Clause 4 - Section 3: supplementary

Overseas Operations (Service Personnel and Veterans) Bill – in a Public Bill Committee at 9:25 am on 20th October 2020.

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Question proposed, That the clause stand part of the Bill.

Photo of Kevan Jones Kevan Jones Labour, North Durham

This clause goes to what we heard in the evidence session is the missing part of the Bill: investigation and what warrants particular types of investigation. We heard from numerous witnesses, including Judge Blackett and General Nick Parker, that what is missing from the Bill is any scope of investigation. I have tabled new clauses to limit and have control over investigations, because, as Judge Blackett said, the problem with the Bill is that it looks at the process from

“the wrong end of the telescope.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 120, Q246.]

It looks at the prosecution end, rather than the investigation end.

In a previous sitting, Major Campbell gave very moving evidence about reinvestigation. Clause 4 goes to the heart of that, but it does not answer the issue. If we ask, “Will this stop reinvestigation?”, the answer is no it will not—what is meant by a new investigation or new evidence is left open-ended. The clause defines “relevant previous investigation” as one

“carried out by an investigating authority”.

That paragraph, at least, is straightforward. The police, service police or some other body have investigated, so we may tick that box as a way of not going into reinvestigation.

The next paragraph defines “relevant previous investigation” as one that

“has ceased to be active”.

The problem we heard in evidence was that of active investigations; the issue was whether new evidence had come forward later in respect of the same incident. That was the problem in Major Campbell’s case—although one incident had been investigated, other things had also come in later. Hilary Meredith, I think, said that the real problem was not that a crime had been committed but that the Ministry of Defence had got into a process of paying out compensation to individuals, which was seen somehow as an indication of guilt, when clearly it was not.

Paragraph (1)(c) then continues the definition of a “relevant previous investigation” as one that

“either did not lead to any decision as to whether or not the person should be charged with an offence, or led to a decision that the person should not be charged with any offence.”

Again, that is pretty clear—it is thought that the investigation has been completed. The problem is that it is in the Bill, rather than there being some judicial oversight of the process so that not only the victim but the accused can have some reassurance—that there is no new evidence. That would be a better way to do things. In the Bill, the issue of what is new evidence or what investigation has taken place comes down to a judgment call.

Personally, I think a better way of addressing the issue was outlined by Judge Blackett. We should have a de minimis approach to the small cases, as under the Magistrates’ Courts Act 1980. Then, clearly, we should have judicial oversight of an investigation, and new evidence could be assessed. If a case had been going on for a while and an individual came forward saying that there was new evidence, that would go before a judge, who could deem that there was new evidence and the investigation should go further or that there was not and that it should go no further.

The problem with the clause is that it tries to address that issue but does not describe the mechanism for who makes the decision. If there were to be judicial oversight of what new evidence was, that would be fine, but as it is the issue is about who makes the decision. Are we going back to a situation that was common in the UK until we had the Crown Prosecution Service: the police investigated, made a decision on prosecution and took it forward? Who should make the decision? That former situation was not right because the police would decide what their evidence was and could take forward a prosecution. Under clause 4, I presume, it would again be down to the police to decide that.

I would prefer some clarity about who is making the decision about the new evidence because the key to stopping the abuse that has been going on is not prosecution—the way to do it is to stop the repeated reinvestigation that has taken place. We heard throughout the evidence sessions that, in the small number of cases that led to actual prosecutions, the timescale was very quick—I think Judge Blackett said that, in Marine A’s case, it was 18 months. I cannot remember the other case that Ms Meredith raised.

Photo of Chris Evans Chris Evans Labour/Co-operative, Islwyn 9:30 am, 20th October 2020

As my right hon. Friend was speaking, I thought of an anomaly. The Bill now strikes out claims on the Ministry of Defence after six years. However, if new evidence comes to light and there is a criminal conviction for the same offence, there could be a situation in which a criminal court imposes compensation when the MOD has already struck the claims out. How does my right hon. Friend see clause 4 squaring that circle?

Photo of Kevan Jones Kevan Jones Labour, North Durham

It does not, and that comes to one of the other problems with the Bill: it combines both criminal and civil. As I think Ms Meredith said, that is the problem, in terms of what we are trying to achieve. If we keep the longstop for six years on civil claims, a situation would arise whereby they would not go forward, although potentially they could even after six years under clause 4.

The other thing put forward by the Bill’s supporters is that it will somehow stop investigation of our servicemen and women for cases that they do not think have substance. However, it does nothing of the sort. I learned a long time ago in politics that the worst thing we can do is promise things and then not deliver after raising people’s hopes. The problem with the entire Bill, especially on investigations, is that people will think that we could never get another case like Major Campbell’s. I am sorry, but we can. A lot of the veterans believe what is being said—that the Bill will stop investigations—but it will not. It will not stop investigations within the six-year period. It will not even do so afterwards, because, as we have already heard, cases will go to the International Criminal Court and others.

Clause 4(1) states:

“For the purposes of section 3(2)(b), where there has been at least one relevant previous investigation in relation to the alleged conduct, evidence—

(a) is not “new” if it has been taken into account in the relevant previous investigation (or in any of them);

(b) otherwise, is “new”.”

Again, we get to dancing on the head of a pin about what is new evidence. There have been some complex cases, certainly from Iraq. If a witness comes forward many years later with a piece of evidence saying that they were there, who makes the determination on what is new evidence? That will make the investigation more difficult, because what will be deemed as new evidence? Who makes that judgment call?

We are not dealing with house burglars, are we? We are dealing with very complex cases in other countries, where there are cultural and language difficulties. Sometimes, six years might have passed. The passage of time can not only affect the securing of evidence; it would also affect judgments about people’s memory, which has always been the case with civil cases in this country, let alone in a war zone.

I understand what clause 4 is trying to do, but, like a lot of things in the Bill, it leaves a lot of loose ends. As I said, it will lead to a lot of disappointment on the part of veterans who think that somehow reinvestigation will not happen. Likewise, victims will perhaps feel that new evidence or evidence that they have put forward is not being taken seriously.

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

Thank you, Mr Stringer, for chairing the Committee so well.

Again, there were a lot of inaccuracies in what the right hon. Member for North Durham said. The Department can never be in a position whereby, if allegations were made, it could not investigate them. That is not a lawful position, so the idea that we can legislate to stop investigations is entirely false. We have heard Bob Campbell give evidence in this Committee: his case, in the worst-case scenario, would have ended in 2009.

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

I will in a minute, because both I and Bob Campbell have really got into the weeds of this legislation. I am interested in how the right hon. Gentleman has a different view and thinks that it would not have helped Bob Campbell in any way. I would love him to explain how he arrives at that position.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Major Campbell is in a very different situation. He has lost all faith in the system and actually wants cases to go direct to the International Criminal Court, which I do not agree with. But I did suggest, if the Minister was listening on the new clauses that I tabled for the last sitting—new clauses 6 and 7—that we need a system of both case management and judicial oversight. That would actually speed up the process and ensure that justice was being done. This is not about stopping investigation; it is about timely investigation.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

Order. Before I call the Minister, it now seems timely to remind people that interventions should be short and to the point.

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

Again, it is not true to say that Major Bob Campbell wants all cases to go to the International Criminal Court; that is simply not true. He tried that to demonstrate a point, but it is not his view that everyone should just go to the ICC.

I saw in the newspapers over the weekend, again, a lot of absolute garbage about this Bill. I have made my position clear from the beginning. I have come in for a lot of criticism from the right hon. Gentleman about not working together on the Bill. I have been very clear that where there are places where we can improve the Bill—within the art of the possible, working within what is factually true—I will do that, but that is yet to happen.

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

The Minister states that he wants to improve the Bill and work with others. Why is it, then, that we have yet to see any amendments at all come forward from the Minister to the Bill?

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

That is very simply because there is no way, at the moment, that I have been presented with anything that is legal, within the art of the possible or within the strategic aims of the Bill that would actually improve it. It is as simple as that.

Photo of Kevan Jones Kevan Jones Labour, North Durham

But that is not the case, is it? One issue that has come out, both in evidence and in amendments that I have tabled, is about investigations, and that is not covered in the Bill. I accept that the amendments that I tabled may not have been perfect, but if the Minister had at least given an indication that the issue would be looked at, that would have been a movement forward. But he has completely deaf ears on this.

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

Again, that is completely untrue, because I have repeatedly spoken, years before anybody else in this House, about the standard of investigations—investigations that were going on under the right hon. Gentleman’s watch when he was an Armed Forces Minister. Those investigations, I said—this has been quoted to me time and again—had not been up to standard, but that is not part of this legislation; it is part of an armed forces Bill that is coming forward next year. I have been absolutely ruthless in terms of dealing with the Department on its standard of investigations, which I reiterate were under the right hon. Gentleman’s watch.

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

I will not give way again. I cannot take in people saying, “We would like to see these pieces in the legislation,” when the whole point of this legislation is dealing with the abuses that we have seen over the years; it is not about investigations. People saw an announcement last week that we are having a judge-led review of how the Department does that. We will get the investigations right, but this Bill is very clearly about overseas operations and the situations in which we found ourselves, which actually resulted from when the right hon. Gentleman was a Minister in the Department.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I was not actually in government. It was under the coalition Government, so the Minister should get his facts right.

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence) 9:45 am, 20th October 2020

That is nonsense. Ours really started in 2009. [Interruption.] We can keep this going all day, Mr Stringer. There is so much fake news coming out, I can just bat it back at every opportunity. We will move on to clause 4 before we get out of hand.

Clause 4 provides the meaning of “relevant previous investigation” and “new” evidence as used in clause 3(2)(b). This is to ensure that when considering the matters to be given particular weight, the prosecutor understands the circumstances in which they must give particular weight to the public interest in a case coming to a timely and final resolution: in other words, finality. Subsection (1) provides the definition for “relevant previous investigation”. A relevant previous investigation is one that was carried out by an investigating authority—that term is defined in clause 7—or is no longer an active investigation. It has ended, and is an investigation at the end of which the individual was not charged. That is all set out in subsection (1)(a) to (c).

Subsection (2) defines “new” evidence as that which has not been taken into account in a relevant previous investigation. This definition is intended to provide for situations such as when new witnesses or new information emerges after an investigation has been completed, and where evidence becomes available that could not have been available at the time of a previous investigation, where subsequent developments in forensic techniques bring to light evidence that is genuinely new.

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

The Minister is being very generous in giving way. I want to revisit a previous point. He stated that it is not possible to address investigations in the Bill. I am at a loss as to why not. It is in our gift in Committee to change the Bill and improve it. Why won’t he?

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

Of course, anyone can add an amendment to any piece of legislation, but this Bill clearly deals with lawfare and the vexatious claims that came out of Iraq and Afghanistan. We will see more stuff on investigations in the Armed Forces Bill. People can add anything to any legislation. We all know that, but the place for that particular measure is in the Armed Forces Bill, which will be forthcoming next year.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

Time after time we heard from witnesses, and we had further pieces of evidence submitted yesterday, which the Clerk has circulated. Witnesses have pointed to the centrality of the investigation process. Having a robust and timely investigation is absolutely central to the efficacy of what the Minister is trying to achieve in the Bill. Will he reconsider looking at the investigation? It is good that we have the inquiry, which was announced in the written ministerial statement last week, but will he commit to looking at investigations?

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

I have already said in Committee that I will not do it this way round, and I said that before I came to the Department. The reality of politics is that we have this time allocated to get through the Bill. It is my job to make sure that the investigatory processes are watertight and that the end state results in good investigations, but a non-abuse of the system.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I want to clarify something. It is easy to blame the previous Labour Government, but I think I was right to say that IHAT started in November 2010 under the coalition Government and not the previous Labour Government.

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

That inquiry started in 2010, but the al-Sweady inquiry and others started before then. I am not blaming any Government. I am just pointing out the hypocrisy of the right hon. Gentleman’s intervention. Anyway, I beg to move that clause 4 stand part of the Bill.

Photo of Kevan Jones Kevan Jones Labour, North Durham

On a point of order, Mr Stringer. Is it in order to accuse a Member of hypocrisy?

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

I was just coming to that. Minister, will you withdraw the accusation of hypocrisy?

Clause 4 ordered to stand part of the Bill.