Schedule 1 - Excluded offences for the purposes of section 6

Overseas Operations (Service Personnel and Veterans) Bill – in the House of Commons at 3:32 pm on 27th April 2021.

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Photo of Leo Docherty Leo Docherty Parliamentary Under-Secretary of State (jointly with the Ministry of Defence) 3:32 pm, 27th April 2021

I beg to move,

That this House
agrees with the Lords in their amendment 1R but disagrees with the Lords in their amendments 1S, 1T and 1U.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (First Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

Government amendments (a) to (c) in lieu of Lords amendments 1S, 1T and 1U.

Government manuscript amendments (d) and (e).

Government motion to disagree with Lords amendment 5B.

Photo of Leo Docherty Leo Docherty Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

I rise to propose Government amendments in lieu of Lords amendments 1S to 1U. I should once again like to thank Lord Robertson for his constructive contributions to debates on this issue.

It has always been the case that the measures in the Bill will not leave our service personnel at greater risk of investigation by the International Criminal Court. By adopting the amendments, we are happy to offer further reassurance and put that beyond any doubt. I should like to reassure hon. Members that service personnel and veterans will continue to receive the benefits of the additional protections provided by part 1 of the Bill in respect of historical alleged criminal offences under the law of England and Wales. Including war crimes in schedule 1 of the Bill will have little practical impact on the protection that the Bill affords our armed forces personnel. The Government are therefore delivering on our commitment to protect our service personnel and veterans from the threat of legal proceedings in connection with historical overseas operations many years after the events in question.

We have listened, and we believe that these proposed Government amendments in lieu will satisfy the House of Lords in respect of relevant offences, and they demonstrate our continued commitment to strengthening the rule of law and to maintaining our leading role in upholding the rules-based international system.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

Can the Minister name any country in the world that, 50 years after the event, would prosecute two of its own soldiers for killing a terrorist?

Photo of Leo Docherty Leo Docherty Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

I am grateful for my right hon. Friend’s intervention. He is, of course, referring to legacy cases in Northern Ireland. I am confident, as I stated at the Dispatch Box last week, that legislation is forthcoming to ensure that our Northern Ireland veterans are protected from any prosecutions in the future. I urge that the Government amendments in lieu be accepted this afternoon.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I congratulate my hon. Friend on his appointment, but can he explain what he means by the expression “in the future”? There will be a lot of people listening and wondering, “When is it going to affect me?”

Photo of Leo Docherty Leo Docherty Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

I am grateful for my hon. Friend’s question. I am confident that, in the near future, legislation will be brought before the House from the Northern Ireland Office to ensure that we see no more prosecutions of Op Banner veterans, and I know that he will share that expectation.

I turn to Lords amendment 5B on the duty of care. The Government continue to believe that it would not be practicable or desirable to define a legally binding standard of care in relation to the matters referred to in the amendment. As I said previously, the Ministry of Defence takes very seriously its duty of care for service personnel and veterans. Over the years, we have established a comprehensive range of legal, pastoral, welfare and mental health support for service personnel and veterans, and we have come a long way from the early days of our operations in Iraq and Afghanistan. Our welfare provisions were clearly laid out in the Defence Secretary’s written ministerial statement of 13 April. We are aiming for a gold standard and are improving our provision all the time without the requirement for legislation.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

It is a pleasure to see the Minister in his place. I know that he is committed to this; I have no doubt whatsoever about that. In my constituency and across Northern Ireland, a number of young service personnel who have served well have taken their own life due to post-traumatic stress disorder. Can the Minister assure me that when it comes to legal, pastoral and mental health support, everything that is necessary is in the Bill?

Photo of Leo Docherty Leo Docherty Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

I am grateful for the hon. Member’s question. I can reassure him with confidence that we are aiming for a gold standard in welfare provision. It does not require legislation. It requires constant improvement and a deep interest across Government, and that is what the Ministry of Defence is committed to delivering alongside the Office for Veterans’ Affairs.

Additionally, we are deeply concerned about the potential unintended negative effects of Lords amendment 5B if it is included in the Bill. Notions of pastoral and moral duties are extremely difficult to adequately define, and there is a real risk that attempting to do so will lead to more, rather than less, litigation and greater uncertainty for our armed forces people. We are also concerned that, as investigations and allegations arise and often occur on operations, the amendment might have the unintended consequence of undermining our operational effectiveness.

The Government do agree with Lord Dannatt on the need to set out clearly the benefits of the Bill to the armed forces community. He has asked for a commitment that the Government will communicate the measures of the Bill down the chain of command. I am, of course, delighted to give that assurance now. We will ensure that all service personnel understand the positive effects of the Bill and the legal protection it affords them. We will explain how the measures in the Bill are beneficial to individual service personnel who have deployed or will deploy on overseas operations.

Part 1 of the Bill will reduce the number and length of criminal investigations, and our armed forces personnel should be reassured that the unique context of overseas operations will be taken into account when criminal allegations against them are being investigated. The longstop measures in part 2 of the Bill mean that we should never again see the industrial scale of civil claims that we saw in the wake of Iraq and Afghanistan. These measures are delivering on our manifesto commitment and our solemn pledge to protect our armed forces personnel and our veterans and to bring to an end the shameful cycle of vexatious legal claims brought against our finest asset—our defence people. Together, both parts of the Bill will give greater certainty to service personnel that they will not have the shadow of legal proceedings hanging over them for decades after they return from doing their duty on overseas operations.

We will be clear, of course, that the Bill will not stop service personnel being held to the highest standards that we would expect from all our armed forces, and that they will still be subject to domestic and international law when they deploy on overseas operations. Similar, we will make it clear that the limitation longstops will also apply to claims by them that are connected with overseas operations, and emphasise that they should bring any civil claims connected with overseas operations within six years of either the event or their date of knowledge. The vast majority have historically already done so, but it is important that this message is understood so that, in future, an even greater percentage of service personnel bring their claims in a timely manner.

In summary, the Bill delivers for our armed forces and protects our people, but I do not believe that setting a standard for the duty of care in the Bill is necessary or desirable, so I urge the House this afternoon to disagree with Lords amendment 5B.

Photo of John Healey John Healey Shadow Secretary of State for Defence

Before turning to the amendments before us today, I want to place on record my thanks to all those who have worked so hard and so collaboratively on the Bill throughout its passage, although I have been dismayed at earlier stages when Ministers have tried to make the Bill a matter of party politics. I believed from the outset that Members on all sides in both Houses wanted the same thing from this legislation—that is, to protect British troops and British values.

The Lords have certainly approached the Bill in this constructive cross-party manner, and I want to thank in particular those on the Labour Lords Front Bench: Lords Tunnicliffe, Touhig and Falconer, and Lord Robertson for his tireless work on part 1 of the Bill, which the Minister has acknowledged. I also want to thank Lord Hope for his convincing arguments on the European convention on human rights, Lord Dannatt for his leadership of the duty of care amendment we are considering this afternoon, and Lords Stirrup and Boyce for their experience, their wisdom and their backing for all the Lords amendments that were sent to this House. I also want to thank the Minister’s colleague, Baroness Goldie, and indeed the new Minister himself for their similarly constructive approach.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I agree with my right hon. Friend’s comments about their lordships, but does he agree that if some of the amendments that were tabled in Committee had been adopted, the Lords would not have had to redo the work on the Bill? Is he as disappointed as I am that the Minister at the time would not take into consideration any amendments in Committee?

Photo of John Healey John Healey Shadow Secretary of State for Defence

My right hon. Friend is right. Last week when we debated the first set of Lords amendments, I described the Minister’s predecessor, Johnny Mercer, as a “roadblock to reason” on this Bill. Unfortunately, that has meant that more work was done in the Lords, and that the deep flaws in the Bill have not all yet been fixed. So this is a Bill that in many ways fails to do what it set out to do; it fails to do what it says on the tin. Finally, before I move on to talk about the amendments—which I am sure you wish me to do, Mr Deputy Speaker—I want to make sure that I thank the Bill team in the Ministry of Defence and the Bill teams and Officers of both Houses for their advice, their professionalism and their hard work on the Bill.

We welcome the Government’s acceptance of Lords amendment 1R, which excludes from the Bill’s five-year presumption against prosecution all war crimes covered by articles 6, 7 and 8 of the Rome statute, which of course set up the International Criminal Court and applies the Geneva conventions, which were very much Britain’s brainchild under Attlee and then Churchill after the second world war.

The Government have rightly followed through today on the principle that Ministers conceded last week on torture, genocide and crimes against humanity, because not excluding the full range of crimes falling within the jurisdiction of the International Criminal Court would damage Britain’s international standing, including that of our armed forces, and lay open our armed forces to the risk of being hauled before the ICC. The Government’s acceptance of that amendment and its consequentials, to give full effect to the Lords’ intent from last week, is welcome. We have worked hard for it, and I am sure that the move will be welcomed across the House.

On the argument that the Minister made for disagreeing to Lords amendment 5B on the duty of care, this legislation, as I said a moment ago, is still very far from doing what it says on the tin to protect British forces personnel serving overseas from vexatious litigation and repeat investigations. It still fails to incorporate a duty of care for forces personnel who are faced with allegations, investigations and litigation, and the Government’s amendments in lieu will knock out this important and valuable amendment that the Lords have sent back to us.

Led by Lord Dannatt, and still heavily backed by Cross-Bench and cross-party support, the Lords voted by another large majority of 69 yesterday to return amendment 5B to us. It is more practical and more flexible, and it is a more tightly focused duty of care. I have to say to the Minister that the Government’s arguments to defend their position become more flaky and more flimsy as we get deeper into ping-pong, and as they rely more on their colleagues following the Whips through the voting Lobby without thinking for themselves.

Let me take each of the arguments that the Minister this afternoon, and his colleague Baroness Goldie yesterday, made against this duty of care amendment. First, Ministers say that this comprehensive support is already in place and routinely offered, yet veterans faced with investigation or litigation consistently say that they are cut adrift by their chain of command and abandoned entirely by the MOD, with no legal, pastoral or mental health support. Major Bob Campbell made that point so powerfully from his own dreadful experience in evidence to the Public Bill Committee, as did many others. The most senior figures in the House of Lords believe that this duty of care is required. I have to say to the Minister that talk of a “gold standard” simply highlights the gap between what Ministers say and what veterans experience.

Secondly, the Minister has said again today that the duty of care standard, if not carefully drafted, could end up being a blanket approach. He has argued that there could be difficulties in defining the duty, but it would be for the MOD itself to draw up and define that duty of care standard. That cannot be beyond the several thousand civil servants in MOD Main Building. The Lords amendment gives the principle a tight focus on those forces personnel or veterans who are subject to investigation and litigation.

Thirdly, the Minister said, as his colleague did yesterday, that this is somehow likely to lead to an increase in litigation. If that were the case, it would of course be litigation against the MOD, not individual service personnel, and the Bill is supposed to protect armed forces personnel, not the MOD.

Fourthly, the Minister said, as his colleague did yesterday, that the duty could have an impact on operations during conflict, and could have unintended consequences. I really feel that it is a stretch to imagine a duty of care, with impartial legal advice and pastoral support, interfering with operations or the chain of command. If Ministers really believe that to be the case, they need to spell out those concerns.

The former Chief of the General Staff, Lord Dannatt, who led the British Army in Iraq and Afghanistan and served in Bosnia and Kosovo, is satisfied with the Lords amendment and does not share those concerns. I urge Tory MPs who are ready to troop through the voting Lobby this afternoon with their Whips to think for themselves on this and heed the warning of Lord Dannatt, who yesterday said,

“when this new Bill passes into law it will singularly fail to provide the protection that serving and veteran members of the Armed Forces believe it should provide.”—[Official Report, House of Lords, 26 April 2021; Vol. 811, c. 2109.]

We are disappointed that the Government will not rethink this proposal today, but we are determined to pursue it further. I encourage the new Minister to look hard at it before we return to the Armed Forces Bill.

Finally, this version of the duty of care amendment gives greater emphasis to support during investigations. Although Lord Thomas did not press his amendment on investigations to a vote yesterday, I remind the Minister that the purpose of this Bill is to protect our forces personnel serving in conflicts overseas from vexatious legal claims and repeat investigations. This is a long-running problem. It has been a problem under successive Governments, but this Bill does not fix it because it is lopsided legislation that deals only with prosecutions and not also with investigations. Quite honestly, if this Bill had been on the statute book after Iraq and Afghanistan, it would have made no difference to more than 99% of the 4,000-plus cases where our service personnel were subject to allegations and investigations.

Photo of Kevan Jones Kevan Jones Labour, North Durham 3:45 pm, 27th April 2021

May I also say to my right hon. Friend that it will not in the future either, because it will not, as the Minister said, stop vexatious claims coming forward, because they will have to be investigated? There is a huge hole in this Bill, which the former Minister refused to accept in Committee, about trying to case manage investigations, so people will still be investigated. There is nothing in this Bill to say that they will not be investigated, so it does not do what it says on the tin and it would be dishonest to people to suggest otherwise.

Photo of John Healey John Healey Shadow Secretary of State for Defence

My right hon. Friend is right. I have described it as the big gap in this legislation. It is a big flaw in the Bill. We may not succeed this time around, but we will certainly return to it in the Armed Forces Bill, which I will come on to. The proposals before us in this amendment are simple, flexible, tried and tested in civilian law, and backed by all the leading military and legal experts in the other place.

I urge the Minister this afternoon to confirm what he hinted at last week, and what his colleague, Baroness Goldie, said she would not stand in the way of yesterday. The Secretary of State made an offer to me in conversation last week to formally ask Sir Richard Henriques to examine this proposal as part of his current review so that it can be considered alongside other recommendations from that review for incorporation into the Armed Forces Bill. The Minister’s predecessor said at the very outset of this Bill’s proceedings in this House, on Second Reading back in November:

“The right hon. Member for Wentworth and Dearne raises time and again the issue of the investigations, but he knows that they are for the forthcoming armed forces Bill and will be addressed there.”—[Official Report, 3 November 2020; Vol. 683, c. 258.]

Of course, they are not, but we will ensure that they are. I say to the Minister that I hope we will be able to work together constructively on that, in a way that proved so difficult with his predecessor.

Photo of Kevan Jones Kevan Jones Labour, North Durham

But it was not for lack of trying. I moved three amendments in Committee, and not only were they fiercely resisted by Johnny Mercer, but there was no explanation of how and when in future legislation anything around investigations would be addressed, even though my right hon. Friend is right that the former Minister had given a commitment that investigations would be addressed in the Armed Forces Bill.

Photo of John Healey John Healey Shadow Secretary of State for Defence

Yes indeed. My right hon. Friend has worked as hard as anyone in this House on this Bill and I am really grateful to him for that. He has been part of what the Opposition, certainly, are now set to do, which is to forge a consensus on the changes needed to the Bill so that it better serves the interests of British troops, British justice and Britain’s standing in the world. I believe that we, as the official Opposition, and we as a House, have a duty to try to make this Bill fit for purpose as the new legal framework for this country when we have in future to commit our servicemen and women to conflict overseas. It falls short of that test at present. We will not let those matters rest.

This is a classic case of a Government who will win their legislation but have lost the arguments. When that is the case, the Government will find that those arguments come back again, not just from the Opposition but from all parties, not just from this House but from both Houses, and not just from Parliament but from all the range of outside organisations that together have been the chorus of criticism about so much in this Bill that is still left undone but will be done in future.

Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

I inform the House that the knife falls at 4.32 pm and we have nine speakers, plus the Minister to respond. That gives hardly any time, so can I implore those contributing either remotely or physically please to use self-discipline? With nobody specifically in mind, I call David Davis.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

Thank you for the hint, Mr Deputy Speaker. I will confine myself to issues around Lords amendment 1R in order to limit what I have to say.

Last week’s concessions from the Government on the matters relating to amendment 1R were long overdue. With their tabling of the amendments removing genocide, torture and crimes against humanity, some of the most egregious errors in the Bill were corrected, which is why I voted in favour of the Government amendment last week. However, as I warned on Wednesday, that amendment left one serious matter unresolved—war crimes are still subject to a presumption against prosecution. Thankfully, further representations from Lord Robertson and others have led the Government now to rectify this oversight with the amendment we are considering today. I welcome that further concession. In government, as I said last week, it is always difficult to change your mind once you set out on a specific course of action, but the Government are to be commended for doing just that in the case of this Bill. In particular, I again commend the new Minister for his extremely rational approach to this and using the time that ping-pong has given him to good effect.

The original drafting of the Bill created a situation whereby the UK’s standing on the international stage would have been threatened. Our reputation as an upholder of the rule of law would have been tarnished and we would have run the risk of potentially having our troops hauled before the International Criminal Court. That would have been a truly shameful outcome. The ICC is usually in the business of prosecuting tyrants and torturers, not the soldiers of law-abiding democracies, let alone one with the United Kingdom’s reputation. The concessions last week would still have left our soldiers open to charges of war crimes. To be clear, these are not theoretical concerns of myself or other Members either here or in the other place. When I asked the chief prosecutor of the ICC for her consideration of the Government’s concessions on this point, she said in her response to me last Friday that

“any gap between the scope of coverage in the excludable offences under the proposed legislation and conduct which might otherwise constitute a crime within the jurisdiction of the Court would risk…rendering relevant cases concerning such conduct admissible before the ICC.”

In other words, the Bill in its state last week would have still left our soldiers open to prosecution.

Today’s amendment means that torture, war crimes, crimes against humanity and genocide will all now, quite rightly, be excluded from the presumption against prosecution contained in the Bill. That is to be welcomed. On that basis, I am entirely supportive of the Government and they will get my vote today. However, I will just make a comment en passant relating to what the right hon. Members for Wentworth and Dearne (John Healey) and for North Durham (Mr Jones) said. The Ministry of Defence now needs to take the advice of people like former Judge Advocate General Blackett, and others, and improve its own investigation system to stop soldiers from going through the same problems again in future. The problem has always rested, in part, within the walls of the Ministry of Defence, so improvements to the investigation process must be made. Our troops need to be reassured that if they ever face allegations of wrongdoing they will be investigated fairly, rapidly, and without the threat of constant reinvestigation. Only then will our service personnel be properly protected from vexatious and damaging litigation, and only then will this Bill and its associated policy have properly achieved its aim.

Photo of Martin Docherty Martin Docherty Shadow SNP Spokesperson (Industries of the Future and Blockchain Technologies), Shadow SNP Spokesperson (Foreign Affairs Team Member), Shadow SNP Spokesperson (Defence Team Member), Shadow SNP Spokesperson (PPS to the Westminster Leader) 4:00 pm, 27th April 2021

May I first take this opportunity to congratulate the Minister on their new position? It is always good to see Dochertys in very lofty positions, even ones that are lofty in the wrong direction.

The Bill was supposed to tackle vexatious claims, yet the evidence received, both written and in Committee, pointed to the problems arising from flawed investigations. Nothing in the Bill improves service justice or tackles repeated investigations. The Bill was an opportunity to overhaul the system, but that is an opportunity now lost. Unless the Government establish proper structures and processes for investigations, including independent investigators, personnel will remain vulnerable to repeated investigations and indeed investigations by the International Criminal Court.

Still, the Government have been forced into significant concessions in other areas of the Bill because of the work of Members in the other place. The Government agreed last week that genocide, crimes against humanity and torture would be excluded from legal safeguards in the Bill. The threat of a further possible defeat at the hands of peers has, I am glad to hear, forced the Government also to exclude war crimes from the presumption against prosecution. Although we on the SNP Benches recognise this change, it should not have taken until the last gasp of this Bill for the Government to make it.

In their refusal to listen to evidence presented in Committee and to the calls of Members of this House, the Government, at least from our perspective, have profoundly damaged the UK and Parliament’s reputation internationally. We also see that the final version of the Bill retains the six-year longstop on civil claims against the MOD, denying members of the armed forces justice in valid civil claims. Indeed, it will significantly disadvantage those who have served abroad. The House should be making it easier for personnel to make claims when the MOD has been negligent, but this legislation seems to be crafted especially to protect the MOD and not the personnel themselves.

Lords amendment 5B ensures care and support for personnel involved in investigations, and every Member of this place should be supporting it. The House knows from discussions with personnel that the structures currently in place are not working for those facing prosecution, and we have seen that in evidence to the Armed Forces Bill Committee, of which I am a member. Finally, if that support is already there and it is not working, we need to strengthen it through statutory requirements. I wonder whether the Minister and the Government are willing to do that.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

The distinct purpose of the Bill is to provide legal protection to military personnel serving overseas on operations—that is what it is about. It is all about stopping vexatious prosecutions, often generated, for large sums, by unscrupulous lawyers. In short, lawfare, such as we saw a few years ago, should be a thing of the past, but is it totally gone? I wish to explain a little of the worries I have.

I am pleased that the Government have now decided to include war crimes alongside torture, crimes against humanity, genocide and sexual crimes, such as a rape, as being not subject to a statutory presumption against prosecution. That is good news, because, as others have said, it might stop our service personnel being dragged before the ICC in the future. So we must now prosecute war crimes like any other crime, but might I suggest a slight spanner in the works here?

I have seen such crimes in my time in Bosnia, in 1992-93—obviously, I should emphasise, they were not carried out by British soldiers. I have also given evidence in the International Criminal Tribunal for the former Yugoslavia, where such crimes were tried—this is now done by the ICC. I gave evidence in trials where the guilty were sent to prison for between 15 and 45 years. I wonder exactly what crimes are not subject to a statute of limitation. What crimes creep through? As far as I can see, most of the definitions allow us to decide exactly what happens. I am quite worried that the Minister might not be able to identify a crime carried out that we could prosecute without a statute of limitation.

Sexual crimes can be prosecuted anyway under Navy, Army and Air Force Acts. Service personnel can never be ordered to carry out such acts by superior officers. Effectively, the Bill accepts and confirms crimes under the Sexual Offences Acts 1956 and 2003. The Bill states that unless there is compelling evidence, service personnel cannot be charged with crimes committed more than five years ago, unless of course they have taken part in war crimes, torture, crimes against humanity or genocide, which are offences without a time limit. As I mentioned earlier, I am slightly worried about what is left. Of course I go along with what we have done, but I am slightly worried that many crimes can evade the provisions and that people could be done on these classifications.

On service personnel who have suffered some form of physical or mental injury, the limit is broadly six years after the event. In short, they must have started proceedings against, say, the Ministry of Defence within that period. However, the Bill allows for the possibility of someone bringing forward proceedings where, for example, they have PTSD but had not discovered it, even if they are affected 20 years later. In such as case, they will have six years from the point when they discover they are affected or when they are diagnosed to bring a claim against the MOD. I reckon that is fair enough. The MOD is certainly not trying to disadvantage its own.

I end by reminding everyone of a point the Minister made. The Government are still committed to bringing forward a Bill to protect veterans in Northern Ireland in the same way as those who have served overseas. If they do not, our servicemen and servicewomen will have two levels of protection: those like me who served in Northern Ireland will have a lesser degree of protection than those who have served overseas. To that end, I have always believed and supported the suggestion by the Defence Committee, on which I served several years ago, that the way forward in Northern Ireland is for there to be a qualified statute of limitations unless compelling new evidence has been produced. I therefore hope that very soon the Government will bring forward legislation to stop possible unequal treatment of our service personnel.

Photo of Emma Lewell-Buck Emma Lewell-Buck Labour, South Shields

It is a pleasure to follow the right hon. and respected Member for Beckenham (Bob Stewart).

It is welcome that the Government have eventually accepted that war crimes should be excluded from the Bill. However, that it took this long for them to understand the grave implications of their proposals remains very worrying. What remains of concern is the stubborn refusal to introduce a duty of care to our service personnel. I am still at a total loss as to why the Government would reject and oppose care standards for service personnel and veterans involved in investigations or litigations arising from overseas operations.

I was not comforted by the Minister’s words last week—neither, indeed, was I just now—when he assured us that,

The Ministry of Defence takes very seriously its duty of care for service personnel and veterans, for whom there already exists a comprehensive range of legal, pastoral, welfare and mental health support”,

bearing in mind the testimonies from those in my own constituency and those who gave evidence to the Bill Committee of how inaccessible and ineffective that support can be. I was even less assured after reading the media comments made by Johnny Mercer, who said that help is available, yet it is hard to understand it and

“hard to understand where it is”,

and that promoting where it is and how to get to it was simply not part of this Government’s agenda.

The Minister also claimed that the Lords amendment carries a risk of

“unintended consequences, including a possible increase in litigation, which would be contrary to the Bill’s objectives.”

As the noble Lord Dannatt said in the other place, that is simply an empty argument because, under the amendment, the Ministry of Defence has the opportunity to draw up its own statement of a duty of care standard and act within that. I reiterate my comments from last week—that to claim that the duty of care proposals would be better placed in the Armed Forces Bill is not acceptable. We are debating and voting today on this Bill; it is not right for MPs to accept gaps in legislation on the promise that it may or may not be rectified in future legislation.

The Bill’s objective is to offer more protection and support to service personnel and veterans, so how can an amendment that offers just that protection and support be, as the Minister said last week,

“contrary to the Bill’s objectives”?—[Official Report, 21 April 2021; Vol. 692, c. 1058.]

I would really appreciate it if, in summing up, the Minister could expand on and clarify why the Government’s stubborn objection to this duty of care has remained. There still remains nothing in the Bill that will solve the problem of repeated investigations. Without Lords amendment 5B, there is nothing in the Bill that will afford our forces personnel and veterans a duty of care when they are undergoing such awful investigations.

I remain of the view that this Bill is a hurried and inadequate piece of legislation that has never matched up to the rhetoric surrounding it. No one is in disagreement that greater legal protections for armed forces personnel and veterans serving overseas were needed, but the Government have drafted legislation that makes the problem worse, leaves our service personnel and veterans at a disadvantage and without crucial support, and fails on its promise to those who served in Northern Ireland.

Our service personnel and veterans deserve the very best for risking their all for us; I echo the pleas made by my right hon. Friend John Healey that, in today’s vote, Government Members show that they believe this too by joining us in the Lobby.

Photo of James Sunderland James Sunderland Chair, Select Committee on the Armed Forces Bill, Chair, Select Committee on the Armed Forces Bill

I stated on Second Reading that this is a good Bill and my view remains exactly the same. As we know, the other place wanted torture, genocide, war crimes and crimes against humanity excluded from relevant offences. We disagreed initially, but amendments 1A to 1Q from the MOD, whereby breaches of the Geneva convention and genocide are excluded from the offences, are very welcome. This Government have sent the clear message that they stand against all breaches of human rights in conflict.

My stance throughout this whole process has been very clear. The supposition from some quarters that British troops are somehow predisposed to committing war crimes wantonly and that the UK has somehow given them a “get out of jail free” card is absurd. The MOD already has one of the most effective and robust service justice systems in the world. The presumption against prosecution also in no way affects the UK’s ability to conduct investigations and prosecutions into any crime, including war crimes; it is a high threshold, not a bar. However, as Baroness Goldie stated in the other place only yesterday, there was significant concern that through exclusion of serious crimes, such as sexual offences, this Bill would run the risk of undermining the work that the Government have put in to push the UK as a force for good around the world. I agree. To be worthy of its pre-eminence, I concede that this House should absolutely agree to Lords amendment 1R.

Lord Dannatt’s revision to Lords amendment 5, Lords amendment 5B, is also worthy of consideration, but I want to point out at this juncture that service personnel are entitled to legal support at public expense when they face criminal allegations and civil claims. The Armed Forces Bill brings the armed forces covenant into statute, and there is unrivalled medical support, including mental health support, available to all personnel and veterans. I agree, again, with the Government’s continuing stance that the amendment is not necessary, and I will vote with the Government on all occasions today.

Photo of Jamie Stone Jamie Stone Liberal Democrat Spokesperson (Armed Forces), Liberal Democrat Spokesperson (Defence), Liberal Democrat Spokesperson (Digital, Culture, Media and Sport) 4:15 pm, 27th April 2021

I shall try to be brief. Last week, I spoke about what I see as British values, which have been mentioned in the debate. I therefore welcome the concession on war crimes, because any erosion of how we and the rest of the world perceive our British values would be deeply damaging to this country’s reputation.

As others have said, I believe there is still work to be done on the duty of care, and I flag up its connection with mental health. When I talk to constituents who have served Queen and country bravely, there is a fear that they will be abandoned if they find themselves in the position of being accused. I hear what other Members have said about the legal help that they would be afforded, but there is still a fear out there.

It would be churlish of me not to say thank you to the new Minister. Last week I said I did not know him very well, but what I have seen during one week gives me much more confidence in him. His predecessor was referred to as a roadblock, but I think the thoughtful and conciliatory attitude shown by the new Minister, whose fingerprints I rather suspect are on the war crimes concession, is very useful indeed.

I want to talk about the process. The Bill we see today is a lot better than the one we looked at last November. The cross-party work in the other place is deeply significant. Many Tory peers have been instrumental in bringing forward amendments. In yet another place, known as the Scottish Parliament, I knew Baroness Goldie in another incarnation. I came to respect that good lady’s thoughtful and judicious approach to matters, so I am not surprised to see her playing the role she does in the other place. We belong to different parties, but I recognise quality where I see it.

We have a Bill that is better than it was. In my opinion and that of my party, the jury is out on the duty of care in mental health, but the way we have improved the Bill is instructive to all of us. There is possibly a message to Her Majesty’s Government here. The reputation of the UK Parliament depends on the quality of the legislation that is enacted. Where there is co-operation across the House and between both Houses to make the best legislation, that is ideal. I very much hope that the Government will look at the process by which we came to be where we are today, learn from it and apply that technique to other legislation as it comes before us. I reiterate my thanks to the new Minister.

Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

I will call the Minister at 4.27 pm, and the debate will finish at 4.32 pm.

Photo of Kevan Jones Kevan Jones Labour, North Durham

James Sunderland said that this was a good Bill—no, it is not. It is a bad Bill, and it is an unnecessary Bill. All of this could have been done within the Armed Forces Bill that is going through Parliament, but the Government chose, for their own reasons, to put forward this Bill. It does not get to the central point of the issue, which is around investigations. They are completely absent from this Bill and currently absent from the Armed Forces Bill. They were resisted by Johnny Mercer in this Bill and in the Armed Forces Bill. It galls me that yesterday he was standing outside a court in Northern Ireland, trumpeting the fact that he was on the side of trying to stop people being investigated, when he had been in a position to do something about it. I think of him as being a bit like an actor in a play who has been sat in the audience watching, rather than taking part.

Without investigation, the Bill is flawed. I have written to the Minister: he needs to ensure that investigations are put in the Armed Forces Bill, because without that, despite the protections that have been claimed today, servicemen and women will be watching our proceedings, thinking that they have more protection than they have. They will still be investigated if allegations are made. There is an opportunity now, with the Armed Forces Bill, to remedy that.

Part 2 of this Bill should simply have been scrapped. I am sorry, but the idea that we should all have Limitation Act rights and yet members of our armed forces should not—that we should take those away from them—is just not good enough. A Bill that is supposed to give things to our armed forces has been taking things away from them. Part 2 will be challenged in court; only the lawyers will benefit from it.

I welcome the change on war crimes because, like many across the House, I was concerned about our international reputation. I fully support Lord Dannatt’s amendment; I believe we should support anything that helps servicemen and women who are going through such a process.

The Bill claimed to do a lot but does very little. It is disappointing. It could have been vastly improved, or just ignored altogether and incorporated into the Armed Forces Bill. There is an opportunity to put right what is not in this Bill when the Armed Forces Bill passes through the House. I know that the Minister is open to discussions about that, but I urge him to ensure that that happens, because without that, people will still be investigated; they will still go through the agony that this Bill was intended to stop. We all sympathised with that intention. It clearly will not be achieved in the Bill’s present form.

Photo of Stephen Timms Stephen Timms Chair, Work and Pensions Committee, Chair, Work and Pensions Committee

I also warmly welcome the further concession that the Minister has announced. The Bill will now exclude all the offences for which service personnel could be summoned before the International Criminal Court. That has now fixed the worst of the problems that many have been anxious about during debates on the Bill.

It would be helpful to understand why it has proved so hard for the Government to realise how awful what they were proposing was. No Minister wants to give armed forces carte blanche to commit torture, genocide and war crimes, and yet it has required the most extraordinary struggle to stop the Government doing exactly that. The noble Lord Robertson—I welcome the Minister’s tribute to him—introducing his amendment in the other place, said:

“Maybe after a lifetime in politics I was affected by some uncharacteristic naivety in thinking that the Government, faced by almost universal and expert opposition on this aspect of the Bill, would by now have changed their mind.” [Official Report, House of Lords, 13 April 2021; Vol. 811, c. 1190.]

Yet they ploughed on until yesterday. Perhaps it was indeed the change of Minister that averted disaster, and with others I congratulate him on his achievement in a short time, but if he can, in winding up, shed some further light on what on earth has been going on, the House would be grateful.

I strongly support what my right hon. Friend John Healey said on duty of care and investigations. I hope that we will come back to them soon if the duty of care amendment is lost this afternoon. I warmly welcome the progress on the Bill in the past few days and would be grateful for any light the Minister can shed on what has been going on.

Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

I call Jim Shannon —Please resume your seat no later than 4.27 pm.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

It is a pleasure to speak in this debate. I echo the comments by others in relation to those who served in Northern Ireland and the protection that we need. The Minister has responded on that very positively, but we also need a timescale for that to happen.

In the short time that I have, I want to refer to the legal, pastoral and mental health support provided to service personnel who are involved in investigations or litigation arising from overseas operations. I am aware of this because I am aware of a young fellow in my constituency who served overseas and fought with many demons in his own life. I am not blaming the MOD for it, but I ask the question: could we do more? Lords amendment 5B on the duty of care to service personnel could give them the level of care that is earned from putting the uniform on. Subsection (6) of the new clause inserted by the amendment states:

“In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.”

When it comes to mental health and the effects on people’s families and lives, our moral obligation should and must be to go the extra mile. That is why I support the premise of the amendment. It reminds us of our moral obligation, which is as important as our legal obligation, to those who serve in uniform.

A five-year programme of study has been carried out in tandem with Queen’s University. The results show—and I want to have this on the record, in Hansard—that more than a third of all military veterans in Northern Ireland are likely to be suffering from post-traumatic stress disorder. Those are the stats, according to this study. More than 1,300 veterans responded to the survey, with 36% reporting signs of PTSD and the same number reporting problems with alcohol.

We have many charities in Northern Ireland that help out. I think of Beyond the Battlefield, in particular, which reaches out to those whom other charities perhaps miss; that is not to take away from the importance of other charities. Some of those cases are incredibly complex, and there are lots of issues for not just the individuals but family members. We need to address the duty of care, both morally and legally.

This is not helped by the fact that those who served in Northern Ireland continue to see no movement. They seek protection, which is very important to have in place for those who served in Northern Ireland. I know that the Minister has given a commitment, but could he tell us where discussions are with the Secretary of State?

I usually say that I will not rehearse previous speeches, but this, I believe, bears repeating. Veterans who served in uniform and operated legally with honour, great courage and great fortitude deserve to be treated with equality. I say to the Government: please do the right thing and bring legislation on this issue forward in the Queen’s Speech in May. Let us show that our moral and legal obligation extends to those who have served on every occasion and from every region of this great nation of ours, the United Kingdom of Great Britain and Northern Ireland.

Photo of Leo Docherty Leo Docherty Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

I am grateful for all Members’ contributions. I thank John Healey for his constructive tone. I am happy to confirm that I will communicate to Justice Henriques the concerns that he has raised. Of course, it is an independent review, but we would be happy for Justice Henriques to consider those concerns within the scope of his review.

We heard contributions from my right hon. Friend Mr Davis and Mr Jones. I look forward to receiving the right hon. Gentleman’s letter, and I will give it due consideration and respond in due course. We also heard contributions from the hon. Members for South Shields (Mrs Lewell-Buck), for Caithness, Sutherland and Easter Ross (Jamie Stone) and for West Dunbartonshire (Martin Docherty-Hughes), as well as my right hon. and gallant Friend Bob Stewart; I thank him for bringing his personal experience into the debate.

We also heard from Jim Shannon. Returning to the question of Northern Ireland veterans, I would like to be clear. I mentioned earlier that Her Majesty’s Government intend to bring forward legislation in relation to Northern Ireland. The House will understand that I cannot comment on any ongoing legal matters, but I will give the reassurance that we are absolutely committed to delivering on our commitments to veterans of Op Banner as soon as possible.

In closing, I would like to put on record my sincere thanks to the Bill team, who have been first class throughout, and in particular to the Bill manager, Richard Hartell. It is to their great credit that we have brought the Bill to this point. If the House accepts the Government amendments in lieu and rejects Lords amendment 5B, the Bill will allow us to deliver on our manifesto commitment—our solemn pledge—to protect our armed forces personnel and our veterans and bring an end to the shameful cycle of vexatious legal claims brought against our finest asset: our people. I commend the Bill to the House.

Question put and agreed to.

Resolved,

That this House agrees with the Lords in their amendment 1R but disagrees with the Lords in their amendments 1S, 1T and 1U.

Government amendments (a) to (c) made in lieu of Lords amendments 1S, 1T and 1U.

Government manuscript amendments (d) and (e) made.