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

Stuart Anderson Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Tuesday 6th October 2020 Public Bill Committees

[Mr Jones]

It is slightly different from that, I would argue, because it is presuming that you will not prosecute at the outset, which I think is difficult. Thank you very much.

[Stuart Anderson (Wolverhampton South West) (Con)]

Q Do you think the Bill will have a positive impact and protect armed forces personnel who serve on overseas operations? I will ask Mr Larkin first.

John Larkin: I possess no qualifications to judge the reputational effectiveness of the Bill and its impact on military operations. What I have said to Policy Exchange is that many of the criticisms of the Bill are quite misplaced. It is not a blanket amnesty; in fact, it might be regarded as a fairly modest, proportionate measure.

[Stuart Anderson]

Mr Ekins?

Professor Ekins: I suppose the best case one can make for the positive benefit of the Bill is that it may provide some assurance to personnel. If no application has been made after five years, they are unlikely to be prosecuted. However, in one sense that is too strong, because if cogent evidence arises, it can be investigated. It probably will be—there is no bar to it in the Bill—and it may well result in a decision to prosecute.

Having said that, prosecution is the major risk for people who have been serving on operations abroad. It is a major problem in relation to Northern Ireland—we have been getting prosecutions 40 or 50 years after the fact, which are very difficult to conduct fairly, and which understandably cause an enormous amount of stress. In recent years, the problem in relation to people who have been serving abroad has been, in a sense, a seemingly never-ending cycle of investigation and reinvestigation. The Bill does not really do anything about that, so in that sense it will not provide much help.

[Stuart Anderson]

I should have referred to as “professor”—sorry, I did not want you to feel left out. Doctor Morgan?

Dr Morgan: The answer is, up to a point. It really depends on what kind of allegations we want to defend service personnel against. In the Second Reading debate, there were many references to Phil Shiner—we can take him as shorthand for spurious claims being brought. But you might say that if spurious claims are brought within six years, if it is a tort action, or within five years, if it is leading to a criminal prosecution, the Bill is not doing anything about those. It is not doing anything about promptly brought spurious claims. Indeed, it seems to me that the Shiner claims were actually brought promptly. There were many problems with them—namely, that people were making up the evidence—but they were not being brought many years later.

The Bill addresses one particular problem: very old and stale allegations being revived after a long period, which are either brought as a tort damages claim—that is part 2 of the Bill—or lead to criminal prosecutions, which is part 1. It seems to me to be part of a solution to what is actually quite a big and complex problem with a number of different strands in it. It is not the total solution, but it addresses that aspect of it.

[Stuart Anderson]

Q Mr Larkin, you did touch on it, but do any of you believe that the Bill provides a blanket amnesty in any way, shape or form for armed forces personnel?

John Larkin: I have given my view on that. The short answer is that it does not.

Professor Ekins: I agree with John.

Dr Morgan: I think “blanket amnesty” is a very overblown way of putting it, if we are talking of criminal prosecutions after the five years. It is establishing presumption, and that is what should be referred to. Having said that, the stronger the presumption is against prosecution, the closer it approaches that. The weaker the presumption is, the less protection it gives to the service personnel in question. So there is obviously a balancing act, but, as it stands, I do not see it as an amnesty; that is a misdescription.

[Peter Gibson (Darlington) (Con)]

Q If the Bill’s intent is to protect service personnel, what steps should be taken to improve the Bill as drafted?

Professor Ekins: To my mind, the major problem of the Bill—this is a major absence, but it would be quite a substantial policy change to introduce it—is that it does not really address the extraterritorial application of the Human Rights Act. That is the main driver behind some of the difficulties we have seen in the last 10 or more years in a whole range of ways. That includes requiring continued investigation and litigation—sometimes from enemy combatants relying on the Human Rights Act while UK forces have been in the field. The Bill could be improved—although, as I say, it would be a major change—by limiting the extraterritorial application of the Human Rights Act.

That would be, in a sense, restating the position that our senior judges understood before the European Court of Human Rights extended how jurisdiction was understood. I think that would also be much more consistent with the way in which Parliament understood the Human Rights Act when it was enacted in 1998. The ECHR and the Human Rights Act really have been extended by a series of problematic judgments, and a Bill on this subject could usefully roll that back. That might mean that the Human Rights Act simply applies in the United Kingdom, or alternatively—this may be more plausible as a prospect for enactment—it might allow for limited extraterritorial application, in the limited way that was understood to be possible in 2003 when the European Court of Human Rights gave a significant judgment on the point, as well as by the House of Lords and the Supreme Court in the years to follow. That would address the problem of being unable to stop investigations and being exposed to litigation that requires the continuation of investigations, when the Government think that that is unfair to the personnel. The Bill does not address that—save, perhaps, by encouraging Ministers to derogate from the ECHR.

John Larkin: There is a lack conceptual clarity in part 1—[Inaudible.]

--- Later in debate ---

[Liz Twist]

Q That picks up on my next question, which was about the principle of combat immunity. That is all my questions. Thank you very much.

[Stuart Anderson]

Q When we have listened to evidence today we have heard from veterans and from legal representatives like yourself. There is a disparity between veterans, who really want this Bill and say how let down they will be if it does not go through, and legal representatives, who say, “Stop.” As legal representatives are there to defend or to represent our troops, as you have done, where is that breakdown happening and why, Mr Al-Nahhas?

Ahmed Al-Nahhas: I am not going to comment on the criminal aspect, but from my perspective there is a need to protect service personnel from spurious criminal claims, which we are looking into. That brings forward a lot of people who want this Act in place. I am not sure whether that is the incentive behind part 2 of the Bill, which is the civil aspect.

I can share with you, as a representative of APIL, that many of our members have many hundreds of clients who are service personnel. I have been doing this for a long time. The people we act for come to us seriously injured and needing compensation. The tools that are available to us as lawyers are the civil claim route and the Human Rights Act. If you start taking those rights away from veterans and service personnel then you will be, in my view, doing them an injustice.

I do not envy you. I can see that this a fierce debate and there are different sides to the argument. I would caution that that should be a sign to all of us that there should be a pause to the Bill and further exploration. I wonder to what extent the confusion is caused by the fact that the Bill tries to do two things. It tries to resolve the issues in respect of criminal law and it also addresses civil issues, which are incredibly different. That is a cautionary word that I would pass to you.

Emma Norton: We heard some compelling and moving testimony this morning. I was particularly struck by the gentleman from the British Armed Forces Federation—in fact, both witnesses spoke about the fear in the veteran community about being dragged off to court and having knocks on the door at 3 o’clock in the morning. Both of them indicated that they felt that that fear was ill founded and based on misunderstandings of what is actually happening.

Looking at the number of prosecutions that have actually been brought, let alone the number of convictions, it is quite stark. It is a very small number, and it is not reflected in the level of fear and anxiety in the veteran community. I do not underestimate that, but I think the question becomes: what do we do to meet that fear and anxiety? How do we reduce it? We reduce it by being honest with them about the real extent of the problem and by addressing the causes of the problem, which were the failures, early in the day, which the Minister acknowledged—the early failures to investigate these allegations. Had that happened, the unfairly accused would have been exonerated years ago and the victims would have had justice as well.

That is my concern about the Bill: veterans think that they want it, and I understand that, but I am not entirely sure. Indeed, the previous witnesses all agreed that it does not address the issue of investigations—the Attorney General for Northern Ireland has said it does not address the issues of investigations.

[Stuart Anderson]

Q We are where we are now, and we need to protect troops moving forward. They will be serving in our overseas operations this year, next year and so on. We can keep saying it does not protect veterans from Northern Ireland. I served in Northern Ireland, and I know many hundreds of veterans who have served in such environments, and there is separate legislation for that. We need to put that to one side with this, but we need to do something moving forward.

You say these things amplify the fear. The veteran community is very small, so we all know someone who is expecting a knock on the door. That is really amplified, because there is a brotherhood and sisterhood that has gone through the forces. When one person is affected, everybody is affected. Nothing has been brought in so far, and now we are at the start point. A major fear I have is that I keep hearing people saying stop. It has taken decades to get here. I do not know how long I will be a politician, but if I have a long career, we could still be saying stop, because people will never find a perfect Bill.

I hear what you are saying, but I think it goes against what the veteran community wants and is crying out for. As you have heard today, and with the greatest respect—I value what you are saying—every person we are seeing has a different view on this. As politicians, we need to find the best way to get the Bill through. If the Bill were to be stopped, I know the absolute lack of trust and heartbreak that the veteran community would feel. We have to use what we have and move that forward. I respect what you have said, but I felt that it was important to express how the heart of the veteran community is feeling about this.

Emma Norton: I do understand that. You say that every person that has appeared before you has a different view; in fact, it has been a running thread throughout all of this. Everybody seems to agree that the problem is the lack of independence in those early investigations, and we still have a lot of questions, and need to have discussions, about how to improve that. If we addressed that, it would be a much safer basis to proceed and face the future. It would also be litigation-proof for the MOD; if you have investigations that are solid, independent and secure, they would be litigation-proof. That would be good for the victims, and it would be excellent for the soldiers.

[Carol Monaghan]

Q May I ask, following those last questions, whether part 2 has been brought in stealthily off the back of part 1?

Ahmed Al-Nahhas: Yes, I believe so. What you are giving veterans with one hand, you are taking away with the other. That is a confused approach to legislation, and I am very concerned about it. Does that answer your question?

--- Later in debate ---

[Sarah Atherton]

Yes, thank you.

[Stuart Anderson]

Q If they are successful, what percentage is taken from the soldier’s claim, on average, for the solicitors?

Ahmed Al-Nahhas: It depends on the terms offered by the lawyers. They can vary, typically between 15% and 25% of the damages that are recovered. There are certain caps, but that is typically what you might find in the industry.

[Peter Gibson]

Q I have two quick questions for Ahmed. In terms of the claims that you have brought for veterans, how many times have you had to use the dispensation of limitation under section 33? And are you able to share with us your success rate in terms of the claims that you win and those that you lose for veterans?

Ahmed Al-Nahhas: As I am representing APIL, I would not be able to share specific numbers, but I am very happy to share my experiences on section 33. I would say that it is a small fraction of cases that are pursued that will have to rely on section 33.

--- Later in debate ---

[Peter Gibson]

That would be welcome, thank you.

Ahmed Al-Nahhas: Of course. I am sorry that I could not assist you immediately.

[Stuart Anderson]

Q I have a supplementary question about a no win, no fee where a young rifleman has a previous injury. If you or the other solicitors do not deem it to have a good chance of success—those were your words—how would a young rifleman fund his legal case?

Ahmed Al-Nahhas: I have no idea. They may need to rely on charity. They may need to rely on family. They have very limited options. Actually, they often have a big challenge: they need to find a specialist in this field to begin with, because it is not easy to sue the Ministry of Defence and it is not easy to understand the specialties and complexities of such cases. They will often go to another lawyer for a second opinion, and one hopes that that lawyer would take on their case, but there are no guarantees, and particularly on cases that are out of time. You may be going around the houses to tens of lawyers who will all say to you, “I’m really sorry, but you are out of time. There is nothing I can do for you.” That is one of my concerns with the Bill.

[Stuart Anderson]

Q How many cases have you turned down that have been over six years?

Ahmed Al-Nahhas: I would say, on average, in my own practice, probably between 70% and 80% of inquiries that come in will be rejected because they are out of time. Forgive me, that is anecdotal and off the top of my head. I was not expecting that question but, if it gives you an idea, the vast majority of the inquiries we get are from people who are frankly out of time.

[Mr Jones]

Q Does that not demonstrate the point made earlier about people being aware of their rights, in terms of taking cases forward? To answer Stuart’s point about cases, charities take test cases and cases that might not be seen as winners. Section 33, which this takes away from veterans, applies to me if I want to sue someone and it applies, as you said, to a prisoner wanting to sue the Ministry of Justice. Why should it be different for a prisoner and for a veteran?

Ahmed Al-Nahhas: It should not—it definitely should not. You are taking away legal rights from service personnel who already have fewer legal rights as it is. You really are stripping the tree there.

--- Later in debate ---

[Chris Evans]

Q There are two questions that come up there: first, in the light of what you just said, how could the Bill be improved? Secondly, as the likelihood of a prosecution is, as you said, not very high anyway but is now less likely with the Bill, what are the chances that the rule of the law of armed conflict could be pushed to the limit with the Bill?

Clive Baldwin: To answer the second question on the law of armed conflict, you say “pushed to the limit”, and, as I said on one particular element, if it starts to look like or resemble a statute of limitations on war crimes, that does violate a basic principle of the law of armed conflict. If you are suggesting that anyone would then feel that they could push any other crimes, or commit crimes with impunity, that may or may not be the case, but it would certainly encourage people to delay investigations to cover up, which is something that we have seen in Iraq and Afghanistan.

Also, the UK has a fairly poor record in actually prosecuting crimes committed overseas, despite there being public inquiries and investigations. Only when you have some of the clear cases of torture being prosecuted do people become aware of what is or what is not torture. One example from Iraq relates to torture practices, such as sensory deprivation and hooding, that the UK said in Northern Ireland 40—then 40, now 50—years ago were unacceptable, and should not recur. They started recurring in Iraq. You might say that that was because there has not been a clear prosecution of such cases as torture. It took an English judge in one of those civil claims in the past few years to say that these practices should have no place in the 21st century. That is why you need some litigation. Of course, the innocent and the accused who have not committed any crimes also get tarred with the same brush if these investigations go on and nobody gets prosecuted. You need a prosecution to clearly identify the few people responsible for war crimes, and to make sure that those individuals are held responsible and not the armed forces as a whole.

Martha Spurrier: Clive has covered the second question, so I will take the first one. When you start with a Bill that does not deal with the problem you are trying to solve, it is quite difficult to answer the question of how to make it deal with that problem. There are lots of practical things that the Government could do to try to make investigations better. The recommendations from the Service Justice System review would be a good place to start: issues about things such as independence and fast pace, and doing basic investigative things like taking witness statements promptly, gathering forensic evidence effectively, and so on. All of those things can and should be done, and they should be a matter of priority. The Bill cannot and will not do any of those things.

You could amend the Bill to knock off some of its most egregious aspects. You could include torture, war crimes and crimes against humanity in the schedules. You could remove the triple lock by taking away Attorney General consent, by removing the presumption against prosecution in relation to the time limit, and by balancing out the factors that a prosecutor would have to consider before proceeding with a prosecution. That would not cure the Bill and would not make it a good piece of legislation, either from the perspective of accountability, justice and human rights, or from the perspective of trying to solve the problem that the Government purport to be wanting to solve.

[Stuart Anderson]

Q Mr Baldwin, you said that the legislation could encourage soldiers to commit crime with impunity. Will you clarify that it is a piece of legislation that you think will then encourage soldiers on operations to commit crimes?

Clive Baldwin: To clarify, I was not saying that it would encourage it. I am responding to the question that seemed to be saying, “Would it lead to anyone trying to stretch the law of armed conflict?”. If a law creates impunity for offences and makes sure no one gets prosecuted, it may make those offences more likely. I would repeat that torture was admitted but never prosecuted in Northern Ireland in the 1970s, and the same techniques—the same type of torture—was repeated in Iraq in the 2000s. That is because you need prosecutions. You need people to be aware that they will face prosecutions for an offence. If they perceive that an offence will not be prosecuted after five years, it will make it more likely even for the investigations to be delayed to that moment and for offences not to be seen as, very clearly, “This is criminalised. This is unacceptable. These are crimes that will be prosecuted.”

[Stuart Anderson]

Q That is the bit I want to challenge. Every soldier going on operations knows the rules of engagement and knows the law—what they can and cannot do. That will be crystal clear. If you are saying that because of the Bill we would brief people to say “It’s five years and then you’re okay”—nothing in any military teaching or doctrine would say that that is the case. I think you could be doing what we would call in the military making the ground fit the map. You are taking something and adjusting it to fit a discussion. I cannot see any military personnel being briefed that they are immune from prosecution because of the Bill. Would you agree with that, or do you still think that they would be briefed that there is impunity?

Clive Baldwin: I do not think anyone would be briefed. When I was involved in training the armed forces in detention we were very clear, and everyone was very clear—these are the crimes. What has been interesting, as well, though, is that there are some elements which are just, traditionally, not being prosecuted in the United Kingdom. One of the keys is that senior people do not get prosecuted for war crimes in the United Kingdom—senior military people, even Government Ministers—under the principle of command responsibility, which is an international element of war crimes. It was put into the International Criminal Court Act 2001 in the UK, but to my knowledge and others’ no one has even been investigated under that.

It was only when I used to brief people in this country and other countries about that element, people sit up and take notice, because it makes people aware that as a commander you could be criminally liable if you fail to prevent war crimes or if you fail to prosecute them. It is elements like that—you only become aware of that when you actually see people being prosecuted for it and know that it is liable. Again, if it comes after five years it is much more difficult and there is a presumption against prosecution: that is why the words matter. Something like a presumption against prosecution—it sounds like it would be very difficult, it would be exceptional, to prosecute. That would send a very difficult message, both internally and externally in the rest of the world.

[Stuart Anderson]

Q Thank you. Ms Spurrier, to continue on your point, you have raised quite a lot of things that you would like to take out of the Bill, which would leave pretty much nothing in it, so my question to you is would you support any Bill that protected our service personnel overseas, and what would that look like?

Martha Spurrier: I absolutely would support a Bill that protected service personnel, because, as I am sure you know, Liberty has done a lot of work supporting military personnel and their families to find justice. What I think about this Bill, as I have said, is first that it is setting up a solution to a problem that is often mis-stated; and then the solution does not fit the actual problem.

In my view what service personnel need, to be protected, is to have an absolute assurance that any investigation that they face will be dealt with fairly and independently, and to an extremely high standard. One would hope, therefore, that that would mean that they do not have repeat investigations hanging over their heads for many years, which obviously is an unenviable and miserable situation for any human being to find themselves in—but that Bill will not deal with this.

I appreciate the lens of saying that it will create a culture of impunity, in the sense that I do not think anyone is suggesting that you would go out to the battlefield and commit a crime in the hope that you could delay being noticed for five years; but the fact is that there are plenty of reasons why five years might elapse before an effective independent investigation can be undertaken, either to exonerate someone who has wrongfully been accused, or to convict them. That could go for torture survivors, for example, who are often not able to come forward for a number of years because of the trauma they have faced, and for serving military personnel, who often do not feel able to come forward, including if active hostilities have been continuing for that whole period of time.

I do not think it is about saying, “Well, let’s just bin the Bill, and then do nothing.” There are plenty of constructive things that one can and should do in order to support military personnel. I just do not think that this Bill achieves those things.