With this it will be convenient to discuss the following:
Amendment 22, in clause 5, page 3, line 29, at end insert—
“(c) where the offence is punishable with a criminal penalty by the law of Scotland, except with the consent of the Lord Advocate.”
Amendment 24, in clause 5, page 3, line 29, at end insert—
“(3A) Where the consent of the Attorney General is sought under subsection (2) or (3) above, the Attorney General must prepare a report containing his reasons for granting or withholding consent, as the case may be, with reference to sections 1 to 3 of this Act, and must lay a copy of this report before Parliament
I will speak to all three of the amendments in my name and that of my hon. Friend the Member for West Dunbartonshire. Amendments 10, 11 and 22 address the issue of the independence of the decision to grant or withhold consent to prosecution. The Attorney General is, by the nature of the position, a political appointment. Therefore, tying in the prosecution of potentially serious incidents to a politically motivated individual is at least unethical and at worst dangerous.
If we are the healthy democracy that we boast of being, there has to be independent oversight of these investigations. To maintain justice and continue to uphold the rule of law, those decisions cannot be made by the Attorney General. That role should be carried out in England by the Director of Public Prosecutions and in Scotland by the Lord Advocate.
In effect, with these amendments, we are asking the Minister to decide whether the actions of the MOD itself require further investigation. To give an example, that would be like asking the Health Secretary to decide whether a patient had grounds to seek redress for cases of medical negligence. Are the Government really in the business of marking their own homework?
Of course, we all understand why the Government have chosen to press ahead with this Bill. I think we all, regardless of the robust debate that has taken place, have sympathy with the purpose of this Bill, but the manner in which it is progressing is concerning a lot of us. Many parts of this Bill would not address the issues faced by our service personnel. However, having the Attorney General preside over decisions to prosecute will potentially leave a shadow of doubt hanging over some service personnel. Is that really what we want?
I watched the previous exchange; for anybody watching Parliament just now, it was rather unedifying, to say the least. At the start of this process, the Minister said he wanted—[Interruption.] Even as I am saying that, and trying to say it in a generous spirit, the Minister mumbles to himself and makes comments. I was a teacher by profession, and I can tell hon. Members that I would be taking the Minister to task if he behaved like that in my class. He could at least have the decency to listen while a point is being made.
At the start of this process, the Minister said he wanted to listen and that he was happy to take on good ideas. I have yet to see any evidence of that. I am at a loss as to how we actually improve this Bill. Is the Minister so confident in the absolute perfection of this Bill that not only will he not accept any amendments from the Opposition, but he has not tabled any amendments from his own colleagues? I have never seen this in a Bill before. It is unheard of.
Going back to my amendments, there must be independence in the decision-making process. That would give clarity and increase public confidence in the process that is undertaken. Surely, if this Bill is so good, the Minister has nothing to fear from a politically unbiased head considering the evidence and making decisions on whether to prosecute.
I thank the hon. Member for Glasgow North West for the amendment. I am not sure that I totally agree with it, although I agree with the spirt of it. The hon. Lady is trying to ensure judicial oversight of these decisions. Her recommended route is the Crown Prosecution Service, and she is right, in that that is at least a judicial process that is separate from the Attorney General, who is a political figure.
Coming back to my remarks about clause 4, the reason the CPS was set up in the first place is because it was the police who investigated and then also took the decision to prosecute, so the CPS was brought in, quite rightly. Has it improved the system? Yes, it has. Do we always agree with what the CPS comes up with? No, we do not, and I doubt whether we always would in every legal case. However, as the hon. Lady said, that does not mean that the process is weak in any way. It means that it is legally robust.
The hon. Lady is suggesting the CPS, but my concern relates to the service justice system. I would rather the Advocate General decided, although I say that in the same spirit as the amendment. The other concern, which a number of witnesses raised, is about the role of the Attorney General as a political appointee. I think Judge Blackett mentioned that in its recent judicial reforms Kenya has made its Attorney General politically independent for that exact reason: so that the position is seen as being above politics.
That is important, because in the case Marine A, which has been raised before, there was a lot of publicity at the time in the newspapers and campaigning about why that person was being prosecuted, often without knowing what had occurred or having seen the video or other evidence that was put forward. If the Attorney General had been the final arbiter of whether to prosecute in that case, they would have come under huge political pressure not to prosecute, and that would not be right.
The other side to this is our standing in the world. If we are to have a system where we properly investigate alleged crimes and have a fair process to decide who to prosecute, then ultimately, although there are other issues in the Bill that raise problems, if it is down to a political appointee whether someone is prosecuted, the International Criminal Court and others would take a dim of that, in the sense that it would be a political decision, not a judicial decision.
It is interesting to look at it from the angle of someone who has been through the process. When Major Campbell gave evidence to the Committee, the hon. Member for Wolverhampton South West asked him:
“Thank you, Major Campbell. It is an absolute disgrace…Will you confirm whether you welcome the Bill or whether you are against it?”
Major Campbell went on to say:
“I fully welcome the Bill, both in its intent and in its content. Again, in my amateur legal opinion, there may be a legitimate argument to be had over whether the Attorney General is the correct address in terms of being the final arbiter of further prosecutions, due to the advice he gives to the armed forces on the legality of a conflict.”
He then went on to be quite disparaging, because of his frustration, which I think we all understand:
“My other slight concern is that previous Attorneys General have done us no favours...Lord Goldsmith had a lot on his shoulders…When I appealed to Jeremy Wright, and when he gave evidence to the Defence Sub-Committee…he took the view that this was an entirely fair process”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee,
He was concerned about the role of the Attorney General.
I argue that the Advocate General would be a more appropriate person because they are judicially independent and there is not therefore this idea that they can be influenced in any way politically, but I am also concerned, as I have said before, that the Bill will undermine our service justice system. Anything that takes this aspect out of the control of the service justice system, weakens it, which I certainly would not support.
The Attorney General of Kenya, for example, is now non-political, so if the Minister is really thinking about how to improve the Bill—although I do not think he is; he just wants to ram it through in its present form—he should consider small tweaks like that. He says, “We’ve got this Bill, and that’s it; we’re going to do all the investigation stuff later, in the armed forces Bill,” but I am sorry, there is no reason why he could not have insisted on it being in this Bill as well. This point is particularly problematic for our international reputation and also fairness, and it goes back to the point about the entire process, in that its strength comes from having independent judicial oversight.
It is a pleasure to serve under your chairmanship, Mr Stringer. After the events of your beloved Manchester United’s visit to the north-east, I hope you had a very happy weekend—although I notice that we have a number of Members from the north-east here, so it probably upset them.
I rise to speak in support of amendment 24 in the name of my hon. Friend the Member for Portsmouth South. The amendment asks that any decisions to prosecute or not prosecute service personnel who are under investigation be explained by the Attorney General, by her presenting her reasoning in a report to Parliament. If the Government are unwilling to allow decisions to be made by the director of public prosecutions and insist on adding a political element to decisions, they must be scrutinised.
On several occasions, this Government have been charged with attempting to avoid necessary scrutiny and having a habit of waving things through. Amendment 24 simply asks them to do the right thing and allow Parliament to do its duty. In our constitution, Parliament has to play a full part in any legislative initiatives and any investigations. The former Attorney General for Northern Ireland says that the Attorney General is accountable to Parliament. If the Government agree that that is correct, they have a duty to explain decisions that the Attorney General makes on prosecution in order that Parliament fulfils its constitutional duty to scrutinise. If those decisions are to be politicised, let us do it properly. As the amendment suggests, it would be most appropriate that the decisions be explained by a report presented to Parliament, which should set out the full reasoning and rationale behind the decision that the Attorney General makes. That would ensure transparency of the entire process.
Legal academics and experts in the field, as well as previous Attorneys General, have voiced concerns over the role of the Attorney General in the Bill. They are worried that it is adding a political element to a judicial process in an entirely unnecessary way. The former Member for Beaconsfield, Dominic Grieve—I see his successor over there; I welcome the hon. Member for Beaconsfield to the Committee—who was the coalition’s Attorney General, has raised concerns over the Bill. He criticised the Bill for being
“an exercise in public relations rather than reasoned change”.
He gave a multifaceted critique of the Bill, including the role of the Attorney General. In his opinion, the way in which the role of the Attorney General has been written into the Bill is a politicised safeguard. It is hugely important that the Attorney General always acts independently of any political consideration and has only one thing in mind: the public interest.
I am sure that you, Mr Stringer, would call me to order if I began to debate the role of the Attorney General in the past, but, simply put, the Attorney General provides legal advice to the Government. If, however, the Government are reluctant to publish the advice, that is a huge concern to the public.
Does my hon. Friend agree that this Government and the previous one have been reluctant to allow Parliament to see that advice and have had to be brought kicking and screaming to produce it for our scrutiny of the decisions?
The decision not to present the rationale, what advice was taken and how the Government arrived at their decision have eroded trust in politics and have been a problem for as long as I have been in the House. We have an opportunity with the Bill to start to rebuild trust in the decisions that the Government make. I hope that that Government will take that on board.
The Attorney General should be required to publish a report on the findings to reassure Parliament and the public that a decision has not been a political one. Many of the issues we have had in the past few years—the north-south divide and Brexit and remain—would have been avoided if the advice had been published and made transparent and fair. When we are making decisions, especially about our service personnel—some of the bravest people in this country—we must ensure that the public interest is at the heart of decision making. Dominic Grieve believes that the fact that the courts can review a decision by the Attorney General may create more litigation rather than reduce it and simplify the process. There is already a backlog of court cases, and we do not want to add to it.
The hon. Gentleman has a lot of experience in this area. If I was Chair of the Backbench Business Committee, he would just have talked himself into a debate on the Floor of the House. If he will forgive me, I shall stick to the amendment, because as I said earlier, we should have at least a 90-minute debate in Westminster Hall on that point.
The concerns expressed by Dominic Grieve have been echoed by His Honour Judge Jeffrey Blackett, who stated that
“the decision of the Attorney General to prosecute or not prosecute certain cases is likely to lead to judicial reviews and, as Mr Grieve stated, more litigation.”
In the Bill’s evidence sessions we heard from the most recent Advocate General of the Armed Forces. He expressed deep concern that this decision should be taken away from the Director of Public Prosecutions:
“My concern about the Attorney General’s consent is that it undermines the Director Service Prosecutions. If I were he, I would be most upset that I could not make a decision in these circumstances.” ––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee,
It is quite clear that by taking this responsibility away from the Director Service Prosecutions the Government intend to assert a certain level of political control over these decisions. I hope that when the Minister responds he will give us a full explanation.
This is a risky decision from the Government. If they do not comply with the Geneva convention in making such decisions, that could add to the reputation, which they appear to be determined to establish around the world, that the UK no longer respects international law.
Does my hon. Friend agree that by inserting, as the Bill does, a politician into that prosecutorial process, questions will be raised about our obligations under international treaties where there should be independent judicial oversight, not political decisions?
That goes back to my earlier point. As my right hon. Friend says, inserting a politician would mean only more cases where the courts are asked to review the decision of the Attorney General, which would have the knock-on effect of clogging up the courts when we do not need that. It could be nipped in the bud simply by producing a report.
Disregard for international law is not only wrong but sends the wrong message to the British public and the rest of the world. Some have argued that it will even put our service personnel in more danger. Sir Malcolm Rifkind, QC, an ex-Defence Secretary, warned that the Bill will put soldiers at greater risk if Britain is seen to ignore international law. In a letter to Downing Street, he wrote:
“It would increase the danger to British soldiers if Britain is perceived as reluctant to act in accordance with long established international law.”
Similarly, Lieutenant Colonel Nicholas Mercer, who was a senior military adviser, said that the Bill
“undermines international humanitarian law while shielding the government”.
While the Government may be able to shield themselves from blame, soldiers may find themselves in the International Criminal Court, whose jurisdiction will be triggered if the Government chooses to avoid prosecuting. In fact, Judge Blackett raised that concern with the Committee. He said that
“the Attorney General has to consent to prosecuting any International Criminal Court Act 2001 offence—that is, genocide, crimes against humanity or war crimes. Under section 1A(3) of the Geneva Conventions Act 1957, he has to consent to prosecuting any grave breaches of that Act, and under section 61 of the Armed Forces Act 2006, he has to consent if a prosecution is to be brought outside of time limits.”––[Official Report, Overseas Operations (Service Personnel) Public Bill Committee,
If the Attorney General must consent in those circumstances, what is the need for a political appointee to be involved in the decision making? Why not allow the Director of Public Prosecutions or the Advocate General in Scotland to make the decision?
That leads to concerns that the Government intend to break international law and politicise prosecutions. If that is the Government’s plan, it must be scrutinised by the House so that we can understand the reasoning. Ultimately, the public deserve to know why the Government would deem it fit to break international law and damage the reputation of our troops serving abroad.
Another voice we were grateful to hear from in our evidence sessions was that of General Sir Nick Parker. He added a further concern about the damage to Britain’s reputation if we are not seen as a country that respects international law, which will not only damage the reputation of and endanger our troops serving abroad but have more complex results. He said:
“If there is some doubt about this—” the willingness of the UK to break international law and the Geneva convention—
“and we are viewed in the international community as being prepared to operate outside norms, there is an implication for the people who will have to command in the international community.”— [Official Report, Overseas Operations (Service Personnel) Public Bill Committee,
He expressed concern about not knowing whether that would affect the willingness of other countries to work with the UK armed forces. If other countries are less willing to work with our forces, that creates additional problems for our troops. He later said
“I believe that we need to be consistent with our coalition partners. All I would add is that you cannot predict who your coalition partner will be, because we do not know whom we will be fighting with in the future.” [Official Report, Overseas Operations (Service Personnel) Public Bill Committee,
Today’s friend is quickly tomorrow’s enemy. Therefore, there must be that certain consistency provided by international norms.
Consistency is of concern not only in the Bill’s potential to break the Geneva convention but in the role of the Attorney General. The Attorney General’s role has played out very differently under its very different office holders, which has sometimes led to controversy.
Dominic Grieve stated that the requirement of the Attorney General’s consent to prosecute after the five-year time limit can provide some reassurance to the public that the matter has been fully looked at. The role and decisions of the Attorney General come under public scrutiny. The pressures on Members of this House should not be a factor in legal decisions such as whether to prosecute, and the Attorney General ought to be seen in the capacity of a career lawyer rather than as a politician, which is something the hon. Member for Filton and Bradley Stoke alluded to earlier. Yet the title and role—[Interruption.]
It is important that we set an example, Mr Stringer.
The title and role of the Attorney General is often entwined with politics, which complicates the matters of transparency. By its very nature, the role of the Attorney General is controversial, and has been in the legal world for a long time. The Attorney General has a role both as a professional lawyer and as a political advisor. Although many Attorneys General have taken the view that political distance gave their legal advice more credibility, others have been involved in party politics. From the scrutiny of Attorneys General in the 1920s to our current Attorney General, the role has always been controversial. Our current Attorney General generated a lot of debate over advice given to the Government on Brexit, as did her predecessor over the proroguing of Parliament. Further back, it is not just a party political issue. I do not have to go into the whys and wherefores of what the Labour Government went through with the legal advice over Iraq and Afghanistan. Again, before anybody wants to intervene, that is a debate for another time.
I am glad the Minister nods in assent.
The present Attorney General has been accused of advising on legal matters from a political standpoint. The Scottish National party’s Attorney General spokesman, Stuart C. McDonald, has accused our Attorney General of putting her political loyalties ahead of her loyalty to the rule of law when it should be the other way round. If the role of the Attorney General is seen as a political one, involving them in this Bill politicises—
Does my hon. Friend agree that if we have the Attorney General involved in this, matters will end up in the courts? Again, it raises a false flag to servicemen and women that somehow this will stop prosecutions. If something is overturned by the Supreme Court or whatever, the prosecution will still go ahead, so the longstop is not achieved.
It is not. I would like the Minister to answer this conundrum that I came up with when I was listening to my right hon. Friend’s very good speech earlier. The trouble that I see with the Attorney General being involved is that if we have a civil case that is ruled out after six years, according to the Bill, and we have new evidence that emerges from the previous case—this is an important point—the Attorney General then decides to prosecute. That person is then found guilty of a crime and damages are given out. We have a situation where we have a criminal court giving compensation for a case that has already been struck out. That is an anomaly in the Bill that I hope the Minister will address because it is a concern. Given the mixed opinions on the role of the Attorney General, and the general cloudiness of what their role and priorities ought to be, the requirement to produce reports on their decisions to prosecute or not seems entirely sensible.
Would it not also be the case that we would not know how the Attorney General made a decision in terms of legal thresholds and suchlike? There will be a political decision, and there is no guidance in the Bill on what the important factors would be for an Attorney General to make his or her decisions.
From a legal perspective, it is really important that when an Attorney General gives their advice, they do that through the process of legal precedent, statutory interpretation or whatever we want to call it. It is extremely important that when the Attorney General arrives at Parliament with their advice, they have a very strong legal argument. They have consulted academics or leading lawyers, presumably in the area of human rights, and they have crossed all the t’s and dotted all the i’s, and when they come before Parliament, they are confident in their decision. That is why it is extremely important that a report is presented, because at least they can cross-reference how they arrived at the decision. It also gives confidence in the decision. If the case does end up in court, they are standing in a stronger legal position than they would be if they had not released that advice.
As there is a long-standing worry about the balance between law and politics in the role of the Attorney General, it surely makes sense that the Attorney General, if they are to be involved in this Bill at all, is required to publicise the decision. That would ensure that prosecutions covered by the Bill continued to be legal matters or could be at least scrutinised by other bodies to regulate them. It would ensure that party politics was not placed above the law.
It is a judicial process that the Government are concerned with. It should not be politicised or manipulated by party politics in any way, shape or form. If the Government feel the need to grant the power of decision over prosecution to the Attorney General rather than an independent legal body such as the Director of Public Prosecutions, the process must be entirely transparent, so that all those involved can clearly see the thinking behind the decisions. There is no reason why that information cannot be shared. It should and must be subject to parliamentary scrutiny.
I thank the hon. Member for Islwyn for his very thoughtful contribution. I will address some of those points.
First, let me come to the points raised by the SNP. I will not call it “hypocritical”, because that would be out of order, but the irony of being lectured about behaviour in debates by the hon. Member for Glasgow North West, who has repeatedly screamed at me at the Dispatch Box, is not lost on me in any way. I have no ribs left from laughing at the SNP’s position on defence matters. The idea that it is possible to have a constructive debate from such a false position is ridiculous, but I will address some of those points in my comments.
Dominic Grieve and Nicholas Mercer are people who have contributed. I do not know whether Members expected those who had overseen the disaster of things such as IHAT, who had overseen those processes, to come in and say, “This was a good idea.” I never expected that. Nicholas Mercer was not some senior legal adviser; he was a brigade LEGAD, and there were many brigades in Iraq. His evidence, a number of times, has been called into question. Dominic Grieve was a Member of this House. I have huge respect for him. But he, as Attorney General, oversaw some of these horrendous experiences that some of our people went through. Of course they are not going to be supportive of changing that scenario, because they did not do that when they were in charge. I respect that that was their decision, but we have come in on a very clear promise to end the unfair nature of this process.
I understand that it is combative; I understand that it is contested, but it is about time that someone came here with the voice of those who actually go through the process and was at the head of this debate, rather than those who are managing it and ultimately, in my view, have no real idea what it is like to walk in the shoes of those who serve on operations or who are dragged through these investigations.
When it comes to the Attorney General’s consent—
I accept what the Minister is saying, but let us be honest: it was not just Dominic Grieve as Attorney General; the Government oversaw the IHAT system. As for the point the Minister makes, I do not for one minute question his intent in trying to do the right thing, and I support him in that. The only problem I have is that, in proposing what he does, he has a deaf ear to things that could actually improve the situation and get the Bill right so that it does what he is trying to achieve.
That is a matter for debate, and that is the whole point of why we are here.
Clause 5 requires the consent of the Attorney General for England and Wales or the Attorney General for Northern Ireland before a case of an alleged offence committed by a serviceperson more than five years prior on an overseas operation can proceed to prosecution. We introduced the consent function because we believe it is important for service personnel and veterans to be confident that their case will be considered at the highest levels of our justice system. In relation to amendment 22, the consent function does not need to extend to Scotland, as all prosecution decisions in Scotland are already taken in the public interest by, or on behalf of, the Lord Advocate.
Requiring the consent of the Attorney General for a prosecution is not unusual. The Attorney General already has to give consent to prosecute war crimes, as has been said, and for veterans to be prosecuted more than six months after they left service. Who introduced that legislation? The Labour party, in 2001. The Attorney General already has numerous other consent functions, but that does not mean that the Government have any role to play in decisions on consent; it is simply a safety check on fairness.
On amendments 10 and 11, in deciding whether to grant consent to prosecutions, the Attorney General acts quasi-judicially and independently of Government, applying the well-established prosecution principles of evidential sufficiency and public interest. This means that the Government will play no role in the decision taken by the Attorney General or Attorney General of Northern Ireland on consent—no role. Amendment 24 seeks to require the Attorney General to report to Parliament with the reasons for granting or withholding consent. There is no statutory requirement anywhere else for the AG report on individual casework decisions, and we do not believe that it would be appropriate to introduce such a requirement in the Bill. I therefore ask that the amendments be withdrawn.
First, I will respond to the comments the Minister made at the start. There is a huge difference between debating in the Chamber, with comments being passed to and fro, and making a speech in a room such as this and having somebody mumbling under their breath while doing it. It is disrespectful and it should not happen. The Minister is a military man. I would love to have seen him behave like that when one of his superiors was addressing him in his former career. I have no intention of withdrawing the amendments. Nothing the Minister said assured me that there would be an unbiased situation when considering prosecutions, so I will push them to a vote.