Schedule 1 - Excluded offences for the purposes of section 6

Overseas Operations (Service Personnel and Veterans) Bill – in a Public Bill Committee at 10:30 am on 20th October 2020.

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Question proposed, That the schedule be the First schedule to the Bill.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Paragraph 46 of the explanatory notes states:

Schedule 1 details the sexual offences excluded from the scope of the requirements of clauses 2, 3 and 5”.

We have touched already on the fact that sexual offences are not included in the Bill. I have not yet had a good explanation of why that category is the only one identified in the Bill. I think we all agree, and there is no dispute, that sexual offences play no part whatever of the conduct of our armed forces.  If they are committed, they should be investigated and prosecuted and the perpetrator taken before court. The problem is how to separate sexual offences from other criminal activity. There are situations in which the sexual offence is committed along with other crimes, such as torture, that are not on the face of this Bill. Why exclude sexual offences?

The argument could be, as has been said, that this should never be part of the conduct of forces personnel—I agree, but that should not mean it is singled out. The problem I have with this is that when cases come forward, if there is a sexual offence as part of the accusations then this will be prosecuted, but something else of equal severity might not be prosecuted despite being part of the same event.

The obvious way around this is to leave it in and add other items as well, but I have yet to understand why sexual offences have been singled out, and I think we need an explanation because it draws attention to the fact that other things are not also mentioned. If there were clear-cut, one-off sexual offences then it is understandable, but I can imagine situations that may include other offences. If you look at some of the accusations, not necessarily against UK service personnel, but others such as those involved in peacekeeping operations, sexual offence was part of other crimes that were committed against individuals. It says in the schedule that we will exclude the sexual offence but the rest, frankly, is not part of it. I do not think it is as simple as to divide the two as clearly as this. I would like an explanation as to why and how sexual offences would be separated from other offences.

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

It is a fair argument from the right hon. Member for North Durham; there is a difference of opinion on this issue. We are very clear as to why sexual offences are on there—schedule 1lists the offences that are not relevant for the purposes of clause 6. The only offences contained in schedule 1 are sexual offences. This means that in cases involving alleged sexual offences on overseas operations more than five years ago, a prosecutor does not need to apply the statutory presumption and the matter is to be given particular weight when considering whether to prosecute.

Further, the prosecutor does not need the consent of the Attorney General for a case to get a prosecution; they will simply follow the usual procedures for determining whether or not to prosecute. For clarity, it should be noted that conflict-related sexual violence is classified as a war crime and is recognised as torture, a crime against humanity and genocide in international criminal law. These offences are referenced in paragraph 13 of part 1 and are listed in parts 2 and 3 of schedule 1.

Part 1 of schedule 1 lists sexual offences as criminal conduct offences under armed forces legislation, the Armed Forces Act 2006, and the corresponding offences under the law of England and Wales, including repeals provision. Part 2 of schedule 1 lists the sexual offences contained in the International Criminal Court Act 2001, under the law of England and Wales and the law of Northern Ireland. Part 3 of schedule 1 lists the sexual offences contained in the International Criminal Court Act 2001 under the law of Scotland. Part 4 of schedule 1 contains the provisions extending jurisdiction in respect of certain sexual offences. I reiterate to the Committee the reason for the exclusion of sexual offences.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

To reflect on the words of my right hon. Friend the Member for North Durham, this schedule includes, as we know, only the exclusion of sexual offences. Given the concern raised by many people during our evidence sessions and more generally in debate, why are torture and war crimes not included in the section? I would like to see that, because it is an important issue in the debate.

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

The reality is that the word “torture” and allegations of torture have been used as a vehicle to generate thousands of claims against our service personnel. There have been arguments around why we have not packed investigations and so on into the Bill, but the Bill is trying to deal with very specific problems, which are the ones we have faced over the last 15 or 20 years relating to claims of this nature. In the discharge of your military duties, you can expect to be accused of assault, unlawful killing, murder and torture when using violence. There is no scenario in which our people will be asked to operate in which they can legitimately commit sexual offences. This country has a strong commitment against the use of sexual violence as a weapon of war, and that is why it is in the Bill.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I agree that it should play no part whatever, and it does not in terms of the ethos of our armed forces. Will the Minister answer the point that there will not, in many cases, be a situation in which sexual violence takes place by itself? What happens if it involves violence and other things? How can the other issues be looked at if it is taken out? He is saying that the only reason for it is because torture is seen as a reason for a lot of the claims coming forward. Is that the only justification?

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

Putting sexual offences in the Bill in no way denigrates our commitments against torture. We have to deal with the world as we find it, not as we would like it to be. When allegations of torture are mass-generated, as they have been, to produce these claims we have a duty to act to protect our service men and women from that.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

I understand the point the Minister is making about protecting service people and about spurious claims, but there are also genuine claims of torture that really deserve to be properly investigated, looked at, and not excluded. I am not saying they are against our forces in particular. I wonder if not writing that into the schedule is a step too far. It is such an important issue for the good name of the country, and also for that of our troops.

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

No one disputes the seriousness of torture. I reiterate that our commitments against that are not diluted in any way. All we are seeking to do is to restore the primacy of things like the Geneva convention and the law of armed conflict, and to protect our service men and women from the nature of lawfare that has been so pernicious over the years. I understand people’s views on it, and at first inspection I understand why people have concerns, but the reality is that we have to deal with the situation with which we have been presented. If we are going to protect our people, this is a difficult part of it. As I have outlined, nobody can in any way be legitimately accused of sexual offences in the discharge of their duties, and that is why it is in the Bill.

Question put and agreed to.

Schedule 1 accordingly agreed to.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton 10:45 am, 20th October 2020

Before we move on to clause 7, I do not like to interrupt the debate, but there have been references to “you” in a number of speeches, and I am sure that on those occasions you do not really mean me.

Could people try to use the normal parliamentary protocol in debate? Members of the Committee will not have any problem catching my eye, but some of the interventions have been more akin to speeches than sharp interventions. I hope we can continue on the basis that interventions should not be speeches.

Clause 7 ordered to stand part of the Bill.