation can proceed to prosecution. We introduced the consent function because we believe it is important for service personnel and veterans to be confident that their case will be considered at the highest levels of our justice system. In relation to amendment 22, the consent function does not need to extend to Scotland, as all prosecution decisions in Scotland are already taken in the public interest by, or on behalf of, the Lord Advocate.

Requiring the consent of the Attorney General for a prosecution is not unusual. The Attorney General already has to give consent to prosecute war crimes, as has been said, and for veterans to be prosecuted more than six months after they left service. Who introduced that legislation? The Labour party, in 2001. The Attorney General already has numerous other consent functions, but that does not mean that the Government have any role to play in decisions on consent; it is simply a safety check on fairness.

On amendments 10 and 11, in deciding whether to grant consent to prosecutions, the Attorney General acts quasi-judicially and independently of Government, applying the well-established prosecution principles of evidential sufficiency and public interest. This means that the Government will play no role in the decision taken by the Attorney General or Attorney General of Northern Ireland on consent—no role. Amendment 24 seeks to require the Attorney General to report to Parliament with the reasons for granting or withholding consent. There is no statutory requirement anywhere else for the AG report on individual casework decisions, and we do not believe that it would be appropriate to introduce such a requirement in the Bill. I therefore ask that the amendments be withdrawn.

First, I will respond to the comments the Minister made at the start. There is a huge difference between debating in the Chamber, with comments being passed to and fro, and making a speech in a room such as this and having somebody mumbling under their breath while doing it. It is disrespectful and it should not happen. The Minister is a military man. I would love to have seen him behave like that when one of his superiors was addressing him in his former career. I have no intention of withdrawing the amendments. Nothing the Minister said assured me that there would be an unbiased situation when considering prosecutions, so I will push them to a vote.

Question put, That the amendment be made.

Amendment proposed: 22, in clause 5, page 3, line 29, at end insert—

‘(c) where the offence is punishable with a criminal penalty by the law of Scotland, except with the consent of the Lord Advocate.’—(Carol Monaghan.)

Clause 5 ordered to stand part of the Bill.

Clause 6 ordered to stand part of the Bill.

Schedule 1

Excluded offences for the purposes of section 6

Question proposed, That the schedule be the First schedule to the Bill.

Paragraph 46 of the explanatory notes states:

“Schedule 1 details the sexual offences excluded from the scope of the requirements of clauses 2, 3 and 5”.

We have touched already on the fact that sexual offences are not included in the Bill. I have not yet had a good explanation of why that category is the only one identified in the Bill. I think we all agree, and there is no dispute, that sexual offences play no part whatever of the conduct of our armed forces.  If they are committed, they should be investigated and prosecuted and the perpetrator taken before court. The problem is how to separate sexual offences from other criminal activity. There are situations in which the sexual offence is committed along with other crimes, such as torture, that are not on the face of this Bill. Why exclude sexual offences?

The argument could be, as has been said, that this should never be part of the conduct of forces personnel—I agree, but that should not mean it is singled out. The problem I have with this is that when cases come forward, if there is a sexual offence as part of the accusations then this will be prosecuted, but something else of equal severity might not be prosecuted despite being part of the same event.

The obvious way around this is to leave it in and add other items as well, but I have yet to understand why sexual offences have been singled out, and I think we need an explanation because it draws attention to the fact that other things are not also mentioned. If there were clear-cut, one-off sexual offences then it is understandable, but I can imagine situations that may include other offences. If you look at some of the accusations, not necessarily against UK service personnel, but others such as those involved in peacekeeping operations, sexual offence was part of other crimes that were committed against individuals. It says in the schedule that we will exclude the sexual offence but the rest, frankly, is not part of it. I do not think it is as simple as to divide the two as clearly as this. I would like an explanation as to why and how sexual offences would be separated from other offences.

It is a fair argument from the right hon. Member for North Durham; there is a difference of opinion on this issue. We are very clear as to why sexual offences are on there—schedule 1lists the offences that are not relevant for the purposes of clause 6. The only offences contained in schedule 1 are sexual offences. This means that in cases involving alleged sexual offences on overseas operations more than five years ago, a prosecutor does not need to apply the statutory presumption and the matter is to be given particular weight when considering whether to prosecute.

Further, the prosecutor does not need the consent of the Attorney General for a case to get a prosecution; they will simply follow the usual procedures for determining whether or not to prosecute. For clarity, it should be noted that conflict-related sexual violence is classified as a war crime and is recognised as torture, a crime against humanity and genocide in international criminal law. These offences are referenced in paragraph 13 of part 1 and are listed in parts 2 and 3 of schedule 1.

Part 1 of schedule 1 lists sexual offences as criminal conduct offences under armed forces legislation, the Armed Forces Act 2006, and the corresponding offences under the law of England and Wales, including repeals provision. Part 2 of schedule 1 lists the sexual offences contained in the International Criminal Court Act 2001, under the law of England and Wales and the law of Northern Ireland. Part 3 of schedule 1 lists the sexual offences contained in the International Criminal Court Act 2001 under the law of Scotland. Part 4 of schedule 1 contains the provisions extending jurisdiction in respect of certain sexual offences. I reiterate to the Committee the reason for the exclusion of sexual offences.

To reflect on the words of my right hon. Friend the Member for North Durham, this schedule includes, as we know, only the exclusion of sexual offences. Given the concern raised by many people during our evidence sessions and more generally in debate, why are torture and war crimes not included in the section? I would like to see that, because it is an important issue in the debate.

The reality is that the word “torture” and allegations of torture have been used as a vehicle to generate thousands of claims against our service personnel. There have been arguments around why we have not packed investigations and so on into the Bill, but the Bill is trying to deal with very specific problems, which are the ones we have faced over the last 15 or 20 years relating to claims of this nature. In the discharge of your military duties, you can expect to be accused of assault, unlawful killing, murder and torture when using violence. There is no scenario in which our people will be asked to operate in which they can legitimately commit sexual offences. This country has a strong commitment against the use of sexual violence as a weapon of war, and that is why it is in the Bill.

I agree that it should play no part whatever, and it does not in terms of the ethos of our armed forces. Will the Minister answer the point that there will not, in many cases, be a situation in which sexual violence takes place by itself? What happens if it involves violence and other things? How can the other issues be looked at if it is taken out? He is saying that the only reason for it is because torture is seen as a reason for a lot of the claims coming forward. Is that the only justification?

Putting sexual offences in the Bill in no way denigrates our commitments against torture. We have to deal with the world as we find it, not as we would like it to be. When allegations of torture are mass-generated, as they have been, to produce these claims we have a duty to act to protect our service men and women from that.

I understand the point the Minister is making about protecting service people and about spurious claims, but there are also genuine claims of torture that really deserve to be properly investigated, looked at, and not excluded. I am not saying they are against our forces in particular. I wonder if not writing that into the schedule is a step too far. It is such an important issue for the good name of the country, and also for that of our troops.

No one disputes the seriousness of torture. I reiterate that our commitments against that are not diluted in any way. All we are seeking to do is to restore the primacy of things like the Geneva convention and the law of armed conflict, and to protect our service men and women from the nature of lawfare that has been so pernicious over the years. I understand people’s views on it, and at first inspection I understand why people have concerns, but the reality is that we have to deal with the situation with which we have been presented. If we are going to protect our people, this is a difficult part of it. As I have outlined, nobody can in any way be legitimately accused of sexual offences in the discharge of their duties, and that is why it is in the Bill.

Question put and agreed to.

Schedule 1 accordingly agreed to.

Before we move on to clause 7, I do not like to interrupt the debate, but there have been references to “you” in a number of speeches, and I am sure that on those occasions you do not really mean me.

Could people try to use the normal parliamentary protocol in debate? Members of the Committee will not have any problem catching my eye, but some of the interventions have been more akin to speeches than sharp interventions. I hope we can continue on the basis that interventions should not be speeches.

Clause 7 ordered to stand part of the Bill.

Clause 8

Restrictions on time limits to bring actions: England and Wales

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

With this it will be convenient to discuss the following:

Clauses 9 and 10 stand part.

New clause 2—Restrictions on time limits: actions brought against the Crown by service personnel—

“Nothing in this Part applies to any action brought against the Crown by a person who is a member or former member of the regular or reserve forces, or of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies.”

This new clause amends Part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the Part imposes in respect of actions relating to overseas operations.

For the avoidance of doubt, and so that we do not end up in the previous situation, I should say that if right hon. and hon. Members wish to speak to new clause 2, clauses 9 and 10, or part 2 of the Bill, now is the time to do so, although we will vote on them later.

The fact that new clause 2 has to be tabled underlines one of the key problems in the Bill. As my right hon. Friend the Member for North Durham said, this Bill does not do what it says on the tin: it does not help to protect our armed forces personnel, but does the exact opposite. It limits our troops’ right to justice. It does not benefit them—in fact, it actively discriminates against them.

Unfortunately, this has been a long-running theme of the debate as the Bill has passed through the House. The intention of the Bill is one the Opposition are willing to work with, but the Government have got parts of it badly wrong; this part of the Bill, unfortunately, is a prime example of that. The Government cannot claim that the Bill benefits our personnel while legislating to limit the courts’ discretion to disapply time limits for actions in respect of personal injuries or deaths that relate to overseas operations of the armed forces. That is why this part of the Bill must be amended and improved.

New clause 2 would amend part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion imposed by part 2 in respect of actions relating to overseas operations. The question must be asked: why are the Government explicitly trying to mitigate the ability of our service personnel to access a route to justice? Is that really in line with the spirit of the Bill? In the lead-up to Remembrance Sunday, are the Government really comfortable passing a Bill that will clearly limit service personnel’s rights?

In the evidence sessions, we heard a great number of warnings about this part of the Bill. More specifically, points were raised about the Government’s own impact assessment of service personnel privately claiming for their injuries. As the witness from the Association of Personal Injury Lawyers said,

“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.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 54.]

That is a real point of serious concern. If the Government’s own impact assessment is flawed and has not fully taken into account the scope of the legislation’s impact, it is imperative that the Government take another look at this part of the Bill, to ensure that they have been fully and properly informed by their own impact assessments.

I repeat once again that Labour wants to work with the Government to get the Bill right, but at this stage there are enormous concerns that it is far from that. In addition, there are real, specific cases in which the Bill would clearly disadvantage our troops—not simply numbers on a page. Those include types of case such as the noise-induced hearing loss that the witness a fortnight ago referred to. That witness referred to a former marine who received £500,000 for noise-induced hearing loss on the claim that his hearing loss and tinnitus were caused by a negligent exposure to noise. He served in Northern Ireland, the Gulf and Afghanistan and was exposed to noise from thousands of rounds of ammunition, thunderflash stun grenades, helicopters and other aircraft, and explosive devices, and left the Royal Marines in 2012.

The marine was unable to make a claim for compensation until 2014, seven years after he first became aware that he had problems with his hearing. The MOD admitted liability and made no argument about the case’s being brought out of time. The time limit in the Bill, however, would have eliminated all aspects of the claim relating to the marine’s extensive service overseas. It is exactly examples of that nature that raise questions over the depth and quality of the Government’s impact assessment, as well as whether this part of the Bill is really in line with the spirit of the Government’s supposed intent.

The Bill clearly needs fixing, and the Government need to go back and look at whether they really are delivering on what they claim they want to achieve. I ask the Minister: is it the Government’s intention to allow cases such as the said case of noise-induced hearing loss to be ignored by the Bill? What steps were taken both to ensure the Government’s impact assessment was comprehensive and to mitigate any confirmation bias of the Government’s intent on the Bill?

This part of the Bill also has another clear issue: it risks breaching the armed forces covenant. Let us take a look at what part 2 of this Bill really means. The Limitation Act 1980 currently results in the armed forces community and civilians being treated equally when it comes to seeking a claim for personal injury. As it stands, there is a three-year cut-off point in place, but the courts retain the right to grant an extension to forces personnel.

Section 33 of the Limitation Act provides the court discretion to override the current three-year limit, but this Bill deliberately moves away from that and snatches away the ability of courts to show discretion if the case relates to an overseas forces action. It makes a deliberate change to the Limitation Act. That makes no sense. There are already structures in place to ensure that only appropriate claims are brought forward. Courts routinely manage out-of-time proceedings and frequently throw out cases where the delay is unjustified. The detailed criteria set out in the Limitation Act already address cases that do not have reasonable grounds or are unjustified. I put it to the Minister: why is he actively removing the aspect of the Limitation Act that offers courts the right to grant an extension in cases relating to armed forces personnel?

The Bill removes the ability of members of the forces community to bring forward a civil claim at all after six years, even where it would have passed judicial scrutiny. Under the Government’s proposed changes, civilians will retain the right to pursue a civil claim against their employer, but armed forces personnel will not. That clearly risks breaching the armed forces covenant. With that in mind, I am concerned that the Royal British Legion has said that the Bill constitutes a potential breach of the armed forces covenant—a deeply worrying conclusion from the largest armed forces charity in the UK. Are Ministers not concerned that the very Bill that they claim is devised to help our troops is said to be doing the opposite by such a distinguished organisation?

In addition, we heard from the Association of Personal Injury Lawyers that the Bill leaves our veterans with fewer rights than prisoners. That is a damning verdict, delivered by lawyers who devote their lives to representing our armed forces personnel. Our armed forces serve the nation with distinction; they deserve more than to have their rights stripped away. I take this opportunity to say to the Minister, “Do not dismiss the warnings of the Legion and APIL. Work with us to address them.”

I ask the Minister to clarify whether Ministers are concerned that the Bill they claim was devised to help our troops is said to be doing the complete opposite by such distinguished organisations as the Royal British Legion. Why is the Minister actively removing the aspects of the Limitation Act that offers courts the right to grant an extension in cases relating to the armed forces personnel?

Why are the Government willing to introduce a six-year longstop for troops but not civilians? Why are some medical conditions worthy of justice and not others? Are the Government really comfortable with passing a Bill that will clearly limit service personnel’s rights in the lead-up to Remembrance Day? Is the Minister content to allow cases of noise-induced hearing loss to be ignored by the Bill? Finally, what steps were taken to ensure that the Government’s impact assessment was comprehensive and to mitigate any confirmation bias to the Government’s intent with the Bill?

I want to speak to clause 8 and my new clause 9. Does the Minister want to do the right thing by our armed forces personnel? I think he does. I have never questioned his determination to do that. Again, the problem with the Bill is its unintended consequences.

Part 2 is a key part of the Bill. As my hon. Friend the Member for Portsmouth South said, it cannot be right that we will pass legislation that will mean that our servicemen, women and veterans have fewer rights than prisoners. The Limitation Act 1980 is there for a good reason. In the Minister’s comments in The Sun newspaper on Sunday, he said he will give a guarantee that servicemen and women will not lose out in part 2. I would be interested to know how he will do that, given the six-year longstop.

I do not doubt the Minister’s commitment to what he said in that newspaper article, but—to use the old Robin Day quote from his famous interview with John Nott—the Minister, like us all, is a “here today, gone tomorrow” politician. It is important to ensure this legislation is future-proofed. Irrespective of what the Minister says in his article, which is well intentioned, he cannot give that guarantee. Again, I do not question his motives for saying what he did.

The Minister has a higher trust in the MOD than I do when it comes to protecting servicemen and women. The Limitation Act, section 33, is very clear: it sets out the exceptional circumstances. In our evidence, we heard that although they are exceptional circumstances, they are not uncommon.

The Committee heard evidence of one example; I will give another, which, having spoken to a friend of mine who deals with personal injury, I think falls within the scope of this, too—of the Snatch Land Rovers in Iraq. The families of the individuals killed in the Snatch Land Rovers were not aware of the failings—not failings of the chain of command, but of the procurement—until the Iraq inquiry took place. They then sought legal redress against the MOD, because they thought a decision had been taken that had put their loved-ones in jeopardy. It was many years later, so it was outside of time, but they were able to use section 33 of the Limitation Act to bring a case, which, according to the evidence we heard, they then settled.

My other concern with the MOD—again, referred to in the evidence sessions—is that it employs clever lawyers. It will use the provision as a way of stopping any case that comes forward, as a first hurdle for the claimant to get over. That means that there will be no right of appeal for those individuals. If the Bill had been in force during the case of the Snatch Land Rovers, those families would have had no redress at all. At the end of the day, the measures protect only the MOD; they do not protect our servicemen and women, as the Minister would like. Again, we come back to the Bill’s problem of conflating civil and criminal cases.

My hon. Friend the Member for Portsmouth South talked about hearing loss cases. There are also cases where evidence comes to light later, because it was not available at the time. Let us take the case of an aircraftman who painted aircraft and argued that, as a result, he had had a severe reaction, including an attack to his nervous system. He had to leave the service and could not work, but at that time he could not prove any link to his service. He went to a solicitor to see whether they could take the case, but at that time there was no research into the effects of these paints on the human body. It was only some 12 years later, when medical evidence had been published in scientific papers that exposure to certain paints was harmful and could lead to the condition this poor individual found himself in, that his lawyer could say, “Yes, we can try to argue a causal link in a case.”

As my right hon. Friend has been speaking, I have been thinking in particular of the people serving in the Royal Navy who were affected by asbestos. In the 1950s and 1960s, asbestos was this magic formula—used everywhere from schools to garden sheds. Then, years later, it was found to cause tumours in the lungs. That caused serious problems to our servicepeople, but the evidence did not emerge for 30 years. People may be using chemicals now that we do not understand. How would the MOD be held responsible, and families be properly compensated?

I will come back to asbestos. The aircraftman could not walk because the paint had attacked his nervous system, and his case was able to be taken forward only because of scientific evidence about exposure to that paint. However, if the Bill goes through, such an individual would not be able to make a case because it would be way out of the six-year limit. A lawyer friend of mine took that case to court and argued successfully before a judge that the individual was only able to bring the case then because of the scientific evidence, and that allowed them to take the case forward.

A series of examples have been given where the Bill would not prevent action from being taken. On the Snatch Land Rover incident, the inquiry findings is the point of knowledge from which people had six years to make a claim. On the paint issue, when a connection is made with service and evidence can be produced, that is the point of knowledge from which there are six years. I do not know whether the point of knowledge piece is clearly understood, but when evidence comes together that clearly shows what has happened, that is when the six years begin. The Bill would not prevent such cases.

I have heard the Minister say that before. I accept what he is saying, but he is wrong. I will come to asbestos, because in a previous life I used to press asbestos cases, but I will first address the Minister’s point and why he is wrong. I would agree with him about the date of knowledge if it were he and I dealing with the Bill. However, the dealings will be with MOD lawyers and not with the Minister or with me. If it said in the Bill that the date of knowledge were that date, that would be fine, but it does not. The Minister is putting an awful lot of trust in MOD lawyers. I would not do that, because they will argue straight away in such a case that it is time barred because of the legislation. They use that now, for example in the paint case I just mentioned. I hear what the Minister says and he might be technically right, but we heard in evidence that the MOD lawyers are experienced and will use that in their armoury as a way of stopping claims going forward.

This is exposing an ambiguity right here, right now. Up until this point, the Minister has talked about the point of knowledge of the injury or the disablement. Now, he is talking about the point of knowledge of the issue with the equipment. What are we talking about and where in the Bill is that differentiated? If there is no clarity, we will have a situation with lawyers because of that ambiguity.

Yes, and the lawyers will use it to protect the MOD. Like I say, if the Minister and I had to judge, we both would say “Yes, give the benefit of the doubt to the veteran.” I certainly would. However, neither he nor I will be there. It will be down to some Minister in the future and some lawyer to do that.

Coming on to asbestos, let me give an example. The issue in the early test cases on asbestos that I dealt with was about the date of knowledge. As my hon. Friend the Member for Islwyn just said, the issue with asbestos and asbestos-related diseases is that they can lie dormant for 20 or 30 years. It is an indiscriminate issue. I have met men who worked with asbestos and have what they call asbestos scars—asbestos in their skin—with no symptoms whatsoever and no health effects at all. I have also dealt with cases where a doctor and a nurse, who were just walking through a tunnel where an asbestos pipe was broken and were being covered in asbestos every day, developed mesothelioma, which we all know is a death sentence within 18 months to two years.

The MOD used to have a get-out because of Crown immunity; it could not be sued. As such, we are bringing back time-barred Crown immunity and saying to people that they cannot take cases against the MOD. Would cases around asbestos be time barred? I do not know. Again, why change it? I accept what the Minister is saying—we do not want frivolous and vexatious cases—but if they are time barred, there is a perfectly legitimate system in place at the moment called the Limitation Act, which allows people to take a case forward, if they wish to or their legal representatives feel there is a case.

My right hon. Friend has, like me, worked with many constituents on this issue. Plural plaques may or may not develop into full-on asbestosis, but if someone develops the plaques within six years and then goes on to develop—God forbid—the worst kind of asbestosis, how does he see the MOD addressing that anomaly with the Bill?

That is the point. I do not want to go off piste and explain the issues around pleural plaques, but I am a little bit of a sceptic on this. Although pleural plaques are lung scarring, I have not yet been convinced of any evidence that every case turns into something asbestos-related. It can be an indicator but it does not always go on to that.

Again, the MOD used to have Crown immunity, which used to mean that a case could not be brought against the MOD; that is what we are doing. Certainly in cases involving submariners who worked in submarines—as my hon. Friend the Member for Islwyn said, they threw asbestos around like confetti, as it was the great wonder material at the time—they would be time barred under the Bill. Again, coming back to what the Minister said, were it he and I then yes, I would agree, but lawyers will use that.

I do not understand why part 2 is there. Why would the Government want to put veterans and servicemen and women at a disadvantage? The Limitation Act is there for a perfectly good reason; it acts as a sieve because the person involved has to go before a judge and argue an exceptional reason as to why that case has not been brought within that period of time. From my experience in dealing with limitation cases for industrial diseases, for example, they are hard to prove, so it does act as a sieve.

If the Government are wanting to ensure that we are not getting huge amounts of unwarranted claims, the Limitation Act, as it stands at the moment, acts as that protection because the bar is high. In the cases where it does apply—with Snatch Land Rovers for example, the paint case I mentioned, or other cases, including those on hearing loss—it is very important, and I cannot support anything which means that our servicemen and women will be at a disadvantage.

In the evidence we took, Hilary Meredith said:

“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”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 19.]

She then referred back to investigations, which we come back to all the time. The other issue that she and a few other witnesses raised was the Human Rights Act 1998. I know that a lot of people start frothing at the mouth and gnashing their teeth whenever we mention the Human Rights Act, because it always applies to those that do not deserve justice—the ne’er do wells, asylum seekers and everyone else—but it is actually there to protect us all.

There are cases where servicemen and women will bring cases against the MOD under the Human Rights Act. One of the arguments—and I think the reason why, in this Bill, the Human Rights Act is a bit of a bogeyman—is that somehow the Act will impinge on the ability of servicemen and women to do their work. I do not accept that because, looking at the Smith case, the Human Rights Act was not an impediment; it clearly separated out combat immunity—that is, that lethal force must be used on occasions. Putting a time limit on the ability for servicemen and women to bring a case under the Human Rights Act would be a disadvantage to them.

Hilary Meredith says in her evidence that:

“There is a difficulty putting a time limit on the Human Rights Act…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.”[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 06 October 2020; c. 18, Q30.]

Again, that is something that I dealt with when I dealt with asbestos cases. The only time that a lot of people knew about them was when there was a death certificate. On more than one occasion, I stopped funerals to ensure that we had done the proper post-mortems.

The Human Rights Act 1998 makes it clear that combat immunity is preserved—the idea that we have to use legal force on occasion. The Minister is right to say that we do not want legal disputes. In the case of Smith & Ors v. Ministry of Defence, the Supreme Court made it very clear that the principle of combat immunity was absolutely sound; it did not question the principle. That was the Snatch Land Rover case. Somebody argued that it was extending combat immunity, but it was not. In that case, it was the families of the deceased—the young soldiers who had been killed or severely injured in Snatch Land Rover use—who wanted to challenge a decision that was not made by the chain of command. They were questioning the Whitehall civil servants who had made the decision to procure the Snatch Land Rovers. They were not challenging the fact that their loved ones were in a combat situation. They were arguing not about a decision taken on the battlefield, but about a decision on procurement. That is why it was important. Although people argue that we are chipping away at combat immunity, the Supreme Court has been very clear about that. That gives some of the background noise to this case, which is very difficult.

Can we have a situation whereby we are taking away the rights of our servicemen and women? I do not think we can. Looking at the evidence that was given in Committee by Mr Charles Byrne, the Royal British Legion has huge concerns about this issue. These are the types of cases that it will take. They are difficult cases, and they will need funding on occasions. On occasions, the RBL will be funding such cases as test cases, which are very important.

Look at the Snatch Land Rover decision, and look at all the law on asbestos. It was all done in test cases, many of which were time limited. They set precedents in law that opened up justice to thousands of people who had been injured, including servicemen and women and people who had worked in dockyards and other places. It is sometimes appropriate to look at a case and say, “Yes, this might be time limited, but there is a damn good reason for running this case, because it might have implications for other servicemen and women as well.”

The covenant should be there to no disadvantage, but what we are doing with part 2 of the Bill is worse than that. We are making servicemen and women veterans second-class citizens. They will not have the same rights that you and I have, Mr Stringer, to bring a time-limited case. As was said in Committee, they will not have the same rights as a prisoner or an asylum seeker. That cannot be right. Was that the Minister’s intention? No, I do not think for one minute that it was, because he does not want to do anything that would put our servicemen and women at a disadvantage. However, I think that what he is doing, by listening to what civil servants have told him, has led to a situation whereby he has brought trust within the MOD that in future this will not be a problem. But I think it will be. As this Bill goes forward, if the Minister is listening, this is a part of it that needs to be taken out; if it is taken out, the Bill will be improved. That would help a lot of people who have concerns about the Bill and are quite rightly criticising it.

I now turn to new clause 2, which aims to highlight that fact and give some credence to the idea that the Bill establishes a disadvantage. New clause 2 effectively asks why servicemen and women should be disadvantaged. I have picked prisoners as an example, because prison is an obvious situation in which there are large numbers of people and a large number of claims are generated. I think that it is good to highlight that comparison.

The other point about new clause 2 is that it is about how we futureproof the Bill. I have already mentioned a technology case, that relating to paint. We have technologies that are being generated today, but do we know what their effects will be in 10 or 20 years’ time? We had the discussion the other day about unmanned aerial vehicles, or UAVs. I think that all the evidence is out about, for example, the mental health effects of UAVs and the possible issues around them. It could lead to a situation whereby at some point in the future clear evidence comes to light about using UAVs or being exposed to that trauma—I accept what the Minister said, namely that in most cases people are not in immediate danger, as they are not on the battlefield as such, but if it is proven that they are exposed to trauma, what about those individuals?

We only have to look back in history to see how the process operates. For example, when early submarine technology came in at the turn of the century, there was no consideration of the effects that came to light later. The first submarine deployed in 1902, I think. The people on it were rough and ready, but the long-term exposure to life underwater had effects. There were psychological effects, but it has been proven since that there were also certain medical effects.

This issue is important, because in addition to the lessons learned, there is another process to consider. These unique cases—as I have said, perhaps there are not very many of them—can lead to huge change. For example, the Snatch Land Rover case was a way, first of all, of focusing on protective vehicles. I know that it is sometimes thought that lawyers are campaigning lawyers, or whatever they are called, but actually what they were doing in that case was protecting servicemen and women. So, the case drew focus to Snatch Land Rovers and why we needed more protection in equipment of that kind. Did the families involved receive some closure? I think they did, and in some cases they also received financial compensation, which was also important.

If that case improved the way that we procured vehicles, taking it into account, it had a beneficial effect. Likewise, I mentioned the case about paint. If we then make sure that people—servicemen and women—have protective equipment when they use that type of paint, things improve. The process can be seen as difficult and bureaucratic, with lawyers perhaps making money from it, but at the end of the day it not only saves lives but, I would argue, improves conditions.

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 (Eighth sitting)

The Committee consisted of the following Members:

Chairs: † David Mundell, Graham Stringer

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

† Atherton, Sarah (Wrexham) (Con)

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

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

† Docherty, Leo (Aldershot) (Con)

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

† Eastwood, Mark (Dewsbury) (Con)

† Evans, Chris (Islwyn) (Lab/Co-op)

† Gibson, Peter (Darlington) (Con)

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

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

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

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

† Monaghan, Carol (Glasgow North West) (SNP)

† Morgan, Stephen (Portsmouth South) (Lab)

† Morrissey, Joy (Beaconsfield) (Con)

† Twist, Liz (Blaydon) (Lab)

Steven Mark, Sarah Thatcher, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 20 October 2020

(Afternoon)

[David Mundell in the Chair]

Overseas Operations (Service Personnel and Veterans) Bill

Members will be aware of the need to respect social distancing guidance. I will intervene if necessary to remind everyone. We will now continue line-by-line consideration of the Bill.

Clause 8

Restrictions on time limits to bring actions: England and Wales

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

With this it will be convenient to discuss the following:

Clauses 9 and 10 stand part

New clause 2—Restrictions on time limits: actions brought against the Crown by service personnel

“Nothing in this Part applies to any action brought against the Crown by a person who is a member or former member of the regular or reserve forces, or of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies.”

This new clause amends Part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the Part imposes in respect of actions relating to overseas operations.

It is a pleasure to have you in the Chair, Mr Mundell. I trust that everyone has had a nice lunch. I hope the Minister has not had too much raw red meat and that he has been able to have a lie-down after his exertions this morning. He will certainly not be eating haggis for his dinner or lunch, or at any time soon, after his comments about Scotland this morning. I shall let him enlighten you later on those points, Mr Mundell.

We were talking about the rights of veterans. My hon. Friend the Member for Islwyn raised the issue of asbestos and how asbestosis is one of a number of diseases that limits the serviceman or woman from bringing claims within the six-year period. As I said this morning, the Minister and I agree on one thing: we understand the limitation and the date of knowledge. The bit where we have a problem is where the Bill takes out veterans, apart from anyone else, from section 33 of the Limitation Act 1980. We heard evidence last week from the Association of Personal Injury Lawyers. I accept that there are certain people in the room who perhaps do not like lawyers—criminal, civil or whatever. The association told us that the Bill strips service personnel and veterans of certain rights in relation to civil claims. I will come back to this later, but we were told that if the Bill is enacted, prisoners will have more rights than veterans or servicemen and women.

On the claims brought before the Ministry of Defence, clearly this Bill has its origins in what its promotors argue is a tsunami of unfounded civil claims that then led to criminal investigations, which then took many years. We have demonstrated in Committee that the actual number of prosecutions have been very small, but in terms of civilian claims there is also a very important set of claims that we should protect: the claims that allow servicemen and women and veterans to bring claims against the Ministry of Defence. That is done in two ways: via a civil claim or under the Human Rights Act. As I said this morning, some people in this place suddenly start frothing at the mouth as soon as the Human Rights Act is mentioned, but as I have said, it protects us all by giving us basic human rights.

The problem with part 2 of the Bill is that it will not only stop the straightforward civil claims, where people ask for compensation for injuries and other things; it would limit claims under the Human Rights Act. Such claims are important. I referred this morning to the Smith case involving Snatch Land Rovers, which was around the right to life and human rights. Hilary Meredith, who I thought had very good, detailed knowledge in the claims area, said in her evidence:

“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.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 18, Q30.]

I said that I would not question the Minister’s motives for what he is trying to achieve, but again, we are the seeing the huge implications that this Bill could have. We have already discussed criminal cases and possible trials before the International Criminal Court, but it would be interesting to know how the longstop—which is stopping the rights we all have under the Human Rights Act for veterans and armed force personnel—will be put into practice legally if, as Hilary Meredith said in her evidence, the UK has certain rights that are not just governed by what we agree as a country, but are part of an international convention on human rights. How does that square with part 2 of the Bill? That needs some explanation, because I do not want veterans and armed services personnel not to be covered by the Limitation Act 1980 or the rights that we all get from the Human Rights Act.

Does my right hon. Friend agree that the nub of the problem that he is driving at is that clause 8 and schedule 2 take away the court’s discretion under section 33 of the Limitation Act 1980 to disapply the time limit if

“it would be equitable to allow an action to proceed”?

That is being taken away from our service personnel, and it is the same under the Human Rights Act. Is not the nub of the problem with clause 8 that it is removing the court’s discretion to allow these actions to go ahead?

It is. Again, this is about the rights of veterans and armed services personnel, which I thought this Bill was trying to protect. If we are taking away rights that everyone else has access to, that is a retrograde step. We need an explanation of why that is being done and why it is necessary, because I certainly do not think it is proportional. Again, that is one of the things this debate has thrown up, in that the Bill is about protecting the MOD from litigation, whether by armed forces personnel or veterans, and that cannot be right.

Coming back to investigations, Hilary Meredith raised another important thing that does not apply:

“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.”—[Official Report, Overseas Operations Public Bill Committee, 6 October 2020; c.19, Q31.]

This issue therefore cuts into investigations, another central point that we have been considering in this Bill.

When the Minister replies, I would be interested to know whether that has been cleared. I am not sure whether things still work this way, but when I was a Minister, the usual process for bringing forward a Bill involved sending a write-round to all Departments to get their agreement before it was sanctioned to come before the House. I do not know whether that still applies, because I know that, for a lot of things that this Government do now, they do not accept the usual common-sense conventions, which are there for very good reasons—to stop this type of thing—but how will the MOD be separate from the Human Rights Act?

My right hon. Friend was a member of the Defence Committee, which wrote to the Secretary of State in July 2020 saying that

“the Bill may not be an effective way of achieving”

the aim of protecting personnel and veterans against

“vexatious and unnecessary investigations and prosecutions”.

My right hon. Friend was a member of that Committee. Does he agree with its finding that the Bill would have been better served by scrutiny from an ad hoc Select Committee before it came before Parliament?

I am a big defender of pre-legislative scrutiny. I think I said a couple of sittings ago that our current system of pre-legislative scrutiny as part of the Bill Committee process is important. However, an important Bill such as this should have been road-tested a little more than just what we are able to do here, in terms of not only scrutiny, but the process that we are going through today.

I come back to the point that I do not understand why the Bill is now before us—well, I do understand, because the Minister gave it away the other day; it is an election commitment to bring it within 100 days of taking office—rather than what would have been a better place for it, the armed forces quadrennial review next year, which could have covered those issues. Now we are going to have a strange process: we will have this Bill and then the Armed Forces Bill next year, which we are now told will cover investigations, because the Secretary of State has now set up a commission to look at that. The best thing would have been to do those two things together, but that would not have met the political commitment that was put forward.

I do not think it is too late to make some changes to the Bill to improve it on investigations. Deleting part 2 would certainly be an important part of that, because part 2 changes the status of veterans and armed forces personnel. I genuinely believe what the Minister said in a Sunday newspaper over the weekend: that he does not want this in any way to affect our armed forces personnel. As I said, if it were left to both of us, we would guarantee that this type of limitation would not apply to individuals, but eventually none of us will be here and it will be the law that takes it forward. That is the weakness.

I do not understand why the Government want to reduce the role of veterans, and certainly not this Minister, who has prided himself on trying to be a champion for veterans. It is not just me saying this, or some lawyers or anyone else; we only have to look at the transcripts of the evidence put before us by the Royal British Legion. On 8 October, we took evidence from Charles Byrne from the Royal British Legion and General Sir John McColl from Cobseo. My hon. Friend the Member for Portsmouth South asked whether this was a breach of the covenant. The covenant should be about not only protecting the rights of veterans and armed forces personnel, but, where it can, enhancing them. Charles Byrne from the RBL spoke in response to the Minister, when the Minister said:

“No, because what we are looking to do is to protect, and to ensure that our servicemen are not disadvantaged.”

Mr Byrne replied:

“I think it is protecting the MOD, rather than the service personnel—that is the debate that we have had.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q163.]

I think it is clear, as we have heard from other witnesses as well, that this goes against the armed forces covenant. I fully support the covenant, and not just in ensuring that the armed forces have no disadvantage and are treated the same. I take a very clear view on this. If people have served their country, they should be given certainly the same rights as everyone else, and in some cases better ones to recognise that service. That is important.

When the Minister asked:

“You do not think it is a disadvantage?”,

Mr Byrne replied:

“I think this Bill would be a breach of the armed forces covenant.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 85, Q159.]

Again, I do not think that that is the Minister’s intention, but an unintended consequence, so if we can delete part 2, that would go a long way to help. The Bill is supposed to be on Report and Third Reading in a fortnight’s time, but I am not sure that, in the lead-up to Remembrance Sunday, it is a good look for the Government to have a Bill before Parliament that takes rights away from veterans and members of the armed forces.

New clause 9 is a probing amendment—I will not press it to a vote—to highlight the impact of part 2 of the Bill on veterans. It states:

“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation”

of the impact of the Bill on access to justice for servicemen and women and reserve forces when serving overseas. I add that we need to compare that with asylum seekers and prisoners seeking to take action against the Crown. Clearly, if the provisions in this part go through unamended and do not include armed forces veterans, prisoners will have more rights.

One of the arguments put forward by the Ministry of Defence and Ministers is that only very small numbers are affected. New clause 9 would be a way of looking at the actual effect on access to justice. On the numbers, I think 94% has been quoted for those on time. This comes back to what I said this morning: yes, we are talking about small numbers, but if that number is 94%, that means 6% of veterans and armed forces personnel will not be covered and will be disadvantaged. I accept that in the Minister’s exchange there was some contention about what the actual numbers are, but for me—I make this clear to the Committee—one serviceman or woman or veteran who is denied justice by this Bill is one serviceman or woman or veteran too many.

On that point about the exchange between the Minister and the Committee, and the evidence sessions, is my right hon. Friend aware that the figure of 94% was based on an extrapolation of a sample of cases, and not on all post-six-year cases?

It was, and that is where the disagreement about the figures comes from, and not for the first time in this Bill. Early on, we asked for the number of litigation cases, which was the reason why the Bill was introduced. We got various arguments, and one figure was 900 and another 1,000. If we want to act in the best interests of veterans, we need to know the extent of the problem, so my hon. Friend makes a good point. Again, even if we accept the figure of 94%, then 6% of people will not be able to take claims against the Ministry of Defence—including, as was argued by the personal injury lawyers, in those like the Snatch Land Rover cases and the ones that I outlined this morning. That cannot be right. I do not understand what the Government think is to be gained from taking away the rights of veterans and service personnel.

We are dealing with small numbers here, but this is important. If I was in prison—perhaps some on the Committee wish I was—and I made a claim against the Ministry of Justice, there would be certain time limits. But there are always cases under the Limitation Act that fall outside those limits. Prisoners have the right to take those cases out of time and stand before a judge, or have legal representation, to argue that they need their case considered out of time. They can do that because of section 33.

Asylum seekers can do the same. A claimant against the Ministry of Justice, whether on housing or anything else, can argue successfully to a judge that they had not brought the claim because of various circumstances, such as a refugee’s trauma from being in a war zone, and that they need a chance to bring their case, although there is no guarantee that their case will be accepted. That is the case with veterans, too. The representative from the personal injury lawyers said that the numbers of such cases are small, but when the application does work and a judge says that the time limit does not apply, it is very important. Snatch Land Rover is a great example of a case against the MOD.

Would that be a case against the armed forces? No, it would be against the MOD. No disrespect to the MOD lawyers—they are just doing their job—but if this provision is introduced, they will use that six-year backstop as a way of arguing that a case cannot go forward. The individual will have no rights whatever to go before a judge and argue that their case, for certain reasons, should be made an exception. The MOD is protected, rather than the veteran or serviceman or woman. That cannot be right.

We are brought back to the point of what is missing throughout the Bill. I accept what the Minister says: that he is passionate about these issues, and if it were down to him—if it were down to me and some others in this room, too, to be honest—veterans and servicemen and women would get first dibs every time, and quite rightly. But it will not be down to us; it will be down to officials in the Ministry of Defence.

Having worked with them, I have huge respect for officials in the Ministry of Defence, but they are in civil service mode. If they can protect the organisation, they will. That is not to be discredited. I remember dealing with lawyers in the MOD when I was there over the nuclear tests veterans cases, where, frankly, we were going to spend millions of pounds on a case that should have been settled. I successfully argued for a settlement proposal to be put forward; unfortunately, it was rejected by the other side. Again, the natural reaction was to defend the indefensible. I said, “Wait a minute—how much do you want to spend in lawyers’ fees to do this?” That is what will happen here. It will be an easy get-out for the MOD, because it will have the protection of a backstop of six years in law. The individual will no longer have the right.

Judicial oversight is a problem throughout the entire Bill. Having employed lawyers in a previous life and dealt with them over many years, am I a great fan? I am a fan of some of them, because some are very good. Some are also very bad, as the hon. Member for Darlington will attest. The point is that they do their best on behalf of their client. They are not making things up; they are using the laws that we pass in this place to advance the case that someone has presented before them. We should not be putting obstacles in their way, in terms of servicemen and women and veterans.

This is really a probing amendment. Someone asked, “Is it a bit of fun?” No, it is actually a serious point. When the average person on the famous Clapham omnibus realises that we are taking rights away from veterans and that prisoners and asylum seekers will have more rights than veterans, they will rightly be appalled.

Even if the Minister cannot accept the amendments today, I urge him to reflect on part 2 to see whether we can remove it from the Bill. We should at least ensure that the disadvantage to servicemen and women and veterans is not enshrined in law. If that happens, it will be a travesty. It would actually be a disappointment to the Minister, because he is trying to protect victims—instead, he will have done something that makes their lot in life worse. As a number of people said in the evidence sessions, servicemen and women and veterans have too few rights as it is. Taking away more of them cannot be right.

First, I thank the right hon. Member for North Durham. I agree with everything he has said. Of course, I raised part 2 of the Bill on Second Reading—I have major issues with it. One of the SNP’s amendments, which unfortunately was not selected, was about removing time limits completely. Perhaps a better idea would be to remove part 2 of the Bill.

Having sat through Second Reading, four sessions of oral evidence and this morning’s session, I still cannot see how a six-year limit on claims benefits veterans. I know the Minister has tried to explain the measure by saying it will allow them to make claims more easily, but the reasons why veterans are not claiming are very complex. Frankly, I have serious doubts about the time limit, as does the organisation that has arguably done more for veterans than any other: the Royal British Legion, which stated its concerns about part 2 of the Bill. It has said that, as currently drafted, part 2 introduces a time limit for civil claims from veterans, serving personnel and their families where one does not currently exist, and it risks a breach of the armed forces covenant, as there will continue to be no limit for civilians in relation to their employer.

During the evidence sessions, the Minister said it is a disadvantage to have to go and serve and put one’s life at risk. We understand that—none of us is disputing that—but we are talking about whenever we are comparing like for like, claim for claim. Does the Bill put veterans at a disadvantage? It absolutely does. The Royal British Legion has said that part 2 of the Bill should be improved to ensure that no member of the armed forces community is left subject to a time limit when pursuing a civil claim against the Ministry of Defence as an employer, and to avoid a breach of the armed forces covenant.

Personal injury awards can be substantial, so we understand why the MOD wants to minimise the opportunity for such claims, but if harm has been done to individuals that is due to negligence, why are we making it more difficult for them to seek recompense?

Earlier, I brought up the date of knowledge. There is a discussion to be had about that, because there is still a lack of clarity. I had a look at the issue over lunch and I am sure that the Minister did as well. I said earlier that the Minister had referred to the date of knowledge of the injury. We have heard examples of when that might be difficult to ascertain, and I will refer in a minute to a couple of them. But this morning, when we were referring to the Snatch Land Rovers, the Minister talked about the point of knowledge of the problem. I have had a look at the Bill, and people will have to excuse me if I have got this wrong, but I think that, in clause 11, proposed new section 7A(4) of the Human Rights Act 1998 says:

“The rule referred to in subsection (1)(b) is that overseas armed forces proceedings must be brought before the later of—

the end of the period of 6 years beginning with the date on which the act complained of took place”.

Is “the act complained of” referring to when the injury took place, to when those Snatch Land Rovers were brought into service or to when we found out that there was an issue? New subsection (4) goes on to say:

“(b) the end of the period of 12 months beginning with the date of knowledge.”

The date of knowledge of what? Of the injury, of the issue—what is it that we are talking about? We need to know what exactly it is. The new section goes on to talk about knowledge

“of the act complained of, and…that it was an act of the Ministry of Defence or the Secretary of State for Defence.”

What is it that we are talking about? What is meant by “act”? We need clarity on that. Frankly, that grey area—that ambiguity—leaves the door open for the MOD to refuse such claims. I have real concerns about that. I hope that the Minister can provide some clarity on it.

Let me move on and talk about the numbers of veterans and personnel who could be excluded from seeking recompense for injuries. Even on the basis of the Government’s own figures, we are looking at between 19 and 50 veterans and families who would be prevented by the time limit from taking forward their claim. Why are we trying to stop veterans from taking forward claims? I simply do not understand that. The Minister has talked about his desire to support veterans, and I do believe him when he says that, but I do not understand this particular provision. Again, the Royal British Legion says that injured and bereaved veterans and families who have been found by a court to have reasonable justification to take forward a claim would be prohibited from doing so under the proposed new limit. That is a problem for me.

Let us look at the reasons why a veteran might not bring forward a claim within the six years. Hearing loss, for example, has been mentioned a number of times. It might be difficult to ascertain exactly which incident caused the hearing loss in the first place, but even if we do know when the hearing loss injury occurred, this is a progressive situation. My own grandad lost his hearing and he was thoroughly embarrassed. He did not like to speak about it; he pretended that he could hear. He did not want to seek help and when he did, he did not want the family to know. There are reasons, including embarrassment, that might prevent an individual from looking for recompense for such things.

I agree with the hon. Member on hearing loss cases, having dealt with such cases in shipbuilding. The person will agree that they have lost their hearing; it is about whether the hearing loss can be pinned back to where it was lost.

We have also heard examples of veterans who have served in multiple conflicts or operations where they have been exposed to loud noises, explosions and all sorts—which one caused the hearing loss? Could it otherwise have been caused at a firing range in the UK? That is a real difficulty, and it causes problems.

If overseas operations will be excluded after six years while for cases in this country a case could be made under the Limitation Act 1980, does the hon. Member not think that will also complicate hearing loss cases, if it must be determined where the hearing loss took place? It will be difficult to disaggregate these points.

In such situations, we know that the person who will benefit is not the veteran. That is the problem with part 2 of the Bill and the six-year limit. There must be protections in place to ensure that veterans who have served and suffered personal injury can seek justice for those injuries.

There are other examples, such as the nuclear test veterans. It was good to hear about the work done by the right hon. Member for North Durham on that. I have had interactions with those veterans, including a constituent of my own who, sadly, died. Many have waited decades and decades for compensation and have had nothing—not even any medals to recognise the service they undertook. There are still ongoing issues, and again the MOD has denied that the cancers that those veterans have suffered are related to their service, despite a number of them having similar cancers and there being no links other than the Christmas Island testing.

I could also mention Lariam, an anti-malarial drug that can cause real issues for individuals’ mental health, but not always instantly—it can happen on a much later date. My own husband was given Lariam and suffered as a result. Thankfully, he has not had any long-term issues, but many individuals’ mental health is affected many, many years beyond that.

I really enjoyed the hon. Member’s speech this morning— I did not agree with most of it, but it was well presented, with a good argument made. Is she saying that there should be no time limit at all for actions being brought?

I thank the hon. Member for his kind comments. There is already a limit, but that limit can be looked at and overridden in certain circumstances. That should remain in place; there is no reason to take that away. We are not saying, “We encourage all veterans to wait 30 or 40 years”, but there must be some protections. There cannot be a hard stop that prevents them from taking any action.

We all understand the Bill’s purpose and why it has been brought forward, even though we might not agree with all of it and we might have issues with some of it, but part 2 of the Bill makes no sense whatever. The Bill has been sold to veterans as protecting them and looking after them, with the Government having their back. Actually, part 2 does the opposite. Why do the Government want to prevent between 19 and 50 veterans from seeking justice? I would like to know that from the Minister, because we have not yet had a decent answer on that point.

It is always a pleasure to serve under your chairmanship, Mr Mundell. I rise to speak briefly about part 2 of the Bill. I will try not to detain the Committee by repeating the comments of other hon. Members.

Time and again, concerns have been expressed in written and oral submissions to this Committee—they were mentioned again today by my right hon. Friend the Member for North Durham—about the civil litigation longstop. If this part of the Bill is unamended, there is a high risk that the Ministry of Defence will not be held accountable for violations of soldiers’ and civilians’ rights—the largest proportion of claims made against the MOD are claims of negligence and of breaches of the MOD’s duty of care towards its soldiers. Between 2014 and 2019, the available data shows that such claims amounted to more than 75% of all claims.

Part 2 of the Bill will benefit only the Ministry of Defence, and yet the Ministry of Defence is the defendant in all those claims. That is a clear conflict. The Minister and the Department have created a policy that protects them from legitimate legal claims. I am unaware of any other instance of our legislation being drafted in such a way as to protect the defendant over the claimant. I find it astonishing that the Minister wants to treat our forces and veterans in that way, placing them as such gross disadvantage.

As my right hon. Friend the Member for North Durham said, there remains a lack of clarity about the number of people who would be disadvantaged by the longstop. It would be helpful if, in summing up, the Minister provided some transparent and accurate figures to clear the issue up, once and for all. We are making legislation without proper knowledge and without a proper basis.

In oral evidence, we heard over and over again that the Bill protects the MOD, but not our forces. It breaches the armed forces covenant. It gives our forces less protection than civilians and, in some cases, even prisoners. We heard that from not one or two witnesses, but a broad and wide-ranging group of organisations, some of which, traditionally, would not necessarily agree with each other: the Royal British Legion, the Centre for Military Justice, the Association of Personal Injury Lawyers, Liberty and Human Rights Watch. Written evidence struck the same chords. When the Minister gave evidence, he appeared unable to find literally anyone at all who supports the longstop. If someone does, I hope that the Minister will share that fact with us.

The whole point of Bill Committees, as I have said repeatedly, is to improve and amend legislation, so that it emerges better than it was when it arrived with us. Indeed, the Minister has stated many times on the record that he wants to work with people in and outside this place to make the Bill the very best it can be, so that it meets its intended aims. I sincerely hope that that commitment was not an empty gesture. A good way to prove that it was not is to consider our amendments, listen to our comments and take them on board, and ensure that so many people are not disadvantaged when making claims against the MOD.

I, too, will not occupy too much of the Committee’s time, but I want to raise the issue of the impact on the ability of veterans and serving personnel to bring claims.

Yesterday, additional written evidence was circulated to us from a number of people, including Dr Jonathan Morgan of the University of Cambridge, in document OOB09, which refers to the impact of part 2 of the Bill on the ability of people to bring a claim; their rights will be restricted.

We also had evidence yesterday from Professor James Sweeney; I am afraid I do not have the reference number. He clearly points out deficiencies, and tackles head on, in paragraph 11 of his evidence, the Minister’s assertions that we are reading the provisions incorrectly. I ask the Minister and his advisers to look at that closely. We had evidence from the Association of Personal Injury Lawyers, too. We have heard comments about people’s views on personal injury lawyers and in whose interests thing are, but to me that evidence is clear and well set out.

However, the most persuasive evidence for me is the supplementary written evidence in document OOB10, presented by the Royal British Legion, which clearly sets out its concerns. We were able to question its representative in oral evidence, and the Minister took that opportunity to press them on the legion’s concerns. Its written evidence says:

“Part 2 of the Bill should be improved to ensure that no member of the Armed Forces community is left subject to a time limit on pursuing a civil claim against the Ministry of Defence (MoD) as an employer, and to avoid a breach of the Armed Forces Covenant.”

I know how important the armed forces covenant is to the Minister and, indeed, to other people in this room. Most of us have worked with local authorities and other employers and organisations locally to ensure that the armed forces covenant actually means something. If the Royal British Legion, whose reason for existence is to support the armed forces and former armed forces personnel, is raising concerns about the impact of part 2 on those veterans, we really need to take note of that.

The hon. Member for Glasgow North West, who speaks on behalf of the SNP, raised the issue of nuclear test veterans. In 2009, when they brought their case against the MOD, it was a limitations case, because the injuries happened in the 1950s. They won it because new evidence came forward and Mr Justice Foskett argued that the limitation case could go forward. Is it not clear that if that happened now, that case would not even have been heard?

My right hon. Friend is absolutely correct. That is why it is important that this part of the Bill be either substantially amended to protect the rights of veterans, or perhaps taken away altogether.

The Royal British Legion, talking about disadvantage under the Covenant, says:

“The Armed Forces Covenant states: ‘those who serve in the armed forces, whether regular or reserve, those who have served in the past, and their families should face no disadvantage compared to other citizens in the provision of public and commercial services…in accessing services, former members of the Armed Forces should expect the same level of support as any other citizen in society’”.

We all need to take very seriously the concerns raised by the Royal British Legion about claims and the breach of the armed forces covenant. I have no doubt that it is not the Minister’s intention to disadvantage people, but the Bill as drafted will do so. I ask him to look at this very seriously, and to consider amendments to the Bill.

It is good to see you back in the Chair, Mr Mundell.

I appreciate the opportunity to address some of the points raised. My intention is not to disparage Members’ intentions, because I get it: people want to support our armed forces and do not want to disadvantage them. I do not want to disadvantage them. However, some things—the data is a good example—are being totally misused to promote these points. For example, on the statement that from 2014 to 2019 there were however many thousand claims, that number includes claims in the UK that people would bring under tort or civilian law against an employer. This Bill does not apply to that; it is called the Overseas Operations (Service Personnel and Veterans) Bill. In no way are those comparisons being made in a fair manner. This Bill applies only to those allegations and claims that affect our service personnel overseas.

I will get to my point. There were 552 employer liability claims from what happened in Iraq and Afghanistan. Today’s Daily Mirror had sounded familiar to a couple of the speeches: it mentioned “21,000 claims”. It is total nonsense. That is the total number of claims that people have made against the MOD in the period from 2004 to 2017. They are claims in a civilian workplace environment, where there are civil liabilities claims, claims regarding exercises and so on in the UK, and breach of contract claims. In the Bill, we are talking specifically about overseas operations. Whoever is providing these figures is demonstrating a pretty basic misunderstanding of what is going on—or it is a deliberate attempt to mislead, but I am sure it is not. The two things are not comparable in any way.

To me, that does not matter. Why should armed forces personnel be treated differently when something happens in this country, as opposed to overseas? It might not be in combat; it might be on a training mission, or something like that. As I said, if one veteran is disadvantaged, that is one veteran too many.

The figures have been published in the impact assessment a number of times. The hon. Lady can shake her head, but again, we are in a space of alternative facts. The figures are in the impact assessment, which is before the House.

The Minister is talking about overseas operations. We all understand that, and that the Bill applies to those serving overseas. However, if my employer sends me overseas, and I suffer an injury there due to the negligence of my employer here in the UK, I can sue the employer for the injury. The same should be the case for veterans. It is not about whether it is overseas or here; it is about having the same rights as civilian employees.

I disagree, and this is why. Operational service overseas is fundamentally different from life in the UK, and from what we ask our people to do. The hon. Lady is absolutely right: we have a duty in this country to protect those overseas, whether it is against improvised explosive devices, bombs, electronic warfare, or indeed legal systems used to bring warfare by another means. That is what this Bill is trying to do.

I understand the assertion that if someone from the Royal British Legion was deployed on an operation, the six-year limit comes down. Viewed on its own, that is something that will happen to serviceperson, but not a civilian. Disadvantage is a comparable term. Disadvantage to who? The Government argue—this I am clear on—that these people are seriously disadvantaged by having no legal protection against these thousands of claims that we have seen come in over the last 15 or 20 years. What the Royal British Legion would like us to do is to put that to one side—[Interruption.] No, it is, because I have engaged with it extensively. It would like us to apply that to one side of the argument, which, again, is not legal. Under European human rights law, people are being disadvantaged and discriminated against based on the claimant, which is not legal. This cannot be brought in on one side.

The Minister is taking rights away from servicemen and women. He talked about overseas operations, but let us say, for example, someone is in British Army Training Unit Suffield in northern Canada on a training exercise. If that is classed as an overseas operation, or a peacekeeping operation—

Right. Nevertheless, there have been times—the Snatch Land Rover cases, for example—where there was quite a good reason why the case should have been argued out. Why is the Minister so determined to take that right away from people?

Because what the right hon. Gentleman says—I have a lot of respect for him—is simply not true. BATUS is not an operational environment. It is not a peacekeeping mission. It is a training unit mission. As I said this morning, and speaking from a point of knowledge, when it came out in the inquiry about the Snatch Land Rover cases, that is when the six-year thing started. That would not have been affected by this legislation.

We could keep raising these points, but I am not going to change my view, because it is based on the truth. I cannot suddenly say, “Yes, BATUS is a war-fighting operation, so this stuff applies.” I cannot say, “These people would be affected in the Snatch Land Rover case,” because that is simply not the case.

I will come back to the right hon. Gentleman in a minute. He talks about taking rights away from our service personnel. They have a right to be protected on the battlefield in all these areas. One area where they have a right to be protected is the use of lawfare to progress, and change the outcome of, a conflict through other means.

There were lots of wild sentiments thrown around—“lawyers don’t make things up,” and all the rest of it. Again, that does not collide with reality. Phil Shiner has been struck off. The reality—the world as we find it—is what this Bill is designed to deal with.

We are talking about overseas operations, wherever they take place outside the UK. UK operations and operations outside the UK are defined in the Bill.

I think the Minister is falling foul of something that a lot of witnesses in the oral session said he would: he is confusing the criminal law with the civil law. Largely, our concerns around part 2 are about the civil aspect.

What is being confused here is the difference between tort and human rights claims; that was being confused a lot in the comments made just now. Regarding the evidence sessions, I accept that there are aspects of this legislation that some of the people who came in—public interest lawyers, the Association of Personal Injury Lawyers, Hilary Meredith and others—do not like. I do not dispute that for a minute, but my job is to protect those who serve on operations from all those different threats, including lawfare, which has not been done before. Other nations do it, and we have a duty to protect these people as well.

I can understand the Minister’s concerns about some of the comments, but the Royal British Legion exists to protect people who have served in the forces. That is one of their key aims. If they are saying to us that the provisions present an issue, is it not right that we take note of that, address it, and deal with it clearly?

Absolutely; it is right to take note of it, and I have engaged with it extensively on this issue, but the legion does not own the covenant—nobody does. It belongs to the nation. The covenant was designed to ensure that when a service person and a civilian are in a comparable situation, the service person is at no disadvantage. It was never designed to ensure no disadvantage whatsoever. We send our people away from their families for six or seven months of a year—that is a disadvantage. We send them away to undertake dangerous work—that is a disadvantage.

The covenant was meant to mean that when two people are in the same situation, the service person is not disadvantaged, and that is why the Bill says that it applies to a civilian in these environments in exactly the same way. I heard the right hon. Member for North Durham say again this morning that civilians were not covered by this Bill. Well, they are. It is in the Bill.

The Minister said these rights protect people, but the covenant is not about taking rights away from people. I know we fixate on the date of knowledge, but when he is no longer a Minister and none of us are here anymore, the Ministry of Defence lawyers will not use this provision to say that a case is time-barred. There is nothing in this Bill that says that. That is the problem he has. I do not for one minute think that he is suggesting otherwise, and he is perhaps well intentioned, but he is just wrong on this, and is trusting the MOD too much.

I accept the right hon. Gentleman’s point. He will not find many Ministers who will say that half is the Department’s problem in terms of how it has investigated and so on. I have a healthy interrogation of any advice I am given. I accept his point that there is a danger of abuse, but we have written into the Bill that point of knowledge. I am not fixated on it; it is just there in black and white.

I will come back to the right hon. Gentleman. I want to finish what I am saying—I do not want to repeat myself and bore everybody—and then I will take more interventions.

Clause 8, in conjunction with schedule 2, introduces new factors that the courts must consider when deciding whether to allow certain claims relating to overseas military operations to be brought after the normal time limit, and sets the maximum time limit for such claims at six years. The Government intend to ensure that claims for compensation for personal injuries or deaths arising from overseas military operations are assessed fairly and achieve a fair outcome for victims, for the service personnel and veterans called upon to give evidence, and for the taxpayer.

Section 2 of the Limitation Act 1980 sets an absolute time limit of six years for compensation in claims relating to most types of tort. Although sections 11 and 12 set a three-year limit for claims for personal injury or death, the three-year limit is not absolute. Section 33 of the Act gives the court discretion to allow claims to be brought beyond the time limit if it considers it fair to do so. Section 33 identifies six factors to which the court must have a particular regard when assessing fairness. In broad terms, those relate to the steps taken by the claimant to bring the claim, the reasons for delay and the effect of delay on the quality of the evidence. Those factors do not adequately recognise or reflect the uniquely challenging context of overseas military operations. The Government are concerned that unless the court is directed to consider relevant factors, it might wrongly conclude that it is fair to allow older claims to proceed. The clause, in conjunction with schedule 2, introduces three new factors that the Government consider properly reflect the operational context to which the court must have particular regard.

Is it not for a lawyer, when they are arguing a limitations case, to make the case for special circumstances? They can do that now in law. If the measure goes through unamended—I accept that this is not the Minister’s intention—the MOD will use it as a way of blocking cases. We only have to look at the nuclear test veterans case of 2009 and Judge Foskett’s summing up. The MOD’s argument in the limitations hearing was that the case was out of time, but it was successfully argued that new evidence had come forward. That was possible because it was before a court of law. This measure stops that.

I will address that point in my final remarks on the clause. The factors that have to be considered are the extent to which assessment of the claim will depend on the memories of service personnel and veterans, the impact of the operational context on their ability to recall the specific incident, and the impact of doing so on their mental health. The new factors reflect the reality of overseas military operations—the fact that opportunities to make detailed records at the time might be limited; that increased reliance might have to be placed on the memories of the personnel involved; and that as some of them might be suffering from mental health illnesses owing to their service, there is a human cost in doing so. The human cost obviously goes beyond that of the service person and will be felt just as much by their families and friends. Families of the military community are a core aspect of the armed forces covenant and must not be overlooked when we consider the measures in the Bill.

Clause 8, in conjunction with schedule 2, also introduces an absolute limit of six years for claims for personal injury or death arising from overseas military operations. This change brings the absolute time limit for personal injury or death claims in line with other claims for other torts that might occur on operations, such as false imprisonment. It also gives service personnel and veterans certainty that they will not be called upon indefinitely to recall often traumatic incidents that they have understandably sought to put behind them.

Finally, this clause, in conjunction with schedule 2, amends the Foreign Limitation Periods Act 1984, so that claimants cannot benefit from more generous time limits under foreign law. This change is needed for consistency and will ensure that no claim is brought after six years. I must emphasise that the Government are not seeking to stop meritorious claims or to avoid judicial scrutiny, nor are we seeking to put the armed forces or the Government generally in a more favourable position compared with their position as regards other defendants.

The changes that this clause and schedule 2 introduce go only as far as is necessary to ensure a fair outcome. They do not affect the way in which the time period is calculated or those provisions that suspend time in appropriate circumstances. They are also consistent with court rulings that claimants do not need to be provided with an indefinite opportunity to obtain a remedy. The courts have recognised that limitation periods have an important role to play in ensuring legal certainty and finality and in preventing injustice. The changes that this clause, in conjunction with schedule 2, introduces are a reasonable and proportionate solution to the problem of historical claims.

I will not repeat the same arguments for clauses 9 and 10, which amend the legislation in Scotland and Northern Ireland, but I will just add that the Limitation Act 1980 only covers claims brought in England and Wales. It is therefore necessary to extend similar provisions across the whole of the UK to prevent forum shopping. It would be deeply unsatisfactory if changes that the Government are introducing to achieve a fairer outcome in relation to claims brought in England and Wales could be circumvented by a claimant’s bringing their claim in Scotland or Northern Ireland instead.

Turning our attention to new clause 2, none of the measures in part 2 of the Bill will prevent service personnel, veterans or their families from bringing claims against the MOD in connection with overseas operations within a reasonable timeframe, as historically most have done anyway. The purpose of the limitation longstops is to stop historical and often vexatious claims being brought against the military on overseas operations, which put our service personnel at the mercy of being called to provide evidence long after the alleged events in question, with all the harm and anxiety that might cause them.

To ensure fairness between claimants, we have not excluded service personnel from those provisions. They will apply equally to service personnel and veterans as they will to any other person bringing a claim against the MOD in connection with overseas operations. I am confident that these measures do not break the armed forces covenant. The new factors and limitation longstops only apply to claims in connection with overseas operations and will apply to all claimants in the same way. The court’s discretion to extend the three-year time limit for death or personal injury claims and the one-year time limit for human rights claims remains unchanged in respect of any other claims, that is, those not connected to overseas operations brought against the MOD.

Additionally, our evidence suggests that 94% of those claims from service personnel are already brought within six years. We would expect that figure to rise in future, as we ensure that the armed forces community is made aware of the new measures and the relevant dates for bringing claims, including what is meant by the date of knowledge. That should encourage personnel to bring claims within six years, or earlier if possible, as after the primary time limit of three years for personal injury and death and one year for human rights claims expires, claimants must rely on persuading the courts to exercise their discretion to extend the time limit.

In summary, clauses 8 to 10, as they stand, do not breach the armed forces covenant and do not disadvantage service personnel or veterans. Let me make this clear point: on operations and in the area of modern warfare, we cannot lift human rights legislation and apply it to the battlefield. I accept that some people want to do that and think that is the right thing to do, but I respectfully disagree. The idea that people can go to court and argue for an extension produces exactly the position we find ourselves in now, where individuals such as Phil Shiner, who the right hon. Member for North Durham mentioned, have sought extensions under those situations, in order to bring thousands and thousands of claims against the MOD.

We are stuck in a position where we have to do something. In that scenario, I cannot apply something to one side, as I have indicated already, although the Legion would like me to. Similarly, we cannot take away all time limits, because that would defeat the entire purpose of the Bill, which is to provide some certainty for veterans. I accept what some hon. Members have said about people’s ability to sue within that timeframe if they are serving overseas. If they were in the UK on exercise or in Canada, it would be different, but that is because the unique nature of operations is different.

We have a duty to protect those people, as I said, both physically, from what is on the battlefield, and in the court of law. We have seen some horrendous experiences over the years. We can say, “It’s all too difficult”, and that we need to walk away—the reason why, for 40 years, no Government have done this is that it is really difficult—but we are in a position where we have to make choices: either we choose to leave the situation as it is now, letting it continue with no time limit, or we bring forward legislation to give certainty to our veterans.

I am sorry—I do not agree with that. There is a way to improve the Bill, as with the issue of investigations raised earlier. We have talked about the Human Rights Act 1998, but if the Minister reads the judgment in the Smith case, he will see that the Supreme Court was clear about the Act’s limitations. Will the Minister explain the proposal to have a one-year time limit on human rights cases? Will he explain how he will limit appeal if section 33 does not apply to human rights cases, which it will not if the Bill goes through? How does that fit with our obligations under the convention?

Our obligations under the European convention on human rights are not changed in any way. We have to design an investigative framework that is resilient and robust in the face of challenge under the convention. I have to disagree with the right hon. Gentleman—clearly, there is a difference of opinion here. That is allowed, that is what this place is all about, but the reality is that those on the Government Benches have a different view, which is that we cannot let the situation that has persisted for the past 40 years continue ad infinitum. We have to bring in fair and proportionate legislation to go beyond saying nice things about our people, or, “Isn’t it terrible that these people get dragged through the courts?”, while being prepared to do absolutely nothing about it. I am afraid that those days have come to an end. We have to legislate to protect our people. I will give way once more, and then I will finish.

There is nothing fair about taking rights away from veterans. On the Human Rights Act, the one-year limit to bring a claim is clearly still there, but at present someone could bring a late claim under section 33 if at the time they thought it was not there. The Minister said that we would be abiding by the convention. Will he point to where in the convention—on our side, in the Human Rights Act—it says that time limits and out-of-time claims are applicable? I cannot see that.

As the right hon. Gentleman will remember from his time in government, all legislation has to be signed off as ECHR compliant. The Department has done that, recognising our responsibilities under the legislation and meeting its requirements. He talks about rights, but people such as Bob Campbell have a right to be protected from experiences such as his over the past 17 years, and the soldiers who went through al-Sweady have a right to be protected as well. This is not all in one direction—it is not a one-way street—and we are clear that those people have a right to be protected in the jobs that we asked them to do. That is what the clause is all about, so I ask that it stand part of the Bill.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Schedule 2

International Criminal Court Act 2001

With this it will be convenient to discuss the following:

Amendment 30, in schedule 2, page 16, line 35, leave out “six” and insert “ten”.

Amendment 31, in schedule 2, page 17, line 16, leave out “six” and insert “ten”.

Amendment 32, in schedule 2, page 18, line 34, leave out “six” and insert “ten”.

Amendment 33, in schedule 2, page 19, line 18, leave out “six” and insert “ten”.

Amendment 34, in schedule 2, page 19, line 26, leave out “six” and insert “ten”.

Amendment 35, in schedule 3, page 20, line 40, leave out “6” and insert “10”.

Amendment 36, in schedule 3, page 21, line 3, leave out “6” and insert “10”.

Amendment 37, in schedule 3, page 21, line 8, leave out “6” and insert “10”.

Amendment 38, in schedule 3, page 21, line 14, leave out “6” and insert “10”.

Amendment 39, in schedule 3, page 21, line 15, leave out “6” and insert “10”.

Amendment 40, in schedule 3, page 21, line 19, leave out “6” and insert “10”.

Amendment 41, in schedule 3, page 21, line 20, leave out “6” and insert “10”.

Amendment 42, in schedule 3, page 21, line 26, leave out “6” and insert “10”.

Amendment 43, in schedule 3, page 21, line 27, leave out “6” and insert “10”.

Amendment 44, in schedule 3, page 23, line 6, leave out “6” and insert “10”.

Amendment 45, in schedule 3, page 23, line 35, leave out “6” and insert “10”.

Amendment 46, in schedule 3, page 23, line 36, leave out “6” and insert “10”.

Amendment 47, in schedule 4, page 24, line 4, leave out “six” and insert “ten”.

Amendment 48, in schedule 4, page 24, line 28, leave out “six” and insert “ten”.

Amendment 49, in schedule 4, page 24, line 34, leave out “six” and insert “ten”.

Amendment 50, in schedule 4, page 25, leave out line 16 and insert—

“ten years is to be treated as a reference to the period of ten years”.

Amendment 51, in schedule 4, page 26, line 36, leave out “6” and insert “10”.

Amendment 52, in schedule 4, page 27, line 20, leave out “6” and insert “10”.

Amendment 53, in schedule 4, page 27, line 21, leave out “6” and insert “10”.

Amendment 54, in schedule 4, page 27, leave out line 27 and insert—

“10 years is to be treated as a reference to the period of 10 years plus –”.

Ministers have said that the purpose of the Bill is to protect service personnel, but part 2 as drafted does the exact opposite. We are not here to score points or to play politics; we are here to work constructively with the Government and to highlight the areas of the Bill that must be improved. That does not need to be a binary choice. By moving the amendment, our objectives could not be simpler—to protect our personnel’s access to justice and to redress the Bill’s negative implications for our forces’ welfare. Are those concepts that Ministers cannot get behind?

In the Committee’s witness sessions, there was consensus among the specialists from whom we heard. From decorated soldiers to human rights groups and from lawyers to armed forces charities, there was agreement. Consensus on the Bill in its current form may erode rather than enhance the rights of personnel. Most notably, we heard comments from the Royal British Legion, and I am sure that no one would question its age-old, unwavering commitment to the welfare of our troops.

With that in mind, I am concerned about what the Royal British Legion has said, which is that the Bill constitutes a potential breach of the armed forces covenant—a deeply worrying conclusion from the UK’s largest armed forces charity.

The hon. Gentleman mentions the Royal British Legion. When my hon. Friend the Member for Wrexham asked Charles Byrne whether the Royal British Legion opposes the Bill, did he not say that it does not?

It was clear that the Royal British Legion is in favour of the intent of the Bill but has concerns about part 2, which it believes breaches the armed forces covenant. Charles Byrne was very clear on that point.

I make this point again. I have heard it said a number of times, “We support the intent of the Bill.” Over 40 years Members have spoken of supporting the intent of looking after our veterans and protecting them from vexatious claims. No one has done anything about it. Lots of people gave evidence and said they supported the intent of the Bill. It does not mean anything unless we get into the detail of the Bill. The Royal British Legion did not oppose the Bill; it said it had concerns about the armed forces covenant, which we addressed, but it did not oppose the Bill.

I am looking at the transcript of the evidence given by the Royal British Legion, in which it said:

“‘Can we achieve those aims without disadvantaging service personnel?’ If we can do both, both should be done.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 89, Q168.]

It welcomed the intent behind the Bill and believed that it could “be improved.” No Labour Member is against the Bill per se; we are against part 2. We are trying to improve the Bill as the Royal British Legion suggested. I do not understand why the Minister does not grasp that.

I thank my hon. Friend for the intervention. She hits the nail on the head: we want to work constructively with the Government to get the Bill right. Sadly, we are not seeing that engagement, and that concerns us. Are Ministers not concerned that the very Bill they claim is devised to help our armed forces is said to be doing the very opposite by an organisation as distinguished as the Royal British Legion?

We heard from other important witnesses. The Association of Personal Injury Lawyers, a not-for-profit organisation representing injured serving and ex-service personnel, said:

“This Bill leaves our veterans with less rights than prisoners.”

I will repeat that because it is so important:

“This Bill leaves our veterans with less rights than prisoners.”

That is a damning verdict delivered by lawyers who devote their lives to representing our troops. Our armed forces serve the nation with distinction. They deserve more than to have their rights stripped away.

I say to the Minister: do not dismiss the warnings of the legion and APIL; work with us to address them.

Let us take a closer look at what part 2 means. The Limitation Act 1980 results in the armed forces community and civilians being treated equally in seeking a claim for personal injury. A three-year cut-off point is in place. The courts retain the right to grant an extension to forces personnel. Section 33 provides the court with discretion to override the current three-year limit, but this Bill deliberately snatches courts’ ability to show discretion if the case relates to an overseas armed forces action. It makes a deliberate change to the Limitation Act. That makes no sense. There are already structures in place to ensure that only appropriate claims are brought. Courts routinely manage out-of-time proceedings and frequently throw out cases where delay is unjustified. The detailed criteria set out in the Limitation Act 1980 already address cases that do not have reasonable grounds or are unjustified. Why is the Minister actively removing an aspect of the Limitation Act that offers courts the right to grant an extension in cases relating to armed forces personnel?

As I said earlier in an intervention on my hon. Friend the Member for Blaydon, the nuclear test veterans case is a good example. There was a limitations hearing in which the MOD argued that the case was out of time because the incident took place so long ago. In that case, Judge Foskett argued that new evidence meant the date of knowledge was current and he allowed it to be admitted. I accept that the numbers are not huge, but it is the exceptional cases that are important.

I thank my right hon. Friend for his remarks. I hope the Minister addresses the points that he makes so eloquently later on, in his summing up.

The Bill removes the ability of our armed forces personnel to bring forward a civil claim at all after six years, even where it would have passed judicial scrutiny. Under the Government’s proposed changes, civilians will retain the right to pursue a civil claim against their employer. Armed forces personnel will not, which clearly breaches the armed forces covenant. Non-discretionary time limits undermine justice and arbitrarily prevent legitimate claims from proceeding. We must hear the Minister’s business case for setting that time limit.

We have established that part 2 of the Bill is flawed. It introduces a six-year time limit for any claimant or bereaved family in bringing civil claims against the Ministry of Defence. That means that if someone suffers personal injury or even death owing to employer negligence and in connection with overseas operations, they can take no action after a six-year time limit. That is deeply concerning because a great many conditions might not come to light until after the time limit: for example, post-traumatic stress disorder.

Last year, The Times reported the case of Mark Bradshaw, aged 44, who had suffered from PTSD since being involved in a friendly-fire attack in 2010 while serving in the Royal Artillery. Despite the immediate onset of the condition, the veteran, who lives in Newcastle, was not given a diagnosis until 2016. By then he was drinking heavily and had suicidal thoughts. He had left the service and become alienated from his family. He was awarded £230,000 in a settlement, but feared that the proposed legislation could discriminate against those who do not develop PTSD or receive a diagnosis until many years later. He called the plan to impose a time limit on claims “horrendous”.

I have another example.

Another issue concerns human rights cases. The impression being given is that they are always brought by people against the MOD and include litigants and people in foreign countries and so on, but Human Rights Act cases are also brought against the MOD by armed forces personnel. When Hilary Meredith gave evidence, she said:

“There is a difficulty putting a time limit on the Human Rights Act—I do not even know whether we can do that constitutionally”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 18, Q30.]

The Minister seemed to brush aside the fact that section 33 will be ignored in terms of time limits. Does he also think that that constrains the rights of veterans and service personnel from bringing cases against the MOD, which they can, under the Human Rights Act?

We could spend all afternoon on different cases. That is why the amendment is so important. I have another example. It is about how legislation would have denied justice to a former royal marine with noise-induced hearing loss, according to the Association of Personal Injury Lawyers. The former marine received nearly half a million pounds for a noise-induced hearing claim on the grounds that his hearing loss and tinnitus was caused by a negligent exposure to noise. During his career the marine served in Northern Ireland, the Gulf and Afghanistan, and he was exposed to noise from thousands of rounds of ammunition, thunderflash stun grenades, helicopters and other aircraft and explosive devices. His claim related to his entire service.

When he left the Royal Marines in 2012 because of problems with his hearing, he was unaware that he was able to make a claim for compensation. He eventually spoke to a solicitor in late 2014, seven years after he was first aware that he had problems with his hearing. The MOD admitted liability and made no argument about his case being brought out of time. The time limit in this Bill, however, would have eliminated all aspects of the claim relating to the Marine’s extensive service overseas.

I totally respect the manner and intent of the hon. Member’s remarks, but, again, the Mark Bradshaw case and the case of the royal marine, which we have looked at, would not be affected by this legislation. When Bradshaw became aware of his PTSD being service-related, it would have been dealt with within six years. The same detail applies to the royal marine.

I do not know what else to say, but the stuff that is coming forward—I have to be honest and say that I have heard it before, because I know it comes from a campaign group—is just simply not true. I do not know what to do with the cases being presented to me, which are simply incorrect.

The claim could have been made only in relation to negligent exposure in the UK. It might not have been possible to isolate the extent and the effect of negligent exposure in the UK, making it very difficult to claim any redress at all. Why are some medical conditions worthy of justice, and not others? Many other medical conditions are likely to fall outside the cut-off point, and there are conditions such as long-term deterioration of joints resulting from carrying heavy equipment.

Does my hon. Friend agree that what the Minister is saying cannot be the case? He cannot give any guarantee that such cases will not be resisted by the MOD. He cannot direct the MOD, because he will not be there when he leaves the MOD, and no one else can do it either. It is about protecting future cases. In the two cases referred to, the Bill would allow the MOD to legitimately turn those cases down because they were out of time. Those two individuals would have no recourse to law in order to enforce their rights.

My right hon. Friend is absolutely correct. We are saying it time and again, but the Bill protects the MOD; it does not protect our troops. I hope the Minister will take that point on board.

Does the hon. Gentleman share my concern that the Minister is suggesting that we are raising concerns because of a campaign group? Personally, I am not raising concerns because of a campaign group; I am raising concerns because of the protections being taken away from armed forces personnel and veterans. When an individual gets a diagnosis of PTSD, I cannot imagine anybody thinking, “The first thing I am going to do is lodge a claim against the MOD.” When a condition gets progressively worse, they might think about doing so over time, but not necessarily within six years.

I thank the hon. Member for that intervention. We are not here just to speak up for campaign groups and emails; we are here to speak up for our armed forces. That is why we are absolutely keen to see the Bill improved. I really hope the Minister engages with these points in his summing up.

Is the Minister satisfied that the Bill in its current form will prevent troops who are suffering from these conditions from receiving justice? As we heard from APIL in evidence sessions last week, many troops are not aware that they can bring a claim against the MOD. They are directed to the armed forces compensation scheme, which pays out much lower sums. Why is it that the MOD has scrapped the proposed better compensation scheme, which would have seen payments that are closer to those offered in court settlements? Why is it that the Government are willing to introduce a six-year longstop for troops, but not for civilians? It puts troops at a patently clear disadvantage by comparison with civilians. As we heard last week from the director general of the largest armed forces charity in the UK—the Royal British Legion—it risks breaching our armed forces covenant.

Part 2 of the Bill in its current form protects the MOD; it does not protect our troops. Despite all this, it is not too late. The Opposition have proposed solutions today, and we can work together to address this issue. Protecting service personnel’s access to justice acts on the concerns voiced by friends such as the Royal British Legion.

The premise of the amendment is very simple: stop section 2 restrictions from applying to serving and ex-serving personnel. That would ensure proper protection for our armed forces by safeguarding their right to bring claims against the MOD. It would do so by exempting veterans and serving personnel for six-year time limits. In short, our amendment flatly rejects the Bill’s attempts to prevent regular or reserve forces, or a member of a British overseas territory force, from bringing action against the MOD after six years. Labour cannot and will not stand for legislation that breaches our armed forces covenant. I urge the Minister to work with us and to put party politics aside. Let us build a consensus on a Bill that is worthy of the troops that it is set to serve.

Will the Minister clarify whether Ministers are not concerned that the very Bill they claim was devised to help our troops is said to be doing the opposite by such a distinguished organisation as the Royal British Legion? Why is he actively removing the aspect of the Limitation Act 1980 that offers courts the power to grant extensions in cases relating to armed forces personnel? Why are some medical conditions worthy of justice and not others? Is he satisfied that the Bill in its current form will exclude troops suffering from conditions such as PTSD from receiving justice? Why has the MOD scrapped the proposed better compensation scheme that would have seen payments closer to those offered in court settlements? Finally, why are the Government willing to introduce a six-year time limit to stop troops but not civilians?

I rise to support my hon. Friend and to speak to my amendments 92 and 93, which I understand fall in this group of amendments—

They do not—I am reading it wrongly as one big group, but they are two separate groups.

My hon. Friend the Member for Portsmouth South made a point about the backstop. I am sorry, I just cannot accept that backstop. The Minister seems to be misunderstanding the issue to do with the date of knowledge. The date of knowledge is clearly not only as laid out in the law of cases against the MOD, but as in civil law as well. As I said this morning, I used to deal all the time with the date of knowledge in asbestos cases. Some of those test cases were to do with ensuring that individuals—sometimes many years after they had left the industry in which they had contracted their disease—were able to take action. They were able to do so because of the Limitation Act.

The other thing that we need to knock on the head is the idea that bringing a section 33 case is easy. It is not easy; it is very difficult, and the threshold to meet is very high—rightly. As the Minister said, time limits rightly have to be fair in two ways: first, to give individuals enough time to ensure that they can bring a case; and, secondly, because evidence gets lost, whether in a civilian case or, more so, in such a case as we are addressing now. There is therefore a good reason for time limits, but there is also a good reason to have circumstances and exceptions in which those time limits should not apply.

My hon. Friend mentioned two cases, which the Minister said would be covered—but I am sorry, they would not. If they fell outside the six years, under the Bill as drafted those individuals would not be able to argue before a judge why limitations should not apply in their cases, and their case would just be dismissed. The Minister seems to have a lot of faith that the MOD’s lawyers of the future—and now—would not use that measure to reduce and stop such claims. They would not be doing their job if they did not use it to stop those claims.

The important thing is that such an individual would then have no rights whatever—unlike you, me or anyone else: even a prisoner—to bring a case under section 33 of the Limitation Act. I understand what the Minister says about his trust and belief in the MOD now and in the future. I do not disparage what the MOD is doing. There was a reference in the evidence session that the Department employs good lawyers and that will be their job, and they will use this provision. As such, what the Minister said will not be the case.

My hon. Friend the Member for Portsmouth South raises the issue around the 94%, or whatever the figure is. I do not care, to be honest, because as I said earlier one case is a case too many. Like my hon. Friend, I want to ensure that armed forces personnel and veterans are treated on the same basis as everyone else in this country. If that does not happen, the armed forces covenant will protect their rights but the Bill will take their rights away. That cannot be right.

There is also the point, which I had hoped the Minister would answer, about the Human Rights Act. He said the one-year time period is still in there, which is fine, but as Hilary Meredith said, how do you then disapply the Limitation Act to the Human Rights Act? As she said, it is very difficult to see how you would do that in practice because we are part of an international convention.

The only response the Minister gave—he might want to write to me if he does not have it with him; I accept that on occasions he does not have all the facts to hand—is that it has been cleared as being Human Rights Act-compliant. Are we suggesting that for this group of veterans there will be a new thing—a time limit for out-of-time human rights cases? If that is so, it is very interesting. How has that been squared in terms of the convention we have signed? Again—and likewise—everybody else will be able to use the Limitation Act to take a case forward outside that time.

The Minister said he is listening, but he is not. He has a fixated view of what goes forward in the Bill and that is what he is going to put forward. We have made attempts. I have said that I accept that amendments written by mere amateurs such as myself and others are not necessarily legally correct. However, what often happens on these occasions is that a Minister will say, “Yes, we agree. There is a point there. We will take it away, look at it and try to frame it in terms of how it fits into the Bill and the legal parameters.” That way, when we get to Report and Third Reading, they can be introduced, usually as Government amendments. However, that has not happened. We have had, “This is how it is going to be and that’s it.”

The situation is rather sad because there are things that can be done even at this stage—I am discussing one of them—that could improve the Bill. I accept that the Minister has already committed to look at investigations in the Armed Forces Bill next year, but he should stick the provisions in the damn Bill now. He could do it. The fact that the civil service might not want to do it—well, tough. He should just say, “You are going to do it” and put it in. Putting those investigation measures into the Bill will improve it immensely and do more than where the Minister has come from so far in the Bill. As Judge Blackett said, he has been

“looking at the wrong end of the telescope”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 120, Q246.]

The Minister is concentrating on prosecutions, but that ain’t the problem: the problem is investigations and how the MOD operates. I will not support a Bill that is going to take away rights from our servicemen and women. That would be an absolute tragedy. I know that is not the Minister’s intention, but unfortunately the Bill, as it is written, is going to do exactly that.

To confirm, we are debating amendments 30 to 54, with amendment 29. If no other Members wish to speak to any of those amendments, I call the Minister.

I wanted to address a couple of points about the limitation period. In the Stubbings ruling that we looked at, limitation periods are okay under ECHR regulation as long as there is compatibility with article 6, the right to a fair trial. That is the test that has been undertaken in this exercise and that is the advice that the Government have received. The right hon. Member for North Durham may well disagree with that, and is well entitled to.

Not at the moment. I have literally just stood up. I will get through a couple of points, if I may.

As to the idea that I have not engaged in the process, and that it is just “head down, drive on”, I should like to know whether there has been a Bill that has gone through this place in the past five years when the Minister has been more ready to say a number of times that he was willing to work cross-party to improve the Bill; but I have to deal—[Interruption.]

Thank you, Mr Mundell. I have to deal in the real world. I have to deal with real facts and figures—not made-up stuff—and how they apply to the battlefield. There is clearly a difference of opinion between the Government and the Opposition about whether the ECHR should be applied on the battlefield. I accept that. That is the point—that ability to continue these extensions is part of ECHR compliance. The Government do not agree that the battlefield is the right place, or that retrospective application of the ECHR to the battlefield is appropriate.

I have seen comparisons with convicted criminals a number of times in a lot of campaign items. Hon. Members are comparing convicted criminals to armed forces veterans. That comparison—prisoners to veterans—has been made a number of times. I can tell Members that that goes down like a cup of cold sick in the veterans community. It is not comparing the same things.

I will give way in a moment.

The Bill has clearly been introduced to protect our servicemen and women when they conduct overseas operations. The purpose of the limitations is to stop large-scale out-of-time and often vexatious claims being brought against the military on overseas operations. I urge Members to think a bit more about comparing veterans with convicted criminals.

On a point of order, Mr Mundell. The Minister keeps repeating something that is blatantly incorrect. No one at all on the Opposition Benches has compared prisoners to veterans or our armed forces. We have said that in the Bill the rights of veterans and members of our forces are less than those of prisoners. That is an important distinction and I ask the Minister to be correct when he makes accusations.

I do not think that that is a point of order, but at least you have got your point on the record.

As for the idea that we must withdraw part 2, the whole point of the Bill is to bring in time limits to provide certainty for veterans, so if colleagues take it away, what is the point of the Bill? Why are we here in the first place, if we will just continue as we currently are?

Not at the moment.

The six-year longstop for personal injury and death claims is an important part of the Bill. The measure will help to provide greater certainty for service personnel and veterans by requiring civil claims arising from overseas operations to be brought promptly. Effectively, service personnel will not have to worry about having to give evidence on what would have been very distressing events many years in the future.

The public consultation launched in 2019 sought views on the length of time for such a longstop, and asked whether 10 years was appropriate. Many respondents supported a period of less than 10 years, so we decided to reduce the time limit for the longstop. Six years was chosen because it aligns with the limitation period for some other tort claims. That decision was further informed by the case of Stubbings v. the UK, in a judgment that has been repeatedly confirmed. The European Court of Human Rights upheld an absolute six-year limitation period. The Court noted the need in civil litigation for limitation periods because they ensure legal certainty and finality and the avoidance of stale claims, and prevent injustice where adjudication upon the events in the distant past involves unreliable and incomplete evidence due to the passage of time.

Six years is considered to be a reasonable timeframe for claimants to gather the necessary evidence to bring a claim. Beyond this point, witnesses’ recollections can fade, making it difficult for the claimant to pursue a claim and for the defendant properly to defend it. The six years can also run from the claimant’s date of knowledge if that arises after the date of the incident. That will reduce the negative impact of an absolute longstop. It means that for personal injury claims relating to conditions like PTSD, which may not be diagnosed until much later, the six years start from the date the person is diagnosed and is aware that their injury is attributable to the MOD. That cannot be clearer for the Opposition.

The vast majority—around 94%—of relevant claims from service personnel and veterans already fall within the six-year time limit. We anticipate that claimants who in the past have brought claims after six years may in future bring their claims within six years, and we will ensure that the armed forces community is made aware of the new measures. I have given notice of that commitment before. Changing the longstop from six years to ten years will only increase the uncertainty that service personnel and veterans face from the threat of being called on repeatedly to give evidence relating to historical events. The statistics that I have outlined show that most service personnel and veterans bring their claims within six years. The amendments, therefore, would only increase the uncertainty, without giving any significant benefit.

Is there going to be a new point? I have given way a lot and we seem to be repeating the same points.

The Minister is going backwards and forwards just reading out what he has in front of him—[Interruption.] I am sorry, but he is. He is not answering any questions at all. Can I ask the Minister this? He says the reason for the longstop, which disadvantages veterans, is to stop all these vexatious claims. In terms of the Shiner case, for example, how many of those cases were actually time-limited cases and argued in terms of this limitation? If that is the case and there were thousands of them—I would be very surprised if there were—I would imagine in most cases the Limitation Act would weed out most of those that were vexatious. To actually introduce this to solve that part of the problem is going to have a massive impact on servicemen and women who wish to bring claims against the MOD.

Of Phil Shiner’s claims through Public Interest Lawyers, 62% were brought more than six years after the date of the incident. The Bill imposes a six-year limit, meaning that 62% of those claims would have been out of time. This legislation is designed to redress the balance. We are operating in a very difficult area, I accept that. Doing nothing has been the easy option that this House has pursued for 40 years and it is an approach I disagree with.

I am not going to give way again, there will be plenty of opportunity for the right hon. Gentleman to speak further. I recommend that the amendment be withdrawn.

I beg to move amendment 76, in schedule 2, page 16, line 5, leave out

“the section 11 relevant date”

and insert “the date of knowledge”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.

With this it will be convenient to discuss the following:

Amendment 77, in schedule 2, page 16, line 30, leave out

“the section 11 relevant date (ignoring, for this purpose, the reference to section 11 (5) in paragraph (a) of the definition of that term)”

and insert “the date of knowledge”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.

Amendment 78, in schedule 2, page 16, line 35, leave out

“the section 12 relevant date”

and insert “the date of knowledge”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.

Amendment 79, in schedule 2, page 17, leave out from the beginning of line 35 to end of line 5 on page 18, and insert—

““the date of knowledge” means the date on which the person bringing the proceedings first knew, or first ought to have known—

(a) of the act complained of;

(b) that it was an act of the Ministry of Defence or the Secretary of State for Defence;

(c) of the manifestation of the injury resulting from that act which is the subject of the claim, and

(d) that they were eligible to bring a claim against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in England and Wales so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury and wrongful death arising out of overseas operations.

Amendment 80, in schedule 3, page 20, line 41, leave out

“the section 17 relevant date”

and insert

“the date of knowledge (see subsection (13))”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.

Amendment 81, in schedule 3, page 21, line 4, leave out

“the section 18 relevant date”

and insert

“the date of knowledge (see subsection (13))”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.

Amendment 82, in schedule 3, page 21, line 9, leave out

“the section 17 relevant date”

and insert

“the date of knowledge (see subsection (13))”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.

Amendment 83, in schedule 3, page 22, leave out lines 12 to 17 and insert—

““the date of knowledge” means the date on which the person bringing the proceedings first knew, or first ought to have known—

(a) of the act complained of;

(b) that it was an act of the Ministry of Defence or the Secretary of State for Defence;

(c) of the manifestation of the injury resulting from that act which is the subject of the claim, and

(d) that they were eligible to bring a claim against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Scotland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury and wrongful death arising out of overseas operations.

Amendment 84, in schedule 4, page 24, line 5, leave out

“the Article 7 relevant date”

and insert “the date of knowledge”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations.

Amendment 85, in schedule 4, page 24, line 29, leave out

“the Article 7 relevant date (ignoring, for this purpose, the reference to Article 7(5) in paragraph (a) of the definition of that term)”

and insert “the date of knowledge”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury out of overseas operations.

Amendment 86, in schedule 4, page 24, line 34, leave out

“the Article 9 relevant date”

and insert “the date of knowledge”.

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for wrongful death arising out of overseas operations.

Amendment 87, in schedule 4, page 25, leave out lines 25 to 43 and insert—

““the date of knowledge” means the date on which the person bringing the proceedings first knew, or first ought to have known—

(a) of the act complained of;

(b) that it was an act of the Ministry of Defence or the Secretary of State for Defence;

(c) of the manifestation of the injury resulting from that act which is the subject of the claim, and

(d) that they were eligible to bring a claim against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run in Northern Ireland so as to account for legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury and wrongful death arising out of overseas operations.

Amendment 73, in clause 11, page 7, line 30, leave out from “before” to the end of line 34, and insert

“the end of the period of 6 years beginning with the date of knowledge.”

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run so as to account for legitimate and explicable delays commonly experienced by persons bringing claims under the HRA arising out of overseas operations.

Amendment 92, in clause 11, page 7, line 36, leave out

“or first ought to have known”.

Amendment 74, in clause 11, page 7, line 37, leave out “both”.

Amendment 75, in clause 11, page 7, line 40, at end insert—

“(c) of the manifestation of the harm resulting from that act which is the subject of the claim; and

(d) that they were eligible to bring a claim under the Human Rights Act 1998 against the Ministry of Defence or Secretary of State for Defence in the courts of the United Kingdom.”

This amendment is one of a series that changes the relevant date from which the six-year longstop starts to run so as to account for legitimate and explicable delays commonly experienced by persons bringing claims under the HRA arising out of overseas operations.

The amendments allow the Bill to account for all legitimate and explicable delays commonly experienced by persons bringing civil claims for personal injury arising out of overseas operations. The Minister recently said in The Daily Telegraph:

“Our analysis suggests 94 per cent of claims from service personnel and veterans are already brought within six years.”

He has repeated that today. He goes on:

“Critically, for conditions like PTSD, this limit will start from the date of knowledge or diagnosis.”

If that provision can be applied for certain conditions, which of course I agree with, let us take this opportunity to apply it fairly to all service personnel. That would allow those 6% who do not make claims within six years, according to the Minister’s own figures, to be given a chance to explain why. If the court’s criteria were met, they could then claim any compensation they are entitled to. On Sunday, I happened to chance upon the article that the Minister wrote for The Sun on Sunday, where he said that he would make it his personal mission to carry the can for those who fall outside the six-year rule. It would be helpful, given those comments, if he expanded on what he meant by that.

The court will still take the passage of time into account, just as it would normally, but to block claims being brought after six years does not take into account the true complexities of civil claims linked to overseas operations. Courts should retain their discretion and should consider the large periods of time that can pass before knowledge comes to light of the true extent of an injury, acts of negligence, or the right to other civil claims. The point of knowledge of a claim may be many years after the event or series of events. This may be because claimants did not know that they had a right to claim, or because they did not link their circumstances to overseas operations for some years.

The Bill is meant to protect our armed service personnel, but leaving this part unamended only protects the Ministry of Defence. I want to bring to the Committee’s attention a particular case, or group of cases I should say, that causes me great concern in the event of the amendment not being made. It is the case of the nuclear test veterans.

This case is particularly close to my heart, and I raised it with the right hon. Member for Maidenhead (Mrs May) when she was the Prime Minister. When I first became the Member of Parliament for Islwyn, we used to hold a parade through Risca to honour those veterans. In my second year as an MP, because of the number who had passed away, it was decided that their standard would stay in the local church in Risca until it turned to dust.

What was so sad about this case was that those veterans were fighting for justice for so long. Many of them endured horrific medical conditions, and the families left behind only had their memories of those who were incapacitated by their nuclear service during those times in Easter Island. What was really hard to bear was, first, that they did not have compensation; secondly, though—if I step out of the Bill and say this to the Minister, who is the Minister for Veterans—these people have suffered enough. As he will know, I have made appeals to other Ministers to ensure that these veterans have a medal and some recognition. I want to use this opportunity to ask the Minister to take that up with the Honours and Decorations Committee, and to ensure that they do get some recognition, especially as we approach a very different Remembrance Sunday this year. I have digressed. Thank you, Mr Mundell, for allowing me to indulge in that.

For the vast majority of nuclear test veterans, their injuries did not manifest for decades. The nature of radiation injury means that it invisibly alters cellular DNA.

Had the Bill been in place in 2009, that would have been it for those veterans—there would have been no case at all. The 2009 case, which I know well, was a limitation case, and they brought it before Justice Foskett because they argued that new evidence—medical evidence from New Zealand—had emerged about what my hon. Friend is referring to. If this Bill had been in place then, they would not have even been able to go to court to argue why their case should have had consideration, because of the time that had elapsed since the 1950s, when the exposure took place.

I pay tribute to my right hon. Friend for his service during that time. I know that as a Minister he dealt with the case with sympathy and respect. My direct predecessor, Lord Touhig, also dealt with the case when he was a Minister. I know that everybody who served during that period was wrestling with it, but my right hon. Friend is absolutely right to say that it would not have been possible to bring the case.

If radioactive particles are ingested, the harm might occur at a slow but steady rate for many years, with minor ailments leading to a dramatic diagnosis, and eventually to death. There was no way for the veterans to know that their minor ailments were linked to the nuclear tests that they were involved in. As the Minister knows, however, it often prevented them from gaining the compensation they deserved.

How can we ask young men and women to serve and not guarantee their rights in the same way as civilians are guaranteed theirs? Should the Bill progress, I worry for the next generation of service personnel who are affected by the equivalent of nuclear tests. We do not yet know what might happen in the future that could cause problems further down the line. That is just one example of why someone might need to extend the six-year limitation as currently set out.

I must raise concerns from specialist members of the Association of Personal Injury Lawyers, a not-for-profit firm that specialises in military claims. It has voiced concerns that injured personnel can be misinformed of their right to make a legal claim. They might not even know that they have a right to a claim. According to a report by the Association of Personal Injury Lawyers, it is unfortunately not unusual for service personnel to be misinformed about their right to bring a civil claim.

Does my hon. Friend agree that it would also limit families? In some cases—especially those involving asbestos, but also some involving cancers—the claim is generated only after the person passes away. Even though somebody might have known earlier that they had cancer, it is only once they pass away that the family might think that it was related to service. I know of some cases that were the result of submarine service. The Bill would actually stop families getting any redress in such cases.

I agree. I will come to an example that my right hon. Friend probably knows as well, but I first will say something about service families. When servicepeople are away, their families are left with the worry, the childcare and other needs. When a serviceman suffers from cancer, it is the family who have to watch their loved one wither away. It is vital that they have a chance to make a claim.

It is interesting that my right hon. Friend the Member for North Durham intervened in my speech. When we talk about personal injury, those of us who come from mining communities will remember the example of the miners’ compensation scheme and how miners were left behind. I am not comparing miners to veterans, but it is a similar principle.

The hon. Gentleman, for whom I have a lot of respect, has now spoken for about 10 minutes on nuclear test veterans. I trust that he is aware that nuclear test veterans are not covered by the Bill. It was not an overseas operation, and they are not covered by the Bill. The legislation that we are debating does not affect them in any way.