Overseas Operations (Service Personnel and Veterans) Bill
Public Bill Committee, 6 October 2020.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Before we begin, I have a few preliminary announcements. Please switch all electronic devices to silent. Tea and coffee are not allowed during the sittings. As I indicated before the sitting, please adhere to the social distancing requirements for the room.
Today we will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication, followed by a motion to allow us to deliberate in private about our questions before the oral evidence sessions. In view of the time available, I hope we can take these matters without debate. I call the Minister to move the programme motion standing in his name, which was discussed yesterday by the Programming Sub-Committee for the Bill.
Examination of Witnesses
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
We will now resume our public sitting to hear evidence from Douglas Young from the British Armed Forces Federation and Michael Sutcliff from the Armed Forces Support Group. Both join the sitting remotely. May I confirm with Douglas and Michael that they can both hear us?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
If at any point during the meeting when members of the Committee ask you questions you cannot hear them, please indicate so that we can make the necessary arrangements.
I remind all Members that questions should be limited to matters within the scope of the Bill. We must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 10.30 am.
Do any members of the Committee wish to declare any relevant interests in connection with the Bill?
Stuart Anderson (Conservative, Wolverhampton South West)
To err on the side of caution, I should say that I have served on overseas operations. I have also made a successful claim against the Ministry of Defence for my injuries during service.
Peter Gibson (Conservative, Darlington)
I am a former member of the Association of Personal Injury Lawyers, who are one of the witnesses.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Will the witnesses please introduce themselves for the record? We will start with you, Douglas.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Thank you for introducing yourselves. I think there are some issues with the audio, because some Members are indicating to me that they cannot hear well what you are both saying. I propose asking Chris Evans to begin asking questions, and we will hope that we can improve the audio as we go along. If Members feel that the audio is unsatisfactory, we will pause proceedings to see what we can do.
Chris Evans (Labour/Co-operative, Islwyn)
Good morning, Mr Young and Mr Sutcliff. As we are on Zoom, will Mr Young speak first and Mr Sutcliff second? That will be easier than you talking over each other.Q
Both my questions are directed at both of you. The first question of the day is, does the MOD do enough to provide a duty of care to those service personnel who go through investigations and litigations at the moment?
Chris Evans (Labour/Co-operative, Islwyn)
Q One of the issues that came out as this Bill began to make its way through Parliament was whether five years is the right period for cut-off. Why not seven or three, in your opinion? What is your opinion on the five-year rule?
Chris Evans (Labour/Co-operative, Islwyn)
Q I do not want to dwell too much on the five-year limit set by the Bill, but could you provide any evidence or examples of why cases of torture might not be brought within that five-year limit?
Chris Evans (Labour/Co-operative, Islwyn)
Q Moving on further from that, do you think that the Bill’s provisions extend to offences committed far beyond the traditional battlefield, and if so, what do you think the effect of that is?
Chris Evans (Labour/Co-operative, Islwyn)
Q I want to move on to troop welfare, which you are both very well briefed in. How many troops have you supported who have gone through repeat investigations, and what does the Bill do for those who have been dragged through repeat investigations?
Chris Evans (Labour/Co-operative, Islwyn)
Q One of the criticisms of this Bill is the six-year time limit for civil cases against the MOD in respect of personal injury or death during overseas operations. First, should it be longer, and secondly, do you think it puts troops and veterans at a disadvantage compared with their civilian counterparts?
Chris Evans (Labour/Co-operative, Islwyn)
Q To give some context to that, what I was thinking of with that question was nuclear test veterans and also the knowledge we have now about asbestos and asbestosis. These issues took numbers of years to emerge before we found there was a problem, and I am concerned that if we have another issue that we do not know about at the moment—chemicals that we then find out are life-threatening—the limit could have an adverse effect on troops bringing civil claims against the MOD. That was the background to my question.
Chris Evans (Labour/Co-operative, Islwyn)
I can’t either.
Chris Evans (Labour/Co-operative, Islwyn)
Q There has been criticism in some quarters that the six-year limit breaches the armed forces covenant. Again, that was prevalent as the Bill began its parliamentary journey. Do you believe that the Bill in any way breaches the armed forces covenant?
Chris Evans (Labour/Co-operative, Islwyn)
Q I have taken enough time and know that colleagues want to come in, but I will end with a quick, simple question. How do you think veterans and their families will react to the Bill?
Chris Evans (Labour/Co-operative, Islwyn)
Thank you.
Sarah Dines (Conservative, Derbyshire Dales)
It is a pleasure to serve under your chairmanship, Mr Mundell. I thank the witnesses for giving evidence today, albeit Q virtually. I have a couple of questions on the effects of the present regime on servicemen and women and their families. First, can each of you describe the effect of the present regime of repeated claims, sometimes over decades, on the mental health of the individual, of their fellow servicemen and women, and of their children and families?
Sarah Dines (Conservative, Derbyshire Dales)
Q It was not so much a question about general mental health and the effects on fellow servicemen and families; it was about the absence of the protection that the Bill is bringing through. Do you agree with the Government’s idea that mental health will be helped if these sorts of vexatious or unnecessary and unmerited claims are stopped? Will that help servicemen and women, their fellow workers and their families? That is what the question was aimed at, in your experience.
Sarah Dines (Conservative, Derbyshire Dales)
Q Mr Young, do you agree that the new proposed law will help the mental health of servicemen, their fellow servicemen and their families?
Sarah Dines (Conservative, Derbyshire Dales)
Do you agree, Mr Sutcliff? I think you said yes earlier.
Sarah Dines (Conservative, Derbyshire Dales)
Q In terms of how that could spoil the retirement of someone who has retired from the services—the fear of someone knocking on the door in the morning to cart them off for yet another series of questioning—is that something that is realistic, or is that fear fanciful? Will the Bill stop that?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
We did not hear the start of your answer, Mr Young. Will you start again? We had a technical issue.
Sarah Dines (Conservative, Derbyshire Dales)
Q Some who oppose the Bill say that it will protect people who have in effect committed or been involved in torture. Do either of you have any personal experience—do say if this is simply outside your experience—of those who have suffered investigation for pure torture? I want to get a handle on how frequent these allegations really are and whether there is any justification for opposing the Bill on that ground.
Sarah Dines (Conservative, Derbyshire Dales)
That is a very fair answer. Thank you very much, gentlemen.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
We are tight for time, so I will call Carol Monaghan next, and then, if we can, we will squeeze in Liz Twist and Stuart Anderson, who have both indicated a wish to speak. Gentlemen, could you, at the other end, give short, sharp answers as well?
Carol Monaghan (Scottish National Party, Glasgow North West)
Thank you, Mr Mundell. CouldQ I take Mr Young back to something he said earlier? One reason given for the Bill being brought forward is the industrial scale of claims against the MOD. You said that you reckoned there might be exaggerations about that. How big an exaggeration do you think it is?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Do you think the phrase “industrial scale” has been misused?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Part 2 of the Bill proposes a six-year limit for civil claims against the MOD. Typically that would be personnel who have suffered injury as a result of MOD neglect or negligence. Why do you think a six-year limit has been put forward?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Without an absolute longstop limit, do you foresee difficulties, or have you had any experience where people have had injuries that have only come to light, or where they have only claimed, much later than that six years?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Could I put the same question to Mr Sutcliff? Can you see any difficulty? You talked about your experience in the Royal Navy. Can you see any difficulty whereby a situation might arise and an individual might want to claim beyond the six-year limit?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q I suppose the reason for my question is that different organisations have concerns that some conditions come to light and the individual has left a period of time before actually pursuing a claim, so although it has come to light on a particular date, the limit would prevent them from pursuing the claim. There are issues like, for example, radiation poisoning or hearing loss.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Gentlemen, this will be the last question, so if you could both answer succinctly, that would be helpful.
Carol Monaghan (Scottish National Party, Glasgow North West)
Thank you, gentlemen.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Thank you to the witnesses. We have reached the end of the time. I apologise to the two Members who wished to put questions but were unable to do so. Thank you, gentlemen, for joining us and engaging with the technology successfully.
Examination of witness
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
We are now going to hear from Hilary Meredith, of Hilary Meredith solicitors, who is joining us in person. We have until 11 am for this session. Hilary, could you introduce yourself for the record, please?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Thank you. As you have seen from the previous session we have some logistical issues, because Members who wish to question you will have to move to a seat where there is a microphone, or we have a standing microphone just behind you. I hope that you will bear with us as we move forward with those logistics. The two Members who have indicated that they wish to question you during this session are Emma Lewell-Buck and Carol Monaghan. If there is anyone else—Sarah Atherton, I will take you as well. So, Emma.
Stuart Anderson (Conservative, Wolverhampton South West)
I want to be on every question, Chair.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
I suggest that we might logistically arrange for people who do want to ask questions, or anticipate asking questions, to be at the table where they would have access to a microphone. It makes it so much easier. Emma Lewell-Buck, I call on you to start the proceedings.
Emma Lewell-Buck (Labour, South Shields)
Hello, Hilary, good morning. My first question is: do you think that it makes sound legal sense to gather changes to criminal and civil law together in the same Bill?Q
Emma Lewell-Buck (Labour, South Shields)
Q Why is that? What pitfalls do you envisage should the Bill go through unchanged and become an Act of Parliament?
Emma Lewell-Buck (Labour, South Shields)
Q Thank you for that. Does the Bill do anything for existing veterans and service personnel who have been dragged through repeated investigations?
Emma Lewell-Buck (Labour, South Shields)
Q Is five years the right period for a cut-off? Should it be seven, three, or some other number?
Emma Lewell-Buck (Labour, South Shields)
Q Do you expect more prosecutions of UK armed forces personnel and veterans in the International Criminal Court?
Emma Lewell-Buck (Labour, South Shields)
Thank you, Chair—I will leave it there so others can come in.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Thank you for observing the microphone requirement. I call Stuart Anderson.
Stuart Anderson (Conservative, Wolverhampton South West)
Q Thank you, Chair—it is an honour to serve on the Committee. Ms Meredith, you have mentioned what you think is wrong in the Bill. Obviously, we are looking to protect serving personnel and veterans in the future. If you do not think the Bill is right, what do you suggest we do?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Thank you for your evidence so far. In response to Emma Lewell-Buck’s questioning, you talked about the need for proper investigation. Can you expand on that and tell me what you see that as being?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Thank you. When we hear about repeat investigations, what sort of form do they take?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q And who was carrying out these repeated investigations?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q You mentioned that you are concerned about the six-year longstop in part 2 of the Bill. Can you give an example of where that would be problematic?
Carol Monaghan (Scottish National Party, Glasgow North West)
Thank you very much. Thanks for your answers.
Kevan Jones (Labour, North Durham)
One of the things that has come out from what you have said, and certainly what I have read throughout all of this, is the issue around poor investigations and the investigation industry, as it became, in Major Campbell’s case. You have already said that there should be an advocate on behalf of somebody who is accused. If we could put that into the Bill, would you welcome it? Secondly, is there any way we could put time limits or controls on the length of investigations?Q
Kevan Jones (Labour, North Durham)
Q The other one was about advocates. As you say, the individual is a bit disadvantaged because they have the weight of the MOD and the investigation against them. Could we instigate something whereby they are given an advocate to act on their behalf?
Kevan Jones (Labour, North Durham)
Q In terms of a time limit to investigations, do you see anything that would legally stop or prevent that?
Kevan Jones (Labour, North Durham)
Q The presumption not to prosecute always seems like a strange thing. It is like investigating you for burglary, but saying in advance that we are going to make sure we are not going to prosecute you. What are your views on that? Is that legally possible?
Kevan Jones (Labour, North Durham)
Q I might be able to answer some of that. Partly it was a cultural thing in Iraq. In the early days, the Americans and others were seen to be paying money out for car accidents and other things. It got to a situation where the MOD copied that and made compensation offers in the field. There were cultural issues that paying money somehow drew a line under the issue. It was partly related to the insurgents and trying to track that as well. It was possibly well intentioned, but that is the consequence of what you say.
Joy Morrissey (Conservative, Beaconsfield)
When you refer to the Human Rights Act, are you referring to upholding in the ECHR as opposed to the Court of Justice at the European Union? I find that interesting, given that the EU Court of Justice does not accede to the European Court of Human Rights or acknowledge all of its remit. The EU Court of Justice ruled that it had the right over rulings of the European Court of Human Rights, which is a separate entity. Did we then adopt the European Court of Human Rights ruling as sacrosanct and did we go on with that, prosecuting people in a specific way? Is that what we did?Q
Joy Morrissey (Conservative, Beaconsfield)
Q The EU Court of Justice has decided that it has jurisdiction over the European Court of Human Rights in terms of the Lisbon treaty and other national security elements. Why did we go backwards and adopt the European Court of Human Rights, and hold ourselves to that level? Is that where things went awry?
Joy Morrissey (Conservative, Beaconsfield)
Q What about the national security element of the person’s defence? Who was there to make that national security defence for the armed forces personnel that was being prosecuted? Many of the things they were asked to do were a result of a national security issue, so who was there to defend them in terms of the national security element?
Joy Morrissey (Conservative, Beaconsfield)
No one.
Joy Morrissey (Conservative, Beaconsfield)
Q So for a whole aspect of what they were being prosecuted on, there was no information and no knowledge being shared.
Joy Morrissey (Conservative, Beaconsfield)
Q I do not know what your feelings are, but the European Court of Human Rights also uses the primary method of judicial interpretation as a living instrument, as a current-day interpretation of events and modern-day facts, where you are not taking into consideration national security, armed forces personnel or procedure. You are not taking the wider NATO or other alliances that you are entering. They are just taking it on the modern-day interpretation. Would you say that that had an effect on how people in service have been or were prosecuted?
Sarah Atherton (Conservative, Wrexham)
I was reading your discussion points and I was interested to read that the majority of lawfare cases arose out of compensation claims brought by Iraqis and Afghans. That opened the floodgate, which paved the way for lawfare civil compensation claims. Can you expand on that? Can you give the Committee some idea of the numbers we are looking at? How many criminal allegations, how many prosecutions, and how many were false?Q
Sarah Atherton (Conservative, Wrexham)
Q It was numbers. I am looking for statistics.
Sarah Atherton (Conservative, Wrexham)
Q How many of those were false?
Joy Morrissey (Conservative, Beaconsfield)
Q What help are personnel given when they are accused?
Kevan Jones (Labour, North Durham)
Q Hilary, you talked about an advocate, and obviously people who have been falsely accused need redress, in terms of getting their name cleared. Do you think there is an opportunity, particularly with veterans—you might be able to do it for serving personnel as well—to give responsibility to the armed forces ombudsman to review cases once they have actually concluded if people feel that they have been ill-treated, in terms of malicious prosecutions or delays in investigations, for example?
Kevan Jones (Labour, North Durham)
Q Even if we stay it for current cases, could that responsibility be given to the ombudsman for future cases?
Joy Morrissey (Conservative, Beaconsfield)
Q Hilary, do you agree that it is impossible to actually reach a fair verdict if you do not have the national security background or the military files on what was decided at the time? If that is restricted information—some of those documents may be classified for several years or decades—how is the service person supposed to defend themselves if they do not have that level of information?
Stuart Anderson (Conservative, Wolverhampton South West)
Q Going back to when you said the time limit is a red herring, how do you think the serving personnel and veteran community will take it if we took your recommendation and removed the time limit from the Bill?
Stuart Anderson (Conservative, Wolverhampton South West)
Q What about from the point of knowledge?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Thank you, Hilary. With that, we have reached the end of the time period that was allocated for your evidence. On behalf of all the members of the Committee, we are very grateful to you for the evidence you have given and for bearing with us and the logistics we have to follow to comply with social distancing. Thank you very much for your evidence.
Examination of Witness
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Our next witness is Major Bob Campbell, who is giving evidence remotely using sound only. We have until 11.25 am for this session. Major Campbell, could you just confirm to me that you can hear me, and could you speak so that we know you can hear us?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Excellent. You are pre-empting my good self in giving that instruction to those asking for evidence. Major, could you just confirm your name formally for the record?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Thank you very much, sir. I have four Members who have indicated that they want to ask questions: Stephen Morgan, Kevan Jones, Carol Monaghan and Stuart Anderson. If anybody else wants to ask a question, please indicate. I will go first to Stephen Morgan, who I am sure will follow the Major’s instructions.
Stephen Morgan (Labour, Portsmouth South)
Major Campbell, thank you for giving evidence before the Committee today. You have obviously recently been in the news for the eight investigations. How did the MOD provide you with support? Was there good care and assistance during the investigationsQ ?
Stephen Morgan (Labour, Portsmouth South)
Q How was the chain of command? Did they take responsibility? Should they have done?
Stephen Morgan (Labour, Portsmouth South)
Q We heard from other witnesses about the challenges that veterans have faced in getting information and suggestions of improvements to the armed forces covenant or a phone line or advocates. Will you say a bit more about what support you would have wanted?
Stephen Morgan (Labour, Portsmouth South)
Q You will have seen criticisms that the Bill does not do enough to protect our troops. What would you do to improve the Bill in its current form?
Stephen Morgan (Labour, Portsmouth South)
Major Campbell, thank you for your answers.
Stuart Anderson (Conservative, Wolverhampton South West)
Q Thank you, Major Campbell. It is an absolute disgrace that you have had to go through everything that you have. It is horrible to hear, but we need to learn lessons from this and look to move forward. You just mentioned that if the Bill had been in place since 2009, you, SO71 and SO72 would have been able to lead a normal life, and the torment would have been over. Will you confirm whether you welcome the Bill or whether you are against it?
Stuart Anderson (Conservative, Wolverhampton South West)
Q Just a follow-up. We had the Second Reading of the Bill in Parliament a few weeks ago. I am not sure whether you saw that; it was a very interesting debate. There were a lot of recommendations, and one of the recommendations to the Bill Committee is to shelve the Bill and start again. In my new term as a politician, that means to stop it. What is your view, and what do you believe the veterans community and armed forces will feel if the Bill does not pass the Bill Committee?
Stuart Anderson (Conservative, Wolverhampton South West)
Thank you for your comments, and thank you again for your service.
Sarah Atherton (Conservative, Wrexham)
Q Hello, Major. I would like to thank you for your services, and I am horrified at what you have been through. Some critics say the Bill will increase the number of prosecutions and allegations taken to the international criminal courts. Given your experiences and knowledge of the Bill, what is your opinion on that?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Major Campbell, thank you so much for the evidence that you have given us already today. I think that all of us here are sorry to hear of your experience, and I think that the sympathy of all of us is with you.
Clearly, a lot of this is still very raw for you, and you have talked about the MOD dragging it out over the last 17 years. Can you tell me how you think this Bill will actually tackle the MOD’s actions and inactions, which you have been subjected to over the last 17 years?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q How would you see a proper investigation being carried out?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Given that it would be difficult—I know that we are very short of time, Chair—to gather evidence when there is still an ongoing conflict, is five years a realistic point?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
This needs to be a very short answer, Major Campbell.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
We do have a time limit, which I am afraid we have reached, Major Campbell. But again, on behalf of all the members of this Committee, I thank you for your evidence this morning. Thank you very much indeed.
Examination of Witnesses
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
I hope that Professor Ekins can now hear proceedings. Will witnesses say for the record their name and designation, so that we may confirm that we can hear you?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Your sound is not very clear, Mr Larkin, so I am going to see whether we can have that adjusted. Will you repeat what you have just said?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Please try to get as close to your microphone and to speak as robustly as you can.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
We will take hearing you—that is our priority. If our two witnesses online will bear with us on the logistics, we are joined in the room by Dr Jonathan Morgan. Dr Morgan, will you introduce yourself for the record?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Excellent. I am going to call Kevan Jones to start the questions, and I would ask that he and others indicate whether they are addressing a question to a specific witness or to all the witnesses.
Kevan Jones (Labour, North Durham)
This is a general point for everyone. There is a five-year cut-off period in the Bill as outlined. Could you each consider the justification for that and why it should not be higher?Q60
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Perhaps, if the question is to everyone, we will start with you, Dr Morgan, in the room, and then go to Professor Ekins and Mr Larkin.
Kevan Jones (Labour, North Durham)
Q Thank you for that, but the difference here is that, unlike with other time limits, there is a presumption that someone will not be prosecuted. There are two things to say on that. One is, are there any other examples of where we have that in law? Also, would it not lead, possibly, to the decisions of the Attorney General not to prosecute—because you have pre-empted that, in effect, in the Bill—opening the cases up to the UK courts for judicial reviews and other things?
Kevan Jones (Labour, North Durham)
Q Are there any other instances where you have in law a presumption not to prosecute before you have actually done the investigation?
Kevan Jones (Labour, North Durham)
Q Yes, but the unique thing about this is not the time limit. I accept that there are time limits for various things in civil law as well as criminal. The difference here is that we are setting off on a presumption even before investigation that someone is not going to be prosecuted. Is that not putting the cart before the horse? You are making the judgment well before you have even looked at the actual case.
Kevan Jones (Labour, North Durham)
Q Can I follow up one last point? Dr Morgan has already answered it, but I would be interested to know what you two think. The presumption at the outset that you are not going to prosecute—is that a unique situation or is it something that is covered in other, similar types of cases?
Kevan Jones (Labour, North Durham)
Q The difference here is that this will actually be on the face of the Bill, in the sense that, at the beginning, the presumption will be not to prosecute. Putting the time limits aside, this is a major change. I wanted to know whether there are any other precedents in other pieces of law in the UK or other types of jurisdictions.
Kevan Jones (Labour, North Durham)
It is slightly different from that, I would argue, because it is presuming that you will not prosecute at the outset, which I think is difficult. Thank you very much.
Stuart Anderson (Conservative, Wolverhampton South West)
Do you think the Bill will have a positive impact and protect armed forces personnel who serve on overseas operations? I will ask Mr Larkin first.Q
Stuart Anderson (Conservative, Wolverhampton South West)
Mr Ekins?
Stuart Anderson (Conservative, Wolverhampton South West)
I should have referred to as “professor”—sorry, I did not want you to feel left out. Doctor Morgan?
Stuart Anderson (Conservative, Wolverhampton South West)
Q Mr Larkin, you did touch on it, but do any of you believe that the Bill provides a blanket amnesty in any way, shape or form for armed forces personnel?
Peter Gibson (Conservative, Darlington)
If the Bill’s intent is to protect service personnel, what steps should be taken to improve the Bill as drafted?Q
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Mr Larkin, we are sorry but we are not hearing you very well. Do you want to try to speak a bit closer to your microphone?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
We are still struggling, I am afraid.
Peter Gibson (Conservative, Darlington)
Q Can the witness write to us with his answer to that? It was not entirely audible to us here in the room.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Are you happy to do that, Mr Larkin? We did not hear all of what you said. Members may have got the general thrust of what you were saying, but we did not get the detail.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Thank you for that.
Peter Gibson (Conservative, Darlington)
Q Thank you, Mr Larkin. I will ask the same question to Dr Morgan.
Peter Gibson (Conservative, Darlington)
Let us have both approaches.
Kevan Jones (Labour, North Durham)
Q In the case of no-fault compensation, would that then be within the existing armed forces compensation scheme? How would you change that?
Kevan Jones (Labour, North Durham)
Q When I was a Minister, I extended the issues around mental health in 2009, I think it was. You would not have to have a limitation time and it would be automatic for that person to be considered, is that right?
Kevan Jones (Labour, North Durham)
Q Would it extend to, for example, mental health grounds? The original 2000 Act was quite limited in terms of date of knowledge and other things around mental health. The Lord Boyce review was implemented in 2009. So what you are saying is that the presumption that there be no fault, basically, is accepted. That would perhaps get round the time limitations altogether.
Carol Monaghan (Scottish National Party, Glasgow North West)
This morning we heard from Major Bob Campbell who talked about the MOD—in a brilliant quote to get on the record—“fannying about with repeated investigations”. He talked about 17 years of this carry-on. What part of the Bill do you see addressing the MOD’s failures in terms of these repeated investigations?Q
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Would you support calls for some sort of independence in the investigative processes?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Would it make sense for that type of legislation on the way investigations are carried out to be developed alongside the Bill?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Finally, having heard what the three of you have said about how we carry out investigations, do you understand that some people would have concerns that the Bill will not solve the issues of people like Major Campbell and the difficulties that he has had over the past 17 years?
Joy Morrissey (Conservative, Beaconsfield)
I have two questions on the point raised earlier about the territorial reach of the Human Rights Act. How would you limit that within the Bill? What would you suggest?Q
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Who are you addressing the question to?
Joy Morrissey (Conservative, Beaconsfield)
I would welcome feedback from each of the witnesses. How would you limit the territorial reach of the Human Rights Act within this legislation? You mentioned it as a point, and I wanted to hear how you would do that.
Joy Morrissey (Conservative, Beaconsfield)
Q My question in response to that would be, why are we confusing the two things? The European Court of Justice ruled that it had supremacy over the ruling of the ECHR, and we opted out of the Lisbon treaty in terms of the acceptance of certain aspects of the Home Office and Justice type of rules—we opted out of that. Within the EU structure, they sort of opted out of accepting the ECHR in terms of jurisdiction within their own court systems. I feel that there is a bit of muddying of the waters in terms of what exactly is the jurisdiction of what. Could there be a review of that?
Joy Morrissey (Conservative, Beaconsfield)
Q It just gives me pause for thought about why we have decided to do it, when the Court of Justice held that the EU could not accept the ECHR under the draft agreement and held that the agreement was incompatible with the TEU article 6.2, for the reason that the draft agreement undermined the Court of Justice’s autonomy. It allowed for the dispute resolution mechanisms. I am just curious why we have gone down this road. Perhaps the witnesses can clarify.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Were you able to hear that answer, Joy?
Joy Morrissey (Conservative, Beaconsfield)
No.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
When you write to us on the previous point, Mr Larkin, will you also set out your thoughts on the question that has just been asked? We come to you, Professor Ekins.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Does any other Member wish to question the witnesses?
Mark Eastwood (Conservative, Dewsbury)
Yes, Mr Mundell.Q
Thank you for coming to this session. We referred to Major Bob Campbell previously, and I wanted to follow on from the point made by Carole Monaghan and the evidence given by Major Campbell. He said that he gave evidence after several years of being investigated and reinvestigated, and he wrote to the International Criminal Court to ask them to prosecute him. The ICC actually refused that request. On Second Reading—I am sure you all witnessed the debate—a number of concerns were raised relating to veterans being hauled before the International Criminal Court as a result of the Bill being passed. Do you expect any veterans to be put before the International Criminal Court if the Bill goes ahead?
Mark Eastwood (Conservative, Dewsbury)
Q You said that there was an element of risk there, but when you look at what the International Criminal Court is prosecuting at the moment, and at cases it has done in the past, they generally relate to large-scale war crimes, genocide and that type of thing. Are we really suggesting that the International Criminal Court will get involved in cases that involve veterans? I have no option to expect the level of case, but are we expecting the International Criminal Court to get involved in, as Major Bob Campbell said, manslaughter and those types of incidents? Is that a realistic prospect?
Mark Eastwood (Conservative, Dewsbury)
Q Are they not looking at commanding officers, high-ranking soldiers, dictators and the higher level, rather than at the lower ranks as such?
Kevan Jones (Labour, North Durham)
Q The Government have announced that they are going to bring similar legislation with reference to Northern Ireland, although the Northern Ireland situation would be retrospective. This is not retrospective; even though it is being pumped out in propaganda as being a thing that will protect all veterans from Iraq and Afghanistan, it clearly is not. If the Government are going to make the Northern Ireland one retrospective, is there not a case to be made for making these things retrospective?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
I think you have to speak as an answer, Dr Morgan, because we cannot otherwise hear what it is.
Kevan Jones (Labour, North Durham)
Q No, I am not either; I just wanted to know what your views are. This Bill is being portrayed as if it will draw a line under Afghanistan and Iraq, which it clearly will not, as it is framed. If legislation is going to be brought forward on Northern Ireland, as we have been promised, that would have to be retrospective, because we are dealing in those cases with things that happened perhaps 40 years ago. I am playing devil’s advocate in saying that, if it is going to be retrospective for Northern Ireland, would it not be the obvious thing to do here to make this retrospective, to protect the veterans who served in Afghanistan and Iraq? I hasten to add that I will wait to see the legislation on Northern Ireland to make it retrospective and how that will be done.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Sorry, I think you were looking away from the microphone when you answered.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
I think we are going to ask for that answer in writing, as well. The Minister has a very quick question—
Johnny Mercer (Conservative, Plymouth, Moor View)
I am happy to pass on it; it has been answered by Dr Ekins.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Thank you very much indeed. If no one else has any further questions, we have reached the end of the time allocated. I thank each of the witnesses for their evidence and for being with us in the technical circumstances. Mr Larkin, I am very sorry that we were not able to hear some of your responses; if you are able to write to the Committee on the matters we have come back to you on, that would be very helpful indeed.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Before we move to our next set of witnesses, I should say that in the event that there is a Division in the House during this session, which there could be—this is for the information of the witnesses as well—we would initially suspend the sitting for 15 minutes. If the vote takes longer than that and Members cannot get back, we will deal with that pragmatically.
We are now joined by Ahmed Al-Nahhas and Emma Norton. Mr Al-Nahhas, perhaps you could say who you are so that we can confirm that we can hear you. I know from my mispronunciation of your name that you can hear me.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Thank you very much in advance for giving evidence today. I will ask Emma Lewell-Buck to start the evidence session.
Emma Lewell-Buck (Labour, South Shields)
Good afternoon to both of you. As you are aware, the main purpose of the Bill is to provide greater legal protections to forces and veterans. In your opinion, does it fully do that?Q
Emma Lewell-Buck (Labour, South Shields)
Q Bearing in mind your answers, I think I know the answer to the next question. Do either of you feel that it will reduce the number of investigations and reinvestigations or not?
Emma Lewell-Buck (Labour, South Shields)
Q Would either of you advocate a pause on the Bill going through right now until some of the issues can be ironed out properly?
Emma Lewell-Buck (Labour, South Shields)
Thank you both. My colleague, Kevan Jones, wants to come in quickly on investigations as well.
Kevan Jones (Labour, North Durham)
Q On investigations, a theme has come out in the reading and in this morning’s session. We have time limits here for bringing prosecutions. Would you suggest time limits for investigations? The Human Rights Act says, I think, you have got to have speedy investigations. Even without time limits, is there a role for judicial oversight of those investigations as they are ongoing—an investigation could get to a point where independent judicial oversight could say, “Nothing further is going to be gained from taking this prosecution any further”? What are your thoughts on that?
Kevan Jones (Labour, North Durham)
Q What about actually having a review of the investigation—an independent review of those investigations?
Emma Lewell-Buck (Labour, South Shields)
Q Going back to my earlier question, does the Bill open up the possibility of more prosecutions in the ICC?
Emma Lewell-Buck (Labour, South Shields)
Thank you both very much.
Sarah Atherton (Conservative, Wrexham)
Hello, Emma. It is good to see you again. I am intrigued with what you just said. A blunt question to you: do you feel that the Bill is necessary?Q
Sarah Atherton (Conservative, Wrexham)
Q Are you concerned about the interface between the service justice system and, perhaps, the service complaints ombudsman and what role they could play—if you feel that the Bill could be improved?
Liz Twist (Labour, Blaydon)
Mr Al-Nahhas, how aware are troops that they can privately claim for their injuries?Q
Liz Twist (Labour, Blaydon)
I see that you are nodding, Emma. Is there anything that you would like to add?Q
Liz Twist (Labour, Blaydon)
Q Returning to Mr Al-Nahhas, after what period of time will troops usually be aware of the fact that they can claim for injuries? You said that there is often a delay.
Liz Twist (Labour, Blaydon)
Q Could the Ministry of Defence do more to make troops aware of that route to compensation, in your view?
Liz Twist (Labour, Blaydon)
Q You mentioned the armed forces covenant. What do you think could be the impact of this Bill on the armed forces covenant?
Liz Twist (Labour, Blaydon)
Q You mentioned the time limits. Can I ask you about the difference between the point of knowledge, as written in the Bill, and the point of diagnosis, which is when the Government have referred to the six-year longstop as starting? How clear cut are the questions about those dates of knowledge and diagnosis in your view?
Liz Twist (Labour, Blaydon)
How clear cut are those questions about the date of knowledge and the date of diagnosis?
Liz Twist (Labour, Blaydon)
Q Following on from that, in the experience of your members, does the MOD contest evidence given by service personnel about the nature and timeframe of their injuries?
Liz Twist (Labour, Blaydon)
Q In summary, how do you think the Bill will impact the number of personnel claiming privately for their injuries?
Liz Twist (Labour, Blaydon)
Thank you. I want to ask Ms Norton a few more detailed questions. Are you okay? You look as if you are suffering.
Liz Twist (Labour, Blaydon)
Q Further to the questions that my colleague Emma Lewell-Buck asked you, what is the evidence that courts cannot strike out baseless legal claims?
Liz Twist (Labour, Blaydon)
Q Do the courts have an unfettered legal route into matters of combat decision making?
Liz Twist (Labour, Blaydon)
Q That picks up on my next question, which was about the principle of combat immunity. That is all my questions. Thank you very much.
Stuart Anderson (Conservative, Wolverhampton South West)
Q When we have listened to evidence today we have heard from veterans and from legal representatives like yourself. There is a disparity between veterans, who really want this Bill and say how let down they will be if it does not go through, and legal representatives, who say, “Stop.” As legal representatives are there to defend or to represent our troops, as you have done, where is that breakdown happening and why, Mr Al-Nahhas?
Stuart Anderson (Conservative, Wolverhampton South West)
Q We are where we are now, and we need to protect troops moving forward. They will be serving in our overseas operations this year, next year and so on. We can keep saying it does not protect veterans from Northern Ireland. I served in Northern Ireland, and I know many hundreds of veterans who have served in such environments, and there is separate legislation for that. We need to put that to one side with this, but we need to do something moving forward.
You say these things amplify the fear. The veteran community is very small, so we all know someone who is expecting a knock on the door. That is really amplified, because there is a brotherhood and sisterhood that has gone through the forces. When one person is affected, everybody is affected. Nothing has been brought in so far, and now we are at the start point. A major fear I have is that I keep hearing people saying stop. It has taken decades to get here. I do not know how long I will be a politician, but if I have a long career, we could still be saying stop, because people will never find a perfect Bill.
I hear what you are saying, but I think it goes against what the veteran community wants and is crying out for. As you have heard today, and with the greatest respect—I value what you are saying—every person we are seeing has a different view on this. As politicians, we need to find the best way to get the Bill through. If the Bill were to be stopped, I know the absolute lack of trust and heartbreak that the veteran community would feel. We have to use what we have and move that forward. I respect what you have said, but I felt that it was important to express how the heart of the veteran community is feeling about this.
Carol Monaghan (Scottish National Party, Glasgow North West)
Q May I ask, following those last questions, whether part 2 has been brought in stealthily off the back of part 1?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Yes, thank you. Emma Norton, do you have any comments?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Is there a danger that the hard stop of six years could prevent things such as inefficiencies in equipment from coming to light?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Could part 2 of the Bill be seen, then, as harmful to serving personnel and veterans?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q I am not sure whether it was you, Ahmed, or Emma who mentioned the issue of hearing loss earlier. I am wondering what happens if veterans or serving personnel have suffered an injury that cannot be attributed to a single event—for example, a number of things could contribute to PTSD. I am not a lawyer, so how does it work under this legislation if there is some dubiety over which particular event caused the injury?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Thank you. I do not know whether you have any additional comments on that, Emma.
Carol Monaghan (Scottish National Party, Glasgow North West)
Q My final question, playing devil’s advocate I suppose, is, what benefit is there to veterans from part 2 of the Bill?
Kevan Jones (Labour, North Durham)
Q I struggle to find consistent statistics about civilian claims against the MOD, and some people have clearly given the impression that all civilian claims are by Phil Shiner-type claimants. As a former Minister, I know that a lot of them are from serving personnel, veterans and family members. Are there any statistics on how many claims armed forces personnel, family members and veterans bring against the MOD each year?
Kevan Jones (Labour, North Durham)
Q In terms of your experience of those claims and claims by individuals who are not from the MOD—low-flying claims and other negligence claims that are not to do with operations or the MOD, but related activities—have you any idea of how many we are talking about? Are they published anywhere?
Sarah Atherton (Conservative, Wrexham)
Q Mr Al-Nahhas, you are talking to the uninitiated here. I absolutely agree that litigation is a strong conduit for change. For families who feel that they have been unjustly treated, how do they fund claiming and who funds the litigators?
Sarah Atherton (Conservative, Wrexham)
Yes, thank you.
Stuart Anderson (Conservative, Wolverhampton South West)
Q If they are successful, what percentage is taken from the soldier’s claim, on average, for the solicitors?
Peter Gibson (Conservative, Darlington)
Q I have two quick questions for Ahmed. In terms of the claims that you have brought for veterans, how many times have you had to use the dispensation of limitation under section 33? And are you able to share with us your success rate in terms of the claims that you win and those that you lose for veterans?
Peter Gibson (Conservative, Darlington)
Q Just to put some data on that, how many claims does a small fraction look like in practice, over a period of 15 years?
Peter Gibson (Conservative, Darlington)
Q Thank you. So it is incredibly rare that you would need to use section 33.
Peter Gibson (Conservative, Darlington)
Q My second question is about success and failure. How many cases do you win and how many do you lose?
Peter Gibson (Conservative, Darlington)
Q I am trying to establish in how many cases you succeed in recovering compensation and in how many you do not. Obviously, one subsidises the other. Are you able to share those percentages with us?
Peter Gibson (Conservative, Darlington)
That would be welcome, thank you.
Stuart Anderson (Conservative, Wolverhampton South West)
Q I have a supplementary question about a no win, no fee where a young rifleman has a previous injury. If you or the other solicitors do not deem it to have a good chance of success—those were your words—how would a young rifleman fund his legal case?
Stuart Anderson (Conservative, Wolverhampton South West)
Q How many cases have you turned down that have been over six years?
Kevan Jones (Labour, North Durham)
Q Does that not demonstrate the point made earlier about people being aware of their rights, in terms of taking cases forward? To answer Stuart’s point about cases, charities take test cases and cases that might not be seen as winners. Section 33, which this takes away from veterans, applies to me if I want to sue someone and it applies, as you said, to a prisoner wanting to sue the Ministry of Justice. Why should it be different for a prisoner and for a veteran?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
If no other Member wishes to ask a question, I thank both our witnesses for their contributions to the Committee this afternoon. Thank you very much indeed.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Q As we were hoping, Martha Spurrier from Liberty has appeared on the screen. Can you and Mr Baldwin please introduce yourselves?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Thank you. We are expecting a vote in the House imminently; I will have to suspend proceedings for about 15 minutes in that event. We will begin the questioning with Chris Evans.
Chris Evans (Labour/Co-operative, Islwyn)
Welcome to you both. Mr Baldwin can answer first and Ms Spurrier second, so that you are not crossing over each other, but I will address questions to both of you. The reason I have picked Mr Baldwin is that he is a sitting above you on my screen, Ms Spurrier—there is no discrimination, I promise you.Q
Given that the Government have managed to exclude sexual offences from the Bill, do you see any reason why torture should not similarly be excluded?
Chris Evans (Labour/Co-operative, Islwyn)
Q Could we talk a bit about the triple lock? Obviously, the Bill would apply the same triple lock against prosecutions for war crimes or crimes against humanity that took place more than five years ago. I have had a number of lobby groups write to me about this situation. What is your view on the triple lock? Does it need to state intent?
Chris Evans (Labour/Co-operative, Islwyn)
Q Ms Spurrier, can I follow that up? Are you saying that this Bill could deny justice to victims of serious crimes?
Chris Evans (Labour/Co-operative, Islwyn)
Q What is your view, Mr Baldwin?
Kevan Jones (Labour, North Durham)
Q In the Bill, there is a presumption against prosecution, which I think is very odd, in the sense that you are basically presuming that you are not going to prosecute even before you have done the investigation. Are you aware of any other international comparisons that have that in law? Basically, it presumes that you will not prosecute even before you have done the investigation.
Kevan Jones (Labour, North Durham)
Q May I add a supplementary question to that? You mentioned the role of the Attorney General, which is a political appointment. Again, are there any international comparisons where the decision to prosecute in these cases is actually vested in a politician? Clearly, the pressure on that person not to prosecute, for example, could become quite intense. I remember the big campaign against Marine A. I am sure that a political appointment in that situation may have had undue influence, in terms of making a decision not prosecute in that case.
Chris Evans (Labour/Co-operative, Islwyn)
Q There has been a lot of talk this afternoon about the danger that armed service personnel and veterans could find themselves being prosecuted in the International Criminal Court. Are you of the view, like many others, that this Bill, unamended, could see more of our service personnel and veterans being prosecuted in the International Criminal Court?