Schedule 1 - Excluded offences for the purposes of section 6

Part of 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 John Healey John Healey Shadow Secretary of State for Defence 3:32 pm, 27th April 2021

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.