Defence Supplementary Estimate 2021-22

Tom Tugendhat Excerpts

Wednesday 9th March 2022 Commons Chamber

[Johnny Mercer]

My right hon. Friend makes a really valid point. Of all the decisions that we make on defence, I will genuinely be stunned if the Government proceed with that reduction in personnel, given what is happening at the moment.

Let me finish by saying something about attitude and mindset. I am obviously going to bring it back to people, but let me talk about what happens if we consistently focus just on technology. I found the IR quite frustrating, because the focus was on not making bad press announcements about the removal of regiments, although we have obviously heard the example of 2 Mercian. If we have this attitude towards capital expenditure and think that we can win wars in essence just by fighting tech on tech and that people do not matter, that trickles down throughout the whole system and we end up in a place where we are prosecuting soldiers in Northern Ireland when they are 80 years old. It is all about attitude and mindset.

I have sat down so many times with Prime Ministers in this place and they have told me, “Johnny, there’re no votes in defence.” But that is not the point, because there are some things that we have to do to keep the nation safe—of course, they may then become prescient when Russia invades Ukraine and things like that—and they are the boring part. It is our job as legislators, MPs, Ministers and Prime Ministers to go ahead, bring people with us and get them to understand why defence matters. Even if they are not interested in the military, there is its long tail through communities such as mine in Plymouth and in defence industries; there is what veterans groups mean in communities like mine; and there is what it actually means for British people to see their 78-year-old grandfathers taken to court in Northern Ireland for fighting for the freedoms and privileges that we enjoy in this place, and how that feels for a whole generation of veterans. It really does trickle down and I urge Ministers to really think about that expenditure.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

My hon. Friend is making an extremely powerful speech. He is absolutely right that people claim there are no votes in defence. I would argue that there are no votes in defeat. Sadly, in the past year we have seen a reversal of our interests and influence in places such as Afghanistan and now, sadly, in Ukraine, where deterrence has now turned into defence. Although it may be true that it is not popular to spend money on insurance premiums, the alternative—finding out we are uninsured—is a lot worse.

[Johnny Mercer]

I agree entirely with my hon. Friend.

Ukraine

Tom Tugendhat Excerpts

Monday 17th January 2022 Commons Chamber

[Mr Wallace]

On the latter question, I would definitely support NATO and NATO members going out and about and supporting not only the values we stand for, but my point about the right to choose, even if the choice is not NATO. I think we have forgotten about what we have often argued for. We have taken for granted our values and the cost of freedom around the world. We must never stop arguing for that and making the case. Too often over the decades, it has been too easy to stop making that case, or indeed to trade it off against an economic issue. That is why Nord Stream 2 is important. It is important that we recognise that, if it is a success, it will not be a success for Europe, but it will increase friction and division. We should press our German friends to do more, should Russia invade Ukraine.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

I very much welcome my right hon. Friend’s statement and the support across the House for the Ukrainian people. It is quite true that a free people choose freedom, and the Ukrainian people are trying to do just that. Would my right hon. Friend care to mention other failures of the Putin strategy, such as turning former friends and allies of Russia against it? Is this not an extraordinarily sad day for the Russian people, who have been so abused by this tyrannical dictatorship under Putin? Even countries that have had such strong relations with them, including the Ukrainian people, are now seeking assistance from us to ensure that their homes are not violated by Russian troops?

[Mr Wallace]

My hon. Friend makes an important point. If the aim of President Putin is to de-escalate, or push back NATO from his borders, he should reflect on why so many people have wanted to join NATO. It is predominantly a consequence of his actions, whether that is in Georgia or Crimea, or the sub-threshold actions that are putting real fear into countries such as Sweden and Finland. It is no coincidence that, in the Finnish and Swedish Parliaments, a sense of being closer to NATO than they have been in the past is growing. That is not because of NATO—there is no secret plot—but because of the actions of the President of Russia.

Data Breach: ARAP Applicants in Afghanistan

Tom Tugendhat Excerpts

Tuesday 21st September 2021 Commons Chamber

[Mr Wallace]

I am grateful to the hon. Member for his series of questions. First, the investigation will be carried out by Admiral Sir Ben Key, the commander of joint operations at PJHQ—permanent joint headquarters—who also led the planning and the evacuation from Kabul.

On data leaks, the hon. Member is right that these are a concern. The previous leak obviously involved a senior official who deliberately broke the regulation, in so far as he took something out the Department. If the regulation had been followed, that would not have been the case. However, although I cannot say too much, I have instigated changes to improve information security within the Department, and I am happy to brief the hon. Member on that.

The “Manual of Protective Security”, the modern rules that govern information security, is, I believe, fit for purpose; it is really the training and the adherence to it that must be improved. I am graduate of something called the classified documents handling course from the early ’90s—I think I am the only saddo who actually knows what type of lock should be on what type of cabinet that links to different types of security classifications. Nevertheless, information security is not something that western Governments are good at, which is why our adversaries seem to be. We have to improve it, and we have to stand by it.

The Taliban, or obviously any Government that control a country, have control of the telephone network. I cannot say too much about what they can and cannot do; suffice it to say that the method we used to communicate with those people is a way of minimising that risk. One of the reasons we involve emails rather than telephone calls is to try to do that, which is important.

On resource, right from the beginning of this process, way back in August, or in July, I was very clear with my senior military commanders and civil servants that they would have whatever resource they needed to process emails and carry people out, for example. We will fly these people back from third countries out of the MOD budget. It is my view that we should continue to stand by them, including using married quarters, for example, in military establishments to look after them if they cannot get places elsewhere. There has not been a resource problem; the challenge is whether people have been asking for the resource within the system to do this.

The individual concerned was a member of the Ministry of Defence, but I am very keen that it is not just the poor person who drafts the email who is held to account, but the chain upwards, to ensure that this does not happen again.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

I am delighted to hear from my right hon. Friend just now that Admiral Key has got a knighthood. There has not been one earned by anyone better for many years.

The challenge of this event is not the accident, the mistake, that we can see happened. I think we all sympathise with the Ministry of Defence and indeed the Secretary of State; accidents do happen. The challenge is that there are people still there and that the co-ordination for getting people out is still complicated. Will my right hon. Friend commit to working to get a single point of contact for all those in Afghanistan who are seeking to leave? The system whereby some have to apply to the MOD, and others to the Foreign Office or through the Home Office, is excessively complicated and is leading to obstacles, including on at least four different occasions that I can speak of. People are stuck in Lashkar Gah, Kabul or Mazar-e-Sharif, trying to get out, but they are still not getting the smooth transfer that we need.

[Mr Wallace]

I am grateful to my hon. Friend, who makes a really important point. I would ask colleagues to have some understanding of this. The MOD, which is of course charged with defending the nation, has in very short order had to turn part of itself over to processing visas and doing the job that traditionally we would have done in the Home Office. We have taken that on ourselves because of the pace, urgency and, in the earlier time, danger.

As I have said, 68,000 emails arrived, many of which are speculative, concerning refugee status, so not even for the Foreign Office. It is a very big enterprise to take on, which is why I was determined to give all that resource. However, I would ask colleagues to remember that, at the same time, we are doing that in an Afghanistan that we have no control over. We are doing it in what for many is a dangerous environment, with the Taliban clearly in some cases actively seeking out people that they wish to deal with—murder, or whatever they are up to. At the same time, we are dealing with an ever-moving situation on the ground, and not everyone who comes out communicates back.

When I look at the spread of where people have gone to third countries, we find people in Australia, people who got on the next flight, people in other parts of Europe and people in the United States. The United States brought some people back to Germany who immediately claimed asylum to the United Kingdom. We find, when we contact people, that some are saying, “Thank you very much, but I am quite happy to stay where I am in sunny California or Australia or somewhere like that.” Some have been here for a very long period of time and have not engaged.

The next stage, which I commissioned today, is, quite rightly, a full and detailed survey of the people we have brought back to know even more about them. Obviously, there are data protection issues we have to cross, but it is really important that we get to the bottom of that.

Carrier Strike Group Deployment

Tom Tugendhat Excerpts

Monday 26th April 2021 Commons Chamber

[Mr Wallace]

The hon. Gentleman asks a valid question. Strictly speaking we could, but we do not envisage such deployments unless we are in a time of war or significant stress. At the moment, yes, we could strictly speaking, but the way we are working up each aircraft carrier means that we will not be required to do that.

[Tom Tugendhat (Tonbridge and Malling) (Con) [V]]

May I pay huge tribute to Her Majesty’s Royal Navy for getting together and preparing this carrier for sea so effectively? Does the Secretary of State look forward as I do—indeed, as does a great friend of mine, Minister Kono Taro, the current Minister for Regulatory Reform in Japan but his former opposite number in Japan—to seeing Japanese F-35s flying off the deck of the Queen Elizabeth, shortly before he works with his opposite number today to see whether Japan could possibly even join the Five Eyes community?

Afghanistan

Tom Tugendhat Excerpts

Tuesday 20th April 2021 Commons Chamber

[Tom Tugendhat (Tonbridge and Malling) (Con) [V]]

I pay tribute to the service of my hon. Friend the Minister, with whom I served a lot in Afghanistan and a lot in the Ministry of Defence. May I just say that the work the NATO troops are currently doing in Afghanistan is hugely important—not because they are in combat operations, as the Minister rightly says, but because they are enabling the Afghan troops and supporting them with medical aid, logistics and so on? So while I recognise that this withdrawal cannot be avoided by the UK, because fundamentally it is a US decision, what assessment have he and his Department made of the implications for the responses of others? He will know that the perception that we may not endure on an operation, even when we are no longer in combat, will weaken the way we are seen by our enemies and may lead our allies to doubt us.

[James Heappey]

I think that our resolve has been tested and demonstrated by the longevity of the mission. We could arbitrarily say, “Well, if we were to stay for another 10 years or 20 years, that would even further show our resolve”. I think the alliance set itself a set of military objectives, which were broadly achieved. It is clear that the politics must now take over. My hon. Friend is entirely right to point, however, to the wider range of effort that goes on and the degree to which that underpins the operational effectiveness of the Afghan national security forces. Clearly the military presence within Afghanistan itself will come to an end, but our ability to remain connected to the Afghan military academy remotely is undiminished, and likewise our ability to host Afghan officers and NCOs on military courses in the UK. All of that will I think, first, help to strengthen the connections between the Afghan and UK armed forces, but secondly, help to continue to develop their capacity so that they sustain their own operations and ensure that there is a lasting peace within Afghanistan.

Defence and Security Industrial Strategy

Tom Tugendhat Excerpts

Tuesday 23rd March 2021 Commons Chamber

[Jeremy Quin]

There are shipyards throughout the United Kingdom that will look into this process to see how they can prosper, but I am acutely aware of the great skills that are exhibited on the Clyde and at Rosyth and of the fantastic job they are doing and have continued to do throughout covid. I am grateful for their continuous support throughout the process.

I am grateful also to the hon. Gentleman for talking us through the history of some of the decisions; he is right that a lot of them are protracted. I am proud to say, however, that with the plans we have unveiled, we will have seven classes of vessel produced in the UK for the first time since 1973, so that is another historic milestone. What we are setting out is a clear vision of how we will progress frigates, destroyers and other vessels such as the multi-role surveillance ship, and FSS. There is clearly a large pipeline of work for UK shipbuilders to focus on, to upskill for and to be sharpening their pencils for to ensure that they can engage with us properly.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

I am delighted to see the hon. Member for West Dunbartonshire (Martin Docherty-Hughes) wearing a Royal Engineers tie.

It is fantastic to hear this commitment to shipbuilding. In my experience in the MOD, the Navy would ask for five ships, centre would say, “Four should be enough. Here’s three, we’re going buy two and we’ll only service one.” Very quickly, we would be reduced to less than had been promised in the initial strategy. With the pivot to Asia we have been promised and the commitment to base out of Singapore, can my hon. Friend assure me that not only will we have the purchasing capability, but we will have the servicing capability that makes such a difference to the actual deployment of ships? As we know, we have had too many tied up for too long, when we need them to be out doing exactly what we pay them for.

[Jeremy Quin]

Yes, I can absolutely assure my hon. Friend on that point. I admire his maths, as well his attention to detail in respect of the hon. Gentleman’s sapper tie.

I assure my hon. Friend that we are absolutely on it. We need to maintain the availability of our fleet. We are not about saying, “We’ve got X number of ships. Isn’t that great?” when they are all tied up in Portsmouth. There is no point in that. We need our fleet to be present, to be persistent and to be forward looking, and that is exactly what we are going to be focusing on. This might be stretching his question too far, but let me say that the same also applies to our land industrial strategy, which I am proud to have announced today as part of this process.

Overseas Operations (Service Personnel And Veterans) Bill

Tom Tugendhat Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 23rd September 2020 Commons Chamber

[Mr Wallace]

I certainly recognise that people have concerns. Some of those people were doing the job that I am doing when these things were going on, so I would venture to ask them why they did not do anything about it at the time. It is a fact that there has been abuse of this system; we all know that on both sides of the House. It is a fact that we need to do more, rather than just talk about it, for our veterans. It is really important to include measures to recognise the very unique experiences of and pressures put on the men and women of our armed forces when they go on operations hundreds of miles away.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

I want to pick up on the point made by the hon. Member for Cardiff South and Penarth (Stephen Doughty)—I am glad to see him wearing his Royal College of Defence Studies tie; there are quite a lot of military ties in the Chamber today—about the application of the ECHR. The derogation that we are asking for and that the Bill recommends is not new; it was included in the initial treaty when it was signed in the ’50s, and other countries have already used it. We are talking about recognising the provisions of a treaty that we signed in order to allow the military to act in a military way, because this treaty was written by people who had fought in the second world war and knew exactly what they were talking about.

[Mr Wallace]

My hon. Friend makes a substantive point, and one reason we find ourselves facing these challenges is because there is a clear conflict between international humanitarian law in some areas, and international human rights. The encroachment and growing reach of ECHR into areas of combat has created a clash, in some sense, between things such as the Geneva convention and individual human rights. That is why when the authors wrote the ECHR, they included some of those carve-outs as a way of accommodating the international laws under which they had been operating in the mass conflict of the second world war. Indeed, when the Defence Committee was chaired by my right hon. Friend the Member for New Forest East (Dr Lewis), it picked up on that very real clash, which is hard to resolve. In my view, some of the problems with lawfare is that people are exploiting that clash for financial gain. It is easy to hide behind a humanitarian law on one day and a human rights law on another, and we have a duty to try to make a difference.

We are not going as far as many countries under the jurisdiction of ECHR. Other countries in Europe have a statute of limitations on criminal offences. Germany and France both have a number of criminal statutes that are statutes of limitations. Other countries also do that, or have amnesties, but we are not going that far. We are trying to resolve that clash and see how we can ensure a proper threshold, so that there are no vexatious investigations and our men and women do not constantly find themselves the subject of them.

--- Later in debate ---

[Mr Carmichael]

Obviously not, because murder is dealt with by the common law of this country. The Secretary of State is perfectly aware that such a case could still be brought under the exceptional circumstances provisions. The problem he has is that there is no such thing as unexceptional torture.

[Tom Tugendhat]

Will my right hon. Friend give way on that point?

[Mr Wallace]

I will crack on. The House has heard the point from the Liberal Democrat spokesman. I venture that I will side with the former Attorney General for Northern Ireland on his views regarding whether this provision does or does not prevent torture. I think his judge of the law is pretty succinct, although I have not always agreed with his views. [Interruption.] I shall carry on.

In conclusion, the Bill is about doing the right thing by our troops. Our soldiers and values must uphold the highest international standards. The Bill is not an amnesty, a statute of limitation, or the decriminalisation of erroneous acts. We will continue to protect the independence of our prosecutors and our service police, and we will investigate and, if necessary, prosecute service personnel who break the law. But what we will not accept is the vexatious hounding of veterans and our armed forces by ambulance-chasing lawyers motivated not by the search for justice, but by their own crude financial enrichment.

This House should reflect on how lawfare has ranged way out of control. All too often, the victims have been the very people who risked life and limb to keep us safe. The Bill is a measured step, making provision for the unique circumstances our troops find themselves in on operations overseas. I commend the Bill to the House.

--- Later in debate ---

[John Healey (Wentworth and Dearne) (Lab)]

I start by also paying tribute to the role, dedication and work of our armed forces. They face exceptional risks, give exceptional service and require exceptional skills. As we face as a nation a second covid crisis, they are likely to be called on again, more heavily, including overseas.

I am pleased that we have come to the Commons debate on this legislation. I thank the Secretary of State for the way he introduced the Bill. The first duty of any Government is to protect the nation and its citizens, and the first duty of any Defence Secretary is to protect the men and women who dedicate themselves to the service of their country. We have our own British way of doing this. Since the days of Churchill and Attlee, when Britain led the global efforts to establish the rules-based international order after the second world war, we have been the champions of democracy, freedom and universal human rights. Our British forces uphold, unequivocally, international law and conventions. By adhering to the highest standards of legal military conduct ourselves, we can hold other countries to account when their forces fall short. The Bill calls into question Britain’s proud commitment to the Geneva convention, our duty as a “permanent five” member of the United Nations to uphold international law, and our moral authority to require the conduct of other nations to meet the standards set by those international conventions.

Since the end of the 2000s, all parties in this House have upheld a strong commitment to the armed forces covenant, which declares that those from the armed forces and their families

“should face no disadvantage compared to other citizens in the provision of public and commercial services.”

The Bill breaches that covenant by denying troops who serve overseas the same employer liability rights as are held by the UK civilians they defend. Our aim with this Bill is, first, to protect British troops and their right to justice from the MOD, and secondly, to protect Britain’s reputation as a force for good in the world, upholding human rights and the rules-based international order. We will work to help forge a constructive consensus through the Commons and the Lords for the changes necessary to achieve that aim.

[Tom Tugendhat]

The right hon. Gentleman must recognise—I am sure he knows this well, having spoken to his opposite numbers in socialist or left-wing parties around Europe—that many other countries follow this system of derogation and have national caveats. France itself has a reserve of emergency powers it can use to defend its troops against vexatious or inappropriate litigation. Is he seriously suggesting that France is not a law-based state, or that it is in some way immoral and has no right to sit as one of the P5? Surely he is not suggesting that.

[John Healey]

No, I am very clear that we want to and must protect our British troops against vexatious claims and repeat investigations. Important parts of the Bill are wrong; we can get them right and that is what I want to do. There has been a problem—I get that—arising especially from the conflicts in Iraq and Afghanistan, as the Secretary of State said. The al-Sweady inquiry chairman, when he finally cleared the troops in 2014, spoke forcefully of the “most serious allegations”—of murder and mutilation—that

“have been hanging over these soldiers for the past 10 years”.

The family of an Iraqi boy, Ahmed Jabbar Kareem Ali, who drowned in a canal in 2003 with British soldiers directly implicated, had to wait until the Newman inquiry reported in 2016 before they got the truth and the MOD issued a full apology.

Long-running litigation, repeat investigations and judicial reviews are indeed the signs of a flawed system—a system that has failed British troops and failed victims under successive Governments. I get this problem, and it must be fixed, but it is important to see it in perspective, not least so that we can see clearly the problem that we are legislating in the Bill to fix.

--- Later in debate ---

[Stewart Malcolm McDonald]

The right hon. Gentleman is correct, so I do not need to expand on that. I am conscious of your points about time, Madam Deputy Speaker, but he is correct in what he says.

I want to go through some of the senior military, legal and political opinion that has come out against the Bill. I can accept that Conservative Members, probably those on the Front Bench, think that the Opposition—if not the entirety of it, my party—are just Guardian-reading, lentil-munching sandal wearers, but that can hardly be laid at the feet of Nicholas Mercer, can it? Nicholas Mercer, the former command legal adviser during the Iraq war, has pointed out that this Bill

“undermines international humanitarian law while shielding the government”.

The Bill serves one body, and that body is the Ministry of Defence.

I can also point to some other opinion against the Bill—indeed, one of the Secretary of State’s predecessors, Sir Malcolm Rifkind. The Secretary of State has managed to unite Sir Malcolm Rifkind with the Scottish National party, and he was a leading nat-basher-in-chief back in his day. He has said that the Bill risks

“undermining the UK’s position as a champion of the rule of law”.

That might be fashionable on Government Benches these days, but it is something that we in the Scottish National party will not stand for.

You could also quote the former Attorney General, Dominic Grieve. I hear the Government Front Bench often praying in aid the Attorney General for Northern Ireland. For a Bill that does not concern itself with Northern Ireland, you seem awfully keen on the Northern Irish Attorney General. As the shadow Secretary of State mentioned, we were told by the Secretary of State in a letter that he sent to all Members of the House that the Bill will be equivalent to what is brought forward in Northern Ireland. Well, good luck with that one!

We can also quote Field Marshal Lord Guthrie, although I understand he has taken some of what he said back. Again, he is hardly a lentil-munching leftie. He said:

“There can be no exceptions to our laws, and no attempts to bend them. Those who break them should be judged in court.”

He also stated:

“These proposals appear to have been dreamt up by those who have seen too little of the world to understand why the rules of war matter. If we start down the slippery slope of arguing that rules apply to others, but not to ourselves, it is we who will suffer in the end.”

[Tom Tugendhat]

To make a small point of clarification, Field Marshal the Lord Guthrie has rethought his words, having spoken to the Chief of the General Staff.

[Stewart Malcolm McDonald]

I do not believe that anything I read out is what he has withdrawn, however. If I am wrong on that, I am happy to be corrected. I thought I was going to be told that he was indeed a lentil-munching Guardian reader, but clearly not.

To come to how the Government are approaching this, I have listened to many of the sedentary chunterings that have come from the Treasury Bench this afternoon, and I had a call with the Minister for Veterans yesterday—he told me that he was not the “king of good ideas”, but I did not need to be told that—but all I have seen is arrogance. Any objection, whether adumbrated by people outside or inside the House—including people on his own side, by the way—is all met with, “Didn’t read the Bill”, “Doesn’t understand it”, “This is embarrassing”, or “It’s this way or no way.” I am afraid that unless we can amend the Bill within an inch of its life, beyond any recognition of what appears before Members this afternoon, there is no way that my party can support the Bill in this form.

I will say this, however: if the Minister wants to get the issue solved—which I believe we both do, as I said at the start—

--- Later in debate ---

[Tom Tugendhat (Tonbridge and Malling) (Con)]

It is a pleasure to see you in the Chair this afternoon, Madam Deputy Speaker, and to follow my friend, the hon. Member for Glasgow South (Stewart Malcolm McDonald), who made some interesting points, some of which—forgive me—I am going to disagree with. He will not be surprised to hear that, because we have often entered into many civilised, and sometimes lubricated, conversations on these very subjects. These issues affect the whole House and have been discussed by many Members in here and in other places, because they really matter.

I declare an interest; I got into politics on leaving the Army, after writing a paper for Policy Exchange in 2013 called “The Fog of Law”, which covered these very subjects and highlighted many of the issues raised in this debate. I appreciate that there are difficult decisions and that it is hard to balance what the right hon. Member for Wentworth and Dearne (John Healey) quite correctly said was the difference between the liability that a civilian employee could expect with their employer and that which a soldier on overseas operations could expect. I accept that that is different.

I accepted that it was different when I swore allegiance to Her Majesty and put on the uniform for the first time. I accepted it was different because the job that I had accepted to do was different; it was fundamentally different—different in every sense from any civilian job at all. Why? Because I promised, as the men and women of our armed forces still promise, to give everything even unto death. That is not something that any other employer asks of their team or their staff. Nobody who is not wearing the Queen’s uniform pledges to defend our people, our islands, our values, our country, our allies and our interests even up to their own life. That is different.

In recognising that that is what we need from our armed forces, we must also recognise that the law defending our troops and the law that applies to their terms of employment must also be different. It simply cannot be the case that civilian employment contracts are applicable to the invasion of Iraq or hard detention operations in Afghanistan, or even to training missions in other places that go wrong and become combat in ways that the people involved do not expect. Of course they must be different.

[John Healey]

Will the hon. Gentleman accept that this is a distinction not just between the armed forces serving overseas and civilians, but between armed forces serving overseas and armed forces serving and based in this country? To that extent, this legislation uniquely disadvantages the latter and reduces their rights.

[Tom Tugendhat]

I will accept that this is an overseas operations Bill and that being on patrol in Helmand is different from bringing on guard at Buckingham Palace, and therefore the rights that troops should accept in different places under different terms should of course be different.

I have served, as have many of my colleagues in all parts of the House. Indeed, my friend and former comrade in arms the hon. and gallant Member for Barnsley Central (Dan Jarvis) and I served in camps in places where the electricity could best be described as ropey and would fail any civilian investigation. We served in places where to walk outside the camp was to risk everything, from loss of life or limb to very real mental damage. We served in those places because the national security and the interests of our country—decided on by people here, by the way, not soldiers—was judged to be that important.

[Mr Wallace]

I listen with interest to what my hon. Friend says and to his example of unique circumstances. The hon. and learned Member for Edinburgh South West (Joanna Cherry) made the point that this Bill makes some people less or more equal before the law—that it was an unfair application—but it does not prevent anyone from being prosecuted for a crime that they have committed, nor does it introduce special defences for people, so that some of these offences allow them to have an excuse. All it does is ask a prosecutor to have exceptional regard for the circumstances that those concerned may find themselves in and also, where an investigation has already happened, to think about the level of new evidence that should be applicable.

[Tom Tugendhat]

I agree with my right hon. Friend, and the important point about the Bill is that it recognises the difference between a crime and an error. We all know that crimes should be prosecuted, and we all know that the difference between a crime and an error is a difference of understanding and, on some occasions, circumstance. It is not necessarily a crime for a missile, sadly, to go astray and kill civilians. It can be an error; it may be a terrible, regrettable error; it may be an error that we should learn from a thousand times. But it cannot always be a crime, otherwise the invasion of Normandy could never have happened, because if it was always a crime for civilians to die in combat, the troops could not have prepared that battlefield to land on those beaches.

If that was a crime, it would always be a crime to use force in situations where we cannot be absolutely certain of the outcome of that force. Of course, that is never possible, because the reality is that if we put such blocks on any use of force, what we are saying is that force can never be used.

[Joanna Cherry]

I am failing to follow this argument. Is the hon. and gallant Gentleman suggesting that torture is a crime that can be committed by error?

[Tom Tugendhat]

No.

[Joanna Cherry]

That seems to be what he is suggesting. But let us focus on what we are talking about here. We are talking about torture—[Interruption.]

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. We do not have time.

[Tom Tugendhat]

That is simply not what I am saying, and it is quite clear that it is not what I am saying. What I am saying very clearly is that there is a fundamental difference between an error and a crime, and there is a fundamental need in military law to allow soldiers to take the risks that we need them to take if they are going to keep our country safe. If we do not allow them to take those risks, what we are saying, fundamentally, is that the weak must defend themselves and the strong can look after themselves; because the point about military service, soldiering and our armed forces, fundamentally, is that they allow the strong to defend the week. They put the use of force under the rule of law, and they allow this country to be strong and safe, and partnered with others around the world.

--- Later in debate ---

[Dr Julian Lewis (New Forest East) (Ind)]

I greatly admire and respect the hon. and gallant Member for Barnsley Central (Dan Jarvis), but I fear that it would require rather more than just an improvement to the way in which service authorities investigate allegations to solve this problem, because the problem derives in large part from the application of the Human Rights Act abroad.

The purpose of this Bill should not be to stop sound cases being prosecuted, and it does not do so. Its purpose should be to stop unsound cases being repeatedly investigated, and that, I fear, it fails to do. The hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) seized on this point in his earlier intervention, in which he referred to intimidation by reinvestigation, and he is right; that is the nub of the problem. The Secretary of State conceded that only a small proportion of these many cases—most of them spurious—end up in a prosecution. He suggested that, if it were known that there would be less likelihood of a prosecution, there might be fewer rounds of investigation and reinvestigation, but I am afraid I do not find that wholly or, indeed, at all convincing. Something must be done to stop the repeated reinvestigations, which, in large part, happen because of the application of the Human Rights Act abroad.

I first became aware of the scale of this problem several years ago when I heard speeches from my hon. and gallant Friends the Members for Beckenham (Bob Stewart) and for Filton and Bradley Stoke (Jack Lopresti). The effect of that was to interest me in trying to take the matter further during the two periods for which I chaired the Defence Committee. In those two periods, we produced three reports. The first inquiry was carried out by the sub-Committee under the chairmanship of my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), now the Minister for Defence People and Veterans. That inquiry dealt with Iraq and reported in February 2017. The second one dealt with Northern Ireland and reported in April 2017.

The third one, dealing with the whole panorama of all these scenarios, reported in July 2019. That report warned that the European Court of Human Rights

“has gone far beyond the original understanding of the European Convention on Human Rights, and… its rulings have stretched the temporal and territorial scope of the Human Rights Act beyond Parliament’s original intentions”.

The report examined proposals by Professor Richard Ekins, now professor of law and constitutional government at Oxford University, in which he proposed to restore the former scope of the HRA and the application of the ECHR. As long as that legislation, which was never intended to be applied abroad when it was enacted by this House in 1998, persists in its extended application, we will not solve this problem.

[Tom Tugendhat]

Is my right hon. Friend aware that it is not only the United Kingdom facing an issue with the extraterritoriality of the ECHR? The French Conseil d’État —in which I must declare an interest, as my wife is a member—has also been investigating this, as has the German court, because this extraterritoriality was never envisioned by the signatories in the ’50s, nor was it envisioned by the then Prime Minister in the ’90s.

--- Later in debate ---

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

It is a pleasure, as always, to follow the hon. and gallant Member for Beckenham (Bob Stewart), whose hair is looking glorious this afternoon as well. I declare an interest because, as most Members will know, my husband is a veteran. [Interruption.] He is also an Ulsterman: I thank the hon. Member for Strangford (Jim Shannon) for pointing that out.

I must pick the hon. and gallant Member for Beckenham up on one thing. It is not true to say that all members of the armed forces want this Bill, as that is not the case. None of us wants a repeat of the shameful Phil Shiner episode, and no person in this House would disagree that we need protections in place for our personnel and veterans. Unfortunately, however, the Bill is not the vehicle to do that. Our armed forces are the gold standard for militaries around the world and that must include the structures we have in place to deal with behaviour that falls short of our expectations.

Like the right hon. Member for North Durham (Mr Jones), I have submitted a series of written questions to try to get a feel for the scale of this problem. I was hoping for a bit of information, but I have yet to have any answers to these questions. The Minister has not been in touch. Despite what the Secretary of State said— it is a pity he has gone now—about the Library impact assessment having all those numbers in it, it does not. It has numbers relating to part 2 of the Bill, not part 1. It is worrying that we are bringing forward legislation to tackle the industrial scale of vexatious claims, but we cannot get a handle on how many there actually are.

As we know, many conflicts involving our personnel are in parts of the world that are now experiencing a fragile peace. To put in place a statute of limitations on prosecutions assumes that normality and the structures of a democratic society will be promptly established post conflict. This, of course, is not the case. If we are to rely on investigations that have taken place, we must have confidence in those original investigations.

[Tom Tugendhat]

I appreciate the hon. Lady’s point about the confusion of post-conflict societies and therefore about the statute of limitations, but would she not accept that this goes both ways? There is also the difficulty people can have in defending themselves when evidence has been lost, burned or destroyed in exactly those post-conflict societies, and therefore time works both ways on this question. This is essential for the defence in justice, because justice must not only be for the prosecution, but for the defence.

[Carol Monaghan]

There are two things: that is not unique to conflict—that happens in many things—and that is also why the original investigation must be carried out properly. If we want to minimise the opportunities for these vexatious claims, such investigations should be independent. They should be collecting accurate evidence, and without this we really do leave the door open.

If the conduct of our personnel is as we expect, why should anyone fear this transparency? This legislation undermines our international standard the more so because it includes, as Members have already mentioned, unlawful killing and torture. Judge Blackett, the Judge Advocate General of the armed forces, has warned:

“This increases the likelihood of UK service personnel appearing before the ICC in the future.”

Is this what any of us want?

Part 2 of the Bill has not had much mention this afternoon, and it should. It is ironic, when we have the Tory chest-thumping going on about protecting our brave soldiers, that part 2 is actually an attack on these very personnel. It removes many of the rights of those who have been injured through the negligence of the MOD to claim against it. Here is the nub of this Bill: it is about protecting the MOD, not personnel.

In the urgent question on 16 July, the Minister for Defence People and Veterans said:

“I will be honest that I cannot, off the top of my head, think why individuals would be diagnosed and choose not to do anything about it… I have not come across that in all my experience in the field, but I am happy to learn. If that is the case, I am happy to change the Bill”.—[Official Report, 16 July 2020; Vol. 678, c. 1675.]

Well, that is great, because it needs changing. There are many reasons why claims are not brought forward promptly, such as a culture in the military meaning that personnel may be told they cannot pursue a claim while serving or told by their chain of command they do not have a valid claim. If part 2 of the Bill becomes law, those injured through negligence will no longer have the full discretion of the court to allow a claim to proceed after the limitation period has expired.

--- Later in debate ---

[Gavin Robinson (Belfast East) (DUP)]

It is a pleasure to follow the hon. Member for Wrexham (Sarah Atherton), not only because she made an eloquent speech but because it has been a pleasure to serve with her on the Defence Committee for the past few months. She is a welcome addition to our group. She followed the hon. Member for West Dunbartonshire (Martin Docherty-Hughes). Although our opinions on the Bill may differ throughout our proceedings, it is right to acknowledge that on the Defence Committee, there is great sense of collegiality and a great degree of cohesiveness. We work well and sincerely in the interests of our armed forces and all those who serve our country.

I see the right hon. Member for New Forest East (Dr Lewis) in his place smiling at me. A former Chair of our Committee, he expertly navigated the way through two of the three reports published by the Committee. I was a member of the Committee during the passage of the two substantive reports, and I commend them to Members, not just in relation to the Bill but in relation to future provisions that we hope to see apply to Northern Ireland, because they outline the complexity of the legal arguments that are engaged. Not once have we heard mentioned in the debate thus far the rationale for Northern Ireland not being included in an overseas operations Bill. It is not because it is expedient, but because we operate in entirely different legislative frameworks. International treaties and the Geneva convention do not apply to domestic deployments.

I listened very earnestly to the hon. Member for Bracknell (James Sunderland) and thought that he made a good speech, but he wanted to focus on what is in the Bill rather than on what is not in it, and I am afraid I cannot do that. I cannot say to the 300,000 veterans who served in Northern Ireland during Operation Banner —the longest continual deployment in our country’s history—that they do not count today. I recognise that those 300,000 do not all live in Northern Ireland. In fact, the majority live in constituencies in England, Scotland and Wales. Yet they are hearing us debate issues about protecting those who protected us without recognising fully that they are not included.

[Tom Tugendhat]

I am very pleased to hear the hon. Gentleman talking about this because it matters so much to many of us. But there is a difference, surely, between overseas operations and domestic operations that he has touched on. The very nature of what we are dealing with, with citizens of countries from around the world rather than citizens of the United Kingdom, means that the legal framework must be different. While I appreciate that he is absolutely right that the Bill should go further, or indeed the Northern Ireland Secretary should bring forward a Bill that covers similar issues, does he not recognise that it at least addresses part of the lacuna, even though not the whole?

[Gavin Robinson]

I have enormous respect for the hon. Gentleman, and he is right that there is a different legal framework. That is the point I was making, and I acknowledge it. However, I am not prepared to let this Second Reading debate go by without saying that there is a compelling and equal argument that needs to be made for those who served in Northern Ireland: his constituents and mine. When this Bill was introduced for its First Reading on 18 March, a written ministerial statement was also tabled in this House giving equal provision and commitment to the people who served in Northern Ireland. If that was necessary on the day of its first introduction, the very least we could ask is that we would today have had clarity and further sight of that, and potentially its introduction, so that there was some parallel progression of the commitment that was in the Conservative party’s manifesto, and veterans are looking to see how it will be brought forward.

--- Later in debate ---

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

Thank you, Madam Deputy Speaker, for the extra few minutes. I declare an interest as a veteran who has served on multiple overseas operational tours and successfully taken the Ministry of Defence to court over injuries sustained in my time. In my maiden speech I spoke about what was best described as a hatred of this place and the decisions that were made here. After those decisions were made, I had to go and fight in those conflicts and saw them at first hand. But I think we need to move on from that and say, “There are new Members in; let us help to educate the House from our perspective”. We do not all have the same views, but we have been given that opportunity, so I want to show hon. Members a day in my life as a young soldier.

At the age of 22, I had been shot, rehabilitated, learned to walk again, returned to active duty, spent several years on different operational tours, gained promotion and got married. Then Kosovo erupted. We were chosen to go at the start of the conflict, so on returning from my honeymoon, I kissed my wife goodbye and said, “See you in six months.” As we entered Pristina, we did not know what awaited us. I was a proud junior NCO—that meant I could read a map—with the formidable R Company of the 2nd Battalion the Royal Green Jackets. I worked alongside professional, battle-hardened men, and we knew our job and did it well. There was no proper accommodation when we arrived, so we put our doss bags down in what could best be described as rat-infested, disease-ridden derelict buildings. We worked all hours round the clock, so sleep was a real bonus if we got it. Within a couple of weeks of the tour starting, it was clear that we were stretched thin, had unsuitable kit and lived in the worst conditions imaginable. We did not complain. We got on with it.

One evening, I was a quick reaction force commander, and our temporary base was burned down. It would have been a blessing to get rid of the place if my friends had not been so badly burned in it. As we were trying to put the fire out, the conflict raged all around us. We had to go and deal with that, regardless of the fact that all our stuff was getting burned as we did so. My brief over the radio on the way to the incident was: “Several armed men have entered a house. Civilians inside. Serious threat to life. Deal with it.” That was the brief.

There are all kinds of ways of dealing with such situations in training, and loads of support agencies that can be brought in. Not one was available then, so I and three of my colleagues arrived at the location. I briefed the team by saying, “Make ready.” For those who do not know, that means put a round in the chamber and prepare to engage the enemy. We entered the building and had a split second to decide whether these men were armed. Were they waiting for us? Were they even in there? What were they going to do? We were sleep deprived, under pressure and had just watched our mates burn. We knew the rules of engagement. We knew what we could and could not do. If we made the wrong decision, we went to prison or we died.

On that occasion, we were able to get the men to surrender and prevented any loss of life. That incident is nothing unusual in the day of a soldier on operational tour. That is what they do—day in, day out. They never want to be held above the law. They do not want to be treated differently. They want to do their job without fear of being chased decades afterwards. If a crime is committed, they must be prosecuted and they all get that, but this lawfare culture is a disgrace to this country. It will damage the military and it must be stopped.

This Bill is a major step forward for veterans and soldiers. It will bring back reassurance for our troops that they can move in operations without that fear of prosecution. I welcome everything that my hon. Friend the Minister for Defence People and Veterans has done to get this legislation here. It is a major step forward. I also welcome the Northern Ireland Bill that is coming forward. We must see that through.

[Tom Tugendhat]

I just wondered whether my hon. Friend would like also to praise the Minister’s hair.

[Stuart Anderson]

Like me with the long beard, the Minister has long hair; we are leading the game in this House.

I am new to this game. I have only been a politician since last year. As I said, I had never voted before 2015. I hated politics and the decisions made. I have watched some of the debates and have honestly found myself angry at some views, but I have to put that to one side because we have to debate this matter fairly. I have seen the impact of these issues on soldiers’ lives; some of my friends are not here now because they took their own lives. We have got to put that above everything else. I am asking the House to put egos and political parties aside, and to support this legislation tonight. We will be judged by our actions, not our words.

--- Later in debate ---

[Joanna Cherry (Edinburgh South West) (SNP)]

I will confine my comments to the presumption against prosecution for serious criminal offences contained in part 1 of the Bill. I believe that the way in which this is framed will make prosecutions close to impossible for some of the most serious crimes under international law. I am also concerned, as are many lawyers, that it will create a presumption against prosecution for a class of defendants, which is unprecedented in our domestic legal systems.

In cases where UK personnel have committed crimes such as torture, the triple lock will apply no matter how grave the conduct involved is or how detailed the evidence is. The Government claim that this measure is designed to protect soldiers, but in fact, it runs counter to everything that our military personnel stand for. I respectfully remind Government Members that many Opposition Members have family members who have served in the armed forces as well. My paternal grandfather served in the Royal Air Force.

After the second world war, our armed forces helped to update and expand the Geneva conventions, which protect captured personnel. Both the Army field manual and the Ministry of Defence doctrine explicitly forbid torture or cruel treatment. Torture has been prohibited in Scotland since the Treason Act 1708 and in England for more than 300 years, since the Long Parliament’s abolition of the Star Chamber. Even Margaret Thatcher—not somebody I am normally given to praising—fought to preserve the ban on torture, and in 1988 she made it a criminal offence, no matter who committed it or where it was committed. Right-thinking Conservative Members might wish to bear that in mind when considering the part of the Bill to do with the triple lock.

[Tom Tugendhat]

I know that the hon. and learned Lady has a much finer legal mind than mine, but I merely draw her attention to clause 3(2)(b), which refers to “no compelling new evidence”. Surely the Bill does envision the possibility that there could be compelling new evidence, and therefore this is not the absolute lock of which she speaks.

[Joanna Cherry]

I have not said that it is an absolute lock. It does envisage some possibilities. But the bottom line is that you do not create a triple lock against something if you are expecting to encourage it or to allow it in. It simply cannot be right not to prosecute criminal acts of a crime as serious as that of torture if there is strong evidence that it took place. Torture victims have a right to see their tormentors brought to account, and there should be no time limit on justice.

This is not just a matter of domestic law. As we have heard from other hon. Members, our international legal obligations under the UN convention against torture and the Rome statute consist of recognising prohibitions against torture, which are absolute. That was the point of my intervention on the hon. Member for Tonbridge and Malling (Tom Tugendhat). The prohibition against torture in international law is absolute, and it ill behoves us to pass a statute creating one class of defendants in the United Kingdom wherein there is a presumption against them being prosecuted for that crime.

I have no time for vexatious litigation. I can say, as somebody who practised at the Bar for many years, and also someone who prosecuted, that vexatious litigation is a pain in the neck. What I am concerned about is the international reputation of the United Kingdom, for so long as Scotland remains part of it. Indeed, I will be concerned about the international reputation of England even when Scotland is no longer in a union with it. International law may not mean much to this Government, but they forget at their peril that it keeps all of us safe. If this is what the Government meant by their manifesto promise to update human rights laws, then we should all be very concerned.

Middle East: Security

Tom Tugendhat Excerpts

Tuesday 7th January 2020 Commons Chamber

[Mr Wallace]

The hon. Gentleman mixes the inherent right, under article 51 of the UN charter, to defend ourselves from threats against our citizens or others, and an unchallengeable sovereignty that means a country cannot take action to defend itself from a threat in part of another country. We mostly do it by getting in touch with the other country to have someone arrested or dealt with, when there is a direct threat, but that is not always an option, depending on imminence.

As I said in my statement, the number of times that US and UK coalition forces have been attacked in Iraq in the last few months, with no action being taken—indeed, an American lost their life—has been growing. There have been 14 attacks, with 32 rockets fired in the last one. In the end, it is the responsibility of any nation to make the difficult choice to balance sovereignty, intelligence and the duty to defend its citizens. Nations have to make that choice sometimes.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

My right hon. Friend makes a proper case for the British Government’s position, but will he go further and talk about what he is doing to make sure this does not become a cliff edge to war but is instead the low point of a tick that leads to progress? We should work with allies such as Kuwait, Qatar and Oman, perhaps, to reach out to Iran and assure it that we do not wish a conflict and that what we wish instead is change to a policy that has led to the deaths not only of far too many Brits but of hundreds of thousands of Muslims in Syria and Iraq. It is for them that we are standing up, and it is for them that we want a change.

[Mr Wallace]

My hon. Friend is right to focus on how we can broaden both the network of diplomatic pressure on Iran and, in a sense, the support for Iraq, the United States and other countries engaged in this area. If I remember rightly, Iran used to have remarkable links with Japan, for example. We are exploring all the possible levers. With my colleagues in the Foreign Office and, indeed, at No. 10, including the Prime Minister, we are working as broadly and as fast as we can to find a way, using diplomacy through people with good access to the very heart of the Iranian Government, to reach a place where we can persuade the Iranians that retaliation is not in their best interest, while offering them a way out so that we can get back to a more stable middle east.