Armed Forces Bill (Second sitting)
Lord Beamish Excerpts(5 years, 3 months ago)
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Johnny Mercer
No, the hon. Gentleman said that matelots and pongoes, the lower ranks, do not get to use the fund, which is factually incorrect. I am sorry; I do not mean to be obtuse with Members, but I have come into this role to serve members of the armed forces and I will not stand idly by if people make things up. If someone is going to debate these issues and bring forward things that are not true, which I am afraid largely emanate from the Scottish nationalist party, it will be very difficult to engage. However, I will address the other points.
The new clauses seek to create through primary legislation a representative body for the armed forces that is similar in many respects to the Police Federation. New clause 19 proposes that details of how such a federation would operate would be set out in regulations. Of course the Government understand that Members from all parties in the House wish to support our armed forces and protect their interests; that is at the heart of what we do and I believe our actions show that. However, we are not persuaded that there is a requirement or indeed a groundswell of support for a federation along the lines that have been suggested. The interests of our armed forces personnel are already represented through a range of mechanisms, not least the chain of command.
On matters of pay, the Armed Forces Pay Review Body and the Senior Salaries Review Body provide annual recommendations on pay for the armed forces to the Prime Minister. Evidence is gathered from a number of sources, including the bodies commissioning their own independent analysis of pay comparability and taking written and oral evidence from the MOD and from service families federations, as well as spending a significant amount of time visiting military establishments within the UK and overseas.
Staying on the subject of pay, I should highlight that the X-Factor addition to basic military pay, which is currently at 14.5%, recognises the special conditions of military life, including limits on the ability of service personnel to negotiate on this issue.
Mr Jones
The Minister is making various claims about the Armed Forces Pay Review Body, and he is correct that it does great work in assessing the different effects of armed forces life, but it depends on Ministers and the Treasury accepting its recommendations. There was not a problem until 2010, but there has been since. How do ordinary members of the armed forces ensure that their pay issues are taken into account if the Government, who have ignored the recommendations of the Armed Forces Pay Review Body on numerous occasions since 2010, ignore those recommendations?
Johnny Mercer
They have not ignored them. I sat on the last one, and I advocated for the pay of the armed forces. The Government have a clear role when it comes to pay across the public sector. They work hard to maintain the independence of these bodies, which are robust in challenging the Government to make sure our people are paid fairly. My right hon. Friend will have seen that the integrated review talks about a new way of operating, which will have to be reflected in a new reward and recognition scheme that looks at pay across the ranks, across the trades and across employment, to make sure that people are remunerated and recognised in line with what we are asking them to do. I understand the point he is making, but I do not accept that the Government have turned down these recommendations and are cracking on willy-nilly with pay.
Mr Jones
I accept that the Minister might accept the pay review body’s recommendations, but he does not implement them. In 2013 the Government refused to reappoint Professor Alasdair Smith when he recommended things they did not like. There was not a problem until 2010, but since 2010, although the Conservative party says it stands for the armed forces, the Government have not implemented the pay review body’s recommendations. As we heard earlier, it would be okay not to have a representative body if the Government automatically accepted the pay review body’s recommendations, which I am proud that the last Labour Government did, but this Government have not done that.
Johnny Mercer
Okay. Staying with the subject of pay, I should highlight that the X-factor addition to basic military pay, which is currently at 14.5%, recognises the special conditions of military life, including limits on the ability of service personnel to negotiate on this issue.
Importantly, the service complaints ombudsman provides independent and impartial scrutiny of the handling of service complaints made by members of the UK armed forces regarding any aspect of their service life. Improvements to the service complaints process are being progressed, and those do not require primary legislation, although there is one small measure in the Bill that seeks to change the legislation in certain circumstances.
I should also mention that there are provisions in the service complaints system and the service justice system for support to be provided to those who make complaints or allegations, and to those who are the subject of such actions. There is also legal aid for those facing charges in the service courts, and there are assisting officers at summary hearings.
The Committee can be assured that individuals are not left without support and assistance. On many other issues, the Soldiers, Sailors, Airmen and Families Association, the Royal Naval Association, the Royal Air Forces Association, Veterans UK and a great many more regimental associations and groups throughout the country have regular access to the chain of command and Ministers to represent their members’ interests. As I mentioned, the chain of command remains an important route through which personnel can make representations about matters of interest and concern.
In addition, there are a range of other mechanisms for service personnel to have a voice on matters that concern them. The annual armed forces continuous attitude survey asks personnel about all aspects of their service life, and the results are used to inform the development of policy and to measure the impact of decisions affecting personnel, including major programmes and the armed forces covenant. The survey results are published. I should add that service personnel play an active role in the development of policies that affect them, and I see that every day in the work that goes on under the Chief of Defence People, Lieutenant General James Swift.
The Committee might not be aware that the Chiefs of Staff Committee, chaired by the Chief of the Defence Staff, has a WO1, Mr Haughton, as its senior enlisted adviser, and he has a voice on all the matters that come before that committee. As a further example of our commitment to improving diversity, all Army officers at two-star and above have a reverse mentor, which supports diversity of thought across all areas of the service.
Finally, Ministers and senior officers hold regular town hall meetings for all staff—service and civilians—to brief them on developments and issues and provide an opportunity for everyone to ask questions about those developments.
Dan Carden (Liverpool, Walton) (Lab)
I beg to move, That the clause be read a Second time.
This new clause would place a duty of care on the Ministry of Defence in relation to finding a pathway to treatment for people suffering with addiction. We are familiar with the existing narrative that many of our armed forces community will, at some stage, struggle with their mental health. While there is agreement that we must prioritise the mental health and wellbeing of our armed forces, alcohol, drug and gambling use disorders—otherwise known as addiction—do not receive the same consideration, and serving personnel and veterans experiencing addiction are being failed by the current system.
In society, we should afford the same attention, resources and support to addiction as to any other mental health matter, because addiction is an illness—an illness with a higher prevalence across the services. The new clause would place a duty of care on the Ministry of Defence to ensure that it has a role to play in finding a pathway to treatment for those men and women who have given service. Combat Stress confirms that military personnel are more likely to suffer from substance misuse problems than civilians, yet there is only one veteran-specific addiction treatment facility in the whole of the UK—Tom Harrison House, in Anfield, in my constituency.
Turning to alcohol, drugs and gambling in times of uncertainty or hardship is normalised in the UK. The latest Office for National Statistics alcohol-specific deaths data show that this is now a national crisis. Our armed forces are a niche community with distinct values that make engagement with local services difficult. Many veterans and their families are isolated and do not receive the treatment they need and deserve. I have met many veterans visiting Tom Harrison House who felt completely let down by the MOD. I am yet to meet one who has received the support they need for their addiction through the Army, Navy or Air Force. Too often—in fact, it is the norm—people have to hit rock bottom to get picked up and offered support. Even then, treatment is not always available. One veteran told me:
“I gave my life to service, I was trained to lack empathy; conditioned to survive; asking for help was a weakness; encouraged to drink and when there was nothing left for me to give, I was discharged, without any re-conditioning, no support; completely alone.”
That experience is unacceptable.
We just do not know how many veterans experience substance use disorders, as there is such limited reporting. The new clause would address that lack of understanding. As it stands, the MOD plays no role in the pathway of support for veterans who require treatment for addiction and other mental health issues, even though we know that the effect of service is often a determining factor in a veteran’s illness. Once personnel have left service, they rely on the NHS and local authorities, and of course the UK’s third sector organisations provide help and support. I absolutely value their work, but the MOD has a responsibility to those men and women that it has shirked for too long. Veterans are expected to use the same pathway as civilians—through the NHS and local authority services—yet drug and alcohol services have been decimated in the past 10 years, with part one of Dame Carol Black’s review on drugs detailing that, in some local authorities, funding for these services has been cut by 40%. We expect veterans to navigate an underfunded system that does not cater for veteran- specific needs.
We know that addiction is often a symptom of deeper psychological problems. Substances are ways to escape and self-medicate. Although co-occurrence of substance use and mental health diagnoses is widely understood, to access mental health services the person must often address the substance use first. The Committee heard at first hand from Combat Stress just how obstructive that is to recovery. This fractured approach leaves too many in prolonged pain and suffering as they continue to fall between the cracks. While the Bill will enshrine the armed forces covenant into law, public bodies having that due regard will not help the many veterans who experience addiction.
Mr Jones
My hon. Friend is talking about veterans, but does he agree that there is a big issue with drug and alcohol misuse in the services? The services’ main response is usually to dismiss people with those issues. Does he think more should be done to get treatment for those individuals while they are in service?
Dan Carden
I am grateful to my right hon. Friend. We know that levels of treatment do not match the levels of addiction that we believe exist. I will finish on this point. Currently, there is a zero-tolerance approach to alcohol and drug misuse in the forces, and that approach lacks understanding and is outdated. Other professions, including our doctors, the police force, the fire service and pharmacists, provide occupational support for substance use, and our armed forces should follow suit. I hope the Minister will address that issue.
New clause 6 will ensure that these men and women have access to a pathway of support for problematic alcohol, drug and gambling use, and it will allow information on service personnel and veterans’ treatment, and the provision for it, to be included in the annual armed forces covenant report.
Mr Jones
My experience, like the Minister’s, is that there is support within the military for individuals; I think I was the one who changed the policy around zero tolerance of drug use. May I ask about the support for such individuals? There will be individuals who have to leave the armed services because of drug and alcohol issues. What support is given to them? Transition for those individuals to get support in civilian life is important. Is there a specific pathway for people who have to leave because of drug and alcohol problems in the armed services, or are they just left to their own devices? That would be a way to stop some of those individuals falling further into the addictions that have grasped them.
Johnny Mercer
They are not left to their own devices. There is now something called the Defence Transition Services, which were set up last year. They are specifically tailored to put our arms around all those individuals who are leaving service. They are not specifically tailored to those who suffer from addiction. The service is agile enough to deal with all our vulnerable service leavers, particularly those coming out of care and things like that. They can now access Defence Medical Services up to six months after they leave, but there is always more to do in this space. That is why I am keen to see my hon. Friend the Member for Liverpool, Walton at Tom Harrison House.
Mr Jones
I welcome what the Minister says, but if he is looking at the broader issue around veterans, could he perhaps also look at the support that he has given to individuals who have to leave because of addiction problems? I accept that there is a transition process, but some more work could be done to look at specific support for those who have to leave because of drug and alcohol-related issues.
Johnny Mercer
Yes, of course I will. I give a commitment to the Committee to work with my hon. Friend the Member for Liverpool, Walton to design the pathways and report back in future on what we can do better. With those assurances, I hope he will agree to withdraw the motion.
Dan Carden
I thank the Minister for the way that he has engaged with these issues, and for the work that he has already done. One of the key problems that we have is the poor set of data, and I look forward to working with him to see what we can do in the Bill on those issues. In the light of the Minister’s commitments to meet and his offer to visit Tom Harrison House, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 7
Welfare of Operation Banner veterans
“No later than 12 months following the day on which this Act is passed, and every 12 months thereafter, the Secretary of State must publish a report which must include the number of Operation Banner veterans who—
(a) have contacted the Office of Veteran Affairs,
(b) are accessing mental health treatment,
(c) are in the street homeless population, and
(d) are within the prison population.”—(Mr Jones.)
This new clause will ensure that the Government offers consideration to the overall welfare of those service personnel that served in Operation Banner.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 15—Duty to report—
“The Secretary of State to place a duty on all public services to include a question on whether the respondent is a veteran, has previously served in the Armed Forces or is a reservist to all new service users.”
See explanatory statement for NC14.
Mr Jones
New clause 7 is designed to get a commitment on looking at Northern Ireland veterans. I was very disappointed that the Government voted down our proposal for the Committee to take evidence from Northern Ireland veterans. Even the compromise of asking for written evidence was voted down, which was a disappointing approach from the Government.
Operation Banner was the longest continuous operation for our armed forces in Northern Ireland, running from 1969 to 2007. During that time, 1,441 members of the armed forces lost their lives in the service of their country in Northern Ireland. It sadly began in 1971 with the death of a member of the Royal Artillery Regiment, Robert Curtis, who was 20 years old and is buried in the West Road Cemetery in Newcastle, and it ended with Lance Bombardier Stephen Restorick, 23, when he was shot by a sniper at Bessbrook in County Armagh in February 1997.
Those two men are the bookends of the individuals who lost their lives, but many of those individuals serving in Northern Ireland had joined the armed forces mainly from communities such as the one I grew up in, from areas that they had left because of unemployment. They proudly served their country and were asked to take part in an operation that was vital for the security of our country, which exposed them to risk not only in Northern Ireland, but on the UK mainland, as we saw with the tragedies of the bomb attacks and deaths of service personnel. They paid a huge price—not only those who died, but those who served—and to a large extent they are the forgotten veterans.
We rightly honour the veterans of overseas campaigns who have lost their lives or suffered injury, but Northern Ireland and Operation Banner were slightly different. Because the operation took place in the UK, there is a tendency to think that somehow it is politically embarrassing for those individuals to be recognised, and because it went on for so long and did not retain public interest once it had ended, they were not kept in the headlines. There needs to be more research and focus on those individuals and on giving them recognition.
My amendment calls for a report to be commissioned by the Secretary of State specifically into the effects of Operation Banner on those individuals. Many will now be somewhere in their late 70s and possibly early 80s. While I accept that many will have gone on, as many members of the armed forces do, to successful civilian careers, the veterans I have spoken to over the years, and the individuals I knew growing up who had served in Northern Ireland, have suffered. There is a lack of research on that, although I commend recent reports from the Forces in Mind Trust, Queen’s University Belfast and Ulster University, which were very good and specifically looked at Northern Ireland veterans.
There are two sides to this: there are the Northern Ireland veterans who are now resident in the UK, but I know from a number of visits I have made to Northern Ireland that there is also an ongoing problem with mental health support for those who served and live still in Northern Ireland. Some of the issues in the summary of the report that came out in 2017 were quite interesting.
One such issue was that those veterans felt there was a lack of trust, and another was a desire—quite rightly, I think—for some kind of public recognition for their service. I accept that they were awarded medals but, in the context of the broader question, because of the political nature of the Northern Ireland conflict, that recognition has not been given them. Also, in sections of certain communities, there is a social stigma against certain individuals who served in Northern Ireland. We need to do research and have the data and evidence to support the individuals who served. They were ordinary men, mainly, although there were also women. They came from communities across the UK, many in northern towns, and they served their country.
Added to that, we have the ongoing uncertainty on prosecutions, with 12 individuals still being investigated for crimes that allegedly took place throughout their service in Northern Ireland, some dating back over 50 years. In many cases, they have been investigated on numerous occasions. Obviously, a case that has been highlighted recently is that of Dennis Hutchings, who is 79 years of age. What strikes me about all the cases is that the individuals who are facing the torment—and I mean torment—of a prosecution hanging over their heads are mainly from the lower ranks.
I accept that things were done in Northern Ireland throughout the campaign that we would look back on and not agree with; the Army, and the way in which the armed forces operate, has changed radically in those 50 years, but the idea that young servicemen who were serving their country should be the target now of prosecution when those who made the decisions higher up, including politicians and those in higher ranks in the armed forces, were not held to account in any way for those actions is not acceptable.
I know that the Prime Minister and the Minister have said that legislation will be introduced to deal with those prosecutions, but it is like tomorrow; it never comes. The Prime Minister promised it. It was promised in the last Conservative manifesto. It was also promised in the Overseas Operations (Service Personnel and Veterans) Bill. Nothing came forward. The Minister then said that it would be in this Bill, but clearly it is not. It has now been parcelled off. I understand it is now said not to be a MOD matter, but a matter for the Northern Ireland Office.
I take a very clear view on this issue, and it is already there in law. Is it in the public interest to persecute and chase down individuals for incidents that happened, in some cases—such as Dennis’s—50 years ago, when they have been investigated on several occasions? That cannot be a good and right way of treating people who were doing their duty by their country in horrendously difficult circumstances and keeping us all safe. At the end of the day, that is what they were there to do.
Veterans now think that the promises that have been made by the Government are pretty hollow, and unless legislation is introduced very quickly some individuals will face the courts. The terrible thing is the uncertainty hanging over those individuals—that at any time they could get a knock at the door and be asked to account for actions that took place in some cases, such as Dennis Hutchings’s, 50 years ago. That cannot be right.
As part of the efforts to highlight the plight of veterans, I welcome the Forces in Mind Trust research that has been done already, but we need the MOD, if it is really committed to these individuals, to do a wider piece of work looking at the effects of service in Northern Ireland, and to not forget those individuals, who were doing their duty by their country. I accept that a lot of things in this Armed Forces Bill might be problematic, but it is the only time we have as parliamentarians every five years to address issues that affect not only the veterans community, but members of our armed forces. I think if we were to do this, it would send a clear message that we are not forgetting these individuals and are trying not only to do the research, but to put in place policies that actually help them.
I plead with the Government to stop promising things that they are not going to deliver. If they are not going to deliver on the prosecutions, they should just say so. I think it is pretty dishonest to have a situation whereby these individuals are being promised something, including by the Prime Minister, that is not yet being achieved.
Johnny Mercer
I will address new clauses 7 and 15 together. I enjoyed the contributions.
There are some serious points here about the recognition of veterans—particularly our Northern Ireland veterans—which I have worked very hard on over the last couple of years. There is no tiered system of veterans. We are as proud of our Northern Ireland veterans as we are of those who served in Iraq and Afghanistan. Operation Banner was a deeply challenging environment. When I came to this House, I came here with a mandate to improve veterans’ care and the experiences of those who serve. There is perhaps no greater symptom of the betrayal of our veterans by Governments over the past 40 years than prosecuting or going after those who served in Northern Ireland when no new evidence exists and it is simply a question of the politics having changed. There is no other country in the world that endures these issues among its veteran population. The more people who speak on this matter and who become aware of it, the more that the individuals going through these processes will feel support.
The Prime Minister has made commitments to end this disgrace. I have made commitments to end this disgrace. Those commitments stand. It is an incredibly difficult environment and space in which to operate. At no stage have I just cast this matter off to the Northern Ireland Office, as has been alleged by my right hon. Friend the Member for North Durham. I work on this every day in the Department. Unlike my predecessors, I will achieve a result for those people who served in Northern Ireland. We will slowly make progress towards that.
Let me turn to the matter of welfare for those who supported on Op Banner. The creation of the Office for Veterans’ Affairs in 2019 is a marker of this Government’s commitment to her veterans. That never existed before; in previous Governments, under previous Ministers, there was never an Office for Veterans’ Affairs that took responsibility for these issues. We continue to demonstrate our commitment to supporting veterans and making the United Kingdom the best place in the world to be a veteran.
In the strategy for our veterans, the Government committed to improve the collection and analysis of data on veterans’ needs and experiences to inform future policy. I accept that we have poor data on veterans. If we had changed that—perhaps 10 years ago—we would be in a far better position now to calibrate programmes and understand the nuanced challenges in the transition from service life into the community. But we did not do that 10 years ago. We are doing it now. The first money that came into the Office for Veterans’ Affairs went into data and studies to try to understand the scale of the problem, so that we can implement evidence-based policies that genuinely affect and improve the lives of our veterans.
We are going to publish an annual veterans report, which will set out the progress made each year on delivering these objectives so that we can be held to account. As part of this data strategy that will improve collection and analysis of information across a wide range of topics—including veterans’ health and wellbeing; mental health; the frequency of the tragedy that is suicide; employment; housing; and relationships—we are working with stakeholders, other Departments and the devolved Administrations to understand what data already exists, where there are gaps in knowledge and how the gaps could be mitigated, including, where relevant, by adding new veteran markers to datasets. That is happening.
The 2021 census in England and Wales also represented a key opportunity. Using the expertise of the Office for National Statistics, we will be able to use anonymised data provided by the census to better understand the veteran population in England and Wales as a whole, and the huge range of topics affecting their lives, including their health and wellbeing.
New clause 15 seeks to
“place a duty on all public services to include a question on whether the respondent is a veteran, has previously served in the Armed Forces or is a reservist to all new service users.”
This would place an undue and unnecessary burden on public bodies. In keeping with the initial action plan of the January 2020 UK Government’s strategy for our veterans and the New Decade, New Approach agreement, my Department is currently conducting a review of welfare services provided to all veterans living in Northern Ireland.
The Ulster Defence Regiment and the Royal Irish Regiment (Home Service) Aftercare Service was established in 2007 to provide welfare support for Op Banner veterans and their families from within an established service delivery network. My Department recognises that the delivery of veterans’ welfare support in Northern Ireland has grown in a specific way. However, I can provide assurance that a review of the aftercare service has commenced and will establish the potential of the aftercare service to support better our veterans UK-wide in the welfare structure. For that reason, it is imperative that, before further commitments are made, the review is allowed to conclude and bring forward its recommendations on long-term service delivery for veterans in Northern Ireland.
To support our veterans living in Northern Ireland further, we have, for the first time, appointed a Northern Ireland Veterans Commissioner to act as an independent voice and point of contact to support and enhance outcomes for all veterans. I hope that, following those assurances, the right hon. Member for North Durham will agree not to press the new clause.
Mr Jones
I accept that the Minister does not see veterans in tiers, but he should read the Forces in Mind Trust’s research on the way in which Northern Ireland veterans are perceived by the public. I do not accept that somehow because people served in Northern Ireland they are less of a veteran than those who served in any other sphere. I agree with the Minister that they should be treated similarly, but they are a unique group of individuals who need more attention.
The Minister talks about the aftercare service in Northern Ireland. I have visited that service and accept that it is good, but most Northern Ireland veterans do not live in Northern Ireland. I certainly commend the aftercare service’s work with not only veterans, but their families on the ongoing psychological problems that many family members experience. However, in terms of progress and getting the research, although the Minister says that the Office for Veterans’ Affairs was a first, I am sorry, but it was not. The last Labour Government started the Veterans Agency and had a veterans Minister. I could go on at length about what was put in place for veterans. It is all right for him to champion the new Office for Veterans’ Affairs, but he is cutting its budget at present, which cannot be right.
This area does need more research. Those facing prosecutions do not receive the recognition they deserve. I think that, in the way in which they are being dealt with, they are going through torture. In addition, other Northern Ireland veterans who are not currently being pursued for prosecutions fear that they may well be in future. That must be an awful feeling for those individuals who, if they committed a crime, it was serving bravely their Queen and country and being asked to do a very difficult job on behalf of us all. That is totally unacceptable.
Given the concentration on these veterans, commissioning the report would give a clear indication that we are taking them seriously. I understand what the Minister says about his commitment to the issue of Northern Ireland prosecutions, but frankly those are words that we have heard from both him and the Prime Minister. What the veterans need now is firm action. Without that, they will continue to feel let down. I would therefore like to press the new clause to a vote to ensure that the MOD does the research and gives the recognition and support to those brave servicemen and women who served on behalf of our country in Operation Banner.
Johnny Mercer
I recognise what happened last time on the Armed Forces Bill. My hon. Friend the Member for North Durham attempts to leverage this in and follows it up with a press release to make out that he is standing up for Northern Ireland veterans. I want to place on the record that, yes, I am the first veterans Minister and this is the first Prime Minister to commit to end this intolerable process for our veterans. There was a time when I stood alone on this issue and although I welcome his support now, people are not as forgetful or as dim as he would like to think. He was the armed forces Minister. He was in Government for a considerable period of time when absolutely nothing was done on this issue.
Johnny Mercer
This issue has been put on the political spectrum by myself and by this Prime Minister. We will bring forward legislation to protect these people. I will not accept lessons from people for whom I served—right? I was a veteran when the right hon. Gentleman was a Minister in the Department and I know exactly what it was like, so—
Johnny Mercer
It is a total joke, because I would not be here if veteran support was as good as the right hon. Gentleman likes to think. So he can push the new clause to a vote, he can do his press release, but ultimately he will never change anything unless he actually contributes—
The Chair
Order. Can I ask whether it is Kevan Jones’s intention to proceed with pressing the new clause to a vote?
Mr Jones
Can I just respond to that, Chair? No, I do not do press releases on this. And if the Minister actually cares to look and do some research instead of doing his lazy thing of just reading out civil service briefs, he might know that I have been committed to this issue for a long time. And in terms of the last Labour Government—
The Chair
Order. Mr Jones, thank you; Minister, thank you.
Question put, That the clause be read a Second time.
Johnny Mercer
On a point of order, Mr Sunderland. I seek your guidance on what I should do as the Minister when I am sat here and facts are presented to the Committee that are fundamentally untrue. The officials from the Department have just come back to me on the continuity of education allowance, which the hon. Member for Glasgow North West raised. The allegation is that it is predominantly used by officers, but the figures do not show that. I have informed her that that is the case, but she still does not wish to correct the record. What do you suggest that I do when dealing with misinformation on this scale?
Johnny Mercer
There seems to be some distortion on the line, Mr Sunderland. I can’t quite hear you.
Johnny Mercer
Thank you.
New Clause 8
Terms and Conditions of Service
“(1) The Armed Forces Act 2006 is amended as follows.
(2) Section 343A, after subsection (5) insert—
‘(5A) An armed forces covenant report must include—
(a) a comparison of the terms and conditions of service for service people with other public sector employees, and
(b) an assessment as to whether service personnel face no financial disadvantage through their employment.’”—(Mr Jones.)
This new clause will ensure that the principles of the Armed Forces Covenant extend to matters relating to the financial disadvantages subjected to UK serving personnel and veterans, as a result of their time in the Armed Forces.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
New clause 10—Due regard given to service personnel—
“(1) When preparing policy, public bodies must have regard to those matters to which the Secretary of State is to have regard in preparing an Armed Force covenant report, under section 359A (2A) of the Armed Forces Act 2006.
(2) In preparing policy, public bodies must consider whether the making of special provision for service people or descriptions of service people would be justified.
(3) The Secretary of State must lay 12 months following the day on which this Act is passed, and every 12 months thereafter, a report which sets out how decisions made by the relevant Departments have taken due regard to the Armed Forces Covenant into account.”
This new clause will ensure the Government fully enshrines the Armed Forces Covenant into law. It clarifies the duty to have ‘due regard’, meaning public bodies and ministers must consider the same issues that the Secretary of State does in preparing the Armed Forces Covenant Annual Report.
New clause 14—Statistics to be reported as part of the Armed Forces Covenant Report—
“(1) The Armed Forces 2006 is amended as follows.
(2) Section 343A, after subsection (5) insert—
‘(5A) An armed forces covenant report must include the number of—
(a) veterans (or families of veterans) who have contacted the Office of Veteran Affairs or Veterans UK each year and an overview of the most commonly mentioned reasons for contact;
(b) veterans who have applied for a Veterans Railcard;
(c) veterans who have applied to the Civil Service Interviews Scheme, and the proportion of these who have been successful in a job offer;
(d) veterans in the street homeless population; and
(e) veterans who have died by suicide.’”
This new clause, with NC15, will improve the Government’s collection and reporting of data on veterans in the Armed Forces Covenant Annual Report. It also places a duty on all public services to establish whether all new users are a veteran.
Mr Jones
First, may I put on the record for the Minister that my constituency is not Darlington North but North Durham, which I am proud to have represented for the past 20 years? Can I also just give him some advice? If he actually read around the subject and understood it, rather than just reading out the civil service brief, he might be able to think on his feet and answer the points. It is called preparation for Bill Committees—I am not sure he does a great deal of that.
New clause 8 gets to an issue that was raised earlier by the hon. Member for Glasgow North West—the ability of the armed forces to make representations on their terms and conditions of employment. That ability is limited, and the first issue that I will raise is pay. We have already heard about their limited ability to raise issues in other areas, but it is down to the Armed Forces Pay Review Body to look at the way in which the armed forces are remunerated. I accept that it is not a straightforward situation, due to not just the different ranks and responsibilities, but the complexity. The three services are not always easy to understand.
Because the armed forces cannot make representations on their own pay, they rely on the Armed Forces Pay Review Body to do that intensive work. Anyone who cares to read its annual reports—sadly, I do—knows that it does an excellent job of trying to gauge opinion across the armed forces, and it has comparators with other sectors. I accept there is not a complete read-across to other, civilian areas, because, for example, there are issues around abatements of pensions and other things, but the Armed Forces Pay Review Body is expert in being able to do these things.
There was not a problem until 2010, because it was assumed that no Government would not accept the pay review body’s recommendations. We are talking about standing up for our armed forces, and I was proud to be a member of a Government who accepted those recommendations in full. However, that changed in 2010, when the coalition Government, and then the current Conservative Government, did not accept the pay recommendations. The MOD might accept them, but they are not implemented in terms of the Treasury recommendations. In 2010, an Army private was paid £17,014 per annum. Average inflation has been 2.7% over the period since then, which means a private should receive £22,338 today. However, a private earns only £20,400 today—an almost 10% cut in privates’ pay since 2010.
On Second Reading, the hon. Member for Brecon and Radnorshire (Fay Jones) said that the Tory party is the party that stands up for the armed forces. I can imagine the hue and cry there would have been if I had recommended that armed forces pay should be cut in such a way when I was a Minister in the Ministry of Defence. This just shows how hollow those words are. One of the important things about a pay review body is the fact that it is independent. Clearly, in 2013, Downing Street did not like the recommendations from Alasdair Smith, who was then the chairman and whom the Government failed to reappoint, because he wanted to go beyond the 1% basic rise that had been recommended.
The Government cannot pick and choose when service personnel are treated as public servants. The wage cap in the public sector was argued for on the basis of austerity, but I would argue that members of the armed forces should be treated separately, because they have an independent body that looks at their pay. As has been raised already, they do not have the ability to make recommendations or to take any actions.
New Clause 8 is designed to ensure that the covenant report includes comparisons with the terms and conditions of service in the public sector. Many of those may well be issues that are raised by the pay review body, but I would certainly like to see that emphasis, so that we can judge what the Government are doing.
As I say, we have had a coalition Government and a Conservative Government who have cut armed forces pay, but they also made people compulsorily redundant in the early 2010s. Again, if I had recommended that as Minister for the Armed Forces, the newspaper headlines and Conservative Members would have said that it was an outrage. However, it has gone through very quietly, like the issue of armed forces pay. New clause 8 would ensure that armed forces pay is on the agenda and we have the ability to ensure that Governments of whichever colour do not renege—which this Government have done, and which the coalition Government did—on armed forces pay.
The Chair
Before I call Stephen Morgan to speak to new clause 10 and then Sharon Hodgson to speak to new clause 14, I remind Members that this sitting is being broadcast live. Members should therefore refrain from arguing in public. I remind everyone that they must formally intervene and then stay on mute when they are not speaking.
Johnny Mercer
These new clauses, as I understand them, are linked by a desire to broaden the kinds of issues that the Government are required to report on annually to Parliament in respect of delivery against the armed forces covenant. I will take each new clause in turn and explain why the Government do not believe that proposed additional reporting obligations will work.
New clause 8 would require the armed forces covenant annual report to include comparative data on the terms and conditions of service personnel versus other public sector employees, and an assessment of whether service personnel experience financial disadvantage because of their service. I assure the right hon. Member for North Durham that the Government are committed to ensuring that the terms and conditions of service personnel remain attractive and competitive, and that service personnel do not face financial disadvantage.
The overall remuneration package for service personnel ensures that they are compensated for the additional costs of service life. Whether based in the UK or deployed overseas, service personnel receive additional pay enhancements that recognise the unique challenges of service life, and they are further rewarded with annual pay increments, recognising their development and commitment. On top of that, service personnel continue to be rewarded with one of the most generous non-contributory pension schemes in the country.
I recognise the importance of ensuring that terms and conditions are reviewed regularly. That is the role of the independent Armed Forces Pay Review Body, which we have talked about already this morning. It provides advice to the Prime Minister and the Secretary of State on the remuneration of service personnel, and its remit compels it to consider the need for armed forces pay to be broadly comparable with pay levels in civilian life. The Armed Forces Pay Review Body already submits an annual report on its work to the Prime Minister and the Secretary of State, who then present it to Parliament for the Government to respond to. The recommendations of the AFPRB have always been accepted by the Government. We therefore consider that the additional reporting requirement proposed by this new clause would not provide to Parliament any information that is not already received in the annual AFPRB report.
I move on to new clause 10. I interpret subsections (1) and (2) as requiring all public bodies, particularly Government Departments and Ministers, to have due regard to the principle of the covenant when making policy. If my interpretation is correct, I refer my right hon. Friend the Member for North Durham to answers that I have given elsewhere about extending the scope of the duty to include central Government Departments. Broadly, central Government are already held to account in our delivery of the covenant by the statutory requirement to report annually to Parliament on progress against the covenant. I reiterate that this will remain a legal obligation.
Clause 3 would appear to require the Secretary of State to report annually to Parliament on how other Government Departments have demonstrated due regard to the covenant principles when making policy. Quite apart from the fact that that would impose a disproportionately large administrative burden on Departments—especially the MOD in having to write such a report—the Government consider that the salient information required by Parliament to monitor Government Departments’ progress in delivering the covenant is already contained in the covenant annual report.
Finally, new clause 14 would require the covenant annual report to include new statistics on veterans in several areas, including the number of veterans contacting the Office for Veterans’ Affairs and Veterans UK each year. The Government absolutely recognise the importance of measuring the progress we are making in delivering support for veterans and remain committed to continuous improvement. In terms of both the number and quality of the metrics reported against annually in the covenant report to Parliament, the OVA is working across Government to develop a framework of measures to track progress against the outcomes set out in the strategy for our veterans. We already intend to publish an annual veterans report, setting out our progress in delivering against our objectives. We anticipate that that would also include statistics reflecting the key initiatives, such as the veterans railcard, which my hon. Friend the Member for Washington and Sunderland West mentioned.
In the light of our plans for an annual veterans report, the Government are of the view that these additional reporting requirements for the covenant and the report are not necessary. I hope that, following these assurances, Members will agree to withdraw, or will not press, their new clauses.
Mr Jones
The Minister says that the Government are committed to armed forces personnel facing no financial disadvantage, but they will if the Government accept the Armed Forces Pay Review Body’s recommendations but do not actually implement them. It is important to notice that although the armed forces do have good pensions—they are an outlier in that respect—armed forces personnel do pay for them, because those pensions are taken into account when service pay is calculated by the Armed Forces Pay Review Body.
I would accept what the Minister says, and we would have no problem with this, if we had a Government who implemented the Armed Forces Pay Review Body’s recommendations, but we have not; since 2010 we have had a Government who have not implemented those. I will therefore press the new clause to a vote, because I think an extra level of reporting is needed to show that armed forces personnel are not being disadvantaged in this case by a Government who do not implement the recommendations of the Armed Forces Pay Review Body.
Question put, That the clause be read a Second time.
Stephen Morgan
We do not believe that is a satisfactory response from the Minister. Ministers from successive Conservative Governments have promised a solution on this forever and a day. Commonwealth veterans should not have to wait until some time never for a consultation to kick off.
Stephen Morgan
I thank my right hon. Friend for that intervention. He is absolutely right. I alluded to some of the figures in my speech. Regrettably, the Minister did not cover that in his response. That is why—
Stephen Morgan
I beg to move, That the clause be read a Second time.
The new clause is designed to provide greater transparency on the strength of our fighting forces, following the Government’s broken promises on armed forces cuts. It would place a responsibility on the Secretary of State to report to Parliament each quarter on the fighting strength of our armed forces, including on the number of battle-ready soldiers per infantry battalion.
As the Committee knows, the Prime Minister promised to end the era of retreat, and that no further cuts would be made to the Army. Instead, he has further eroded our fighting strength: 45,000 personnel have been cut since 2010, and the forces were 10,000 below target strength. Now the integrated review and the Command Paper have confirmed that the Army will be further reduced to just 72,500 by 2025—smaller than at any time since the 1700s. That has been compounded by a leaked MOD report suggesting that 32 to 33 infantry battalions are short of battle-ready personnel.
The Chief of the Defence Staff said in 2015 that the ability to yield a single war-fighting division was
“the standard whereby a credible army is judged”.
Recently retired British generals have said that further cuts to the Army would mean that the UK is no longer taken seriously as a military power and would damage our relationship with the US and our position in NATO. The Royal United Services Institute recently reinforced that point, suggesting that the cuts mean that the UK can no longer be considered a tier 1 or full-spectrum military power.
These sweeping changes to our armed forces represent a huge gamble with our national security. Although the battlefield is undeniably changing, it remains to be seen whether the investments made in cyber, space and electronic warfare will be enough to keep us competitive on the world stage.
Government cuts to the conventional strength of our forces today, with the promise of jam tomorrow in the form of pioneering technology, are nothing new. Tory Ministers promised the same in the 2010 and 2015 reviews, but they failed to deliver. In 2010 they promised a future force by 2020, and in 2015 they promised a war-fighting division with a strike force by 2025. It is now being promised in 2030. A recent Defence Committee report on the Army’s armoured vehicle capability says that the division will be “hopelessly under-equipped” and overmatched by adversaries.
While we wait to see whether the Government finally deliver a coherent strategy for our national security, it is vital that we have a clear understanding of our fighting strength. Successive Conservative Governments have talked up their commitment to our armed forces, but they have broken their promises at every turn. Our adversaries will exploit continuing holes in our capability, and Labour is determined to ensure that our country can protect itself properly now and in the future.
Mr Jones
I rise to support this new clause because, as my hon. Friend the Member for Portsmouth South has outlined, promises have been broken not just by this Government but since 2010. In the run-up to the 2010 general election, the Conservative party argued for a larger defence budget, an increase in numbers, more equipment, and a commitment to the armed forces of our country. Since then, we have not just seen the size of the Army reduced; we have seen cuts in numbers in the Royal Navy, including the Royal Marines, and in the Royal Air Force. Under the coalition, we had the terrible situation where brave members of our armed forces were made compulsorily redundant—again, something that was never promised in 2010. Certainly, if a Labour Government had implemented that policy, Members on the Tory Benches would have opposed it and would have been highly critical of the Government for doing so.
The overall size of our armed forces does matter, not only in terms of the Army being able to deploy individuals but to ensure that, for example, the Royal Navy has enough personnel to put ships to sea. We can have as much equipment as we want, but if we do not have the individual servicemen and servicewomen to support that equipment, it is useless. In the past few years, we have seen naval ships tied up because of a lack of trained strength, so it is important that we have this report annually and also that it talks about trained strength, because the Government do play fast and loose with the numbers.
It is not just a matter of the overall size, but what the overall capability is and how many members of the armed forces can actually deploy. There has been a decade of decline in the UK’s armed forces, and although the Minister and others champion the idea that they are supporting members of the armed forces, they have been part of a Government that have not only cut pay—as we have already spoken about this morning—but cut the actual numbers of the armed forces.
Another aspect I would like to raise is the lack of opportunity this will mean for many young people in constituencies such as mine, who proudly join the armed services to not only serve their country, but ensure they can have a career that they can be proud of and take those skills back into civilian life. The cuts will have an impact in constituencies across the country that provide men and women for the armed forces, because there will be a lack of opportunities. A lot of negative things are said about service in the armed forces, but I see service as a positive thing, where the people joining not only contribute to the safety that we all take for granted but, more importantly, get great career opportunities and opportunities that they would never have in civilian life. Once they leave, that expertise helps those individuals, and also helps local communities such as mine in North Durham. These cuts will limit the opportunities for those people, which saddens me, and is something we should bear in mind.
Carol Monaghan
I want to say a few words in support of this new clause. Again, it should be really straightforward. I cannot see any reason why the Government would oppose it; it simply asks for a report on numbers.
Both Members who have already spoken to this new clause have talked about the impact of reduced numbers. We must be clear that despite moves towards cyber-warfare and different types of platform, ultimately reduced numbers threatens our capability. When we are looking at operating in very difficult circumstances, the Government should take seriously any threat to our capability.
We must also think about the impact on the remaining personnel, because the burden on them increases as the numbers decrease, with fewer personnel having to do more. That has an impact on their lives, including their family life and interactions with those outside the military. It can also threaten their ability to take leave; it will be a serious issue if they have leave entitlement but are not able to take leave because there are insufficient personnel to cover. People cannot continue like that; perhaps they can for short periods, but not over months and certainly not over years or indeed their entire service. We need to think carefully about this.
To make a general point, I am concerned that we are in a Bill Committee and we are supposed to be discussing new clauses and amendments, with the Government looking at adopting those that are considered reasonable, but it seems to me at the moment that they have not taken on board a single one. That calls into question what we are all doing on a Wednesday morning participating in such a Committee. So I seek some advice on this from the Chair: surely the Government should seriously consider new clauses and amendments, particularly where there is consensus.
Mr Holden
Not at this moment, no; I am making a very brief point.
I know what happened just after 2010, after the right hon. Member for North Durham left the MOD: a huge amount of programmes were massively over-budget and had to be axed at the last minute, at the cost of hundreds of millions of pounds in some cases.
Mr Holden
Not at this stage, thank you.
We must be realistic, especially as we are looking at totally new threats from across the globe; our adversaries are operating in the grey zone, and we need to look at ways to counter them. If Opposition Members are going to propose different things, they need to explain how we can achieve them.
Mr Jones
I thank the hon. Gentleman for giving way, but say to him that that did not stop the Conservative party in 2009 and the 2010 general election, when it proposed a larger Army and an increase in the Defence budget. Yet the first thing they did was cut it. The hon. Gentleman should practise what he preaches. I do not know whether he was an adviser in 2010, but statements on the record and in the manifesto were completely turned over when the Conservatives entered the coalition Government; the first thing they did was cut the size of the armed forces and make people compulsorily redundant.
Mr Holden
I thank the right hon. Member for his comments, but, as he will know, immediately after the general election there was that lovely note left on the Chief Secretary to the Treasury’s desk by the outgoing Chief Secretary to the Treasury saying that there was no money left. He will also know that a lot of the programmes that had to be axed following the 2010 general election had gone massively over-budget, which was only discovered in later years, due to obfuscation by members of the outgoing Labour Government about the actual state of the programmes. So I just say that it would be particularly helpful if, rather than trying to put more and more on the never-never as the last Labour Government did and the Opposition are proposing today, they were honest, straightforward and realistic with the British people about the choices that have to be taken.
Armed Forces Bill (First sitting)
Lord Beamish Excerpts(5 years, 4 months ago)
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Martin Docherty-Hughes (West Dunbartonshire) (SNP)
I thank the Minister for moving the clause. I note the Government’s willingness to align the military judicial process so that it is more akin to a civil jury. The concern of my colleagues on the Opposition Benches is that, in the evidence recently given by Judge Lyons to the Committee, he stipulated:
“I believe, in the modern world, that the maintenance of discipline is in everyone’s interests, and as a first step I would wish to see it opened to OR-7. I think opening it further is a step too far at this stage.”
What concerns me and my SNP colleagues is that when pushed on the rationale for such an opinion, Judge Lyons was unable to substantiate why someone with substantial service under OR-7 should be excluded. Therefore, the judicial process, in terms of peer judicial decision, does not reflect the reality of military life.
I hope that the Government will consider accepting the amendment. There are those who have substantial service in the armed forces, not just in the sense of command but in lived experience of being in the Army. Some of the evidence given to the Defence Committee’s Sub-Committee on Women in the Armed Forces, and the armed forces ombudsman’s evidence in recent Defence Committee meetings, reflected that the judicial processes of the armed forces are not held in high regard by many serving and former service personnel. The amendment would—at least in some sense—go some way to rectifying that, ensuring that the military process is reflective of the reality of military life. At this point, if the Government are unwilling to accept the amendment, I will press it to a vote.
Mr Kevan Jones (North Durham) (Lab)
I wish to speak in support of the amendment. The issue was quite clearly looked at by Judge Lyons in his report. As has just been said, there is no rationale for why other rank 7 was seen as a particularly relevant cut-off point. The important thing is that we make the move to mirror the civilian justice system, although I certainly accept that there are differences between the two because of operational issues.
To be judged by one’s peers is a fundamental right. The provision would exclude large numbers of individuals, including some who may have many years of experience in the armed forces and of sitting on courts martial. I do not think that a good enough reason for excluding those individuals has been put forward in evidence. One possible justification was that people would not understand the procedures. Well, I find that rather patronising for non-commissioned officers, some of whom have been in the armed forces for many years. I would draw a parallel with civilian courts, where there is no qualification process or aptitude test for sitting on a civilian jury. It is for them to weigh up the evidence.
I think that Judge Lyons was basically saying in his report that the movement he outlined was all that he could get away with in the military legal system. I think that he was pushing for further change, but quite clearly did not want to offend or cause things not to go further. I think that he certainly saw this as a step towards, possibly, allowing other ranks to sit on courts martial.
The important point is to ensure that the individuals being tried feel that they get a fair hearing. In the hierarchical way that courts martial are judged at the moment, individuals might not perceive the process as fair because they are judged by more senior officers who determine promotion and other prospects for lower ranks, and might not only have limited understanding of the individual’s life experience, but could ultimately influence the outcome of the individual’s career, for example. I do not think a good enough reason has been put forward for why this cannot be extended, and I therefore support the amendment.
Carol Monaghan (Glasgow North West) (SNP)
I will say just a couple of words in support of my colleague’s amendment. The Bill should be seen as an opportunity to modernise and to introduce some fairness—or perceived fairness—into service justice.
To include the NCOs and lower ranks is a step towards a more equitable method of delivering service justice, and how that is viewed by personnel is important. It is important that those sitting on a court martial board understand the experience of the people before them. Unfortunately, the experiences of commissioned and non-commissioned personnel can often be quite different. This is a real chance to build greater fairness, and perceived fairness, into the system. I urge the Government to consider the amendment carefully.
Johnny Mercer
I appreciate that point, but the outcome that we are trying to achieve will be similar. The clause was drafted in consultation with the Scottish Government and the Crown Office and Procurator Fiscal Service. The role of the Lord Advocate in agreeing the protocol reflects those comments prior to its introduction. We have been around the houses and got those people’s views.
On the involvement of the Scottish Government in developing the protocol, the Lord Advocate is of course a member of the Scottish Government, so there is no question of the Scottish Government not being involved in the creation of the protocol in Scotland. In addition, new section 320B(8) of the 2006 Act provides that the Lord Advocate and the Director of Public Prosecutions may also consult anyone else thought appropriate.
I hope that helps to explain how we have designed the clause in a way that is sympathetic to the differing constitutional arrangements across the UK, and I hope that hon. Members will withdraw their amendments.
Mr Jones
May I begin by thanking Justice Lyons for his review? In his evidence to the Committee, he clearly outlined why amendment 19 is needed. I am a veteran of the 2006 Bill Committee, and it is quite clear, as Judge Lyons said in evidence, that when this amendment was made to that Bill, the intention was not for the wholesale movement towards serious crimes being heard in courts martial in the UK. They were for exceptional circumstances in which, for example, one crime had been committed overseas and one in the UK, given the ability of the court martial to deal with such cases. That was a sensible way forward because the service police would clearly be the lead authority in the investigation of such serious crimes committed abroad as murder, rape or manslaughter,.
The problem, which my hon. Friend the Member for Washington and Sunderland West outlined eloquently, is to do with confidence in the system. When the system was outlined, I do not think courts martial were meant to deal with these serious crimes. I support the military justice system, and I do not think the amendment would do anything to damage it. I think it would boost confidence in it.
The problem with the current system has been outlined. The conviction rate for rape is not satisfactory—I accept there are problems not just in the military system but in civilian life as well—and one of the key issues is investigation. The Minister said he was confident that the service police have the capacity to investigate such serious crimes. I would not want to criticise professional individuals, but, as with anything, the more specialism someone has and the more cases they deal with, the more expertise they get in gathering evidence and in supporting victims.
Clearly, the service police deal with a limited number of serious cases, so I would have thought that, when such alleged crimes are committed in the UK, it would be important to involve the local civilian police, who deal with serious sexual assaults, rapes, manslaughter and murder more often. Because of that experience not only in gathering evidence but in dealing with victims, they should have primacy. I am old enough to remember the Deepcut inquiry undertaken by Lord Justice Blake and know those cases in detail. I accept that is going back a number of years, but the clear problem there was the way in which evidence was not gathered—in some cases it was ignored or destroyed—and the assumption, without rigorous investigation, that suicide was the main cause of death in all cases.
The amendment is really about the system’s integrity and getting confidence for victims as well. As we saw in evidence from Forward Assist and retired Lieutenant Colonel Diane Allen, there is an issue in ensuring that, first, those who complain think they will be listened to as victims, and secondly, the armed forces’ hierarchical structure is not an impediment to the proper investigation of serious accusations. I can see the reason for courts martial dealing with cases in exceptional circumstances, as outlined in the 2006 Act, such as those that take place overseas and in this country, but I cannot see why routine cases in the UK are not dealt with by the civilian courts. I therefore support the amendment.
The Minister said it is a policy decision, but I am not sure. The intention was there, and I do not think much has changed in the past 15 years. What we need to do now is to ensure that, as was outlined in evidence we heard from the Victims’ Commissioner and other witnesses, the victim is at the centre of any system we put in place.
Carol Monaghan
I will say a few words in support of the amendment. The Defence Sub-Committee has been taking evidence on the experience of women in the armed forces. We know there are a whole range of issues specific to female personnel. When we are looking at serious crimes such as rape, so many different issues have to be considered —we need to consider consent and whether there is a proper reporting structure—and those who make complaints must have confidence in the system.
We have already discussed the membership of the court martial board. How can someone have confidence in a trial when those who are deciding the outcomes are likely to be male and of higher ranks, and not likely to have any understanding of the woman or the victim’s experience? In other words, they will not have anything in common with the person who is bringing forward the complaint.
Mr Jones
I rise to support the amendments and to say to the Minister that he has read his civil service brief well—if he could do it a bit more slowly, we might be able to follow it. I do not think he addressed any of the points in the amendments. Again, like a lot of things that the Government do, the spin and presentation is very different from what will actually be put into practice. We should not be surprised by that, because we have a Prime Minister who is an expert at saying one thing and doing another.
The Bill would put the covenant into law, but there is very limited movement on that, with an emphasis on local authorities and the local level. I accept that the delivery of services is done at local or regional level, but we have to recognise that a lot of the policy areas are influenced by national decisions.
The Minister might care to read the 2008 Command Paper entitled “The Nation’s Commitment: Cross-Government Support to our Armed Forces, their Families and Veterans,” which was the origin of the covenant report and was launched by the then Minister for the Armed Forces, Bob Ainsworth. Its key point is to ensure that armed forces personnel, veterans and their families are not disadvantaged because of their service to the nation. I implemented it, and we had armed forces champions across main Government Departments. The main emphasis was to try to hardwire support for the armed forces community, including veterans, serving personnel and their families, into policy making. By excluding Whitehall Departments, the Bill will make it very difficult, even with the best will in the world, to ensure that some Departments have due regard to those things when they consider policies. If it is good enough for local authorities and local health boards, it should be good enough for the national Departments.
The scope of the Bill needs extending if the covenant is to have teeth in practice. As my hon. Friend the Member for Portsmouth South has mentioned, that move would be supported by the Royal British Legion and the British Armed Forces Federation, because a lot of the issues that affect members of the armed forces are completely outside the scope of local authorities, the devolved Administrations and others. One issue that has been raised—I know a later amendment addresses this—is around foreign and Commonwealth soldiers. That is a Home Office policy in which due regard has clearly not been given to those brave servicemen and women who have loyally served this country, and who will be disadvantaged, because of their service, in getting leave to remain. I do not understand the idea that the main Government Departments should not be covered.
The Minister says that those Departments are scrutinised by Parliament and various Select Committees, and so on, but if we had “due regard” in law it would mean that when policy was being determined within Departments, they would have to have due regard to the effect on service personnel, their families and veterans. That would have a strengthening effect, which was certainly what was intended when the idea was launched in 2008. An opportunity is being missed to ensure that the main Departments will be covered by the legislation.
Another issue that has been raised is something that lets off the MOD. The Minister says that most of the areas in question concern things that are delivered locally by local authorities, but one of the biggest complaints that the service family federations have raised is armed forces housing. There are examples of local provision not being fit, so that it would not be accepted if was provided in the public sector. There are areas that fall within the remit of the MOD that are not covered by “due regard”, and so those things will continue.
An opportunity in the Bill is being missed and the publicity around it—that it will be a sea change—is not being lived up to. The onus is being put on local authorities and providers. I support that, but they are not the problem, to be honest. As with a lot of things in this country, the delivery of local services is often to be commended. The innovation in local authorities and the things we heard about in evidence from the devolved Administrations are light years ahead of what happens in Whitehall.
As to the importance of local delivery, I accept that it might be patchy and might vary, but that came out of the work of the MOD pilot on the welfare pathway, which I think worked very well. It was taken up by the coalition Government and renamed the armed forces covenant. There has been a willingness on the part of local authorities and local bodies to make change. However, if it is good enough for them, it should be good enough for Departments, and I have not yet heard a good reason why those responsibilities should not fall to central Departments as well.
I understand how Whitehall works, and that civil servants might not like that to be part of the checklist that they have to check off when they develop policies. However, it would certainly strengthen the position with respect to making sure that armed services personnel and their families, and veterans, are not disadvantaged, and that they are at least taken into consideration and given due regard when new policies are brought forward.
The Minister talks about the statutory guidance, and I thank him for the draft that we have been sent. We will perhaps talk about it later, but it will only be as good as the enforceability for veterans, service personnel and their families, so that they actually get redress when things go wrong.
As I have said, I think that this is an opportunity missed, and I cannot yet see a good reason why what I have suggested should not be covered. If the amendments were accepted, the Government could quite rightly say that the armed forces covenant had been put into law. Without them, there will be very limited scope for the armed forces covenant to have any legal backing at all. With that, I conclude my remarks.
Johnny Mercer
In answer to the Opposition’s veterans spokesperson, I can say that that option is being considered as well as judicial review, not instead of. But these options are being considered at the moment as we try to find a way forward. Clause 10 and schedule 3 are part of wider reforms to support service personnel through the complaints system and to increase efficiency and reduce delays within the service complaints process.
This clause will be complemented by a programme of other changes that do not require primary legislation. The Wigston review into inappropriate behaviours highlighted a lack of confidence in the current system. The previous service complaints ombudsman for the armed forces has also made an assessment in her annual reports that the service complaints system is not yet efficient, effective or fair. It is crucial that our service personnel feel confident that complaining will not adversely impact them. Therefore, complaints must be dealt with appropriately and in a timely fashion to build that trust further.
It is key then that legislative changes are implemented to ensure that the service complaints system is more efficient. Ensuring that complaints are resolved in an appropriate timescale is part of a wider package of reform to increase trust. Clause 10 changes the minimum time limit that can be set out in regulations for submitting an appeal against a first level decision or for making an application to the service complaints ombudsman to two weeks. I should point out that bringing the minimum time limit down to two weeks does not mean that all appeal applications will be limited to two weeks regardless of the circumstance. Where a serviceperson’s duties mean that this will not be appropriate, additional time will be provided.
Clause 10 also provides the ability to set out in regulations the grounds on which appeals can be brought, for example where correct process has not been followed or where new evidence has come to light which may have had a significant impact on the original decision. At present, an appeal can be brought against a decision body where the complainant does not agree with its decision for any reason, with no limits on what that reason can be. This legislation will ensure that an appeal can be brought only where there are procedural errors or where new evidence is provided.
Schedule 3 makes a consequential amendment to equality legislation to make sure that procedural requirements remain consistent with the changes in this clause. Service personnel will not be penalised by this clause and mechanisms will be in place to ensure that individuals requiring extra time to submit an appeal will be able to do so where appropriate. We must ensure that we modernise and reduce delay in the service complaints system, creating, where we can, a consistent experience across defence and following best practice from other parts of the public sector.
Mr Jones
The important thing to say is that everyone wants the complaints system to be efficient. It is in the interest of the complainant. It is in the interest of someone who is accused that they get a swift resolution. The evidence, as my hon. Friend the Member for Washington and Sunderland West highlighted, is that the delay does not help anyone. Part of it is due to not only the complexity of some of the cases but, in some cases, the inefficient way in which the armed services, particularly the Army, deal with them.
Mr Jones
I welcome this proposal, because I think it is a huge step forward in terms of having oversight of the service police. I support the idea of having a separate ombudsman or complaints procedure, rather than the current police complaints procedure. Obviously, it will be a learning curve for whoever is appointed and for the system.
I want to ask about the way in which it will be formed. Obviously, as the Minister has outlined, it will mirror some of the systems that are already in place for oversight of the civilian police force. It will be helpful in terms of understanding how service personnel can make complaints.
There are two aspects that I would like some clarification on. One is about how this is going to be communicated to service personnel. It will be a new departure, and an important point will be to ensure that service personnel know that this is open to them, in terms of making a complaint if they are dissatisfied with the way in which service personnel deal with a complaint or any other concerns they have regarding issues relating to their service.
I would also like some clarity about complaints from civilians. In many cases, civilian contractors are employed on Army bases, RAF stations and naval facilities. Many civilian personnel also live at armed forces facilities if they are married to or are in a relationship with members of the armed forces. This is about whether or not they will be able to make complaints as well. Clearly, there may be situations involving civilians who are dissatisfied with the way in which service police investigate something or the way they are tret. I would be interested to know what the remit is.
The other area relates to families of service personnel. I accept that much has changed since Lord Justice Blake’s report on Deepcut, but I spoke to the families of the four young people who tragically lost their lives, and one of the issues was their huge criticism of the way in which the service police conducted those investigations. Will there be an option for the families of service personnel, especially in cases where someone loses their life, to make a complaint to the new ombudsman if they are not satisfied?
Overall, I welcome this proposal. I think it is a movement in the right direction. I think it will not only help service personnel, but help drive up standards in terms of the way in which service police operate.
Johnny Mercer
I think that the questions you asked have been answered in the speaking note that I just went through.
Mr Jones
The issue around civilians, in terms of the jurisdiction and families being able to complain. I know you’re just reading the notes out, but it might be worthwhile just thinking, when you’re reading them, that some people might want to scrutinise this, rather than have to listen to you reading what the civil servants have told you.
Johnny Mercer
The reality is that that question around jurisdiction has been answered. I am happy to repeat the answer, but it has been answered already.
Johnny Mercer
Okay. Would the Clerks like to come in and confirm whether or not it has been answered?
Mr Jones
Chair, can I make a suggestion to help the Minister? If he does not know the answer to that question now, could he possibly write to Committee members to answer the points that I have raised? They are perfectly legitimate points. We are not hostile in any way; it is just that the Minister is clearly not on top of his brief.
Johnny Mercer
As ever, I am hugely appreciative of the advice from Mr Jones. I am more than happy to write another letter on any of these issues. I am more than happy for him to have a copy of everything I have said today, and if he still has questions, I would be more than happy to sit down with him and go through them.
Mr Jones
If he knew what he was talking about, it might help, Chair.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Power of commanding officer to award service detention: Royal Marines
Question proposed, That the clause stand part of the Bill.
The Chair
With this, it will be convenient to consider clauses 13 to 17 stand part, and that schedule 5 be the Fifth schedule to the Bill.
Johnny Mercer
I do not think that is a point of order; it is a personal opinion.
The Chair
Order.
Clause 18
Posthumous pardons in relation to certain abolished service offences
Question proposed, That the clause stand part of the Bill.
Johnny Mercer
Clause 19 confirms that a British overseas territory can rely on section 357 of the Armed Forces Act 2006 to apply the UK service justice system to a British overseas territory force even if the section does not extend to that territory. The clause is necessary as the UK Government and the Government of Gibraltar have been working on Gibraltar legislation, which would bring the Royal Gibraltar Regiment into the UK service justice system in reliance on section 357.
Johnny Mercer
I do not think that is rabbiting on. I think that is a very personal insult, Chair. Is there a point of order or an intervention, or shall I carry on?
Johnny Mercer
I will of course slow down my speaking to make sure my hon. Friend can clearly understand what I am saying.
Johnny Mercer
I am terribly sorry—my right hon. Friend, with emphasis on the friend.
The clause is necessary because the UK Government and the Government of Gibraltar have been working on Gibraltar legislation, which would bring the Royal Gibraltar Regiment into the UK service justice system in reliance on section 357. This is the first time that a British overseas territory has made use of section 357.
Unlike other British overseas territories, as a result of amendments made in 2011 and 2016, the Armed Forces Act 2006 no longer extends to Gibraltar. This clause therefore confirms that the Government of Gibraltar can make use of section 357 of the Armed Forces Act 2006 to apply the service justice system contained in the Act, with or without amendment, to the Royal Gibraltar Regiment.
Johnny Mercer
Is my right hon. Friend asking me to predict the future? Is he asking how many times they are going to use this power?
Johnny Mercer
The clause simply brings the Royal Gibraltar Regiment and the use of section 357 of the Armed Forces Act into line with our other overseas territories. It is simply about aligning what happened when the 2006 Act came in. The amendments that were made in 2011 and 2016 no longer extend to Gibraltar, because of changes in the overseas territory. We are simply realigning Gibraltar with the rest of the overseas territories at this time.
Johnny Mercer
I would be delighted to write to my right hon. Friend.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clauses 20 to 26 ordered to stand part of the Bill.
New Clause 1
Age of Recruitment
“(1) The Armed Forces Act 2006 is amended as follows.
(2) Section 328, subsection 2(c): leave out “without the consent of prescribed persons.”—(Carol Monaghan.)
This new clause would raise the age of recruitment into the Armed Forces to 18, in line with NATO allies and UN standards.
Brought up, and read the First time.
Mr Jones
I understand that there are individuals who wish to support a ban on those under 18 joining the Army. I know that that has been campaigned on for quite a while now. Those individuals draw an analogy between what the Army does and the situation of child soldiers around the world. I do not agree with that, and I must say I do not agree with the provisions of the new clause.
It is quite clear now that individuals under 18 cannot be sent into combat, which I totally support and think is right, but we must balance that against the opportunities that recruiting 16 to 17-year-olds gives those individuals. I suggest that anyone who wants to see the positive way individuals can and do improve their lives visits the Army Foundation College in Harrogate.
Many of those individuals, as the hon. Member for Glasgow North West highlighted, come from deprived communities; many have been failed by the education system, so credit to the Army particularly for the work it does at the Foundation College, giving people a second chance, which the education system has failed to do. On my visits there, what appalled me was the fact that the education system had failed individuals, but the Army had given them a second chance with raising basic numeracy and literacy skills. Individuals who would possibly not have had an opportunity to have a fulfilled career were able to do so through the work undertaken at the Army Foundation College.
The other issue raised is the duty of care for those individuals, but we have come a long way on the duty of care for under-18s. There was a huge problem with the way under-18s were supervised and looked after, especially those who joined the armed forces who came from care, for example. Mr Justice Blake’s reforms following Deepcut had a huge amount to do with that.
Martin Docherty-Hughes
We will disagree, I am sure, on the age of recruitment, but on new clause 2 on minimum service terms, does the right hon. Gentleman recognise that, if under-18s who are recruited at 16 remain within the armed forces, that minimum service should be included? While we may disagree on the recruitment age, should that minimum service not be included within their service period?
Mr Jones
I will come on to that—I was going to address that in the second part of my contribution.
There has been change in terms of the duty of care of individuals. Ofsted, for example, now inspects places such as the Army Foundation College, and the practices that the Army has in place to ensure that there is a duty of care around those young people set an example that many other institutions could follow. In terms of the opportunity it gives people, I would not want, by banning under-18s, to stop many young people getting the positive move forward in their lives and the opportunities that the Army gives them.
There are two issues on which I do agree with the hon. Member for Glasgow North West, relating to early service leavers. That is not just an issue for under-18s, but for those who join post 18. To be fair to the armed forces, they have done quite a lot on ensuring that early service leavers have support. That is an issue that I raised when I was in the Ministry of Defence, because some of those individuals end up in the social services network, homeless and so on.
The question is about when people leave, if they are under 18 and decide that the armed forces, or the Army in particular, are not for them. I stand to be corrected if I am wrong, but I think there is a package around those who have left care and joined the armed forces. Anything that can be done to improve their experience is the right thing to do.
I am not against new clause 2, but we need to look at what happens in practice. There are quite good reasons why people have to sign on for a certain period of time, because of the commitment. From my experience, however, there is a mechanism to enable most people who do not want to stay in the Army and other armed forces to leave. I do not think it is such an onerous straitjacket as has it been described by some individuals.
I understand where the hon. Member for Glasgow North West is coming from, and I accept that there is a difference of opinion, but overall, my experience is that service in the armed forces gives great opportunities to many young people who would not get them if we did not recruit under-18s. The important thing to say is that many people who join at that age go on to have very good and fulfilling careers in the armed forces, and they also gain life skills and technical skills that they use when they leave the Army and move into civilian life. That is why I do not support the new clauses.
Mr Holden
I agree with a lot of what the right hon. Gentleman has said. I have had constituency cases of young people who have really benefited from going to Harrogate at age 16, who are thoroughly enjoying and making the most of their time in the armed forces, and who have been joining up with our local regiment, the Rifles, as part of that. I urge hon. Members to think properly about the new clauses and the impact that they will have on some young people who have found a real path in the Army, with the extra training and support that it can provide both educationally and more broadly.
Armed Forces Bill
Lord Beamish ExcerptsMonday 8th February 2021
(5 years, 5 months ago)
Commons ChamberRead Full debate Armed Forces Act 2021 View all Armed Forces Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts
Johnny Mercer
I thank my right hon. Friend for his question, and it is a fair point. However, I would just say that we have had 18 months since that election, but this challenge has existed for 40 years—for 40 years—and our predecessors have not dealt with it. It is unrealistic to expect the Northern Ireland Office and the Prime Minister to have delivered on this by now, but they have made that commitment. I would slightly push back on this idea that the Northern Ireland Secretary is the roadblock, as my right hon. Friend has put to me before. That is not my experience, and I am engaged in this every day and I think on this matter every day. That is not fact; what is fact is that this is extremely difficult, but this Government will get it over the line. I am going to make progress now.
Johnny Mercer
No, I will not give way. I will make progress now.
The service justice system remains a fair and effective system, but no system, as we know, should remain static. The service justice system review underlined that we must do more to strengthen it so that our people and their families have confidence that they will receive fair treatment. That is why clauses 2 to 7, along with clause 11, implement important recommendations of the service justice system review. In the interests of time, I will focus today on only the most salient measures.
Clause 7 deals with the notion of concurrent jurisdiction. For offences committed by service personnel in the UK, justice can be delivered through the civilian criminal justice system or the service justice system. The service justice system review of 2020 found the system to be fair, robust and ECHR-compliant, but it also proposed that some of the most serious offences should not be prosecuted at court martial when they are committed by service personnel in the UK, except where the consent of the Attorney General is given. To be clear, the review was not saying that the service justice system should stop dealing with certain categories of cases that occur in the United Kingdom; it was saying that, when such cases come up, controls should be introduced if they are to be tried in the service justice system. Meanwhile, jurisdiction would remain to deal with such cases overseas.
The Government have considered this recommendation fully and carefully, but we have concluded that the concurrency of jurisdictions must remain. We are confident that the service justice system is capable of dealing with all offences, whatever their seriousness and wherever they occur, though there are important improvements that can and should be made to ensure the system is as resilient, robust and transparent as it possibly can be. However, we do agree that the current non-statutory protocols and guidance about jurisdiction must be clearer, so clause 7 of the Bill places a duty on the heads of the service and civilian prosecutors in England and Wales, Scotland and Northern Ireland to agree protocols regarding the exercise of concurrent jurisdiction. We believe that such decisions on jurisdiction are best left to the independent service justice and UK civilian prosecutors, using guidance agreed between them. The Bill ensures that civilian prosecutors will have the final say should a disagreement on jurisdiction between the prosecutors remain unresolved. I want to be clear: this is not about seeking to direct more cases into the service justice system and away from the civilian criminal justice system, or vice versa; it is about guaranteeing that both systems can handle all offending and are equally equipped to deliver justice for victims.
Moving on from clause 7, clause 11 is the first step in creating an independent body to oversee complaints against the service police. To support our world-class armed forces, we need a highly skilled and capable service police, and we are always looking for improvements. Once again, the service justice system review has provided several important recommendations. These include the creation of a defence serious crime capability, something we are pursuing separately since it does not require legislation, but it is the report’s proposal for an independent service police complaints system, modelled on the system in place for civilian police in England and Wales, that we will take further today.
The rules governing oversight of the civilian constabulary are set out in part 2 of the Police Reform Act 2002, which is overseen by the director general of the Independent Office for Police Conduct. We are, in essence, replicating that system, by establishing an independent service police complaints commissioner. They will have the power to investigate serious and sensitive matters involving the service police, including those relating to conduct, serious injury and death. They will also set the standards by which the service police should handle complaints. As in the case of civilian police, provision will be made to handle both whistleblowing and super-complaints—those issues raised by designated organisations on behalf of the public about harmful patterns or trends in policing.
Johnny Mercer
We bring out a report every year that attempts to pull together everybody’s different experiences of the covenant. We are clear that we will not prescribe specific outcomes. We want local authorities to adhere to the principles of the armed forces covenant and, because of the way that local authorities deliver their services, to have a due regard in law to consider the covenant but not to prescribe outcomes. That is reflected in the covenant report, which gives us a good firm idea of how the covenant is going down in communities such as Barnsley.
In this clause, we tackle those problems head-on. We are placing a duty to have due regard to the covenant principles on public bodies responsible for the delivery of key functions in housing, education and healthcare. We have chosen those three areas because they are the bedrock of a stable and secure life. Unsurprisingly, they are also raised by members of the armed forces community as areas of greatest concern.
Johnny Mercer
Not at this time.
The legislation does not mandate specific delivery outcomes or advantageous treatment of the armed forces community, not least because it is important that relevant public bodies retain the flexibility required to tailor decisions on service delivery to local circumstances. But the Bill will legally oblige relevant public bodies to consider the principles of the covenant when carrying out specified functions in these three areas. To support its delivery, we are also making sure that public bodies are supported by statutory guidance explaining the principles of the covenant as well as, for example, how and why members of the armed forces may experience disadvantage as a result of their service. Some will say that we are going too far, others that we have not gone far enough, but my colleagues and I carefully weighed up a number of options before devising this response.
Critically, this is just the first step. This legislation will provide the Government with the power to widen the scope of the duty to apply to additional public bodies and include other functions should it be felt beneficial in future; in other words, we are turning the covenant into a minimum requirement—a tangible tool that our service personnel and veterans can use to hold their service providers to account, a tool that has the capacity to deliver today as well as evolve and adapt as society changes.
Johnny Mercer
Not at this time.
By cementing the covenant in the minds of the public, we are not lowering the ceiling but are raising the floor of our collective expectations. For example, my own constituency of Plymouth, Moor View has undertaken many good initiatives to support the local service community. I want others to view their efforts not as exceptional, but rather as a new normal, just as I want my constituents to see their successes merely as a springboard to better and bigger things.
In conclusion, I began by saying that an Armed Forces Bill is always an historic moment, but, by augmenting service justice, by improving our service police and by finally enshrining the covenant into law a decade on, we are cementing its standing further still. Our armed forces people are our nation’s first and last line of defence. We depend on them, but they also depend on us, and that is why it is incumbent not just on those of us in Government but on everyone in this House to work in partnership with our counterparts in the devolved Administrations to ensure that this nation does right by those who serve, so that decades from now our future personnel will look back on this period and say, “This was the moment”—the moment when our nation finally awoke and delivered on its promise to the incredible men and women who serve our country without question or quibble and defend this proud nation and act on the will of this House; the moment when incremental strategic and irreversible change was delivered in law for our service personnel and veterans and their families. I commend this Bill to the House.
John Healey (Wentworth and Dearne) (Lab)
I join the Minister in his tribute and thanks to the men and women of our armed forces—those deployed to standing commitments, from Cyprus to the Falklands; those serving as part of our NATO defences in Estonia or the UN peacekeeping in Mali; and of course those who are part of the largest ever peacetime deployment in this country, helping this country through the covid crisis. British forces are respected worldwide for their professionalism and for the values that we most admire: integrity, loyalty, discipline and service.
This Armed Forces Bill renews the legal basis for our armed forces and system of military law, and in turn also renews the nation’s commitment to our forces personnel through the covenant; and, with almost 70 speakers from all parts of the House, it is quite clear this afternoon that the House is determined, together, to do exactly that.
Labour supports this legislation. We share that aim, and we welcome the order that will follow this debate to extend the present Armed Forces Act from the end of May until the end of December, so that Parliament has the time to give the proper scrutiny to improving this Bill. As it stands, this Bill is a big missed opportunity—the opportunity to make good in full on the commitments in the armed forces covenant, so that Britain becomes the best country in the world to serve and to be a veteran; the opportunity to fix long-run problems for forces personnel, their families and veterans, which have become so clear over the last decade; and the opportunity to set a framework for the armed forces that is fit for the challenges and complex threats that Britain must face.
Let me make this point about the Armed Forces Bill, in particular to Government Members who are used to toeing the line on legislation. This Bill is different. This Bill is bipartisan and goes next to a Select Committee, not a Public Bill Committee. The Bill can be improved from all sides as it goes through Parliament. The Bill rests on the groundbreaking Armed Forces Act 2006, which consolidated half a century of service law. To stress the point, on Second Reading of that Bill, in 2005-06, a Government Back Bencher made a strong argument for a service complaints commissioner, which at first was knocked back by the Secretary of State, John Reid. However, by the time the Bill became an Act, the proposal from my right hon. Friend the Member for North Durham (Mr Jones) had been incorporated fully into the legislation. He will no doubt have fresh proposals for this Bill to put to this Secretary of State.
On clause 8, we stand fully behind the armed forces covenant and the aim to give it full legal force. In fact, in 2009 Labour in government consulted on introducing legally enforceable rights for the forces, their families and veterans, and our 2010 manifesto proposed to enshrine those rights in the armed forces charter. I am therefore pleased that the Secretary of State could say on publication of the Bill at the end of last month:
“For the first time ever we are putting into law the Armed Forces Covenant.”
The Secretary of State might just want to let David Cameron know that. In fact, he might be surprised to learn it, because he boasted in 2015 that he had already done so, saying:
“We are the first Government to put the military covenant properly into law”.—[Official Report, 4 November 2015; Vol. 601, c. 961.]
Mr Kevan Jones
I am sorry that the Minister did not want to take interventions. He said that the armed forces covenant is now 10 years old, but it is actually a lot older. It started in 2008 with the Command Paper under the last Labour Government, and the document he referred to, which came out in 2009, referred not only to putting the covenant into law but giving it teeth. The proposal in this Bill does not have teeth. Does my right hon. Friend agree that it is a bit strange that the weakened version that we have now has none of the proposals in the 2009 Green Paper? Let us also remember that this is the same Government who, in 2011, opposed the motion tabled by me and the hon. Member for Kettering (Mr Hollobone) to put the covenant into law.
John Healey
My right hon. Friend is right, of course. I want to stress, to the extent that I can, the cross-party, long-term and long-run support for many of these provisions. He is right that the covenant has its roots in the previous Labour Government—we called it a charter then, rather than a covenant—but over the past two decades, I believe we have made great strides in providing better services, support and opportunities for service personnel and veterans.
That is to the credit of Ministers who have made it their personal mission, of hon. Members on both sides who have championed the cause, of councils and local agencies that have delivered services to our veterans, and of service charities such as the Royal British Legion, Cobseo, the Confederation of Service Charities, the RAF Families Federation, SSAFA, the Armed Forces Charity and Help for Heroes, which have hugely improved Government policy, advanced public understanding and developed direct support for forces and veterans. Those charities welcome the Bill, as I do, but they are disappointed by the limitations of the legislation, as I am.
I must say to hon. Members that, if they read one background briefing for this Bill, they should make it the background briefing that the Royal British Legion has sent to us today. It rightly says that a decade’s experience of the covenant confirms that,
“the range of policy issues that have a significant impact on the Armed Forces community is wide and ever-changing: including health, housing, employment, pensions, compensation, social care, education, criminal justice and immigration”.
The Bill is too narrow. It covers only aspects of health, housing and education. The Bill creates a two-tier covenant. It applies only to local councils and local agencies, not to national Governments. The Government are letting themselves off the hook entirely when, as the Legion says, many of the areas in which forces personnel and veterans have problems are the responsibility of national Governments or are based on national guidance to delivery agencies.
John Healey
I welcome the hon. Gentleman’s interest in this. I think there is potential, as he indicates, for cross- party support for doing more than is currently in the Bill on the implementation of the covenant. The problem is not that it is prescriptive, but that it is prescriptively narrow at present, directed only at local councils and local agencies and not the responsibilities or services of national Government, and that it is too narrow, in that it mentions three areas when the lived experience of armed forces and veterans quite clearly raises problems on a wide range of other fronts. That is the lesson of the experience of the past decade and more—that is the challenge we must meet. This is a once-in-five-years piece of legislation and I want to ensure that we on the Opposition side play a part in helping Parliament to meet that challenge.
Mr Kevan Jones
I agree with my right hon. Friend, and I suggest that the hon. Member for Bracknell (James Sunderland) read the Green Paper of 2009, which actually set out some real teeth there, including setting out a clear charter of what was in the covenant; the ombudsman’s role, so that people could have redress; armed forces champions, as already mentioned by the Chair of the Select Committee; and a five-yearly review to coincide with the Armed Forces Act, so that the disadvantage could be looked at. Does my right hon. Friend agree that the Bill is letting Government Departments and the MOD off the hook?
John Healey
My right hon. Friend is right. He mentions teeth, and I will come to that in a moment. Members on both sides of the House and the Select Committee can help the Minister with his personal mission to do best by forces personnel and veterans. We can make this stronger and better than the missed opportunity that the provision in clause 8 represents. It is too narrow. It creates a two-tier covenant, and it is too weak. It offers no definition of what “have due regard to” the covenant means, and it offers no enforcement for members of the armed forces community who feel they have been let down.
That makes the statutory guidance that the Minister promised at oral questions last week essential before the Bill’s Select Committee scrutiny stage. When only one in 10 judicial reviews succeed and the cost of unsuccessful judicial reviews is upwards of £80,000, proposals for easy, accessible redress beyond a judicial review are also essential before the Select Committee stage. I trust that all Members on the Select Committee will want to pursue those shortcomings with the Minister. Let us not allow this golden opportunity to reinforce the covenant remain a missed opportunity, as it is in the Bill.
I turn to the service justice system and clauses 1 to 7. In the five years since the last Armed Forces Act, the Government have extensively reviewed the service justice system, with his honour Shaun Lyons reporting early last year, backed by a service policing review carried out by Professor Sir Jon Murphy. Many of the recommendations from those reviews are in the Bill. Lyons rightly said:
“Independent oversight is a critical factor in bringing transparency and building confidence in policing.”
We welcome the new Service Police Complaints Commissioner, modelled on the civilian police’s Independent Office for Police Conduct. We will want to ensure in the Select Committee that the Government get important details right on matters such as time limits for bringing complaints, protections for whistleblowers, scope to consider super-complaints and respective remits for the commissioner alongside the Service Complaints Ombudsman. We also welcome the expansion of the courts martial boards, with new rules on reaching qualified majority verdicts.
However, there are two big gaps. First, Ministers are missing the opportunity to improve confidence and results in cases of murder, manslaughter and rape committed by service personnel in the UK. As the Minister has conceded, Lyons recommended that those cases should be dealt with by the civilian justice system. He pointed out that the military courts secure convictions in only one in 10 cases of rape, while Crown Prosecution Service figures show that the civilian rate is around 50%. Such a move would restore the position that Parliament intended when the principle of concurrent jurisdiction was first introduced in the Armed Forces Act 2006. The Secretary of State has so far just said no but has offered no rationale for rejecting that recommendation, and the Minister this afternoon has again offered no justification for rejecting that recommendation.
Mr Kevan Jones (North Durham) (Lab)
I thank the members of our armed forces for the work that they do.
The Minister for Defence People and Veterans said in the Overseas Operations (Service Personnel and Veterans) Bill Committee that the Government would bring forward legislation in this Bill that would make it illegal to discriminate against servicemen and women and veterans; this Bill does nothing of the sort. It says that a limited number of public bodies, outlined by my right hon. Friend the Member for Wentworth and Dearne (John Healey), must have “due regard” to
“the principle that it is desirable to remove disadvantages”.
The way some people talk, we would think the covenant was invented 10 years ago. It was not: it originated in the 2008 Command Paper published by Bob Ainsworth when he was Minister of State for Defence. We then implemented measures on no disadvantage, and the welfare pathway, with pilots in Hampshire, Wigan and Kent, implemented things like the armed forces champions. I am pleased that the coalition Government took on board those things, which have then gone forward. We produced a Green Paper in 2009 to get those parts of the covenant into law, and it was sad that the Government opposed that in respect of the 2011 Bill. The proposals in this Bill are limited and we need to make sure we strengthen them in Committee.
The right hon. Member for Rayleigh and Wickford (Mr Francois) mentioned an important omission from the Bill: Northern Ireland veterans, about whom I feel very strongly, like the right hon. Gentleman. This is the Bill in which to put that injustice right, but it is not there. Promises have been made and they need to be kept. The Bill should have done that. No doubt veterans will be pleased that their great, great-grandfathers who committed buggery 200 years ago will be given a pardon, but then they will ask the question, “Well why aren’t we being looked at in this Bill?” I therefore urge the Government to bring forward a proposal in the Bill for that.
The other area is the whole issue of investigations, which came up in the Overseas Operations (Service Personnel and Veterans) Bill. Reinvestigations are clearly an issue in relation to Northern Ireland, as the right hon. Member for New Forest East (Dr Lewis) said. On 20 October, the Minister told the Public Bill Committee:
“We will see more stuff on investigations in the Armed Forces Bill.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 20 October 2020; c. 220.]
However, there is nothing in this Bill about investigations and it needs to be there.
The other issue we need address is pay, which my hon. Friend the Member for Barnsley Central (Dan Jarvis) raised, because the armed forces cannot go on strike and rely on the Armed Forces Pay Review Body to fight on their behalf. I was proud that the last Labour Government implemented that every year—this Government have not done that—but I would like to see that in the Bill.
There are many things in this Bill, around housing and other issues, that need to be improved. We need a co-operative approach, but I very much doubt that will happen, given the Minister’s attitude and approach to the Overseas Operations (Service Personnel and Veterans) Bill. I have served on, I think, every Armed Forces Bill for the last 20 years, and I am sure he will be delighted to know that I will also be on this Bill Committee, pressing on the points in the Bill that need to be improved. However, if he takes the same attitude as he did to the Overseas Operations (Service Personnel and Veterans) Public Bill Committee, we will not get very far. I urge the Secretary of State to take on board what my right hon. Friend for Wentworth and Dearne said: there are things in the Bill that can be improved to actually make sure that life for both servicemen and women, and veterans is improved.
Public Health
Lord Beamish Excerpts(5 years, 7 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Kevan Jones (North Durham) (Lab)
The Government’s response to the pandemic has been incompetent, shambolic, arrogant and, alas, corrupt. The centralised, top-down approach they have enacted would be the envy of any former Soviet bloc country during the cold war. Local directors of public health have been sidelined and ignored, making way for expensive management consultants and members of the Conservative party’s chumocracy. The £12 billion test and trace system has failed. The Prime Minister and Ministers keep trumpeting out figures saying that we have got more tests done, yet what is important is not the number of tests but what we do with them in terms of tracing people, and the rates for national test and tracing are below 60%, compared with local test and tracing rates of 90-odd per cent. Clearly, therefore, the system has failed.
The right hon. Member for Gainsborough (Sir Edward Leigh) asked what the solution is. Well, the right hon. Member for Haltemprice and Howden (Mr Davis) gave the answer: what we need is locally based strategies for test and tracing. We do not need mass lateral flow testing, because there is no evidence at all from the Liverpool experiment that that has worked and the logistical exercise of implementing that across all the required tier 3 areas would prove impossible.
On the vaccine, the Government have put the hon. Member for Stratford-on-Avon (Nadhim Zahawi), in charge; well, nothing can go wrong there then, can it? What has he actually done? He has threatened people who do not have the vaccine with not being able to go to pubs and offered a supermarket voucher for people who have it, instead of doing what my right hon. Friend the Member for Leeds Central (Hilary Benn) said, which is to make the argument and work with local government to deliver it.
My hon. Friend the Member for Chesterfield (Mr Perkins) is right: people have lost faith in the tier system. The Prime Minister and Ministers said that science would dictate the agenda, but it is not doing so; politics is. That is why London is in tier 2 and the north-east is going to be put in tier 3. So much for the levelling up agenda of this Government. The north-east is this country’s poorest region; the idea that jobs there mean less to this Government than jobs in London speaks for itself. That is why I cannot support these measures tonight and will be voting against them.
Felicity Buchan (Kensington) (Con)
After much soul searching, I will vote with the Government tonight, but it has been a difficult decision. I will vote with the Government for the following reasons. First, I have always advocated a regional approach as opposed to a national approach, and that is exactly what we are doing.
Secondly, the vaccine is close—it is not certain, but it is close—so we should not jeopardise all our gains when we will potentially have the vaccine within a few months.
Thirdly, clearly we are coming out of lockdown, so although my constituency will be in tier 2 and I have lobbied for it to be in tier 1, the restrictions will be less. However, I will continue to lobby for my constituency’s tier to be reviewed and for us to come out in a lesser tier. Once we roll out the vaccine to the elderly and the vulnerable, I will ask for restrictions to go, because we need to get life back to normal.
We need to be able to manage risks. We have been absolute about our only focus being coronavirus. Clearly, we do not want anyone to die or suffer from coronavirus, but we need to think about the implications of what we are doing for not only the economy but non-covid health issues. There are parameters within which we can do that analysis, such as quality of life indicators.
I wish to make one final point. I have heard various Opposition Members saying that London in some way got special treatment to be in tier 2. That is absolutely not the case. If Members look at the 26 November NHS—
Felicity Buchan
That is exactly what I am looking at. The graph shows tier 1 at the bottom left, tier 2 in the middle and tier 3 at the top right, and London is around about the middle, so please do not misrepresent what is going on. This is way too important to be political. These are people’s lives and livelihoods.
Covid-19: Winter Plan
Lord Beamish Excerpts(5 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Matt Hancock
I am delighted that outdoor sports are able to reopen. Like the Secretary of State for Digital, Culture, Media and Sport, I have had significant representations from people who want to exercise, which of course is good for their health, so I am glad that we have been able to do that.
When it comes to the geography of the application of the tiers, of course we have to look at the areas in which people live and travel. Where it is clear that there is a genuine difference that is not represented by administrative boundaries, we will look at it and make a decision on that basis, as we did previously. For instance, with the previous tiers, we even split a borough in two in one example. Nevertheless, we do have to look at where people live and travel to get these decisions right.
Mr Kevan Jones (North Durham) (Lab)
Thousands of jobs have been lost and will be lost in the pub and hospitality sector. At the beginning of the crisis, the Prime Minister said that Government action would follow the science. At a recent meeting, the national health director was clear that there was no science behind the 10 o’clock—soon to be 11 o’clock—curfew and said that it was a policy decision. If there is no science behind this decision, what are the reasons for it?
Matt Hancock
We have put in place an enormous amount of support for the hospitality sector and we understand the challenges posed by the measures that were brought in. The reason behind the restrictions on hospitality is that in order to protect people’s ability to go to work and, in particular, to protect education, it is important, sadly, to reduce the social contact on which the virus thrives. It is upsetting and frustrating, but it is true. It is clear from the evidence that later in the evening and late at night, social distancing declines, and we know that when social distancing declines, transmission increases.
Overseas Operations (Service Personnel and Veterans) Bill
Lord Beamish ExcerptsTuesday 3rd November 2020
(5 years, 8 months ago)
Commons ChamberRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 View all Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 3 November 2020 - (large print) - (3 Nov 2020)
Mr Kevan Jones (North Durham) (Lab)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dame Eleanor Laing)
With this it will be convenient to discuss the following:
New clause 2—Limitation of time for minor offences—
“No proceedings shall be brought against any person in relation to a relevant offence, where—
(a) the condition set out in subsection 3 of section 1 is satisfied,
(b) the offence is subject to summary conviction only, or is one in the commission of which no serious, permanent or lasting psychological or physical injury has been caused, and
(c) a period of six months has passed from the time the offence was committed or discovered.”
This new clause would dispose of minor allegations of misconduct by imposing a time limit similar to that which exists in relation to summary only matters in Magistrates’ Courts.
New clause 3—Access to justice for service personnel—
“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation comparing—
(a) access to justice for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, in relation to legal proceedings in connection with operations of the armed forces outside the British Islands, with
(b) access to justice for asylum seekers and prisoners seeking to bring an action against the Crown.”
New clause 4—Ability to conduct a fair trial—
“The principle referred to in section 1(1) is that a relevant prosecutor making a decision to which that section applies may determine that proceedings should be brought against the person for the offence, or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”
This new clause is intended to replace Clause 2 of the Bill. It replaces the presumption against prosecution with a requirement on a prosecutor deciding whether to bring or continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.
New clause 5—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.
New clause 6—Duty of care to service personnel—
“(1) The Secretary of State shall establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.
(2) The Secretary of State shall lay a copy of this standard before Parliament within six months of the date on which this Act receives Royal Assent.
(3) The Secretary of State shall thereafter in each calendar year—
(a) prepare a duty of care report; and
(b) lay a copy of the report before Parliament.
(4) The duty of care report is a report about the continuous process of review and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—
(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;
(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;
(c) judicial reviews and inquiries into allegations of misconduct by service personnel;
(d) in such other fields as the Secretary of State may determine.
(5) In preparing a duty of care report the Secretary of State must have regard to, and publish relevant data in relation to (in respect of overseas operations)—
(a) the adequacy of legal, welfare and mental health support services provided to service personnel who are accused of crimes;
(b) complaints made by service personnel and, or their legal representation when in the process of bringing or attempting to bring civil claims against the Ministry of Defence for negligence and personal injury;
(c) complaints made by service personnel and, or their legal representation when in the process of investigation or litigation for an accusation of misconduct;
(d) meeting national care standards and safeguarding to families of service personnel, where relevant.
(6) In section (1) “service personnel” means—
(a) members of the regular forces and the reserve forces;
(b) members of British Overseas Territory forces who are subject to service law;
(c) former members of any of Her Majesty‘s forces who are ordinarily resident in the United Kingdom; and
(d) where relevant, family members of any person meeting the definition within (a), (b) or (c).
(7) In subsection (1) “Duty of Care” means both the legal and moral obligation of the Ministry of Defence to ensure the well-being of service personnel.
(8) None of the provisions contained within this clause shall be used to alter the principle of Combat Immunity.”
This new clause will require the Ministry of Defence to identify a new duty of care to create a new standard for policy, services and training in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigations arising from overseas operations, and to report annually on their application of this standard.
New clause 7—Duty of care to service personnel—
“(1) This section applies where—
(a) a person has been acquitted of an offence relating to conduct on overseas operations; or
(b) a determination has been made that an investigation into an offence relating to such conduct should cease under section (Judicial oversight of investigations).
(2) No further investigation into the alleged conduct shall be commenced unless—
(a) compelling new evidence has become available; and
(b) an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong.”
This new clause would require a judge advocate of the armed services to determine if new evidence is sufficient to grant reinvestigation of armed forces personnel for alleged offences in which they have been acquitted or the original investigation was ceased.
Amendment 11, page 1, line 4, leave out clause 1.
Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.
Amendment 18, in clause 1, page 2, line 2, leave out “5” and insert “10”.
This amendment is one of two providing that the presumption against prosecution should apply after 10 years (instead of 5 years).
Amendment 19, in clause 1, page 2, line 4, leave out “5” and insert “10”.
This amendment is one of two providing that the presumption against prosecution should apply after 10 years (instead of 5 years).
Amendment 64, page 2, line 12, leave out clause 2.
This amendment, which would remove Clause 2 from the Bill, should be read together with NC4, which replaces the presumption against prosecution with a requirement on a prosecutor to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.
Amendment 13, page 2, line 18, leave out clause 3.
Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.
Amendment 24, 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)”.
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.
Amendment 21, in clause 3, page 2, leave out lines 23 to 29.
This amendment is one of two that together would delete the requirement for a prosecutor to give “particular weight” in a prosecution decision after 5 years to the adverse effect on a person of the conditions the person was exposed to during deployment.
Amendment 25, in clause 3, page 2, line 33, at end insert—
“(ba) the thoroughness, promptness and efficacy of any ongoing investigation into the alleged conduct or any relevant previous investigation, and the reasons for any delays in such investigations;”.
This amendment would ensure that the adequacy of any investigative process to date is given particular weight by a relevant prosecutor.
Amendment 26, 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 27, 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 28, 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 38, in clause 3, page 2, line 33, after subsection (2)(b), insert—
“(c) the quality and duration of relevant investigations.”
This amendment would require prosecutors to give weight to the quality and duration of relevant investigations when deciding whether to bring or continue proceedings against a person relating to alleged conduct during overseas operations.
Amendment 22, in clause 3, page 2, leave out lines 34 to 43.
This amendment is one of two that together would delete the requirement for a prosecutor to give “particular weight” in a prosecution decision after 5 years to the adverse effect on a person of the conditions the person was exposed to during deployment.
Amendment 14, page 3, line 1, leave out clause 4.
Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.
Amendment 15, page 3, line 15, leave out clause 5.
Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.
Amendment 31, 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 39, 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.”
This amendment requires the Attorney General to lay out their evidence and assessment as to why they granted or refused consent to prosecute.
Amendment 16, page 3, line 40, leave out clause 6.
Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.
Amendment 20, in clause 6, page 4, line 13, at end insert—
“(2A) An offence is not a “relevant offence” if it amounts to—
(a) torture, within the meaning of section 134 Criminal Justice Act 1988; or
(b) genocide, a crime against humanity or a war crime as defined in section 50 of the International Criminal Court Act 2001.”
This amendment provides that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide or torture.
Amendment 32, 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 17, page 4, line 27, leave out clause 7.
Part 1 of the Bill introduces restrictions on prosecution for certain offences, including a presumption against prosecution. This amendment is one of a series that would remove Part 1 from the Bill.
Amendment 33, page 6, line 4, leave out clause 8.
Amendment 34, page 6, line 15, leave out clause 9.
Amendment 35, page 6, line 26, leave out clause 10.
Amendment 23, page 6, line 38, leave out clause 11.
This clause would introduce a hard deadline for human rights claims and also includes detailed provision around the impact of proceedings on the mental health of Armed Forces witnesses. This amendment deletes this clause from the bill.
Amendment 60, in clause 11, page 7, line 23, at end insert—
“(c) the importance of the proceedings in securing the rights of the claimant.”
This amendment adds a further consideration to which UK courts must have particular regard when determining whether to disapply the standard HRA limitation period of one year so as to ensure that the claimant’s interest in having their claim proceed is not subordinated.
Amendment 46, 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 change 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 41, in clause 11, page 7, line 34, at end insert—
“(4A) The court may disapply the rule in subsection (1) (b) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for UK courts to allow a Human Rights Act claim arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 29, in clause 11, page 7, line 36, leave out
“first ought to have known”.
Amendment 47, 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 change 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 40, page 8, line 14, leave out clause 12.
Clause 12 would require the Secretary of State to consider making a derogation under Article 15(1) ECHR in respect of any significant overseas operations. This amendment would remove this requirement.
Amendment 37, in clause 12, page 8, line 20, at end, insert—
“(1A) No order may be made by the Secretary of State under section 14 following consideration under this section unless a draft of the order has been laid before, and approved by, each House of Parliament.”
This amendment would require significant derogations regarding overseas operations proposed by the Government from the European Convention on Human Rights to be approved by Parliament before being made.
Amendment 66, page 11, line 1, leave out schedule 1.
This amendment is consequential on Amendment 16.
Amendment 1, in schedule 1, page 12, line 6, at end insert—
“(13A) An offence under section 134 of the Criminal Justice Act 1988 (torture).”
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 2, in schedule 1, page 12, line 40, leave out “or” and insert—
“(b) a crime against humanity within article 7.1(f),
(c) a crime against humanity within article 7.1(i)
(d) a crime against humanity within article 7.1(k), or”.
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 3, in schedule 1, page 12, line 42, leave out “or” and insert—
“(ii) article 8.2(a)(ii) (which relates to international conflict),
(iii) article 8.2(b)(xxi) (which relates to international conflict), or”.
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 4, in schedule 1, page 13, line 2, at end insert “, or
(iv) article 8.2(c)(i) (which relates to armed conflicts not of an international character) insofar as it relates to the offences of cruel treatment and torture,
(v) article 8.2(c)(ii) (which relates to armed conflicts not of an international character).”
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 5, in schedule 1, page 13, line 14, leave out “or” and insert—
“(b) a crime against humanity within article 7.1(f),
(c) a crime against humanity within article 7.1(i),
(d) a crime against humanity within article 7.1(k), or”.
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 6, in schedule 1, page 13, line 16, leave out “or” and insert—
“(ii) article 8.2(a)(ii) ((which relates to international conflict),
(iii) article 8.2(b)(xxi) (which relates to international conflict), or”.
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 7, in schedule 1, page 13, line 18, at end insert—
“(iii) article 8.2(c)(i) (which relates to armed conflicts not of an international character) insofar as it relates to the offences of cruel treatment and torture,
(iv) article 8.2(c)(ii) (which relates to armed conflicts not of an international character).”
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 8, in schedule 1, page 14, line 8, leave out “or” and insert—
“(b) a crime against humanity within article 7.1(f),
(c) a crime against humanity within article 7.1(i),
(d) a crime against humanity within article 7.1(k), or”.
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 9, in schedule 1, page 14, line 10, leave out “or” and insert—
“(iii) article 8.2(a)(ii) ((which relates to international conflict),
(iv) article 8.2(b)(xxi) (which relates to international conflict), or”.
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 10, in schedule 1, page 14, line 12, at end insert—
“(iii) article 8.2(c)(i) (which relates to armed conflicts not of an international character) insofar as it relates to the offences of cruel treatment and torture, or
(iv) article 8.2(c)(ii) (which relates to armed conflicts not of an international character).”
This amendment is one of a series designed to ensure that the Bill’s “triple lock” provisions to block prosecutions would not apply to torture and related offences under UK law. This suite of amendments would ensure that the existing offences of torture – contained in the 1988 Criminal Justice Act and in other parts of UK law incorporating longstanding laws of war – would not be included within the Bill’s “triple lock” against prosecutions of UK soldiers.
Amendment 67, page 15, line 33, leave out schedule 2.
This amendment is consequential on Amendment 33.
Amendment 48, 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.
Amendment 30, in schedule 2, page 16, line 5, at end insert
“save for exceptional cases where the overriding interest of justice should be served.”
Amendment 42, in schedule 2, page 16, line 5, at end insert—
“(1ZAi) The court may disapply the rule in subsection (1ZA) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for personal injury arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 49, 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 50, 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 43, schedule 2, page 16, line 36, at end insert—
“(2Bi) The court may disapply the rules in subsections (2A) and (2B) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 61, in schedule 2, page 17, line 5, at end insert—
“(c) the court must also have particular regard to the importance of the proceedings in securing the rights of the claimant.”
This amendment adds a further consideration to which the courts of England and Wales must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not illegitimately subordinated.
Amendment 51, in schedule 2, page 17, leave out from 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 68, page 20, line 1, leave out schedule 3.
This amendment is consequential on Amendment 34.
Amendment 62, in schedule 3, page 20, line 32, at end insert—
“(c) the importance of the proceedings in securing the rights of the claimant.”
This amendment adds a further consideration to which the courts of Scotland must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not subordinated.
Amendment 52, 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 53, 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 54, 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 44, in schedule 3, page 21, line 9, at end insert—
“(7A) The court may disapply the rules in subsections (5) to (7) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for the courts of Scotland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 55, 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 69, page 23, line 38, leave out schedule 4.
This amendment is consequential on Amendment 35.
Amendment 56, 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 45, in schedule 4, page 24, line 5, at end insert—
“(1Ai) The court may disapply the rule in paragraph (1A) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”
This amendment introduces a discretion for the courts of Northern Ireland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 57, 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 58, 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 63, in schedule 4, page 25, line 5, at end insert—
“(c) the court must also have particular regard to the importance of the proceedings in securing the rights of the claimant.”
This amendment adds a further consideration to which the courts of Northern Ireland must have particular regard when determining whether to disapply the standard limitation period of three years so as to ensure that the claimant’s interest in having their civil claim proceed is not subordinated.
Amendment 59, 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.
Mr Jones
My hon. Friend says, “Please do,” but I am sure that other Members want to contribute to this debate.
Since speaking on Second Reading and in Committee, it has been my aim, and that of the Labour Front-Bench team, to try to improve the Bill. In my nearly 19 years in this House, I have been someone who is proud of our armed forces, considers myself a friend to them and wants to help them in any way I can. I stand up for them, and I speak passionately, I think, in defending not just them but the case for defence.
It has therefore been disappointing that the Government have not really engaged to amend the Bill. Yesterday, my right hon. Friend the Member for Wentworth and Dearne (John Healey) said to the Defence Secretary that he wished to work with the Government to try to improve the Bill today, and he got a single-word reply: “No.” We then had the reply from the Minister for Defence People and Veterans in response to a question on the Bill when he said that he would be
“happy to work with anybody to improve this Bill, but we must operate in the real world.”—[Official Report, 2 November 2020; Vol. 683, c. 13.]
The only problem with that is that it is the real world according to the Minister, and that world obviously has a different colour sky from the one that we all live in. The idea that, somehow, as long as he is saying it, it has to be true, even when his evidence is counter to that put forward by various witnesses in Committee, is telling. What was sad in Committee was that all the Minister did was read out his civil service brief to us in response to the various amendments. He was reluctant to accept any interventions, even from rottweilers such as my hon. Friends the Members for Blaydon (Liz Twist) and for South Shields (Mrs Lewell-Buck). When it comes to the Government Members on the Committee, I must congratulate the Whips Office on selecting so well, because those Members must have taken a collective vow of silence, which would have been admired by any silent ecclesiastical order. We had no contribution whatever from them, so it has been very difficult trying to engage with the Government on this Bill. The line is, clearly, that this is the answer, irrespective of what has been raised in Committee. We had some very good witnesses before us in Committee, but the Government are just not interested in changing the Bill, because the world and this Bill are perfect, according to the Minister and the Government.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I concur with much of what my right hon. Friend is saying. He has always been a champion of the armed forces, both in his time in Government and, indeed, during the course of this Bill. Does he share my surprise that even the Government witnesses were saying things that disagreed with the Government’s account of this Bill? Professor Richard Ekins said that the Bill certainly does not stop investigations. He said:
“In fact, if one were to make a criticism of the Bill, one might say that it places no obstacle on continuing investigations”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 35, Q63.]
Does he not find it surprising that even Government witnesses did not agree with the Government?
Mr Jones
Indeed. Time and again, supposed Government witnesses went against the Government. My hon. Friend raises a good point with the example that he has just provided.
The other thing that came out, which relates to my new clause, was about investigations. Investigations, or the problems that lead to these issues around investigations, were the thread that ran throughout the evidence. In spite of that, what we had at the weekend—this was a really dangerous move on the part of the Ministry of Defence—was tweets promoting this Bill from the MOD and saying that it would stop investigations. It will do nothing of the sort. As a former Defence Minister myself, using the MOD’s website and tweets to politicise things would not have been allowed in my day. What was put out is just not going to happen. Let us look at the evidence that we heard in Committee from a number of witnesses. The first one I will mention, again a Government witness, is Hilary Meredith, solicitor. She was very good and concentrated on the issue around investigations. She said:
“It is the procedure and investigation in the UK that need to be reviewed and overhauled, and not necessarily a time limit placed on…prosecutions.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 16, Q24.]
Ian Paisley (North Antrim) (DUP)
The right hon. Gentleman has a long track record of supporting the armed services here. Is he concerned by the expression of doubt that has been put by members of the Royal British Legion? They have put in writing to all Members of Parliament the fact that they believe that part 2 of this Bill should be improved and that the time limit really gravely concerns them.
Mr Jones
I am, and I will come onto part 2 in a minute. The hon. Gentleman has hit on an issue relating to the Government’s approach to this Bill. The Minister is saying that it is standing up for members of the armed forces. It is doing nothing of the sort. In part 2, it is actually taking away rights.
The Minister for Defence People and Veterans (Johnny Mercer)
Will the right hon. Gentleman give way?
Johnny Mercer
I just wish to intervene briefly. It is a litany of accusations and they are complete rubbish. Where have I ever said that I wanted to stop investigations in this Bill? That is what I would like the right hon. Gentleman to indicate to me.
Madam Deputy Speaker (Dame Eleanor Laing)
Order. That is a perfectly reasonable question, but, although it is not exactly unparliamentary language, perhaps the Minister, speaking as he does with dignity from the Front Bench, might use a different phrase than “complete rubbish”—just something a little bit different.
Mr Jones
It is better than he did in Committee when he called me a hypocrite, Madam Deputy Speaker, but if he listens to what I am saying, he will know that I am not saying that. I know that his attention span is not very good, and he does not tend to listen. What he tends to do is just stick to what he has in front of him and his view of the world, rather than hearing what people are saying. The issue is—[Interruption.] Well, he can say “brilliant” and chunter as much as he likes, but this is the issue—the delays that are taking place because of the investigations.
I have referred to Judge Blackett, and the Minister was there when the evidence was taken. Judge Blackett is a just-retired senior judge of the service justice system, and he said:
“The Bill is effectively looking at the wrong end of the telescope. It is looking at the prosecution end, and you have got to remember that you do not prosecute until you investigate—and you have got to investigate. This will not stop people being investigated and it will not stop people being re-investigated and investigated again. Lots of investigations do not go anywhere, but the people who are investigated do not see that.”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 120.]
That came up when we took evidence from Major Campbell. I will put it on record again that his case was a disgrace, because it took 17 years, but this Bill will do nothing to speed up such cases or to ensure that reinvestigations do not occur. That is the key problem. The problem is not the prosecutions, because their number is very small.
Dr Julian Lewis (New Forest East) (Ind)
I have put in three written questions about this Bill, and yesterday I had answers to them. Two of the answers were helpful, but one, on the point that the right hon. Gentleman is making, was not. I was trying to establish how many investigations had not resulted in prosecutions, and I could not seem to get an answer, yet that is central to the whole problem. The core of the problem is not the small number who get prosecuted but the large number who get investigated.
Mr Jones
The right hon. Gentleman is correct. That came out in evidence that we took throughout the Committee. The issue is not the number of prosecutions but the number of investigations and how we can speed up the length of time they take.
The problem is that the Ministry seems to have a deaf ear when it comes to recognising that we need to address the issue around investigations, which is what new clause 1 would do. It would ensure that we had judicial oversight of the investigations. We can see what we have at the moment from the example of Major Campbell’s case, which went on and on. New clause 1 states that after a certain period of time, the evidence should be put before a judge to see whether there was a case to answer. Clearly, if the evidence did not meet the test and the case was going nowhere, it would get thrown out there and then. Alternatively, it could be decided that the case needed further investigation, but at least that would ensure that, after six months, there was some judicial oversight of the investigation. That would be a way of ensuring that these investigations did not go on for a long time.
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
My right hon. Friend has always been a strong supporter of the armed forces. Does he agree that, while drafting the Bill, the Government, who claim to be champions of our armed forces, continued to ignore the impartial advice of the Royal British Legion, which has stated again and again that it breaches the armed forces covenant?
Mr Jones
But it really does not matter, because if my hon. Friend wants to see the attitude of the Minister to the Royal British Legion, he has only to read the evidence that came before the Committee.
New clause 2 would provide a way of ensuring that minor offences were dealt with speedily. As Judge Blackett said, this could be done in a magistrates court, where, after a period of time had passed, the cases could be looked at judicially and ticked off and dismissed on the basis that the there was no evidence to go forward. That would deal with a lot of the smaller issues. People ask why that is important, but if we look at the Iraq Historic Allegations Team—IHAT—and Northmoor, some of those cases involved assault and other things that in normal circumstances could be dealt with very quickly in a magistrates court. At least if we had a judge looking at them, he or she could make a decision as to whether or not those cases had any merit. It is amazing that the Government fail to recognise that the problem is not prosecutions but actually the investigatory process.
Then, halfway through the Bill Committee, the MOD announced it was coming forward with a review of investigations, to feed into next year’s Armed Forces Act, when the obvious place to have put that would have been in this Bill. The reason for doing that was given away by the Minister in the evidence session: this Bill has nothing to do with making sure of these matters. There is no reason why what I am suggesting and other issues around investigations could not be put in the Bill now and improve it, yet for reasons of tidiness the MOD wants to do it next year.
I have some sympathy with the MOD on that, because perhaps the best way to do this is in those five-yearly reviews of the Armed Forces Acts—and I think I have been on the Committee for every single one for the past nearly 20 years as either a Minister or Back Bencher. But the reason this Bill is before us has nothing to do with that; the Minister let the cat out of the bag in Committee when he said he had to get this through now, because one of his general election pledges was to do it within 100 days. I am sorry, but that is not a good way of bringing in legislation—just trying to press it forward irrespective of whether or not it is flawed.
Mr David Davis (Haltemprice and Howden) (Con)
I have a lot of sympathy with what the right hon. Gentleman is saying, but may I drag him away from his politics for a second? Would it not be very simple to incorporate the recommendation in a 1960s magistrates Act of a judge advocate general, as that would deal with exactly what he is talking about?
Mr Jones
It would. That and judicial oversight would improve the Bill tremendously. It would then actually do what it is supposed to do, which is stop reinvestigation and stop the worry that these individuals have, but it does not do that; that is the big hole in the Bill.
It is not as though the Minister has not had a chance to look at this. I have raised it with him—I tabled amendments in Committee, which he pushed aside, and we are going to go ahead with what we have now, which will be a flawed Bill. Once it has passed, it will lead to a situation whereby a lot of people think that as a result they have protections when, frankly, it will do nothing of the sort, because it will not stop investigations and reinvestigations. One of the worst things we can do in politics is promise people things and give them the impression that we have done something when actually we have not, because once the penny drops and they see it is not actually the case, they rightly feel very bitter.
As the right hon. Member for Haltemprice and Howden (Mr Davis) has just said, there is time to put this in the Bill. If Ministers are not going to do it in this place, they should do it in the other place, because it will improve the situation.
There is another dishonesty with this process. From, again, using the MOD website, which I do not think is appropriate for political reasons, we see there is a promise about Northern Ireland. The Minister is on record as saying that similar legislation will be brought in to cover historical cases in Northern Ireland. Well, I am sorry, but it will not do so if it is like this Bill; if it is like this Bill then, frankly, it will do nothing at all on investigations. If it is a mirror image of this Bill, all those people who think that somehow they are going to get protection will find that they do not, and that is just not fair.
Ian Paisley
I am sure the right hon. Gentleman will agree that the officers who served under Operation Banner have been completely jettisoned and abandoned. That is the bottom line, and that is the crying shame of this—and I do not trust anyone in the Northern Ireland Office to bring forward a Bill that will help those ex-servicemen in the years to come.
Mr Jones
The hon. Gentleman makes a clear point: do I feel it right that, frankly, people in their 70s or 80s and even younger are worried about this happening? No, I think that is appalling, frankly, because there is an evidence test: is it in the public interest for those individuals to be now dragged before the courts? No, it is not. Here we have another promise that will not be delivered. I must say he is right in terms of the Northern Ireland Office. I have looked at the matter in detail—I have met all parties in Northern Ireland, including Sinn Féin, along with the right hon. Member for New Forest East (Dr Lewis)—and I think that finding a mechanism is going to be virtually impossible.
Ian Paisley
I thank the right hon. Gentleman for his comments. The fact is this will end up in Northern Ireland Operation Banner officers being a trade-off between what the NIO finds politically helpful to buy off bartering with the Provisional IRA and Sinn Féin.
Mr Jones
I defer to the hon. Gentleman’s knowledge of Northern Ireland politics, but I will say that this will not be solved by the promise that has been made. That again is not the issue.
I turn to new clause 3. It relates to the point that was raised on part 2 and is covered by an amendment tabled by Members on the Labour Front Bench. The issue is the stripping away of rights from veterans. I find it absolutely astonishing that, in this week of remembrance, we have a Government who have introduced a Bill that will actually take rights away from veterans. The longstop of six years will mean that veterans—and families—will not have access to section 33 of the Limitation Act, which allows people to bring cases out of time.
In Committee there was a lot of discussion about how many people would be affected. The Royal British Legion was very clear in its opposition to part 2 because, as Charles Byrne said in response to the Minister:
“I think it is protecting the MOD, rather than the service personnel”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q163.]
He said that the Royal British Legion thought it did breach the armed forces covenant. I agree, because the 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…services”
and so on. I agree with that, but this strips away their rights under section 33, which means that if somebody brings forward a case after the six-year longstop, they cannot have recourse to section 33 of the Limitation Act, because the Bill will take those rights away. Those rights are open to every single Member in the House today, and to prisoners and asylum seekers—anybody who wants to bring a case.
The Minister said that 94% of cases were brought within the time limits anyway. That is irrelevant to me, because 6% clearly are not, and it is those 6% that will then possibly use the Limitation Act.
May I put this on record, as I did in Committee? Bringing forward a section 33 case is by no means easy. It pertains to a very small number of individuals who could not bring their case within the time limit because their circumstances were unique; and they have to go before a court and argue out the reasons. I have done it myself when I worked for a trade union on injury or disease cases that were out of time—although you would not take on such a case in the first instance if you thought you would not get anywhere. However, there are those important cases that you can take, and which do make a difference.
The case that was mentioned time and again in Committee was the Snatch Land Rover decision in 2016. The families took forward the case under the Human Rights Act, which I will come on to in a minute, on the basis that their loved ones had been killed and injured in Iraq because of negligence on behalf of the MOD.
Madam Deputy Speaker (Dame Eleanor Laing)
Order. Just for clarification, in the silent exchange that the right hon. Gentleman and I have just had, I was trying to indicate to him that it would be helpful to the House if he concluded his remarks quite soon. I know it seems that he has not been speaking for very long, but it has been 22 minutes. I appreciate that he has taken a lot of interventions and this is important. I am requiring not that he finishes now but that he takes into consideration that there are many points of view on this Bill and that there are many people who wish to speak and, although we have a long time, we do not have long enough for everyone to take more than 20 minutes. He has some serious points to make, and I trust he will make them as quickly as possible.
Miss Sarah Dines (Derbyshire Dales) (Con)
Could the right hon. Gentleman take a moment to reflect on what he said in his opening remarks, when he said there was near silence from Conservative Members in Committee? I was there, and I did not hear silence, but his contributions probably put us to sleep. With respect, could he think about it again for one moment?
On our side, we had valuable contributions from Members of Parliament who have served this great country of ours, like my hon. Friends the Members for Wrexham (Sarah Atherton) and for Wolverhampton South West (Stuart Anderson). They know what they are talking about. Would the right hon. Gentleman care to think again about saying they were silent?
Madam Deputy Speaker
Order. Let us get this straight. Interventions will also be brief this afternoon. We want interventions because there is a serious debate to be had. As I look around the Chamber, I see experienced parliamentarians and others who understand that this is a very important Bill, and much of it is very sensitive, so let us try to behave with sensitivity and consideration for others.
Madam Deputy Speaker
Order. I do not care how many interventions there were in Committee. This debate is not about Committee; it is about the important matters before us, and that is what we will stick to.
Mr Jones
Sorry, Madam Deputy Speaker, but I was being polite in replying to the hon. Member for Derbyshire Dales (Miss Dines).
The families took the case against the MOD on the basis that they did not know about the Snatch Land Rovers until the Chilcot inquiry reported. That was way past any time limit.
Jack Lopresti (Filton and Bradley Stoke) (Con)
Surely the right hon. Gentleman realises that the proposed six-year time limit applies from the point of knowledge or the point of diagnosis, so it is not clear what point he is trying to get across.
Mr Jones
He who waits it all comes to. I was going to answer that point in a minute.
The MOD argued two things in that case. First, it argued that the case was out of time, and the families won the limitation hearing to take the case forward. The hon. Member for Filton and Bradley Stoke (Jack Lopresti) has just said it would be within the six-year limit. No, it would not. Let us suppose they had taken the case not in 2016 but six years later. They would not be able to take a limitation hearing at all. The Minister does not quite understand that problem.
The case I raised in Committee was of an aircraft engineer who developed a very serious nerve condition from paint. The only reason he was able to take forward his case was because the technology had changed and research had shown that the paint actually damages people’s nervous system.
The Minister said in Committee that, somehow, he is on record in The Sun as guaranteeing that no one will lose out, but he cannot because that will not happen: as I said to him in Committee, using the Robin Day analogy, we are all here-today, gone-tomorrow politicians. Frankly, what will happen is that MOD lawyers will use this to stop people making claims.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Will my right hon. Friend give way?
Lloyd Russell-Moyle
My right hon. Friend does not have to if he does not want to.
Will the passing of the Bill mean that civilians working for the MOD down the road will end up having, in effect, more rights than Army service personnel who have served in operations overseas? Does that not bring us back to the fundamental issue of the breaking of the armed forces covenant, on which the Government really must think again?
Mr Jones
It does. The Bill’s provisions will also mean that prisoners will have more right to sue the MOJ, for example, than armed forces personnel. The Minister said in Committee, “That’s terrible because you’re comparing armed service personnel with veterans”; no, I am not. I am saying that if the Bill goes through, prisoners will have more rights than armed forces personnel. That cannot be right. The Minister mentioned the 6%; I am sorry, but if even one veteran loses their rights under this Bill, I am not prepared to support that.
My next point is about the Human Rights Act. I support the amendments tabled by my hon. Friend the Member for Barnsley Central (Dan Jarvis) and the right hon. Member for Haltemprice and Howden (Mr Davis), because it is about how this looks in terms of our international reputation. There is derogation in the Bill; I accept that there cannot be derogation for torture, but it can and will be used to stop claims by MOD personnel against the MOD itself. The Snatch Land Rover case was brought under the Human Rights Act. Some people have the idea that the Human Rights Act is there to protect nasty foreigners and people we do not like; no, it is not. It is there to protect us all, including armed forces personnel. I am sure that that derogation will be used again by the MOD to deny the rights of individuals to take cases.
People should look at the Smith judgment on that case. What were the Government arguing? They were arguing that combat immunity, which is covered and was reinforced by the Supreme Court judgment, applied in that case because it happened in Iraq. No, that was not the case; the case was actually about the design and the decision to procure those Land Rovers and put them into theatre. The derogation will clearly be used in such a way.
I wish to make one final point, about our standing in the world. I am a supporter of the service justice system—it works well and we should be proud of it—but the problem with the Bill is this: do I want to see British servicemen and women tried in the International Criminal Court? No, I do not. I want them to be tried by their peers in a court in this country. As the Judge Advocate General, Judge Blackett, said in Committee, under this Bill there is a danger that if we have a presumption against prosecution and the issue around torture, we will get a situation whereby individuals will be tried not here but elsewhere. That would be terrible, not just for those individuals but for this country’s international reputation.
Madam Deputy Speaker (Dame Eleanor Laing)
I had been hoping to manage this afternoon’s proceedings without a time limit, but I do not think that is going to work; therefore, I am now obliged, in order to try to get a fair and equitable debate, to start with a time limit of eight minutes, but that will be significantly reduced later in the debate. If hon. Members who have eight minutes choose in an honourable way to speak for less than eight minutes, that would be remarkable.
Mr Kevan Jones
I like the hon. Member, but he is talking complete nonsense. If he has read the Smith case, which went before the Supreme Court, he will know that combat immunity is completely covered under the Human Rights Act. It did not change that one iota, so what he suggests just will not happen. That case reiterated the point about combat immunity under the Human Rights Act.
Tom Tugendhat
I am sorry, but the right hon. Member is completely wrong. If he reads “The Fog of Law” written by—oh—me in 2013, a paper for Policy Exchange written alongside actual lawyers, rather than me, such as Richard Ekins, with a foreword written by Lord Moses of the Supreme Court, he will see exactly what I am talking about. If he reads “Clearing the Fog of Law”, which explains the situation, he will see clearly why this is a problem. This is absolutely an issue.
Joy Morrissey
It was indeed an honour to serve on the Committee, because I myself, although not serving in the military, had two brothers who were veterans, and I saw the way that war and conflict tore their lives and our family apart.
I have spoken to many veterans who have said that they were at the point of wanting to kill themselves—some attempted it—for the fear of being prosecuted through these kinds of claims. The Bill protects the men and women who have risked their lives and fought to keep us safe and free. It allows our brave servicemen and women to go overseas to fight and represent us, and then come back and safely carry on their lives. That is what the Bill was intended to do, and I believe that that is what it will do.
I appreciate the plethora of amendments presented by the right hon. Member for North Durham. I am grateful for his studious nature in making sure that we have covered every aspect of these clauses. As my right hon. Friend the Member for New Forest East (Dr Lewis) mentioned, the investigative system is out of control. The Bill goes some way towards mitigating that, and we could perhaps have gone even further. The issue of derogation, which was raised at the start, was not further discussed, but we could have done so with a greater level of debate.
Joy Morrissey
Not at the moment.
The issue of derogation before an overseas conflict or an overseas mission is started might go a long way in any claims made retrospectively after the mission and whatever conflict we have engaged in is completed.
Those are small things that we could have looked at in further detail, but I appreciate and support the Bill. I am grateful to all those who have contributed, and I hope that we will be able to do what we promised in our manifesto commitment, which is to take care of veterans.
Stewart Malcolm McDonald
Well, we will go through some of that evidence, shall we? We will go through some of the comments made by senior military, legal and political opinion that make it quite clear that what I have said is correct. I accept, of course, that there are differences of opinion within those fields, but it is the case, I am afraid to say to the hon. Gentleman and to the Minister chuntering at me from the sidelines, that senior military, legal and political opinion believes that the Bill is farcical in several respects. I will go through them in turn.
Mr Kevan Jones
We cannot get more distinguished than the Judge Advocate General, Judge Blackett, who was firmly of that opinion. The Minister did not perhaps listen, but the judge made his position about the Bill very clear.
Mr Kevan Jones
On a point of order, Madam Deputy Speaker. The Minister has just accused my right hon. Friend the Member for Wentworth and Dearne (John Healey) of being disingenuous. Is that actually parliamentary?
Madam Deputy Speaker (Dame Rosie Winterton)
I am sure the Minister meant “unintentionally disingenuous”.
Johnny Mercer
No, I am not giving way—I have suffered enough. The House has suffered enough at the hands of the hon. Gentleman. I have listened to all the points about the amendments, but I did not ,write them. I wrote the Bill and the Bill as it stands deals with the problem that we are trying to fix, and hon. Members fully know that. Imagine my surprise—the Al-Sweady inquiry has been picked out by Opposition Members, but they would not believe who was the Minister at the time of the Al-Sweady inquiry: the right hon. Member for North Durham (Mr Jones). If Members are really going to contribute honestly with a debate that they know the answers to, it has to be done with the sort of standards, values and ethos that we expect our people to adhere to.
Mr Kevan Jones
Actually, it was the Minister of State who was dealing with the Al-Sweady inquiry. As I told the Minister in Committee, it was not the Labour party that set up the IHAT committee or Northmoor—it was his Government—so he should not start lecturing people when Members on the Government Benches at the time were calling for investigations.
Johnny Mercer
I appreciate the intervention, but the fact is that when the Al-Sweady inquiry took place, the right hon. Gentleman was a Minister in the Department. The claimants in the Al-Sweady case were supported by Leigh Day. Leigh Day gave £18,000 to the Labour party. This stuff is quite transparent ,and it is all on the record.
Look, at some point, hon. Members have to make a decision as to whether they are just going to speak very warm words, feel very strongly and think that our armed forces are the best of us, or actually do something that will change their lives, improve their lives, protect them from this new pernicious nature of lawfare and vote with the Government to get things done. I commend the Bill to the House.
Mr Kevan Jones
My right hon. Friend the Member for Wentworth and Dearne (John Healey) and others have tried to improve this Bill. The Minister is just not listening. He throws cheap shots. I am sorry, but I stand up for members of our armed forces and veterans. I do not need to get paid £85,000 a year, as he did as a Back Bencher, to support veterans. I do it for nothing because I believe in them, so do not give us lectures about people who take money to support veterans for their own pockets, rather than just supporting our veterans.
The problem is that the Bill has gone through Committee and today’s debate and it is not going to be amended. The Minister is not listening at all. He said that actions are what matter. Yes, they do, because what we are going to have is a Bill passed here tonight that does not address the main issue, which is investigations, because the Minister will just not accept it. Part 2 means that veterans and members of the armed forces will have fewer rights than anybody in this House—fewer rights than prisoners—and he cannot say, in the lead-up to Remembrance Sunday, that taking fundamental rights away from members of our armed forces is right. But that is exactly what he is—
Mr Jones
No, I am not going to take an intervention. I am sorry; the Minister, both in Committee and tonight, is one thing if one thing only—consistent. He sits there, chunters from a sedentary position, never takes interventions, reads his civil service brief and will just not listen to anyone because he thinks he is right. I am sorry; he is wrong on this.
I will not press my new clauses and amendments to a vote, but I will end with this point. The Bill is flawed. It could have been improved in Committee and it could be improved here tonight. It will not be, because the Minister stubbornly refuses to accept it. He will then use the parliamentary majority in this House to ram it through. This Bill will do nothing to protect veterans. They will still be investigated. They will still be prosecuted, possibly before the International Criminal Court, and their basic rights, which we should all have under section 33 of the Limitation Act, will be taken away from them. That is shameful.
I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
Mr Wallace
No, I will not. It is a bit rich for them to come here today and condemn the legislation. On the other hand, it is we who have commissioned—
Mr Wallace
The hon. Gentleman has had plenty to say on the Bill; I will not give way. We do not have time to conclude these exchanges. On the other hand—[Interruption.] They can shout me down, but I will just continue to use up Third Reading time, and I will then listen to other speeches. I will not give way; I have made it clear to the hon. Gentleman.
Mr Jones
On a point of order, Madam Deputy Speaker. The Minister has now added mind-reading to his many skills. The Minister, who is actually a good friend of mine, has just made an accusation against me and has not given me the right to reply to it. It was his Government, in 2010, who set up IHAT and Northmoor, not the Labour Government.
Madam Deputy Speaker (Dame Rosie Winterton)
I do not want the point of order to become a subject of debate, but obviously—[Interruption.] Thank you; I can cope. Obviously, the Secretary of State has referred to the right hon. Gentleman, and he may feel it appropriate to give way.
Mr Kevan Jones
May I too thank the Bill Committee Clerks, who worked very hard? I congratulate the Minister for Defence People and Veterans on his excellent reading of his briefs in Committee and today.
This is sad, because the Bill is fatally flawed. It will take rights away from veterans, which cannot be right, and it will lead to our international reputation being at stake. It does not solve the problem, which is investigations. That could have been put right in the Bill, but unfortunately, the Minister is not prepared to listen. He says that he is prepared to work with people; the exact opposite has been the truth throughout the passage of the Bill.
As for the Secretary of State trying to blame all this on a wicked Labour Government, it was a Labour Government who met the armed forces pay review every year and ensured that defence expenditure kept pace with inflation. It was his Government who, in coalition, put IHAT and Northmoor in place in 2010. When these cases were going on when I was a Minister, it was Conservative Members who were asking why we were not investigating them more. There is selective memory on the Government Benches. We had an opportunity to get a good Bill that would address the issues and improve the situation for veterans, and that has been missed because of the arrogance of the Minister who has led it through the House.
Covid-19 Update
Lord Beamish Excerpts(5 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Prime Minister
We are rolling out testing of all NHS staff as fast as we possibly can, and we are all too aware of the risk of nosocomial infection of the kind that we saw last time. One of the things that we are doing this time is greatly expanding the use of novel mass testing devices such as the LAMP technology, with which I am sure my right hon. Friend is familiar, in NHS settings. As I told the House earlier, we want to get to a world in which we are testing these particularly vulnerable institutions—hospitals, care homes, schools and universities—with regular mass lateral flow testing of the kind that I have described.
Mr Kevan Jones (North Durham) (Lab)
Participation in sport is vital for our nation’s physical and mental health. The Prime Minister triumphantly announced at his press conference on Saturday night that the premier league would continue, but his announcement today means that local amateur football will not be able to continue. Golf clubs and gyms will be closed despite their valiant efforts to ensure that they are covid safe. Will the Prime Minister publish the scientific data behind this set of decisions?
The Prime Minister
I am happy to provide all the scientific data on which these decisions have been made, but I think that the House will appreciate that for any particular human activity, one can always find an arguable exemption from these measures—or from many of them. The difficulty is that to be consistent and have a package that works, we need a thoroughgoing series of measures of the kind that we have described. I bitterly regret that we have to curtail for 28 days football clubs and sporting activities in the way that we are—I bitterly, bitterly regret it—but I believe that that is necessary to get the R down.
Overseas Operations (Service Personnel and Veterans) Bill (Tenth sitting)
Lord Beamish ExcerptsThursday 22nd October 2020
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 View all Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 October 2020 - (22 Oct 2020)
Mr Kevan Jones (North Durham) (Lab)
Welcome back to the Chair, Mr Stringer.
My hon. Friend the Member for Islwyn spoke this morning about the duty to consider derogation from the European Convention on Human Rights. Clause 12 states:
“After section 14 of the Human Rights Act 1998 insert—
‘14A Duty to consider derogation regarding overseas operations”.
It then details ‘overseas operations’. I have a problem with that for many of the same reasons outlined by my hon. Friend. What do we derogate from, and for what reasons? The Human Rights Act 1998 gets a bad name in the sense that people start foaming at the mouth and think that it has something to do with Brussels and Brexit, but it is nothing of the sort. That is important to remember in view of the rights that it gives us and the signatories to it. The Act covers all 47 states that have signed the European Convention on Human Rights. As my hon. Friend said, this country has a proud history of acting as a champion of human rights under the convention, and was instrumental in the convention’s creation in 1950. It was championed by Winston Churchill, mainly as a result of the issues arising from the second world war. It is also important to note that the people who wrote it were members of the United Kingdom Government, and lawyers as well. That convention contains a fundamental part of British DNA—in fact it goes back to Magna Carta and the 1679 Habeas Corpus Act. We build up laws in this country over time, but the horrors of the second world war prompted us to enshrine basic rights for everyone. As I have said before, the Human Rights Act has been portrayed—as it has in terms of the Bill—as the means for nasty foreigners to be able to sue the Ministry of Defence. But the opposite is true: it is fundamental for members of our armed forces. I have already mentioned how it was used in the Smith case in connection with Snatch Land Rovers.
The Bill, as drafted, asks for derogations from the human rights convention. Such derogations are allowable, but subject to limitations, and an applicant must be clear about what they want. When people start chomping at the bit and foaming at mouth when we talk about the Human Rights Act and the human rights convention, I always say, “Just look at it and see what it does. Can you really disagree with it?” Unfortunately, some people do disagree with it, but article 2, which is the most quoted, relates to the right to life.
Chris Evans
In the past, the European Court of Human Rights has been judged as the most effective international human rights court in the world.
Mr Jones
It is, because it sets a standard that I do not think many British people could disagree with. Article 2 enshrines the right to life; I do not think that most people would disagree with that. Article 3 relates to freedom from torture, again I am not sure that anyone would disagree with that. People may say that that is self-evidently accepted these days, but not that long ago in Iraq, one of our closest allies, the United States, did commit acts of torture. I did not see any evidence that UK servicemen and women were involved in that when I was part of the rendition report produced by the Intelligence and Security Committee, but there were occasions when UK servicemen and women, and our intelligence agents, were present. Perhaps we all take it for granted that we should be against torture, but there were such cases in Iraq in living memory.
Article 4 relates to freedom from slavery. Again, a few years ago we may have thought about slavery in terms of historical cases and the transportation of slaves from Africa to America and the West Indies. But today, in all our constituencies, slavery is, sadly, alive and kicking, even in my constituency of North Durham, where we had a case of modern slavery about 12 months ago. It exists in modern society.
Article 7 relates to the right to a fair trial, and that comes to the heart of the Bill.
The Minister for Defence People and Veterans (Johnny Mercer)
The right hon. Gentleman has talked about articles 2, 3 and 4, and is about to discuss article 7. Is he aware that we cannot derogate from those articles, and nor would we seek to?
Mr Jones
I know. If he is patient, I have a full description of what we cannot derogate from. If he sits back and just enjoys it, he might learn something as well.
We have already discussed how the Bill is removing veterans and armed forces personnel from section 33 of the Limitation Act 1980, and I believe that that does not allow people access to a fair trial. But we would all agree that the right to a fair trial is a basic right. Article 8— Minister, do not worry, I am not going to read out the entire list of articles in the Human Rights Act, but I want to concentrate on those that may come within of the Bill’s remit and may be subject to derogation—relates to respect for family and private life. No one should disagree with article 9—freedom of thought, belief and religion. A normal society should have no problems with such a freedom.
The Minister intervened to point out that any derogations are subject to limitation. That leads on to the important question about why such a derogation is included in clause 12. It has always been accepted that the rights given to us under the Human Rights Act should be considered in law according to their hierarchy in the convention. In terms of the Bill and warfare, people have focused on the idea that somehow that Act and the convention on human rights stop a country like ours, or members of the armed forces, using lethal force.
To come to the issue that the Minister just raised, I should say that, yes, there are some absolutes that cannot be derogated from. For example, article 15(2) of the convention states:
“No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.”
That was upheld by the Supreme Court in the Smith case. It held steady—Hilary Meredith mentioned this point—in saying that lawful conduct cannot be questioned in terms of the use of the other ones, which the Minister referred to; this comes on to the rights that are absolute and cannot be impaired in any way. There is article 2, about the protection of the right to life, apart from the qualification that I have just given. Article 3 is about the prohibition of torture—something that the Bill could not derogate from.
I should say to the Minister that I disagree with some of my colleagues who said on Second Reading that the Bill gave carte blanche for torture. I simply said that, no, it does not, as would be clear if they read the Bill. Alas, these days many people hold forth in the Chamber without ever having read the relevant Bill—a bit of a disadvantage, I always think, if someone wants to make a useful contribution.
Article 4 is about the prohibition of slavery and forced labour. We cannot derogate from those issues. Article 7 is about punishment without law. One right that some might think we should be able to derogate from is in article 12—the right to marriage. We could not derogate from any of those rights. My issues with the Bill are not about the headlines that some have grabbed in saying that it gives carte blanche for torture. It does not, because of the limitations on derogations.
I then ask myself why the derogation that we are discussing is needed. All my hon. Friend the Member for Islwyn was trying to do—and I asked about this earlier—is establish what we can define about what derogations are actually needed, and why. Is this a way of trying to protect the MOD from civilian claims, as I was saying earlier?
Chris Evans
Article 15 of the European convention on human rights allows derogation in times of war. The last time this country asked for a derogation was in the wake of 9/11 and the rise of al-Qaeda; there was another time in the ’70s during the troubles in Northern Ireland. Does my right hon. Friend agree that derogation is so important? Even when it was granted in the wake of 9/11, this country had still had to argue the reasons for derogation.
Mr Jones
My hon. Friend obviously must be reading my mind; I was about to come to the Northern Ireland case, which is important in respect of the limitations of derogation and the controls around it. The other thing about when a state wants to derogate from the European convention on human rights is that it first has to inform the secretary-general of the Council of Europe, who should be given an explanation about why. Can the Minister tell us in what circumstances he sees this Bill being used, in terms of the derogation from human rights, particularly when it does not limit lawful combat actions in a conflict situation? The Bill also needs to give the reasons and measures, and how they will operate, and set out why it will not be withholding those rights. It comes back into the tier, as I said, where there are some that cannot be touched and others that can.
Chris Evans
I think my right hon. Friend is referring to the case of Lawless v. Ireland, where the European Court of Human Rights said that for it to be a state of emergency the entire population needs to be under threat for it to be possible to derogate from the convention on human rights. That underlines how significant it is to even ask for a derogation from the European Court of Human Rights.
Mr Kevan Jones
My hon. Friend is right on the second point, but that was not the first case I referred to. In the first case, legislation that the UK had put forward was challenged as a breach of the convention’s obligations. It is Brogan and others v. the United Kingdom. In that case, the judge ruled that the UK would only be able to apply for a derogation if it declared a state of emergency, pursuant to article 15.1 in the derogation clause of the convention. Under the Human Rights Act, there are good reasons why we are able to derogate, but, justifiably, they have to be damn good reasons. Those derogations were found to be unlawful, which allowed the respondents to claim compensation for unlawful imprisonment.
That demonstrates that these provisions are there for good reasons, but we should not use them loosely. I have not yet heard anything about why they are included in this Bill. Clearly, all the issues around warfare and people using lethal force on the battlefield are covered by the convention. That has been upheld by the Supreme Court.
Chris Evans
When a Government ask for derogation under article 15, the key words are “exceptional circumstances.” If, and only if, it is granted it is then limited and the Government have to justify that. That is the crux of the problem with the Bill and why we have introduced the amendment. The Bill seems to be going against the spirit of that article. Does my right hon. Friend agree?
Mr Jones
I do. I do not know why it is in the Bill, without an explanation about why one would want to use it. As my hon. Friend the Member for Islwyn said, there are perfectly good reasons why there are derogations in the Human Rights Act, for example in times of emergency. But for this area? I just do not see it, because as I say, lawful combat is covered. Torture and other things are proscribed anyway, so nobody can get derogations for those. For what other purpose would it be in the Bill? That is what I find very difficult to understand, and that is why I have a problem with some of this Bill.
The situation we are in is possibly due to the fact that the Human Rights Act 1998 has been portrayed by a lot of people as this horrible piece of socialist, human rights-hugging legislation brought in by a nasty Labour Government. It was not: all it did was incorporate the European convention on human rights into UK law. Previously, if claimants wanted to raise a case under the ECHR, they had to take that case to Strasbourg. Because of the Human Rights Act, those cases were able to be looked at in UK courts and decided by UK judges, which I think was a lot better than the previous scenario. It made it easier, but that is possibly why the focus and attention has been on human rights cases, or the uses of them.
The other thing about human rights cases, which gets into the mythology around those cases, is that the Human Rights Act is often quoted by lawyers and given as a reason why a case should go forward. It is often just struck out, because those lawyers are sometimes just flying a kite and seeing if they get anywhere, but it is quite a robust piece of legislation. It also gives us a lot of protections: it protects individual citizens, but more importantly, it protects individual servicemen and servicewomen when they are bringing cases against the MOD. That is the problem we have had with some of the optics around this, rather than what the facts themselves are. I have had these discussions with constituents, and when I tell them that the Human Rights Act has nothing to do with the EU and that it was actually Winston Churchill’s invention, they look at me agog.
The point is that, as my hon. Friend the Member for Islwyn said this morning, these are the standards that we apply when we are arguing the moral case, both in foreign policy and in anything else. These are the things we want people to follow, and if we are just loosely throwing derogations into this Bill, we are going to be quite rightly accused of not holding ourselves to the same high standards, or somehow trying to wriggle out of our basic commitments under the Human Rights Act, which is very difficult for me. As I say, I do not understand why this is in the Bill.
The other issue, which I have raised before and was also raised by Hilary Meredith, is the time limits under the Human Rights Act. There is a one-year limit on Human Rights Act cases, but what we are saying is that there should be a longstop, because they are covered by the Limitation Act 1980. We are arguing for a separation of that, in terms of the six-year longstop, and I think Hilary Meredith said in her evidence to us that it would be interesting to know how that fits with the EHCR and its incorporations. I am quite happy for the Minister to write to me on this topic, but he did say that the Bill complies with the Human Rights Act, and I would like to see the explanation from the lawyers about the implementation of the time limits, because I am not sure whether that is something we would have to run by the secretary-general of the Council of Europe. What we are saying, in effect, is that we are limiting someone’s access to human rights. That is the use of human rights legislation, so I think that is the important point.
The other issue is, as the Minister said, the growth in the areas for these cases. I admit that, in some of the Phil Shiner cases, the Human Rights Act was just flying a kite, basically. Those cases should have been knocked down very quickly, and it should have been said that they were nothing to do with the Human Rights Act.
The Defence Committee did a very good report—I think the Minister was on the Committee at the time—called “Who guards the guardians? MoD support for former and serving personnel”. It is worth reading—I have read it, and it is a good report. The main issue in it is investigations, which we have been talking about throughout this Committee. It is very critical of the £60 million spent on IHAT, for example. There was no mention of it being anything to do with the Human Rights Act. It outlines in detail the chaos when IHAT was set up in 2010 by—I reiterate yet again—the coalition Government.
I would like to know what the justification is for having this measure in the Bill. As my hon. Friend the Member for Islwyn said this morning, it potentially has huge implications for us.
Johnny Mercer
Clause 11 introduces new factors that the court must consider when deciding whether to allow human rights claims relating to overseas military operations to be brought in the normal time—[Hon. Members: “We are on clause 12!] I am sorry; I got carried away. Hon. Members are right—it is clause 12.
The measures in this Bill about derogation are not intended to change the existing and very robust processes that the Government and Parliament follow if and when a decision to derogate has been made. The requirement to consider derogation merely ensures that all future Governments are compelled to consider derogating from the ECHR for the purpose of the specific military operation. It is worth saying that the only change that we are bringing about in this Bill is the requirement to consider, rather than leaving it as an option. It is not actually a derogation; it is a requirement to consider a derogation and prove that it has been considered, not a derogation itself. That will ensure that operational effectiveness can be maintained by, for example, enabling detention where appropriate for imperative reasons of security. It is worth noting that the vast majority of the challenge that we face around lawfare has come from issues relating to detention.
Appropriate parliamentary oversight over derogation is already built into the Human Rights Act 1998. For the benefit of the Committee, I will spell out the existing obligations on the Government once they have made the decisions to derogate from any aspect of the European convention on human rights. The Human Rights Act requires that the Secretary of State must make an order designating any derogation by the UK from an article of the ECHR or a protocol thereof. The Secretary of State must also make an order amending schedule 3 of the Human Rights Act to reflect the designation order or any amendment to, replacement of or withdrawal of the designation order. A designation order ceases to have effect if a resolution approving the order is not passed by each House of Parliament 40 days after it is made, or five years from the date of the designation order, unless extended by order under section 16(2) of the Human Rights Act, or if it is withdrawn, or if it is amended or replaced.
Johnny Mercer
The practical difference is that instead of it being optional to consider derogation from the ECHR, it becomes mandatory for Governments to demonstrate why they have derogated from the ECHR. It is much like in the prosecution setting, where we talk about factors to consider. Previously, people have said, “Well, they consider those anyway.” All we are doing is making it mandatory to prove that they have been considered, in order to demonstrate that the correct process has been gone through.
Mr Jones
My hon. Friend the Member for South Shields is right. This will have no effect whatsoever. I suspect it has just been put in the Bill for a bit of window-dressing—to suggest that the Government are feeding red meat to those who want to be against the entire Human Rights Act. The Minister is feeding the bogeyman around the Human Rights Act.
Johnny Mercer
Of course it is not.
In addition to the requirements laid out in the Human Rights Act 1998, the Government must communicate a decision to derogate to the secretary-general of the Council of Europe, including details of measures taken and the reasons for taking those measures, and inform the secretary-general when derogations have ceased. Those existing measures provide for an appropriate level of parliamentary debate of a decision to derogate. Requiring a parliamentary debate on decisions to derogate ahead of time could undermine operational effectiveness.
Johnny Mercer
The Government may have to make decisions quickly, meaning there simply will not be time for a debate.
Johnny Mercer
Requiring a debate before an order is made may also result in discussion of operations that rely on an element of surprise. That would defeat the purpose of derogation in relation to overseas military operations, which should enhance operational effectiveness. I therefore strongly recommend that the amendment is withdrawn.
Chris Evans
I am not going to go on forever and I will withdraw the amendment.
Mr Jones
I thank my hon. Friend for giving way. It is interesting that the Minister has read his speech into the record like he used to, and his Whip told him to sit down. Can my hon. Friend think of an example that was so urgent for operational reasons that it would have to be rushed through on this basis? The Minister clearly did not want to give one.
Chris Evans
Does anyone else want to intervene now? I feel like a post box at the moment. With the amount of whys coming over my left shoulder, it was just like my four-year-old son asking me why all the time—I do not mean to offend my right hon. Friend the Member for North Durham.
I hope this matter is revisited on Report. I believe the derogation is very important and, as my right hon. Friend mentioned, article 15 is so important. It is usually in states of emergency that derogation is asked for. That means it needs to be scrutinised in both Houses. I will withdraw the amendment at this stage, but I hope that we will revisit the issue on Report, when the Bill comes back to the Floor of the House. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 ordered to stand part of the Bill.
Clause 13
Power to make consequential provision
Question proposed, That the clause stand part of the Bill.
Mr Jones
We are moving in the direction of a lot of things in this House being done by regulation. Here again:
“The Secretary of State or the Lord Chancellor may by regulations make provision that is consequential on any provision made by this Act.”
We have just had a discussion about the Human Rights Act, and I am less than convinced. The other issue—because, again, this is a contentious area—is the statutory instruments that will be used, and how the provisions will be amended. Once the Bill is passed, it will, I think, lead to a lot of problems, so I would just like to understand a bit more about how the powers will be used.
Johnny Mercer
I have little to add to what I previously said. The point of these provisions is simply to formalise our position and make sure that where we should have derogated previously to prevent the abuses that we have seen, and we have not, we simply bring forward legislation to make it mandatory to consider that derogation and prove the workings thereof.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14 ordered to stand part of the Bill.
Clause 15
Commencement and application
Question proposed, That the clause stand part of the Bill.
Mr Jones
Again, I want clarification about clause 15, because there is hype around the Bill somehow righting all past wrongs, and giving rights. Northern Ireland, which we spoke about this morning, is not covered by the Bill, but there is also the question of cases that are currently going on, or those that have been. I just want the Minister to give a response to the fact that the Bill will not apply to past cases relating to Iraq and Afghanistan, and there will not be any fast resolution. I want to get clear parameters from the Minister for which cases will fall within the Bill’s scope, because I think—there has been press comment on this—things have been a bit confused, perhaps intentionally and perhaps unintentionally.
Johnny Mercer
I am more than happy to answer that. If the Bill receives Royal Assent, it will apply immediately. It will not apply to any cases where an external, independent decision from the prosecutor on whether to prosecute is awaited, but it will apply from Royal Assent, and there is therefore an element of retrospection to it in that if further things come from Afghanistan, Iraq or wherever it may be, the Bill will apply and provide that certainty. We have been clear all along on the Northern Ireland issue. I have been clear that we will not leave Northern Ireland veterans behind. It was an important concession to achieve—that veterans who served in Northern Ireland will receive equal treatment to those who are covered by the Bill.
Johnny Mercer
The right hon. Gentleman can say no, but that is the reality of the position. The Northern Ireland Secretary has spoken before about how he intends to bring forward legislation before Christmas to do that, but it is an issue for the Northern Ireland Office, and I think the right hon. Gentleman knows that.
Mr Kevan Jones
I rise to speak to new clause 9, which is in my name. My hon. Friend the Member for Portsmouth South made an important point. We ask our servicemen and women to do dangerous, remarkable things on our behalf. Is there a straight read-across to an equivalent civilian job? No, I do not think there is, if we are talking about combat and some of the other things that we are asking people to do. We are asking two things: that they will ultimately have to take human life or give their own life in defence of this country and their comrades. That is a unique set of circumstances that many of us will never experience.
It is important, therefore, that we get it right and support our servicemen and women on two sides: where, because of their actions, they are accused of wrongdoing, or where, in the service of their country things are done to them through no fault of their own. They may contract a disease as a result of work conditions or the way a piece of equipment is designed. The problem with some of the Bill is that we are quite rightly focusing on the unique set of circumstances in foreign combat. There is also a whole swathe of areas where people are not in immediate danger but are capable of being injured while serving their country. That applies to a chef on a ship right through to somebody who is working in a maintenance depot.
If these service personnel were in civilian life, they would be allowed to join a trade union and to get independent legal redress. I think it was mentioned in the evidence session that the Dutch armed forces have a staff association or trade union. Although they do not have recognised trade unions in the United States, they have very strong regiment associations. The US Marine Corps has a very strong representative for its members and, having met the individual, very strong lobbying power on Capitol hill.
Chris Evans
When I was a young parliamentary researcher, a rather young hon. Member for North Durham raised this issue in a Westminster Hall debate in, I think, 2006—it might have been 2007. At the time, he was on the Back Benches and was yet to be appointed Minister for Veterans. What was stopping some form of staff association emerging? He argued for such an association in the Westminster Hall debate, but what sorts of obstacles did he encounter from military brass when he was in the Ministry of Defence?
Mr Jones
I am not in favour of a trade union for the armed forces—let me make that very clear—but there needs to be some type of representative body for members of our armed forces. The reasons argued against it were the same reasons that were argued when we brought in the service complaints commissioner and the ombudsman —that somehow it would affect the chain of command. Has the world stopped since we have had the ombudsman and the service complaints commissioner? No, it has not. It is not perfect, but the world has not stopped. I used to describe it as a pressure cooker: it allows another avenue for disputes or complaints to be dealt with in a timely way.
Reading the ombudsman’s annual report, I think she is making great progress, but there is a long way to go. A lot of the complaints that come forward are nothing to do with combat; they are to do with the way in which the Army handles its personnel issues—issues that, to be honest, would in some cases be very similar to what we would find in private industry.
I turn to the issue of representation. If we are going to have fairness, there has to be a level playing field. It surely must be right that there should be some way for members of the armed forces to have legal redress. I am not talking about minor disciplinary cases and things like that; I am talking about some of the serious cases that have been outlined. If you cannot sleep tonight, Mr Stringer, it is worth reading the Defence Committee’s 2016 report on this issue—I referred to it earlier—called “Who guards the guardians? MoD support for former and serving personnel.” The Minister was on the Committee at the time. The report was mainly about the issues around the IHAT inquiry. It did not only find, as we have already heard, the catastrophic delays that were happening, but it raised the issue of who represented the members of the armed forces who were being accused. As my hon. Friend the Member for Portsmouth South says, not only were they not represented, but they were actually encouraged in some ways not to take representation. I think even Major Campbell said in his evidence to us that he was more or less told, “Go away—it’ll be okay, everything will be all right.”, but it dragged on and on.
Chris Evans
Sorry. Maybe next time; that is the third mistake I have made today. As my right hon. and hon. Friends said, the crux of the Bill is not just about the law but the investigation. I believe from what the Minister has said that he has some sympathy for that as well.
The problem that we have with mental health, of course, is that we do not know what somebody’s background is when they join. Yes, they do psychometric testing and follow tests for reading and writing, and so on, but we do not know what was in their background. What was their family history? Might they have experienced personal distress or trauma in their childhood? That leads on to the problem that military investigations are often preceded by internal disciplinary acts.
What actually happens is that someone is faced with two pieces of law, especially if they have had a mental health problem. They have civilian law on the one hand and military law on the other, making things extremely complicated.
For example, investigations in military contexts are often more complex and involve additional investigative personnel, many of whom do not deal with investigations as their primary task. Therefore, we have all these multi- layered rules and regulations that are not in civil law.
Mr Jones
I agree with that. The Armed Forces Act 2006 tried to simplify the legal system, but the issue, again, is time delays. If we look at the ombudsman’s report each year, some of the simplest disciplinary issues should have been dealt with. That is not about investigations; it is about resources.
Chris Evans
As I said, the military are not employing full-time investigators. Many of the people who are investigating are doing other jobs as well.
It can get even more complicated. In cases of suspected disciplinary misconduct, the initial investigation is usually done by the immediate disciplining senior officer. That can then move on to the military supervisor, which makes it even more complicated again. In cases of suspected criminal acts, military police and probably legal advisers are called in as well. So we have large numbers of people who are not speaking to each other and who are getting confused about the rules, regulations and what is covered by what law. It is increasingly confusing.
Consider someone who already has problems with alcohol or drugs. I have some sympathy with what my right hon. Friend the Member for North Durham said earlier. When veterans are going through the criminal justice system—I am sure the Minister knows this—they often rely on the defence of post-traumatic stress disorder, but if we look at the facts, there is little research into how much it affects criminal behaviour. I am aware that 4% to 5% of the prison population—
Chris Evans
It was in 2016. The figure I have is 4% to 5%. If my right hon. Friend wants to correct me, I would be happy to take an intervention.
Chris Evans
That is the point I was getting to. Based on the Ministry of Justice figures that I have—the Minister may want to correct me—2,500 former members of the armed forces are in prison, largely because of sexual or violent crimes. However—again, my right hon. Friend might want to correct me, because I might be using out of date figures—0.1% were discharged from the armed forces, usually for mental health reasons. Are those figures that he recognises?
Mr Jones
The problem my hon. Friend underlines is the same problem I think the Minister will confirm we have today. Some people claim that 25% of the prison population is veterans, which is nonsense. The real problem—again, it was a problem when I was a Minister, and I am sure it still is today—is early service leavers. A lot of these people are early service leavers.
Chris Evans
Whatever the figures are, these people are still vulnerable to social exclusion and homelessness. I well remember a harrowing case from when I was growing up of a boy who joined the forces. He came straight out of care, and he did not do very well in the forces—he did not get above private. He had severe mental health problems. He came out and he could not operate outside of a stringent regime. He went to pieces and ended up in prison for committing a violent crime. It was very harrowing because I knew the family.
Mr Jones
Just because someone joins the armed forces, it does not mean that their mental health history is scrubbed at the recruitment door. My hon. Friend is right. A lot of things are put down to military service that are pre-military service. It is sometimes wrong to blame the service for some of those issues.
Chris Evans
My right hon. Friend is absolutely right. The person who was recruited in this case was clearly unsuitable for the forces. He did not take advantage of the fantastic opportunities that there are in the forces. He clearly had some sort of problem, and he needed to live in that regime where he was told what to do day in, day out. Once that left his life, his life went completely off the track. He said that he missed not just being told what to do but the camaraderie of his unit. Once that was gone, he felt friendless and alone.
However, the problem we have is that there is a dearth of academic research, and that is why we need a report. We do not know the unique factors that have an impact when it comes to military investigations, including the psychological wellbeing and the mental health of service personnel. I know that the Minister is a champion of this in the Government, and I am glad of that fact—I know that he will work on this issue for as long as he is a Minister—but that is the problem we have, and it is why we need a report. There are large numbers of factors that help personnel deal with the complexity of disciplinary and criminal proceedings and the potential of those two processes, but we do not know their effects.
Returning to the example from many years ago that I mentioned, there is also the point about camaraderie. When someone is under investigation, whether disciplinary or criminal, that has an effect on the morale of their unit, which in turn has a wider effect on their mental health. At the end of the day, many people who find themselves under investigation will say one thing: “I was simply following orders. Why am I the one being investigated?” Also, as my right hon. Friend the Member for North Durham alludes to, there are far more laws, regulations and rules in a military investigation. Some military laws have different objectives from criminal and civil laws: in contrast to the criminal law, military discipline has educational objectives, positive as well as negative.
I am not an expert on military law, but I would say that it is confusing. Take the example of a military guard guarding a checkpoint in Helmand 15 years ago, protecting the security of a region’s population. An approaching vehicle opens fire on them—imagine it is you, Mr Stringer. In this role, you as the guard are the victim: you have been fired on. However, you return fire, and you kill the alleged insurgents in the vehicle. That could mean you are investigated simply for following orders and returning fire. That is the crux of the problem: on one hand, somebody is the victim of a crime; on the other hand, they are the perpetrator of a crime, simply because they have followed orders. That is the type of thing I hope we can clear up in future.
Mr Jones
The hon. Member for Filton and Bradley Stoke makes a very good point, because these things are covered by the rules of engagement and the training that takes place. However, they are incredibly easy to look at and make a determination about while sat in a nice, comfy armchair away from the place where they occurred. These cases involve split-second decisions, and mistakes do happen. The important thing, surely, is that the investigation that comes afterwards should be done as rapidly as possible so that it takes the onus and pressure off the potentially accused individual.
Chris Evans
My right hon. Friend is absolutely right: the investigation should be effective and efficient. As I said while building up the background to this issue, if we could cut the multi-layered process that people have to go through down into one simplified investigation, that issue would be resolved pretty quickly.
Mr Jones
Would that not be achieved by including in this Bill the suggestions that I made in my new clauses—suggestions that are completely missing from the Bill—about making sure there is some judicial oversight of those investigations after a certain period of time? The individual my hon. Friend refers to would at least be able to have his or her case looked at judicially after a certain period of time, and if the investigation was going nowhere it could be dismissed.
Chris Evans
That is eminently sensible, and I hope that at some stage the Government will accept that and perhaps put it in the Bill. That is up to the Government, but I think that that is absolutely right. The problem is that these investigations seem to go on for ever and ever. For ex-service personnel or veterans, if there is no end in sight, that will affect their mental health. That is surely one resolution that could be written into the Bill.
I want to talk about learning disability. Obviously, if someone has a physical disability, they are disbarred from joining the armed forces, but we have to address the issue of mental disability. Someone can go through life without being diagnosed as dyslexic or autistic, or as having attention deficit hyperactivity disorder. There are many cases of people in their 40s and 50s being diagnosed with those conditions, which we do not know about. When someone is under investigation, how do we know that they do not have those types of disabilities? Usually, if someone is arrested under civilian law, they have a responsible person with them—a designated person. People do not have access to that in the military.
Mr Jones
My hon. Friend makes a very good point. When I was a Minister, the average reading age of some of the infantry when they were recruited was 11 years of age. All credit to the Army and the Darlington College at Catterick for doing a great job of getting people’s reading ages up,. The problem that was spotted, which had never been spotted before, was dyslexia. Individuals had gone through the education system without being diagnosed until they were in their late 20s.
Chris Evans
There is still a huge stigma in relation to illiteracy, as my right hon. Friend knows. A lot of issues in the prison population concern people with undiagnosed learning difficulties. There are higher than normal levels of illiteracy that we need to address. However, someone who has come through the basic tests to join the forces might be on the autistic spectrum but still able to function, and they need the help of a designated person as well.
I have written down something about a split decision. I do not know whether Members remember the case of Alexander Blackman, a Royal Marine who had his conviction for murder quashed on the grounds of diminished responsibility in 2016 after he had fatally wounded a Taliban prisoner. Blackman’s lawyers argued that he had an adjustment disorder at the time of the killing, because of months on the frontline in terrible conditions, and we can see how that would affect his mental health.
The whole issue of investigations comes down to one thing: training. Written evidence from David Lloyd Roberts and Dr Charlotte Harford stated:
“Regular and effective training for the armed forces on compliance with the law of armed conflict can reduce the risk of situations arising in which allegations of war crimes are levelled at British service personnel serving overseas. There is no need for military personnel to be given a comprehensive legal education. However, if knowledge of and consistent respect for the following ten principles, at least, can be instilled in all members of the armed forces, they should have little reason to fear prosecution…Torture is prohibited in all circumstances…Summary executions are prohibited…Those hors de combat may not be attacked…Only military objectives may be deliberately attacked…Civilians may not be deliberately attacked unless they are taking a direct part in hostilities…Buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law may not be deliberately attacked…Combatant adversaries may not be treacherously killed or wounded…The wounded and sick must be collected and cared for…Prisoners of war should be evacuated from the combat zone as soon as possible…The dead may not be despoiled or mutilated …Effective training on the law of armed conflict is likely to take the form not of the testing of theoretical knowledge, but of presenting members of the armed forces on a regular basis with hypothetical (but realistic) scenarios in which to practise thinking how military operations in a particular context might be conducted effectively in compliance with the above principles.”
I think that is eminently sensible, but if we are producing a report to Parliament, we can start building on the gaps in knowledge about mental health and its effect on service personnel. I look forward to the Minister responding on the basis of his knowledge. I am sure he will give us an interesting insight.
Johnny Mercer
Sorry. New clauses 3 and 4 would require the Defence Secretary to commission and publish an independent evaluation of access to legal advice and legal aid for service personnel and veterans in relation to the legal proceedings covered by the Bill. The MOD has a long-standing policy that, where a service person or veteran faces criminal allegations in relation to incidents arising from his or her duty, they may receive full public funding for legal support, as well as pastoral support for as long as they are serving. That was not the case when I first came here, and Bob Campbell indicated to us his experiences. The situation changed when I was running the inquiry into the Iraq Historic Allegations Team. Clearly, my views on that are well known, and they have not changed just because I have become a Minister.
Johnny Mercer
Yes. There is full pastoral support and full legal support, paid for by the MOD, for everybody swept up in these investigations. My right hon. Friend is absolutely right. It was not like that until about two years ago, so that is a very fair point to raise.
We do that because we should look after our armed forces, both on the battlefield, where they face the traditional risks of death or injury, and in the courts, where they face the risk of a conviction and a prison sentence. We therefore aim to provide legal aid case management and funding for those who are, or were at the time of an alleged incident, subject to service law.
Because of the risks our service personnel and veterans face, our legal support offer is now very thorough. For the benefit of the Committee, I will set out some if its provisions. The legal aid provided by the armed forces legal aid scheme provides publicly funded financial assistance in respect of some or all of the costs of legal representation for defendants and appellants who appeal against findings and/or a punishment following summary hearings at unit level. That includes applications for extensions of the appeal period by the summary appeal court, for leave to appeal out of time, or to have a case referred to the Director of Service Prosecutions for a decision on whether the charges will result in a prosecution. That includes offences under schedule 2 of the Armed Forces Act 2006, which are referred directly to the Director of Service Prosecutions by the service police, as well as matters referred to the Director of Service Prosecutions by the commanding officer. It also includes those who are to be tried in a court martial or the service civilian court; those who wish to appeal in the court martial against the finding and/or sentence after trial; and those who are entitled to be tried in a criminal court outside the UK.
The legal aid scheme applies equally to all members of the armed forces, including the reserve forces when they are subject to service law, as well as to civilians who are, or were at the time of an alleged incident, subject to service discipline.
Mr Jones
The Minister calls it a legal aid system, but does it mirror that system? Unfortunately, over the last few years the cutbacks in the legal aid system have made it difficult for many people who we—including myself, the Minister and you, Mr Stringer—would not think of as having access to a lot of resources, and they are finding that they have no recourse at all. Does it mirror the national legal aid system, or is it a bespoke system without the financial constraints?
Johnny Mercer
It is a bespoke system for military personnel. It is now used extensively by veterans in particular, who previously have not been supported. For example, Government legal services were provided in the al-Sweady inquiry. The challenges came when these investigations got to the case of, for example, Major Bob Campbell. They were not being funded at the time, but they are now. It is based on the same principles as the civilian criminal legal aid scheme. They are the same principles but it is bespoke for the military. It makes necessary adjustments to take into account the specific circumstances and needs of defendants and appellants in the service justice system. As a result, I am confident that we are already ensuring that service personnel veterans are now properly supported when they are affected by criminal legal proceedings.
Mr Jones
An issue I have always felt very passionate about is the representation of families at coroners’ inquiries. Does it also cover that? Many service men and women, and many families, felt daunted that they were up against legal representation, when they were there on their own in many cases.
Johnny Mercer
I am happy to write to the right hon. Gentleman on that subject. As I understand it, a coroner’s court is different. There is support for service personnel or for bereaved families in those cases. These are often not criminal proceedings so the requirement for legal aid is not there, but they are supported and I am happy to outline that in a letter.
I am now confident that service personnel and veterans are properly supported when they are affected by criminal legal proceedings. The armed forces legal aid scheme does not provide legal aid funding for civil proceedings, but we are content that the funding available for service personnel and veterans through the legal aid regimes in different parts of the UK is now sufficient. If a service person or veteran brings a claim against the MOD, we obviously cannot fund that claim as there would be a conflict of interest. We have heard from a number of law firms, as well as the Royal British Legion, that may be prepared to support those cases if they see merit in them. If veterans or service personnel need to access the legal aid scheme, they would be doing so on the same terms as a civilian would. However, in the first instance—before considering whether to bring a claim—I would encourage any service person or veteran to consider the armed forces compensation scheme, which the right hon. Member for Durham North mentioned. It provides compensation irrespective of fault across the full range of circumstances in which illness, injury or death may arise as a result of service, and it avoids the need for claimants to go to court.
Overseas Operations (Service Personnel and Veterans) Bill (Ninth sitting)
Lord Beamish ExcerptsThursday 22nd October 2020
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 View all Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 October 2020 - (22 Oct 2020)
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 93, in schedule 2, page 16, line 5, at end insert
“save for exceptional cases where the overriding interest of justice should be served.”.
Amendment 70, in schedule 2, page 16, line 36, at end insert—
“(2C) Subsections (2A) and (2B) shall not apply where it appears to the court this would be equitable having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”.
This amendment introduces a discretion for the courts of England and Wales to allow a civil claim for wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 71, in schedule 3, page 21, line 9, at end insert—
“(7A) The court may disapply the rules in subsections (5) to (7) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”.
This amendment introduces a discretion for the courts of Scotland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 72, in schedule 4, page 24, line 5, at end insert
“except where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”.
This amendment introduces a discretion for the courts of Northern Ireland to allow a civil claim for personal injury or wrongful death arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Amendment 68, in clause 11, page 7, line 34, at end insert—
“(4A) The court may disapply the rule in subsection (4) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—
(a) the nature of the injuries;
(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or
(c) any other reasons outside the control of the person bringing the claim.”.
This amendment introduces a discretion for UK courts to allow a HRA claim arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Mr Kevan Jones (North Durham) (Lab)
May I welcome you to the Chair, Mr Mundell? It is a pleasure to serve under your chairmanship again. I will talk about schedule 2 in general, but I will first refer to amendment 93, which stands in my name and which would amend the end of schedule 2 to say
“save for exceptional cases where the overriding interest of justice should be served.”
I will come back to schedule 2 in a minute.
We are again getting to the issue of justice for servicemen and women and veterans, in terms of the conditions they are bound by. I will come on to the Limitation Act 1980 in a minute, of which section 33 disregards the limits on the right of veterans and servicemen and women to make claims. We heard in the evidence sessions and during consideration of the Bill from my hon. Friend the Member for Portsmouth South and others about particular issues affected by this hard stop of six years. We talked about mental health and psychological conditions, but there are also physical conditions. Mental health is a complex area. The Minister tries to hide behind the date of knowledge, and mental illness is difficult to pin down. I would certainly say that the whole gamut of mental illness should be treated as exceptional cases.
Did the Labour party, when we were in Government, get it wrong on the armed forces compensation scheme? Yes, we did, even though it was a landmark scheme, in the sense that it brought in lump sum compensation for the very first time. I remember people at the time complaining about the levels of lump sum payments. We had a big debate about that in around 2008. However, it brought in lump sum payments for the very first time for those injured in service of their country. Going back to the Falklands war, for example, no such thing existed, so it was quite a landmark.
However, we clearly had not seen the challenge around mental illness. When I was a Minister, I asked Lord Boyce to undertake a review into the effects of service on mental health, so that we could potentially bring into the scope of that scheme people suffering from an array of mental illnesses. That was the right thing to do, and it was an attempt to future-proof the legislation.
Chris Evans (Islwyn) (Lab/Co-op)
I draw my right hon. Friend’s attention to the Armed Forces Act 2006, particularly the part where the Labour Government pardoned those who had been shot at dawn during world war one. For shell shock to emerge and be accepted took some 60 to 70 years. The Bill was an example of a Government saying that they had got something wrong and were willing to backdate it to ensure that justice was meted out to the families so that they would not think that their grandparents or ancestors were cowards, as they were deemed at the time. If we can do that in that situation, we can surely do it in this as well, as we learn more about the effects of post-traumatic stress disorder and of alcohol and drug abuse as well.
Mr Jones
I do not disagree with my hon. Friend, but the problem I always have with veterans’ mental health is the fixation on PTSD. I am not for one minute downgrading PTSD and the numbers of people that suffer from it, but it is one of a range of mental illnesses that might arise later in life. My hon. Friend referred to alcohol abuse, which is sometimes a form of self-medication. Is it automatically recognisable that a mental illness that might come in later life is a result of service? No, it is not. I agree with the Minister here. Most people leave service and have a perfectly good career that is life-enhancing for many servicemen and women. They end up in a variety of careers and have a good quality of life. Obviously, the failures end up as Members of Parliament, but that is neither here nor there. I have always said that military service overall is a good and positive thing for people’s life chances because it gives opportunities to people.
However, some individuals can be affected. Is it easy to determine what caused someone’s mental health problem? No, I do not think it is. That was recognised in the armed forces compensation scheme. I want to add exceptional circumstances because, by taking section 33 out, we stop recourse to civil law and the ability to claim against the MOD. As Mr Byrne from the Royal British Legion said, this is not about protecting servicemen and women and veterans; it is about protecting the MOD. I have heard the Minister’s arguments about the date of knowledge and this, that and the other, but, as I have said before, if we leave it to the solicitors or lawyers in the MOD, they will use this to strike out these cases, and that cannot be right.
We then come on to physical conditions. I mentioned the other day the issue of cold weather injuries, which can develop later. There are also musculoskeletal conditions that develop not at the time but as the body gets older. If the body has been through large amounts of stress earlier on, whether it is physical or mental, the condition can start later on. That leads to a situation where a lot of individuals will not necessarily think straight away, “It was due to my service”. That is why I have always strongly argued—we did it in 2010, but the coalition scrapped it—for the importance of having a flag on people’s medical records as they leave the service so that in future doctors can see that people had served and then link the two together. We provided for that in 2010, but an election was called and the coalition seemed to forget about it, but I thought it was important not only in terms of physical injuries but, very importantly, for mental health issues. If a physician, a doctor or a consultant can see that someone has served, that is a red flag and they can ask whether that has had an impact on that individual.
The six-year longstop will stop those individuals taking cases to court. I accept that legally it might be difficult to insert the words “exceptional cases”, because we then get into the issue of what is an exceptional case. To be honest, the easiest way of solving it is to retain section 33 of the Limitation Act 1980, because then at least a judge will be able to determine what an exceptional case is. I accept that there are problems with the amendment as it is written, but it goes to the core of the issue of ensuring that, while as few cases as possible are brought out of time, people have the ability to do that.
I am not sure I would leave it to the MOD to make the decision, because I think the kneejerk reaction would be to use the Limitation Act to strike the cases out. I accept that the amendment is not expertly written, but I am not so proud as to prevent somebody from stealing the idea and drawing it up so that, at least in exceptional circumstances, members of the armed forces would be able to take their cases forward for consideration to determine whether they should go beyond the six-year longstop, which limits them at the moment.
We also heard about issues relating to the Human Rights Act 1998. I asked the Minister to write to me to explain how a time limit or a longstop can be put on human rights cases. I do not know whether he has been able to do that yet—I accept that I only asked the other day—but it would be interesting to know that before Report. There is the one-year time limit, but they are covered by section 33 of the Limitations Act. Hilary Meredith said that she found it difficult to understand how it would be possible to have a limitation on the Human Rights Act because it is part of a convention. The Minister responded the other day that it had been cleared and that it was human rights law-compliant. It would be interesting to know what the legal advice is on that, and whether there are any other cases—although there is already a time limit of one year—in which the Limitation Act is not applied to individuals.
As we heard from the Association of Personal Injury Lawyers in the evidence session, that issue was crucial in the Snatch Land Rover case. A widow took a case against the MOD—it was not a civil case, but a Human Rights Act case, because a decision had been taken in relation to the right to life. Again, that was about not putting the Human Rights Act on the battlefield but trying to ensure that a decision was taken about Snatch Land Rover’s procurement and deployment. It was not about getting the Human Rights Act into the battlespace. I suggest that people read the Smith judgment, because the Supreme Court is very clear about combat immunity and about human rights not applying. People sometimes argue that this Bill is somehow about trying to stop human rights intervening with our right to defend ourselves, but they should read the Supreme Court judgment, because it is very clear that it does not apply there, but it does apply to that important case.
There were two issues in that case. The first was whether it was out of time. Quite clearly it was, because the incident took place in 2006 but the case was not brought until after Chilcot, which was 2015, so it was way out of time. The reason it was taken forward was that, in the first instance, although the MOD argued that it was out of time—I have no complaints that it did that—it was successfully argued that it was not. There were special circumstances that meant that it could not be brought within the time period, and it was allowed to go forward. I understand that the case was settled before it went to court, and the individual widow got a substantial payment. As I said the other day, it also focused, in policy terms, Ministry of Defence thinking about the decisions on the Snatch Land Rover. It gave closure to the widow and some compensation, though no amount of money can ever compensate for somebody’s loss, but it also made MOD policymakers say, “Wait a minute. In future, we’re going to have to actually think about this.”
Mr Jones
The Minister says he has seen no evidence, but he quotes the figure of 94% being brought in time. What is the number of cases that have been brought under the Limitation Act against the MOD? He says the limit gives certainty; well, it does give certainty to people—certainty that after those six years, they will not be able to take any claims at all.
Johnny Mercer
Many cases have been raised, I agree, such as Snatch Land Rover and the Royal Marines individual who has been mentioned a number of times. However, as I have outlined a number of times, none of those would be affected by this Bill, because the period starts from the point of knowledge. We have had this conversation before. I encourage people who feel that they could be disadvantaged to come forward, to speak to the Department or speak to me, but I have to operate in reality, not saying things that are not true. I include any non-service person who believes that they have a meritorious claim against the MOD, because fundamentally, we are not trying to stop legitimate claims.
Johnny Mercer
Of course. Part of this Bill is a huge education campaign to get people to understand what their rights are. While we have drawn the line at six years, we have a duty to make sure all the people who are in our employment and who served with us understand what the rules are and where the boundaries are, and at the same time are protected from the vexatious sort of claims we have seen over the years. I genuinely believe it is a fair line to be drawn, and I reiterate that lots of cases have been raised, but when we have looked into them, none would have been precluded under the Bill.
Mr Jones
The Minister is not answering my hon. Friend’s question. I accept that there are good reasons for time limits; I have no problems with time limits on civil litigation and other things. I asked him earlier about the number of cases that have fallen outside the limitation period that the MOD has defended. I do not for one minute question the Minister’s commitment, but remember that he and I will not be here when this comes into force. I tell him now that the MOD will use this as a way to stop claims.
Johnny Mercer
I accept the right hon. Gentleman’s point that there is a risk of any legislation being interpreted in different ways by different Administrations over a period of time. That is the reality of life in this place, but I cannot accept the repeated regurgitation of cases. We have looked into individual cases. When these cases are raised, I write them down and go back to the Department to look into them. They are not affected by this legislation. Members can sigh and so on, but I cannot do anything other than operate within what is actually going on, rather than deal with stuff that is not true.
Members will remember that in one of the evidence sessions for the Bill, the representative of the Association of Personal Injury Lawyers, Mr Al-Nahhas, told us that he frequently rejects clients who want to bring claims that are out of time. Although I would urge everyone to bring meritorious claims as soon as they can, I know that sometimes the courts allow claims to proceed after the primary limitation period has expired. The Bill will not stop that happening. The courts will still be able to extend the primary limitation period for up to six years, but we are stopping claims—often unmeritorious—being brought many years down the track.
The amendments would effectively give the courts the same discretion that they currently have to extend the primary limitation periods indefinitely, but they are contrary to the intent behind the Bill and would reduce the certainty that we want to give to service personnel and veterans. Before I recommend that the amendments be withdrawn, I would love to give way to the right hon. Gentleman again.
Mr Jones
The Minister has raised something that is very complex for the courts. He said that the period will be six years from the date of knowledge, and the courts will be able to give discretion within the six-year period. Is he not expecting—some people will—to take this to court, in terms of saying that it is unjust if a case falls outside the six years? This will end up with a lot more confusion than just keeping what is there at the moment: section 33 of the Limitation Act 1980.
Johnny Mercer
I completely disagree; it is the current situation that we has produced the chaos we are trying to bring order to with the Bill.
Johnny Mercer
The right hon. Gentleman can say it has not, but people such as Bob Campbell, to whom he has alluded a number of times, would strongly disagree. We are trying to bring certainty for our veterans and service personnel going forward. That has been a strong Government commitment from the start of this Government, and I support it. I therefore recommend that the amendments be withdrawn.
The Chair
Thank you, Mr Jones. You have saved me from saying that it was not a debate on the amendment.
Stephen Morgan
It is a pleasure to serve under your chairmanship again, Mr Mundell. I rise to speak to amendment 89, which stands in my name. During the proceedings so far, there has been much discussion in recognition of the role that mental health plays in the cases to which the Bill applies. Although the Opposition recognise the importance of the Bill in cases where the court is given discretion to disapply the time limits of three years, the court must also have particular regard for the likely impact of the action on the mental health of any witness or potential witness who is a member of Her Majesty’s armed forces. There is still more to be done here. There is an imbalance in the consideration of civil claims in the Bill. I will say it once again: where the Opposition see that the Bill can be improved, we will highlight it.
We have tabled the amendment to ensure that both witnesses’ and claimants’ interests have been secured. The Bill asks the courts to have
“particular regard to the likely impact of the action on the mental health of any witness or potential witness who is a member of Her Majesty’s forces”,
but we can do better. It is important to ensure that there is equality under the law and that the interests of the claimant are also considered. The intent of the amendments is to balance the considerations UK courts must have particular regard for in determining whether to disapply the standard Human Rights Act limitation period so as to ensure that the claimant’s interest in having their claim proceed is not illegitimately subordinated.
Over the last few days, we have received written evidence highlighting this very issue, including the submission from Rights and Security International, a charity which works to promote just and accountable security policy; it has over 25 years’ experience working in the field of human rights and national security policy in the UK. In its evidence submission, it said that it is concerned about the creation of a one-sided discretion to disapply the standard limitation period within the six-year mark.
“First, the proposed considerations have a discriminatory impact against the claimants. This is because they are illegitimately weighted in favour of the MOD operating solely to the detriment of claimants. They are overly focused on factors tending to preclude claims with no reference to the interests of the claimant in having his or her rights vindicated. This has the effect of creating a hierarchy of values and subordinating the claimant’s interest in bringing the claim”.
Secondly, RSI says that there is a requirement that the court give particular regard to the likely impact of the action on the mental health of the witness or potential witness who is a member of Her Majesty’s forces. They argue this is an inappropriate and disproportionate test because it is heavily weighted in favour of precluding claims from proceeding. This is because giving evidence is almost always stressful to any witness be they members of Her Majesty’s forces or not. It continues:
“It is disproportionate because there are many alternative ways to support vulnerable witnesses that do not have the effect of preventing access to justice for potential victims of human rights abuses, wrongful death or personal injury. Were the Government really serious about protecting members of Her Majesty’s Forces, ensuring the provision of such support services would be the focus of reforms to the law, rather than provisions which have the effect of protecting first and foremost the MOD.
Third, it is questioned whether it is really necessary that the court gives particular regard to the likely impact of the operational context on the ability of individuals to remember relevant events or actions fully or accurately. This is because it has been determined that effective legislation can still take place way after the event occurred. For example, the Malmo litigation proceeded over 50 years after the incident. The courts were still able to identify systematic rights abuses and systematic flaws on the part of the Bill relevant to the British colonial administration. This is evidence of the fallacy of the allegation that effective investigations can never take place well after the fact due to a loss of evidence or decreasing reliability of evidence over time”.
That is a lengthy quote, but I think it makes some very important points, which I will take in turn. Once again, we have heard that the Bill is not designed to protect our service personnel but to protect the Ministry of Defence. The legislation is heavily weighted against the ability of service personnel to proceed with civil claims. These are not my words or Labour’s; they are from a highly respected organisation that has covered the issues raised here for many years and is highly experienced in this area.
In light of this, will the Minister recognise the mistake that is being made here for the sake of our service personnel? Why is he so intent on rushing through the House a Bill that will disadvantage our troops? There is another theme here, which we have covered before—something that we have called into question before in other areas of the Bill: fairness and balance.
In its current form, this part of the Bill would create a serious imbalance of fairness within the equality of the law. If the Minister will not address these issues for the sake of our armed forces personnel, will he not do it for the sake of equality under the law, for which our country is so well respected and renowned?
We received further written evidence highlighting this problem of an unbalanced weighting. The Centre for Military Justice is a charity established to advise current and former members of the armed forces, or their bereaved families, who have suffered serious bullying, sexual harassment, sexual violence, racism, or other abuse or neglect. In its evidence, the charity outlined the need for the Bill to take into account the mental health of claimants, not just their witnesses. Specifically, the CMJ said that
“there are often very good reasons why some claims or parts of them need to be issued 6 years after date of knowledge or diagnosis; or where some of the damage would have been caused outside of the 6 year limitation period and some within it. If you are suffering from PTSD you may become aware that there is something seriously wrong within the limitation period, but it may be very hard for you to get help then or even for some time after.
Imagine if you are a veteran with undiagnosed PTSD—you are drinking heavily, or having a lot of personal problems (because of what you have been through)—you may know there is something wrong—you may even go to your GP—so that might be said to be your date of knowledge for limitation purposes—but you may not be able to take the next step of getting properly diagnosed and/or be able to get legal advice. Those are the kinds of cases that need to have the option of applying to the court to extend time and it makes no sense to add a hard ‘long stop’. If there are good reasons to extend time, the claimant should be allowed to try and persuade the court and the court should be allowed to apply the existing criteria.
Last year, The Times reported the case of Mark Bradshaw, 44, who suffered from post-traumatic stress disorder (PTSD) since he was involved in a friendly fire attack in 2010 while serving with the Royal Artillery. Despite the immediate onset of nightmares and hypervigilance, the veteran was not given a formal diagnosis until 2016. By then he was drinking heavily, had suicidal thoughts and had left the service and become alienated from his family. He was eventually awarded a settlement, but not without a fight, and he fears 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’. The Times reported him saying, ‘I got pushed to the GP. How many people sick with mental health won’t go to the GP?’”
That tragic case, which we have already heard about in Committee, shows that we need a proper and fair weighting of both witnesses and claimants. I hope this will make clear to the Minister the changes required in the Bill. In the light of the fact that his legislation is heavily weighted against the ability of service personnel to proceed with civil claims, will the Minister, for the sake of our service personnel, recognise the mistake that is being made here? Why is he so intent on rushing through this House a Bill that disadvantages our troops? If he will not change his mind for the sake of our armed forces personnel, will he not do so for the sake of the equality under law for which our country is so respected and renowned?
Mr Jones
Thank you—I will ask some questions about the schedules as outlined.
Schedule 3 references Scotland, and schedule 4 is about Northern Ireland. Mr Mundell, your great nation has always had a separate legal system, which in many ways is far superior to the one we have in England, given some of the common sense it contains. I would be interested to know from the Minister what representations were received from the Scottish Law Officers regarding the application of the Bill. It references overseas operations, but is clearly going to affect many servicemen and women, and Scotland is a good recruiting ground for those servicemen and women.
Johnny Mercer
Does the right hon. Member understand—I am sure he does—that he is fundamentally wrong to say that the Bill would not have had an impact in the Major Campbell case, which he keeps referring to? He talks about the investigations taking so long. Those investigations are driven by bringing civil or criminal claims. Bringing in the longstop would mean that the worst Major Campbell could have had was going through to 2009; he has repeatedly said that. Those are the facts of the matter, and it is important to bear that in mind going forward. The Campbell case is a very emotional case; however, we have to stick with the facts, and the facts are that this measure would have limited the experiences to 2009, as he has said, and as we have laid out on a number of occasions.
Mr Jones
I am sorry; I totally disagree with the Minister. He is wrong. It was not the claims that drove that case. As Hilary Meredith said in her evidence to the Committee, part of the problem was that the MOD started to pay out large amounts of compensation to individuals. I think I explained the reason why that was done at the time; it was partly to follow a little bit what the Americans were doing, and it was partly a cultural thing in Iraq—for example, if there was a car accident, a certain amount of money was paid and that was that. It even got to where we might call it brutal. I remember sitting once in Basra with a claims officer, dealing with claims. They were everything from a car accident, “My goat’s been shot” and “You’ve run over my dog” right up to, “You’ve ruined my crop landing a helicopter, or flying something into it.” They were paid out, and it even got to a point, which we might find quite cold, that somebody’s death was covered by making a payment—blood money, I think, is how the Americans referred to it. That might seem harsh and callous, but we did the same things, just with a legal process. That led to others.
The Minister and I totally agree about people like Phil Shiner. There is no defence there. However, in Campbell’s case, if an accusation had been made to the MOD, not from a civil case but because someone came forward to say, “This happened,” it was not, then, the claim that kicked it off—it was the accusation. I accept that Shiner, in some cases, was trying to put forward things that were false, or encouraging people—I think there were even cases where he paid people—but the Bill would not stop that case coming forward, because when an accusation is made to the MOD, it will have to investigate it.
That is the problem for the Minister. He has focused in, with something of a gut reaction, against people such as Phil Shiner, and I sympathise with him—I have lots of sympathy with him on that. I have no time for those things, but the MOD created part of the problem itself, in the compensation culture that it engendered. Then it made it worse—I know the Minister was trying to be party political the other day, but I am not going to be, shudder the thought—by setting up the IHAT investigation in 2010, under a Conservative Government. That just fuelled things.
I still plead with the Minister to do now in the Bill what Campbell’s case needed, though I accept his officials will say, “Minister, we must wait until next year’s armed forces Bill.” No, put it in now. If he includes issues to do with controls over investigations, he will have my 100% support, because that is what will drive down cases such as the Campbell one. It was completely unacceptable that that happened. Yes, political decisions were made about Iraq and Afghanistan about paying compensation. A Conservative Government set up IHAT, and, as happens with a lot of these things, it became like a licking lollipop, in terms of the way they keep growing. However, if the suggestions of the Judge Advocate General, Judge Blackett, about looking at investigations were put in the Bill, that would stop the Major Campbell cases. Just introducing a limitation period will not stop cases. They will still be investigated.
Let us be honest, it is a proud testament to the professionalism of our armed forces that, in the horrendous situations that they have been involved in over the past few years, in Iraq and Afghanistan, we have had small numbers of disciplinary cases. That is testament not only to their courage but to the system of discipline in our armed forces. We have a set of regulations, laws and training that ensure that people know what they are doing, and that they follow. As to the cases that have been brought, such as Marine A, that was not started by an ambulance-chasing lawyer. It happened because someone took a video of Marine A shooting a wounded Taliban fighter, which was clearly contrary to all his training. The Bill would not stop that. In that and other relevant cases—I am racking my brain to think of them—the investigations were complete within two years. That was quite quick, so I think it can work. It is about case management.
There is another point to be made about that. When the service man or woman gets to court, do they get a fair hearing? In that case, he did. My question is why on earth the legal representatives did not argue—quite rightly—at the first hearing that he had suffered mental trauma and other things. He was found guilty by a military court—not a civil court—of murder on the first count. But when it went to appeal, it was reduced to manslaughter, which was quite right, taking into account the circumstances in which the incident occurred, as well as credible evidence from mental health professionals about his mental state at that time. That does not excuse what he did, but it puts context around it.
That is why, as I said before, I am a supporter of the military justice system, because cases are dealt with by people who understand that system. Putting a time limit on cases will disadvantage members of the armed forces by taking them out of section 33 of the Limitation Act, and for what? For something that will not reduce the number of cases.
There is another point we could deal with very easily. I ask the Minister again, how many limitation cases have there been from civilians or anybody else? I suggest there would be very few, but that is not the point. The point is that servicemen and women have a right to go outside of that time if there are exceptional circumstances. Having taken limitation cases—not personally—I know that they are done only in exceptional circumstances, because the threshold is so high. That is why when the Minister said the personal injury lawyers said they sometimes advise clients not to take these cases on limitation, he is quite right. I have done that myself, because I know there is not a cat in hell’s chance of the court ever saying that the reasons are justifiable in terms of the Limitation Act.
The Limitation Act is there for a good reason. It is not—I think this is what the Minister has in mind—a green light for everybody to come out of the woodwork after a huge period of time and say, “Yes, I want to put my case.” It is not like that; it is very difficult. I support that, because there must be time limits for cases, for the reason the Minister gave—I agree with what my hon. Friend the Member for Portsmouth South said—which is that we have to try, if possible, to get cases done as speedily as we can. That is fair for the victim and fair for the accused. But this Bill will not do that.
The other thing that is said is that the Bill will stop investigations. It will not stop investigations at all, and they could go on a long time. As I said in a previous sitting, that must be horrible. We cannot imagine being accused of some of the horrendous crimes that Major Campbell was accused of and having that hanging over us for a long time. That is not fair to that individual.
Johnny Mercer
It has never been the Government’s stated position to stop investigations. I think the right hon. Member knows that. We cannot run a Department and refuse to investigate allegations that people bring forward.
Mr Jones
No, I am not suggesting for one minute that it is. I am suggesting to the Minister—this is what Judge Blackett came forward with—that we need a way of managing those investigations, to ensure that they are speedily done and that there is judicial oversight of the process, not oversight from the MOD or the chain of command, which could lead to accusations. I came forward with three suggestions of how to do that. Get rid of all the minor cases in the system. That is just good case management, and it also helps the individual who has been accused. If the judge thinks there is no evidence, they should throw the case out. That can be done in magistrates courts; why can we not do it in this system? That is a huge missing bit of the Bill.
To reiterate, I am not for one minute accusing the Minister or the MOD of turning a blind eye to serious allegations. If an allegation is made, it has to be investigated.
The issue is the way it is investigated and the time it takes to investigate it. The idea is that the time limit process will somehow reduce the number of claims. I do not think it will, because people will bring a claim within six years, it will have to be investigated, and someone will have to ensure that it is case-managed through the system.
Johnny Mercer
I have listened at length and for many hours to a lot of the points that have been made, and I fear we are beginning to reach a point where we are repeating ourselves to a large degree.
Johnny Mercer
Fantastic, fantastic. With any such legislation, I understand that there will be people with fears or concerns, and there will be an element of risk. I cannot honestly stand here and say that the Bill disadvantages troops or service personnel. I accept that there is a difference of opinion here, but I would not even think about introducing legislation that disadvantaged them.
Looked at in the round—and as I have said many times—this is a good, fair and proportionate Bill. I will defend it. I have already outlined that Government are creating new factors to ensure that the courts are directed to consider the uniquely challenging context of overseas military operations when deciding whether to extend the primary limitation periods for personal injury and death payments, and Human Rights Act claims. Amendments 88 to 91 are therefore unnecessary. They introduce a further factor to which the UK courts must have particular regard when determining whether to allow claims beyond the primary limitation periods of one year for Human Rights Act claims and three years for personal injury and death claims. Their stated intention is to ensure that the claimant’s interest in having their civil claim proceed is not subordinated to the additional factors being introduced by this Bill, but the courts already take into account the interests of the claimant in having their claim proceed when determining whether it is equitable to allow a case to proceed beyond the primary time limit.
For personal injury and death claims in England and Wales, section 33(1)(a) of the Limitation Act 1980 states that the courts should have regard to any prejudice that might be caused to the claimant if the case is not allowed to proceed beyond three years. Prejudice would include the impact on the claimant’s ability to secure their rights through legal proceedings. For personal injury and death claims in Northern Ireland, article 50(1)(a) of the Limitation (Northern Ireland) Order 1989 has the same provisions. For personal injury and death claims in Scotland, section 19A(1) of the Prescription and Limitation Act Scotland 1973 sets out the equitable tests in more general terms, but that still includes considering the interests of the claimant in securing their rights through legal proceedings.
For Human Rights Act claims, section 7(5)(b) sets out that the court may allow claims to be brought beyond the primary 12-month period if it considers it equitable to do so, having regard to all the circumstances, which would include considering the interests of the claimant in vindicating their human rights through legal proceedings. The factors introduced in clause 11 do not replace the tests set out in section 7(5)(b) of the Human Rights Act; they just outline considerations that reflect the unique context of overseas military operations.
Chris Evans
I beg to move amendment 57, in clause 12, page 8, line 20, at end insert—
“(1A) No order may be made by the Secretary of State under section 14 following consideration under this section unless a draft of the order has been laid before, and approved by, each House of Parliament.”.
This amendment would require significant derogations regarding overseas operations proposed by the Government from the European Convention on Human Rights to be approved by Parliament before being made.
Good afternoon, Mr Mundell. It is a pleasure to once again serve under your chairmanship as we head into the final straight of this Bill Committee. I rise to speak in support of amendment 57. I have concerns about multiple aspects of the Bill. This amendment is crucial to improving the Bill and safeguarding our reputation at home and abroad, and it can easily be implemented.
The amendment is simple. It asks that the Government seek approval from both Houses of Parliament before the Secretary of State for Defence approves any derogations from the European convention on human rights. I spoke in the last sitting about parliamentary scrutiny of the role that the Bill gives to the Attorney General, and I must once again raise the absolute importance of scrutiny. I remind the Government that the UK is not a presidential system—given what we see from the United States at the moment, amen to that. The Government draw their power from this House. This House must be consulted on matters as serious as derogating from our key international obligations. The Government are in danger of destroying our reputation as a country that upholds and defends international law. They should at the very least let Parliament act as a check on the worst urges that may come out this legislation.
The Bill would use article 15 of the European convention on human rights, the derogation clause. A guide from the Council of Europe says of article 15:
“It affords to Contracting States, in exceptional circumstances, the possibility of derogating, in a limited and supervised manner, from their obligations to secure certain rights and freedoms under the Convention.”
The words that stick out to me are “exceptional” and “limited”. If these cases are exceptional, there should be no problem with the Defence Minister seeking parliamentary approval on the very rare occasions when they deem derogation necessary.
Chris Evans
My right hon. Friend is absolutely right. Human rights are a political football that is being kicked around by everybody. If hon. Members want to see the importance of the Human Rights Act, they would do well to look at the debate that I introduced last week about the Uyghur Muslims in China, and at what they are going through. We have had human rights problems with China. On the issue that my right hon. Friend raises, of course human rights are vital when claims are brought against the Ministry of Defence, and that should be considered. We should not attack anybody’s right to defend their human rights in court, and we should not view human rights as something bad. They are fundamental rights that we all have as humans.
Parliament can then decide whether a derogation is limited. If we are going to derogate from international obligations, consent must come from Parliament. The Equality and Human Rights Commission said in written evidence:
“At the very least, we recommend support for amendment 57, which would require significant derogations regarding overseas operations proposed by the Government from the ECHR to be approved by Parliament before being made.”
As it points out, the amendment is the very least that we should be doing to ensure that the UK upholds its very proud record of human rights across the world. To set a legal norm for derogation from the European convention on human rights would seriously damage Britain’s international standing. It would send a signal that these international conventions and treaties are not taken seriously by our nation, and would have the knock-on effect of harming the integrity of our troops.
In its briefing on the Bill, Redress said:
“the Bill risks undermining the UK’s influence on human rights in the global context”.
Derogating from the international conventions on human rights will clearly diminish our integrity on these matters. The Government should be keen to mitigate that in any possible way. The Opposition believe that this amendment is a good start if the option to derogate must be written into the Bill at all.
Martha Spurrier, the director of Liberty, said in one of the evidence sessions:
“The concern, of course, is when you take a wider view and look at this Bill as a whole, which very much signals the desire to water down the human rights arrangements”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 76, Q149.]
Surely the Government want to do everything in their power to counter those views and assure the global community that this country still regards human rights as of the utmost importance.
I echo the words of my hon. Friend the Member for Barnsley Central (Dan Jarvis), who said on Second Reading:
“At a time when we are witnessing an erosion of human rights…it is more important than ever before that we uphold our values and standards and not undermine them.”—[Official Report, 23 September 2020; Vol. 680, c. 1109.]
In a similar vein, the Equalities and Human Rights Commission warned:
“At a time when the UK Government’s adherence to international law”
and the relationship with Northern Ireland
“is under increased scrutiny, it is imperative that the UK is seen to show the highest regard for the international legal order.”
To write in a system of derogating from European conventions regarding human rights would severely undermine us. This clause, unamended, will determine our international reputation, and therefore the reputation of the brave men and women who serve in our forces.
Amnesty has said that, as it stands, the Bill
“will do irreparable damage to the reputation of the armed forces of this country, undermine basic principles of access to justice and send a bad message internationally.”
The former director of service prosecutions, Bruce Houlder, has called the Bill an “international embarrassment”. David Greene, the vice-president of the Law Society, has added to the voices warning of our loss of international standing, saying that while
“Our armed forces are rightly known across the world for their courage and discipline”,
the provisions allowing for a derogation from human rights conventions and breaking international law
“would undermine this well-deserved reputation”.
Multiple people and organisations say that the Bill will damage our international standing. After all, how can we call on other countries to respect international treaties on human rights, or to honour international obligations, when we are setting a precedent in our legislation for derogating from them? How are service people supposed to carry out missions overseas with the integrity that the British forces have if they know that they might not always be held to international standards by their own Government?
If the Government insist on writing derogations from the European convention on human rights into the Bill, the legislation must be scrutinised at the highest level. It is that important. The Government cannot simply ignore international conventions without getting approval for doing so from both Houses, and ensuring that derogations are considered case by case and are deemed exceptional actions. That would signal to other countries that we still valued international conventions on human rights.
Mr Jones
Does my hon. Friend agree that the problem with the European convention on human rights is that people are confused about how it relates to the European Union? Clearly, there is a dog-whistle approach to anything with the word “Europe” in it. The convention has nothing at all to do with the European Union. It is actually something of which we should be proud. Winston Churchill and others pioneered it at the end of the second world war.
Chris Evans
Yes, my right hon. Friend is absolutely right. He gets to the nub of the issues that we are facing nationally. In the press, and even in some quarters of the House, it seems that putting the word “European” on anything makes it something to do with the European Union, and then we open up a can of worms about Brexit. As he says, the European convention on human rights has a proud history, involving such luminaries as Sir Winston Churchill, who was responsible for setting it up.
My right hon. Friend is absolutely right to say that we have to be careful about confusion. When the word “Europe” or “European” is slapped on something, people think it is all about Brussels and its rules on bendy bananas, or whatever else people want to throw at us. This is a really important point. Whatever side of the argument people are on—whether they supported Brexit or wanted to remain in the EU—they should realise that the European convention on human rights has nothing to do with the EU. This is fundamentally about human rights.
Mr Jones
Does my hon. Friend congratulate the Members of this House who sit on the Council of Europe? Its role is to ensure that the European convention on human rights is a beacon of freedom and rights throughout the world, but in parts of Europe today—Ukraine being one, and Russia another—the human rights that we take for granted are not practised.
Chris Evans
I echo my right hon. Friend’s comments about the work of the Council for Europe; I know how important it is. If we want to talk about human rights more widely, look at what happened in Nigeria yesterday, and what has happened in Azerbaijan, Belarus, Ukraine and Russia. We are the guardians of the rule of law. This whole country is formed on the rule of law, but we have always had an international and Atlanticist outlook whereby we defend human rights to the hilt. There is a fundamental belief, which I think is shared across the House, that if one person loses their human rights, we all do. That is something we should be guided by.
No member state of the Council of Europe has previously derogated from the European convention on human rights in the manner proposed in the Bill. That is how unusual its provisions are. What we are asked to agree to today would make us an anomaly right across the continent of Europe and beyond. It is therefore clear that intense scrutiny of derogations would be highly sensible.
Mr Jones
I agree. On combat in overseas operations, the Supreme Court was very clear in the Smith case that combat immunity was not in any way prevented by the Human Rights Act 1998. In that case, the MOD was trying to extend the Human Rights Act to cover planning decisions that were taken in Whitehall about Snatch Land Rovers.
Chris Evans
It comes back to the point that my right hon. Friend has so eloquently made over the last few sittings. I tell the Minister this: I have enjoyed my right hon. Friend’s contributions, though they may have been difficult.
Chris Evans
Sometimes I am not sure.
I was not au fait with the case of the Snatch Land Rovers before I came here. The point my right hon. Friend the Member for North Durham has been making is that one day, in the near future—a nearer future for some than for others—we will not be here, and others will come in, but the legislation will stay. We have to get it right. He knows as well as anyone else, given his experience, that the Ministry of Defence will hide behind its lawyers. In this case, they would have used the Human Rights Act. That is why it is important that we have scrutiny at the highest level. It is important that the provisions are not left open for lawyers to use at will. I absolutely agree with my right hon. Friend.
To me, it is clear that intense scrutiny is highly sensible. It ought to be required when the UK decides to derogate from conventions; otherwise, we will be setting a dangerous precedent. This country has a unique role in global history. We have set the standard for so many countries to follow.
Mr Jones
The provisions may also pose a practical problem for deployment with other forces. Everyone agrees that in the future, many of our deployments will be with other nations, and if we have a derogation, and our situation is different from theirs, that could create problems in building alliances, or UK armed forces deploying with our allies.
Chris Evans
I absolutely agree. We do not know who will lead our combined forces in the future. If we have a piece of legislation that allows us to derogate from the European convention on human rights, that puts us at a disadvantage. This year we celebrated the anniversary of VE and VJ Day. Of course, during the famous D-day landings, we were led by an American, General Eisenhower. We might be putting our forces at risk if we are allowed to derogate from the European convention on human rights.
Given the UK’s standing and influence, there is a risk that if this provision remains in the Bill as it is, and is acted on without parliamentary scrutiny or consent, it would set a dangerous precedent to other countries in future conflicts. Having carte blanche to derogate from international conventions is not a precedent that the UK should set. As I said, other countries look to us for the standards that we have set in the past. We should be setting the highest standards in the future.
Other organisations have also raised their concerns about the Bill and giving the Government the ability to ignore international law. Justice stated:
“the Bill would damage the standing of the armed forces by acting contrary to established legal norms—both domestic and international…The Bill risks both contravening the UK’s obligations under the European Convention on Human Rights…and other international legal instruments, many of which the UK helped to create.”
Our country has a proud history of upholding international conventions on human rights across the globe, but the Bill threatens to undo our international standing as the rightful champion of human rights. Amendment 57 will make it clear that our country still sees international obligations and human rights conventions as vital. It states that the Government will not derogate from human rights conventions without real and significant cause. It shows a commitment to transparency and parliamentary scrutiny.
Mr Jones
My hon. Friend is just getting into his flow. Does he agree that the problem with the Bill is that it does not define the circumstances in which a derogation will take place? We have a Conservative Government today, but if there is no definition of the reasons for allowing a derogation, a future Government could use the provision to do anything.
Chris Evans
I agree with my right hon. Friend. We have to be careful; we are in the here and now, but we have to attempt to future-proof the legislation we pass. That is true of anybody. It will be difficult, but if, God forbid, there was an extreme Government in future, they could do whatever they liked, using this anomaly in the Bill, and would be acting within the confines of the law. That is why it is extremely important to remember that the legislation will remain long after each and every one of us has gone.
Mr Jones
That is not in the realms of fantasy. In Europe, we need only look at the way Hungary is going under the leadership of Mr Orbán, who seems to disregard a lot of what we would take to be human rights legislation. This argument is not based on a figment of the imagination, or fantasy.
Chris Evans
This is on our doorstep. Look at the annexation in Ukraine. Hungary is running over human rights like a tank. If we leave these anomalies in the legislation and do not tighten it up, people can do whatever they like in future. It is extremely important that we have certainty; that is the most important element of law. Judicial precedent and statutory interpretation are important, too, but we need certainty, and that is unfortunately not in the Bill. It would be lovely if the Government supported the amendment—it would be the first Opposition amendment that they agree to in the Committee—because it would ensure certainty.
If we cannot give certainty, because we do not know when we will use the provision, we can at least ensure parliamentary scrutiny of derogations. As Justice and other human rights groups have publicly stated, the Bill signals that the Government are willing to break international conventions. It signals a worrying disregard of the European convention on human rights and the Geneva convention. That cannot be allowed to pass unchecked. That is extremely important. Particularly as we leave the European Union, we should be aiming to highlight our commitment to international conventions such as those on human rights. Any derogation from the European convention on human rights must be checked by Parliament, decided on democratically, and subject to the highest level of scrutiny, as any derogation should be.
Mr Jones
My hon. Friend refers to the Geneva convention; there are very good reasons for such conventions. They are not just the right thing to follow, in terms of human rights; they afford protections to our servicemen and women. In the past, we have rightly criticised—and, going back to the Nuremberg trials, taken cases against—individuals who ignored the Geneva convention.
Chris Evans
Absolutely. Our troops must be defended, and they must have the right protection in law.
I point out, Mr Derogation—please forgive me, Mr Mundell; that was my first mistake in a number of sittings. I point out, Mr Mundell, that derogation from treaties is extremely rare. To derogate frequently from a treaty would be to undermine it. [Interruption.] I see that I am shaping up to be the most unpopular Member present, because I keep speaking and eating into lunchtime, so I will come back later this afternoon.
Ordered, That the debate be now adjourned.—(Leo Docherty.)
Overseas Operations (Service Personnel and Veterans) Bill (Seventh sitting)
Lord Beamish ExcerptsTuesday 20th October 2020
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 View all Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 20 October 2020 - (20 Oct 2020)
The Chair
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.’.
Mr Kevan Jones (North Durham) (Lab)
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.
Mr Jones
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.
Chris Evans (Islwyn) (Lab/Co-op)
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?
Mr Jones
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.
The Minister for Defence People and Veterans (Johnny Mercer)
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.
Johnny Mercer
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.
Mr Jones
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.
The Chair
Order. Before I call the Minister, it now seems timely to remind people that interventions should be short and to the point.
Johnny Mercer
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.
Mr Jones
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.
Johnny Mercer
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.
Johnny Mercer
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.
Johnny Mercer
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.
The Chair
I was just coming to that. Minister, will you withdraw the accusation of hypocrisy?
Carol Monaghan
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.
Mr Jones
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.
Chris Evans
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.
Chris Evans
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.
Chris Evans
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.
Chris Evans
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—
Mr Jones
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.
Chris Evans
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.
Mr Jones
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.
Chris Evans
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.
Johnny Mercer
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—
Mr Jones
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.
Johnny Mercer
It is not a deaf ear if I disagree. I am allowed to disagree.
Johnny Mercer
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.
Mr Jones
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.
Johnny Mercer
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.
Johnny Mercer
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.
Mr Jones
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?
Johnny Mercer
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.
Mr Jones
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.
Chris Evans
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?
Mr Jones
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.
Johnny Mercer
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.
Mr Jones
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.
Carol Monaghan
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.
Mr Jones
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.
Chris Evans
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?
Mr Jones
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.