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

Stuart Anderson Excerpts

Committee stage & Committee Debate: 4th sitting: House of Commons
Thursday 8th October 2020 Public Bill Committees

[The Chair]

I call Stuart Anderson.

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

Q Sorry for the delay, Chris: I have to stand up because there are not enough microphones for social distancing. Thank you for everything you have done and for your service. It is hard to hear what you have been through. You said that you have 5,000 members in the association. When did the association hear that there was going to be a Bill to protect servicemen and veterans? What was their initial response?

Lieutenant Colonel Parker: Thank you very much. The 5,000 I referred to are our Iraq and Afghanistan veterans. They were a large regiment. You can see the numbers because the throughput is quite large and significant, and that is just in one regiment. We have about 20,000 in total, including right down to the oldest. Some of them are second world war veterans.

In terms of when we first heard, I have to be honest that I cannot recall a date or time, but we are informed through our regimental headquarters, which is a very small Ministry of Defence-funded element. It is very small. It has been cut right down to the bare basics now. They inform us of those things, but you must remember that the association people like me are volunteers, and for us to spend time trawling through things and looking at emails to with things can be difficult, so we get prompts and help, and then they provide, effectively, a staff capability. When we heard through them, which was very helpful, the initial reaction—we serve using social media platforms, with groups of several thousand of our veterans, and those are quite active, to care for people—and the mood was very positive. It was seen as a weeping sore in the minds of many that they had done their service and they would not be looked after. We know that the Government put this in the manifesto late last year, and it came into being very soon after the general election in late 2019. It was welcomed, but it was not a political point for the veterans; it was more about the Government doing something to address what they had seen as an injustice. Their feelings were certainly very positive.

[Stuart Anderson]

Q Based on your contacts—those 5,000 to 20,000 veterans—what would the veteran community feel now if this Bill were stopped?

Lieutenant Colonel Parker: I do not think they would understand why. We must remember that among the base we address, look after and care for, the understanding of things like how the machinery of government works is quite low. They just see a very clear sense of right and wrong, partly because we instilled it in them. They have that very simple view of life, so I think there would be acute distress. There would certainly be an increase in mental duress, and I think that for those people who hover around the distressed level, rather than getting into specific, incident-related PTSD—we deal with a lot of those—there would be a lot of hands being thrown up in the air. Allied with the current conditions, which obviously include the environmental factors of covid, separation and people being isolated, I would see that as a very big risk. However, the country seems to be behind this, and certainly the veteran body is. It seems to be something that is apolitical at the moment, notwithstanding the need for good scrutiny.

[Stuart Anderson]

That is brilliant. Those are all my questions. Thank you very much.

[Mr Jones]

Q Hi, Chris. In terms of the cases you have dealt with, we have already heard from other witnesses that the real issue is the length of time these investigations take. We took evidence on Tuesday from Major Campbell—frankly, the way that individual has been treated is disgraceful. This Bill does not cover investigations, and I wonder whether you think there should be some way in which investigations could be speeded up, or a way to prevent people from being reinvestigated for the same thing on several occasions, which certainly happened in Major Campbell’s case.

Lieutenant Colonel Parker: That is a very fair point, and it is an excellent question, because the time has been a big factor. I am not aware of any way in which military law should be seen to be rushed along or pushed along. However, I think this comes back to the duty of care. I know there is provision in the Bill for certain time restrictions, so if there were a time restriction on an investigation, unless there was a good reason to extend it, that might be something that would allow a positive factor of, “Yes, there is some definite evidence brewing here.” That could be positive.

We are talking about several years in which people are on hold. That was certainly the case for people involved in the Danny Boy incident in al-Amarah, with the public inquiry and the many cases to do with that particular incident, which was a real travesty. That affected some people for eight or nine years, so that was quite a long wait, and of course some of those people were already in distress because of the very tough fighting in that incident.

--- Later in debate ---

[Stephen Morgan]

Q What difference would that formal consultation have made?

Judge Blackett: I would have hoped that we could have influenced the Bill, because I think a Bill is a good idea, but it has to have the right contents. Had I been able to have an input, perhaps on the format as I have just described, I do not know whether it would all have made it into the Bill, but at least it could have been discussed.

[Stuart Anderson]

Q On a point of clarification, you said it is very unusual for you not to be consulted, but you started off by saying you were not consulted on any of the other investigations when they were set up. Is that correct?

Judge Blackett: That is a different matter. That is apples and pears. I am consulted on policy development, even though I am an independent judge. In terms of individual cases then clearly—and properly, at the time—I was not consulted. I was going to have to deal with the serious matters that came out of it, so I was not consulted. I was told that there might be a case—“There is possibly a case. Can you clear seven weeks in the diary to sit in a case, sometime in the future?”—but I was not consulted about how the investigations were going on.

[Stuart Anderson]

Q Thank you for clarifying that. You mentioned some practical steps that you wanted to put in the Bill. I am by no means a legal expert, so for clarity could you explain, are they steps that you have the power to put in or would they require an Act of Parliament to go through for them to be put into place?

Judge Blackett: Section 127 of the Magistrates’ Courts Act would require legislation to apply to the armed forces. As I told you, I issued a practice memorandum many years ago to try to do that, which the MOD objected to and it had to be withdrawn. Legal aid funding for victims and ambulance-chasing lawyers, to use the expression that has been used, would need some legislation. On raising the bar for the investigation, the wording in the Bill might do that, but perhaps it would require legislation. Judicial oversight of investigations, particularly overseas operations, would require legislation.

[Stuart Anderson]

Q I am trying to understand the process for someone with your influence and experience. Have you ever taken forward discussions with the MOD to say, “I believe this legislation, this Bill or this Act, if brought through Parliament, will solve A, B and C”?

Judge Blackett: The process that you describe goes on all the time, but not in particular for overseas operations. There is a quinquennial review of the Armed Forces Act. I am consulted and have the ability to input issues. For example, I have been concerned for a long time about service personnel who are convicted in the court martial of causing death by dangerous driving. We had a number of those with servicemen overseas. The court martial had no power to disqualify them from driving, and I had a real concern that they would come back, serve their time, go straight on the road and kill somebody else. I have been trying to get something like that into the Armed Forces Act.

The process takes ages. I would start off 15 years ago saying, “I don’t think this should be in the Act.” It is not agreed by the policy people within the MOD, for all sorts of reasons. We go round and round in circles, miss one Act and then another Act. Hopefully, it is going to be in the 2021 Act. That goes on all the time. I am proactive in dealing with matters around trial process.

[Stuart Anderson]

Q I am certainly not knocking your work ethic or your proactive approach, but was anything formally put into the MOD with recommendations for overseas operations that ended with Ministers?

Judge Blackett: No, because I was not consulted.

[Stuart Anderson]

Q You were the only person in that time who could have done that—is that correct?

Judge Blackett: No. I am sure other people have similar ideas—I have not got all the good ideas—but I was not asked, so I did not put anything in. That was until I became aware of the Bill—too late, but probably my fault—and at that stage I wrote to the Secretary of State and raised my concerns.

[Stuart Anderson]

Q I am on the Defence Committee, so I saw that letter. How long have you been in the position of Judge Advocate General?

Judge Blackett: Sixteen years.

[Stuart Anderson]

Q Has any Minister come to you or consulted you about putting such a Bill through Parliament?

Judge Blackett: No. I have had exchanges and we have had meetings with Ministers, but for this particular Bill nobody came to me and said, “We are going to put this through Parliament. What do you think?”.

[Stuart Anderson]

Q I get that. I came into Parliament at the end of 2019 as a veteran, wondering why soldiers have been prosecuted and gone through everything they have. I understand your points, and there are a lot of good ideas here, but Parliament has been going for many years and I wonder why it has taken till now to get to this situation. I have a fear, as we heard from the veteran community, that the Bill would get stopped. What I really want to find out is whether anybody has thought of this before. It is without a doubt a hard subject to address. Is it too hard? Has anyone sat down and said, “We want to put this through”?

Judge Blackett: Not to my knowledge. It needs political will, of course, and if you go back to IHAT and Northmoor, you start with the Baha Mousa concerns where we had a court martial where seven people were tried, one pleaded guilty to an ICC Act offence and all the rest were acquitted when clearly the British Army had been responsible for killing an individual over a three-day period. The court martial did not resolve in a conviction.

Following that, we had all the cases from a solicitor who in those days was well respected, so nobody questioned his motivation on the allegations he was raising. That subsequently turned out to be wrong. I think the issue then was the British Government thinking, “If we have got systemic abuse by the British forces overseas, we have got to do something about it.” Hence they set up Northmoor. That was really the focus.

[Stuart Anderson]

Q Do you think the Bill is needed?

Judge Blackett: Not in its present form, no. The court martial system demonstrates that we have, to use the Minister’s words, “rigour and integrity”. We have got to move faster and we have got to investigate quicker. The issue is not the court martial system; the issue is IHAT and Northmoor, and that is nothing to do with the court martial system.

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.

The fact is that, as you know, of the 3,400 cases, or whatever it was, at IHAT, not a single one has been prosecuted—not one. But the issue for those being investigated is dreadful. That is their complaint. Now, I understand that with high-profile cases like Blackman—Marine A—there are a lot of veterans who think we should not even prosecute that because they say he was doing his job and it is wrong to prosecute him. That is clearly wrong. When you have an offence as blatant as that, it must be prosecuted; otherwise we are undermining the rule of law and what we stand for in Britain.

[Stuart Anderson]

Q I slightly disagree. I do not believe that veterans want amnesty—perhaps a small percentage. If something has gone wrong, professional soldiers, men and women, would expect or want that to be followed through.

Finally—I am not sure whether you heard the last witness—

Judge Blackett: I heard some, yes.

[Stuart Anderson]

I asked him how the 5,000 Iraq and Afghanistan veterans and the 20,000 overall veterans he has contact with would feel if the Bill were stopped. I do not know whether you heard his answer.

Judge Blackett: Yes, I did.

[Stuart Anderson]

What would you say to that, then, with your recommendation that the Bill be stopped?

Judge Blackett: I have not recommended that it be stopped.

[Stuart Anderson]

Sorry, I do not want to put words into your mouth. First, do you think that this Bill should be stopped?

Judge Blackett: Yes, but—

[Stuart Anderson]

Okay. So now you have said that, what would your words to him be?

Judge Blackett: I believe in a Bill with some of the items that I have suggested. What I would say is that the Bill should be stopped, rewritten and, when it addresses the problem, brought back. What would I say to those 5,000 veterans? I would explain that the Bill as it stands will make life worse, not better, and therefore we will look at it again, trying to bring something back that would satisfy your concerns.

[Carol Monaghan (Glasgow North West) (SNP)]

Q Judge Blackett, did you support the exclusion of sexual offences from the Bill?

Judge Blackett: No. I cannot see the differentiation between any offences but, since I do not think that there should be a presumption against prosecution anyway, that is just an academic question.

--- Later in debate ---

[Liz Twist]

Q It is in the wider sphere of operations.

Judge Blackett: Yes.

[Stuart Anderson]

Q I have a supplementary question, following Kevan Jones’s question about the five-year presumption against prosecution. We do not know what we are going to come up against next year. We could go into a conflict that lasts 20, 30 or 40 years. If this Bill was introduced in 1969—the start of the Northern Ireland conflict—would veterans who are in their 80s now be getting those knocks at the door, and would they be going through the same thing?

Judge Blackett: Yes, because they are being investigated.

[Stuart Anderson]

Q Not all of those were investigated.

Judge Blackett: What I am saying is that the fact that there is a presumption against prosecution would not stop the knock on the door and the investigation. That is the whole point. The presumption against prosecution does not stop the investigation; the investigation happens. The 80-year-old who is alleged to have done whatever he has done would still get the knock on the door. He would still be investigated. Once there was sufficient evidence against him, it goes to the prosecutor. If there is not sufficient evidence, the investigation stops. If there is sufficient evidence, it goes to the prosecutor, who then has the five-year presumption against prosecution. The 80-year-old is still going through all the trauma, and it may be that the police say, “This is such a serious case that it is exceptional, and therefore we should waive the presumption against prosecution.” This Bill will not address that question. That is the whole point.

[Sarah Atherton]

Q Given that you were the Judge Advocate General in 2010 when IHAT and Operation Northmoor were established, were you consulted or involved? Did you have any jurisdiction on their functioning?

Judge Blackett: No, because that was very much an investigation function. It has changed a bit because of what I have done with the system, but at that time I was effectively waiting for the investigation to happen and the prosecution to come to us. The judge becomes involved when the case first steps into the courtroom. That may take another two years, even after it has stepped into the courtroom, because of whatever has to happen. I was not consulted, no, and nor should I have been at that stage.