Overseas Operations (Service Personnel and Veterans) Bill
Public Bill Committee, 8 October 2020.
Examination of Witnesses
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Before we move into the evidence session, are there any declarations of interest?
Stuart Anderson (Conservative, Wolverhampton South West)
I served with General Nick Parker in the same battalion.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Thank you very much.
Liz Twist (Labour, Blaydon)
I do not know whether I need to declare this, but I am a member of the British Legion.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
It is always best to put these things on the record.
Thank you, Mr Byrne, for joining us in person. Will you say who you are for the record, and who you are here on behalf of?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
We are joined online by General Sir John McColl, who is chairman of the Confederation of Service Charities. Will you also confirm your name and designation for the record, General McColl?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
For your information, in case you are not aware, we have a witness here in the room, Mr Charles Byrne, so we will be alternating between you and Mr Byrne. We have some logistical challenges, because we have to adhere to social distancing, so I am sure you will bear with us if those arise. We have until 12.15 for this session. I call on Stephen Morgan to begin the questioning.
Stephen Morgan (Labour, Portsmouth South)
Thank you, Chair. May I place on the record our gratitude for the work of the British Legion and other charities in this challenging time for our country? It has been an important year for the nation. Charles, does any aspect of the Bill risk breaching the armed forces covenantQ 155?
Stephen Morgan (Labour, Portsmouth South)
So it would breach the armed forces covenant, in your view?
Stephen Morgan (Labour, Portsmouth South)
Can I put the same question to the general?
Stephen Morgan (Labour, Portsmouth South)
Q Thank you for those answers, and for setting out your concerns about part 2 of the Bill. What do you want to see addressed? What would improve the legislation, based on the comments you have made?
Stephen Morgan (Labour, Portsmouth South)
Q I understand that the British Legion has seen a copy of the Bill’s impact assessment. Are there any concerns in there that you want to bring to the attention of the Committee?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
I think the Minister has a follow-up question, which he will have to deliver from the microphone.
Johnny Mercer (Conservative, Plymouth, Moor View)
Q On the Bill’s breaching the armed forces covenant, I do not think there is any dispute that, if you bring in any time limit on anything, people will fall either side of that line. However, disadvantage in the armed forces covenant is very clearly about comparing those in a similar situation—those in service and civilians—which is why the Bill applies to both groups.
You argue that someone serving in the armed forces will have that limitation and will therefore be disadvantaged, breaking the armed forces covenant. Service personnel will of course be able to serve in operations, where they may get killed or lose limbs, and some would argue that that is a disadvantage. The Government would argue that that is a misapplication of the armed forces covenant, and that, actually, if you compare a service person with a civilian in the same situation, there is no breach of the armed forces covenant. What would you say to that?
Johnny Mercer (Conservative, Plymouth, Moor View)
Q Of course, I understand that. But by extension of that, armed forces service—because you may well suffer the disadvantage of being killed—is, in fact, a breach of the armed forces covenant.
Johnny Mercer (Conservative, Plymouth, Moor View)
You do not think it is a disadvantage?
Johnny Mercer (Conservative, Plymouth, Moor View)
Q Okay, so the disadvantage of serving is, in your view, not applicable in the case of being killed, but in this case where we are trying to protect our people, it is applicable. Do you see that there is a disparity there that is not really fair? It seems to be translating it to your own intent.
Johnny Mercer (Conservative, Plymouth, Moor View)
But is being killed a disadvantage?
Johnny Mercer (Conservative, Plymouth, Moor View)
Of military service—I think most people would argue that it is.
Johnny Mercer (Conservative, Plymouth, Moor View)
Q So is lawfare an inherent risk of service?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
I think we have got to allow Mr Byrne to answer the question.
Johnny Mercer (Conservative, Plymouth, Moor View)
Sorry.
Johnny Mercer (Conservative, Plymouth, Moor View)
On overseas operations.
Johnny Mercer (Conservative, Plymouth, Moor View)
Q Yes, and as we have heard, the vast majority of those claims—94% of them—are from people abroad—
Johnny Mercer (Conservative, Plymouth, Moor View)
It is not questionable—it is the data.
Johnny Mercer (Conservative, Plymouth, Moor View)
Well, the numbers are the numbers. We cannot argue with them.
Johnny Mercer (Conservative, Plymouth, Moor View)
Q Okay, but the idea that you can apply the armed forces covenant when it fits, and then not when it does not fit, I think is a misapplication of the armed forces covenant.
Johnny Mercer (Conservative, Plymouth, Moor View)
No, because what we are looking to do is to protect, and to ensure that our servicemen are not disadvantaged.
Stephen Morgan (Labour, Portsmouth South)
Could we go back to constructive questions, rather than an interrogation?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Indeed. I think we will have the opportunity for some of the issues that the Minister has raised in the parliamentary debate and in the subsequent discussion in Committee.
Stuart Anderson (Conservative, Wolverhampton South West)
Q I have a supplementary question on that point. Everybody keeps talking about the longstop, but nobody brings in the one year from point of knowledge. That point of knowledge could be 25 years afterwards. We cannot have the longstop argument without that point. If there was no—[Interruption.]
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Just to explain it to you, General McColl, that bell is not a fire alarm or for a vote; it signals the fact that the House of Commons has suspended its sitting in the Chamber for three minutes. We will hear another bell shortly, so just be aware of that.
Stuart Anderson (Conservative, Wolverhampton South West)
If that one year from point of knowledge was not in there, I would get your argument. I believe that we are here to try and get the best for our service personnel and veterans. However, that one year from point of knowledge has to have the weight. That is why it has been put in there—it could be 20 to 30 years later. We heard the other day about asbestosis. That is not within a six-year period. There will be things that some in the veteran community experience in 20 years that we do not yet know exist.
Stuart Anderson (Conservative, Wolverhampton South West)
Q When I got involved in politics, I found out through Facebook about the armed forces covenant. When I was shot, I paid for all my own treatment. I did not get any support from the charities or anything else. I had fallen out of the system and I did not know about the covenant. I am now under the trauma unit in Birmingham, where they review me regularly. I think it was two years after that was formed, and I still did not know about it.
There has to be education about the Bill as well. I really respect the work your organisation does, but within and outside the military there is a need to educate our troops and let people know about this. How do we connect with people who are now 60 or 70 years of age and let them know about the point of knowledge? It is not all about the Bill. I believe we have a role to educate the community, which we know well, about the point of knowledge. At the armed forces breakfasts and through all the different routes of communication, we can try to reduce that number. There will always be people who fall through, but we should do everything to stop them and there is a role for education. Do you see that role?
Stuart Anderson (Conservative, Wolverhampton South West)
I have another supplementary on that.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
If you have a short supplementary, you can ask it.
Stuart Anderson (Conservative, Wolverhampton South West)
I will come back to it.
Stephen Morgan (Labour, Portsmouth South)
Q There are proposals to put the armed forces covenant into law next year. Do you think a legally binding covenant and the Bill are compatible under English law?
Stephen Morgan (Labour, Portsmouth South)
Do you think a legally binding covenant is compatible with what we see in the Bill, in terms of the proposals that will be brought before Parliament next year?
Stephen Morgan (Labour, Portsmouth South)
Can I put the same question to the general?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Perhaps you could repeat your question, Mr Morgan.
Stephen Morgan (Labour, Portsmouth South)
The proposals for next year are to bring the armed forces covenant into law. Do you believe that a legally binding covenant and this Bill would be compatible under English law?
Sarah Atherton (Conservative, Wrexham)
Charles, on Second Reading, three times I heard Opposition Members say that the British Legion is categorically against the Bill. I have heard it once in this Committee already. Can you confirm? Are you against the Bill?Q
Sarah Atherton (Conservative, Wrexham)
Q I am glad to hear that. Every Bill will never suit every person in every circumstance—that is just not possible—but would you not agree that the Bill makes great advancements to protect our veterans?
Sarah Atherton (Conservative, Wrexham)
Q Just going back to my point, a Bill will not cover every person in every circumstance, but this has to be a lot better than where we are now.
Sarah Atherton (Conservative, Wrexham)
Q No, I am not saying that at all.
Sarah Atherton (Conservative, Wrexham)
Q The six-year longstop, the point of knowledge or diagnosis—that is the only concern that the British Legion has?
Sarah Atherton (Conservative, Wrexham)
Thank you, Charles. By the way, your new TV poppy appeal is very good. I saw it this morning.
Carol Monaghan (Scottish National Party, Glasgow North West)
Could you give us examples of situations where individuals might fall out with this six-year limit?Q
Carol Monaghan (Scottish National Party, Glasgow North West)
Q What about conditions that might fall outside it?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Do you agree that when people sign up for the armed forces, they understand that there is an element of risk with that?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Is there also an expectation on their employer, the Ministry of Defence, to look after them in the best possible way?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Do you find it worrying that the Minister is arguing this morning that it is okay to disadvantage members of the armed forces or retired members of the armed forces because their service puts them at an inherent disadvantage?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Okay. Can we talk specifically about part 2 of the Bill? Part 2 puts limits on people making a claim for negligence against the MOD and you are suggesting that that is putting them at a disadvantage compared to civilians or those who have not served. Why is that?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q The six-year limit is being sold as being beneficial to veterans. Do you see it as such?
Carol Monaghan (Scottish National Party, Glasgow North West)
I am talking specifically about part 2.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
I am going to call Liz Twist, to speak from the microphone.
Liz Twist (Labour, Blaydon)
Q How exactly does the Bill disadvantage troops compared to their civilian counterparts? What is the broader effect of that disadvantaging behaviour on the overall welfare and morale of service personnel, veterans and families?
Liz Twist (Labour, Blaydon)
Q The Bill requires additional weight to be given to the stresses of operations when deciding to prosecute. To what extent do you think service personnel are adequately trained to deal with these stresses?
Liz Twist (Labour, Blaydon)
Q Okay. Perhaps I could ask Cobseo to answer that question, then? Would you like me to repeat it?
Liz Twist (Labour, Blaydon)
The Bill requires additional weight to be given to the stresses of operations when deciding to prosecute. To what extent do you think service personnel are adequately trained to deal with these stresses?
Liz Twist (Labour, Blaydon)
Q Okay, thank you. From your experience, do you think training can be improved in any way to help with dealing with stresses?
Liz Twist (Labour, Blaydon)
Thank you very much to both witnesses.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
I think Mr Byrne wants to say something.
Liz Twist (Labour, Blaydon)
It is perhaps appropriate, with it being World Mental Health Day tomorrow, that we finish on that point. Thank you.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
I am going to call Peter Gibson on a supplementary and then I will come to you, Mr Anderson.
Peter Gibson (Conservative, Darlington)
Charles, given that your principal objection to the Bill as it is drafted is in respect of your perceived view that it breaches the armed forces covenant, can you give us some examples of how you think that might manifest itself?Q
Peter Gibson (Conservative, Darlington)
Q How would you propose to improve the Bill, if we were to improve the Bill, to rectify that? How would that be done?
Stuart Anderson (Conservative, Wolverhampton South West)
Q This is the first Bill Committee that I have sat on as a new MP, and I have watched the process get to where it has got to already, notwithstanding the years it has taken to get to this stage. On Second Reading, and even in our last witness session, there were multiple calls to stop the Bill. If we produced a Bill that had everything in it that the British Legion has asked for, there would still be an organisation against the Bill. I saw on Tuesday that, broadly, veterans are in favour, legal firms are not. I am trying to figure that one out and I am sure I will get there in the end. What will the impact be for the veteran community if the Bill does not pass Third Reading and come into law? I ask that to General McColl first. If the Bill is stopped, what will the impact be on the veteran community?
Stuart Anderson (Conservative, Wolverhampton South West)
Thank you very much, General. I know I said veterans, but I also mean serving personnel.
Stuart Anderson (Conservative, Wolverhampton South West)
Q To follow on from that and a point you made earlier, let us say that this Bill goes through the Committee and Parliament with no changes and becomes law. Would then a major campaign from the British Legion and others to educate about that one-year point of knowledge be a core focus of what you would be looking to do?
Stuart Anderson (Conservative, Wolverhampton South West)
That is outside my remit.
Stuart Anderson (Conservative, Wolverhampton South West)
Thank you. I appreciate the comments.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Are there any further questions for either witness? As there are no further questions, I thank you, General McColl for your appearance online, and thank you, Mr Byrne, for your appearance in the room. I am grateful for your forbearance with the logistical issues we are managing today. Thank you, on behalf of the Committee, for your evidence.
Examination of Witness
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
Q We will now move seamlessly to our next panel. I therefore need to confirm, General Parker, that you can hear us.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
And could you set out for the record who you are and your locus in today’s discussion?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
And to confirm for the record, you are General Sir Nick Parker.
Liz Twist (Labour, Blaydon)
Q General Parker, do you think this Bill is a proportionate and reasonable response to the Government’s stated problem of vexatious claims and lawfare?
Liz Twist (Labour, Blaydon)
Q You have talked about the importance of investigations being carried out properly. Could you explain a little more about that, please?
Liz Twist (Labour, Blaydon)
Q You have talked about the chain of command. To what extent should the chain of command have responsibility for the actions of individual soldiers, for allegations of crimes that do not take place during the heat of battle?
Liz Twist (Labour, Blaydon)
Q Do you think this Bill adequately addresses the responsibility of the chain of command who may have frustrated investigations?
Liz Twist (Labour, Blaydon)
Q Do you think this Bill does address any of those issues that you have identified?
Liz Twist (Labour, Blaydon)
Q You have answered this in part, but the European convention on human rights requires effective investigations capable of leading to prosecutions for alleged violations of article 2 and 3 of the convention. In your view, what constitutes an effective investigation? Is there anything more you would like to say about that?
Liz Twist (Labour, Blaydon)
Q Do you think that if we had those more timely, more effective investigations, that would resolve some of the issues that this Bill is trying to address?
Liz Twist (Labour, Blaydon)
Q Finally, the Chief of the Defence Staff and the Defence Secretary recently made a speech in which they said that the distinction between war and peace is no longer clear-cut. In your view, how well equipped is the Bill to deal with the complexities of grey zone warfare?
Sarah Atherton (Conservative, Wrexham)
Q Hello General. To touch on one of Liz’s initial questions, please could you expand on your questioning of the legitimacy of the Bill and on why you think it works outside of international legal norms?
Sarah Atherton (Conservative, Wrexham)
Q Do your reservations also include the presumption against prosecution?
Sarah Atherton (Conservative, Wrexham)
Q Is there any reason why?
Sarah Atherton (Conservative, Wrexham)
Q I suppose my answer to that is that I might go to Tesco and work behind a counter, or I might go to the frontline and put myself in front of a round. They are not equal.
Sarah Atherton (Conservative, Wrexham)
Under the International Criminal Court’s article 53, there is a similar provision where you can exclude from prosecution, as there is here with the presumption against prosecution. It is not exactly the same, but very similar, so I do not think we are deviating from international legal norms. I will have to disagree with you, but I thank you for your comments.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
I will call Carol Monaghan, and then come to Joy Morrissey and Mr Anderson.
Carol Monaghan (Scottish National Party, Glasgow North West)
Q I apologise; I did not declare an interest at the start because I did not think it was relevant, but my husband also served in Sierra Leone in the early 2000s.
General Parker, we heard on Tuesday some witnesses saying that they did not feel the Bill would stop the number of investigations and re-investigations that people such as Major Campbell were subjected to. What are your thoughts on that?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q The Bill has a time limit on prosecutions. Would you therefore consider that a time limit on the investigation rather than the prosecution might be more appropriate?
Carol Monaghan (Scottish National Party, Glasgow North West)
I ask because Major Campbell talked about the 17 years of investigation and re-investigation, so some sort of time limit might reduce the chances of that re-occurring.
Carol Monaghan (Scottish National Party, Glasgow North West)
Q Do you think it allows challenges or difficulties within the chain of command to hide behind aspects that are being put forward in the Bill?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q You have talked about how we might be viewed by our international colleagues—for example, if we are doing a joint operation. Do you think the Bill might affect the willingness of other countries to work with the UK armed forces?
Carol Monaghan (Scottish National Party, Glasgow North West)
Thank you, General Parker.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
I am going to call Joy Morrissey, who is going to address us from the standing microphone.
Joy Morrissey (Conservative, Beaconsfield)
What is the military international framework that our military allies adhere to for overseas operations—specifically, France, the US and Poland—or in NATO operations? I ask that for my second question: why is their rate of prosecution against their servicemen and women so much lower than it is here? If we are all adhering to the same legal framework that you keep referring to, why is it that our servicemen and women are open to investigation while others who serve with us are not? Can you explain that for me?Q
Joy Morrissey (Conservative, Beaconsfield)
Q Could you also assume that it may be an investigative system on the chain of command and the point you have alluded to? I appreciate that, but it could also be that they are not under the same international legal frameworks that other countries, or perhaps we, are under. That allows them to protect their servicemen and women more effectively. What is your opinion on that?
Joy Morrissey (Conservative, Beaconsfield)
Q But if we engage in joint military operations with allies, is it not more important that we are aligned with what our military allies view as the legal framework, rather than anything else? Is that not the most important component of how we protect our servicemen and women, by all operating in the same framework—for example, if we are on a joint NATO operation overseas—and that all the countries engaged in that military operation share in the same framework?
Stuart Anderson (Conservative, Wolverhampton South West)
Q General, it is good to see you. I was barely out of school when I came under your command in Dover, where you were the CO, the commanding officer. We were at very different ends of the spectrum of rank structure, but it is a pleasure to see you again.
A lot of what you discussed there is the chain of command. You talked about implementing different procedures within the chain of command. I would argue that that is an internal military adjustment, not for a Bill or other legislation, but I would then say, looking back, with your experience and what you know with hindsight—we always want to learn from the past to move forward—what would you have done differently, and what could be done differently by the chain of command, outside legislation, to protect our troops?
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
I am not sure that is how it works.
Stuart Anderson (Conservative, Wolverhampton South West)
Q Thank you for that. I think we had a saying in our regiment, “Once a rifleman, always a rifleman”, so we were always the same rank there. On that point, I am well aware of how well you are respected within the community. If you go back to Dover, when you were the CO, that era of the young riflemen—I went through my military career with many of them and some are still serving now, while others have retired and ended up warrant officers or officers—is a band of men with whom I am in communication. From the communication I have had, they very strongly want to see the Bill come through. I understand the points you raise. With the Bill in its current form—it is in Committee to be reviewed—is it better to have it or not to have it?
Stuart Anderson (Conservative, Wolverhampton South West)
That is why I am in this role.
Stuart Anderson (Conservative, Wolverhampton South West)
One hundred per cent.
Stuart Anderson (Conservative, Wolverhampton South West)
Thank you. It is a pleasure to talk to you again, General.
Stuart Anderson (Conservative, Wolverhampton South West)
I had my green jackets one on yesterday.
David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)
If there are no further questions from Members, I thank you very much, General Parker, for your evidence and for joining the Committee online. That brings us to the end of our morning session. The Committee will meet again in this room at 2.30 pm under the chairmanship of Graham Stringer to take further evidence.
Afternoon
Examination of Witness
Graham Stringer (Labour, Blackley and Broughton)
Q209 We will now hear from Colonel Chris Parker, chair of the Princess of Wales’s Royal Regiment Association, who is joining us remotely. We have until 3.15 pm for this session. Welcome, Colonel Parker. Will you please introduce yourself formally for the record?
Graham Stringer (Labour, Blackley and Broughton)
Thank you. We will move straight to questions. I call the Minister.
Johnny Mercer (Conservative, Plymouth, Moor View)
Q Chris, good afternoon. Thank you for coming along. Your regiment has been through this process a number of times. Can you outline why the legislation we are considering today is necessary? The PWRR has had a pretty on-the-coalface experience of repeat investigations over many years. I have two questions for you. Can you outline the effect of legislation such as that which we are considering today, and what it will mean to those who have served on operations?
Johnny Mercer (Conservative, Plymouth, Moor View)
Q I think that there is a temptation in this place to let the perfect be the enemy of the good in a lot of the legislation that we pass. Of course, legislation is not going to be all things to all men, but within the art of what is possible—I have asked everybody this question—what would you do to improve the Bill? There are things that people want to do. For example, they want to separate classes of claimants, so that the six-year limitation on human rights claims is unlimited for armed forces personnel but limited for those we go against. That is not legal under European human rights law. We heard that from the British Legion this morning. There are plenty of ideas coming forward that are not possible. What, within the art of what is possible, would you do to improve the Bill?
Johnny Mercer (Conservative, Plymouth, Moor View)
Q That is correct. What I was saying is that we cannot differentiate between different classes of claimants. That is illegal under European human rights law. If you are going to draw a line to stop people bringing European human rights cases against this country, it has to apply to anyone. The calculation that is then made is where to draw the line. Given that 94% of those claims came before that, and that the six years will give a better level of evidence and people will be helped going through the process—the whole thing in the round—that is why the six years were taken. But what would you do to improve that?
Johnny Mercer (Conservative, Plymouth, Moor View)
Q Of course, and that that is why we have built in there that it is the point of knowledge, rather than when the incident took place. Therefore, if you had PTSD 24 years later, your six-year clock would start from that 24-year point.
Kevan Jones (Labour, North Durham)
No, it would not.
Johnny Mercer (Conservative, Plymouth, Moor View)
Yes, it would. You have no idea what you are talking about.
Emma Lewell-Buck (Labour, South Shields)
Good afternoon, colonel. Just a quick question from me. How could the Ministry of Defence better exercise its duty towards soldiers who are accused of crimesQ ?
Emma Lewell-Buck (Labour, South Shields)
Q Is there anything in the Bill that improves the duty of care?
Graham Stringer (Labour, Blackley and Broughton)
I call Stuart Anderson.
Stuart Anderson (Conservative, Wolverhampton South West)
Sorry for the delay, Chris: I have to stand up because there are not enough microphones for social distancing. Thank you for everything you have done and for your service. It is hard to hear what you have been through. You said that you have 5,000 members in the association. When did the association hear that there was going to be a Bill to protect servicemen and veterans? What was their initial responseQ ?
Stuart Anderson (Conservative, Wolverhampton South West)
Q Based on your contacts—those 5,000 to 20,000 veterans—what would the veteran community feel now if this Bill were stopped?
Stuart Anderson (Conservative, Wolverhampton South West)
That is brilliant. Those are all my questions. Thank you very much.
Kevan Jones (Labour, North Durham)
Q Hi, Chris. In terms of the cases you have dealt with, we have already heard from other witnesses that the real issue is the length of time these investigations take. We took evidence on Tuesday from Major Campbell—frankly, the way that individual has been treated is disgraceful. This Bill does not cover investigations, and I wonder whether you think there should be some way in which investigations could be speeded up, or a way to prevent people from being reinvestigated for the same thing on several occasions, which certainly happened in Major Campbell’s case.
Kevan Jones (Labour, North Durham)
Q I agree with you on that, but the Bill does not stop potential prosecutions by the International Criminal Court. The problem with this legislation as it is drafted is that it includes a presumption not to prosecute even before investigation, which seems very odd. The Minister is looking bemused, but it is actually in the Bill. Are you not concerned that if we are not seen to investigate these things to a certain level, we could end up with individuals being placed before the International Criminal Court? That is certainly something I would not want to see.
Kevan Jones (Labour, North Durham)
Q Can I turn to the issues around investigations? You talk about the duty of care and the chain of command—I know it well, and how it works sometimes and does not work at other times. Do you think there should be an obligation on the Ministry of Defence to provide legal assistance to individuals who are being investigated or are accused of crimes?
Kevan Jones (Labour, North Durham)
Q I raise that because if you were in civilian life and were accused of something in line with your employment, you could go, for example, to a trade union, which would provide you with legal assistance. We have not got that for individual soldiers. I am just thinking about trying to level the playing field, in the sense that members of the armed forces should at least have some recourse to legal assistance. As you say, the other side could perhaps spend a fortune on very expensive barristers and others. Leaving it to associations such as you and others to provide legal support that is a bit hit and miss, isn’t it? I know that some associations do.
Kevan Jones (Labour, North Durham)
Q That is one of the things I argued very strongly for when we did the Deepcut inquiry—it came out of that in the early 2000s. The problem with the ombudsman is that he or she can only look backwards. What I am trying to get to is that people need legal support and so on in these cases when they are going through it. I will come on to the ombudsman in a minute, because you raised another issue with it earlier.
I am trying to think whether there is a mechanism we could get for those accused. I accept the point that you make about the chain of command, but I am trying to understand whether there is anything we can do to even up the playing field, in terms of ensuring that people are not left on their own? Most people do not have access to independent funds, and most people have perhaps never been involved with the law before, so when they are it is obviously quite a daunting experience. If we could come up with some system that actually allowed recourse to legal support, would that be something that you would support?
Kevan Jones (Labour, North Durham)
Q But they are slightly different, in the sense that they have recourse to, for example, in the ambulance service, a trade union, or the Police Federation.
Kevan Jones (Labour, North Durham)
Can I—
Graham Stringer (Labour, Blackley and Broughton)
May I turn to Sarah Atherton. If there is time, I will come back to you.
Kevan Jones (Labour, North Durham)
Can I just ask one question about the ombudsman?
Sarah Atherton (Conservative, Wrexham)
I don’t mind, Mr Stringer.
Graham Stringer (Labour, Blackley and Broughton)
Okay. Just one. There might be time for further questions, because only Sarah is indicating that she would like to ask one at the moment.
Kevan Jones (Labour, North Durham)
Q The ombudsman can look backwards. We heard Major Campbell the other day; even though he had been completely exonerated, there was no ability to investigate why he was treated the way he was. Do you think it would help those individuals who have gone through very poor service—in his case, it was 17 years of hell, by the sound of it—to have recourse to the ombudsman to have that investigated, to at least get some answers as to why things were actually happening?
Sarah Atherton (Conservative, Wrexham)
Q Princess of Wales’s Royal Regiment, the Tigers, was caught up in the battle of Danny Boy. As an association representative, can you give the Committee a sense of what the soldiers and families went through during those vexatious claims? There have been high-profile cases of Brian Wood and Scott Hoolin, whom I assume you know all about. Can you give us a sense of what they went through during these vexatious investigations?
Sarah Atherton (Conservative, Wrexham)
Q Thank you for talking in general terms. How would the Bill have changed their experiences?
Graham Stringer (Labour, Blackley and Broughton)
I cut you off Kevan. Do you have another question?
Kevan Jones (Labour, North Durham)
Q I have, but I just want to pick up on that point. The Bill would not stop the agony that you have just talked about, because in the five or six-year period, you would still be investigated. Is the root of this not that if accusations are made, they should be investigated and dealt with speedily and efficiently and, frankly, thrown out? That is what is missing from the Bill. A time-limit can be put on it, but six years is a long time for a family to go through that, as you have described. We cannot put ourselves in those people’s shoes; for anybody accused of something that they have not done, it must be awful.
Kevan Jones (Labour, North Durham)
Q Can I now turn to part 2 of the Bill? I accept that you and others have perhaps not read the Bill line by line, but part 2 would put a six-year limit on section 33 of the Limitation Act 1980, which means that veterans will not be able to bring claims outside that time limit. As one witness explained the other day, that would mean that prisoners would have more rights than members of the armed forces. That cannot be right, can it?
Kevan Jones (Labour, North Durham)
Q But what this is doing is putting veterans at disadvantage by comparison with what I or you can do as a civilian, in terms of taking a case outside the Limitation Act 1980. It does not sit comfortably with me that veterans should not have the same rights as everybody else. It is possibly one of those things that we get in legislation sometimes—an unintended consequence. Personally, I think it should be taken out of the Bill, because it will limit the ability of veterans to bring civil claims outside those time limits. Knowing the MOD lawyers as I do, they will use it as an excuse for why claims should be discontinued.
Kevan Jones (Labour, North Durham)
It is there already in section 33 of the Limitation Act 1980. The Bill is carving veterans out of it, which I certainly do not agree with at all.
Graham Stringer (Labour, Blackley and Broughton)
If there are no more questions, may I thank you, Colonel Parker, for your valuable evidence this afternoon? I am sure the Committee will find it useful and informative when we come to discuss the Bill on a line-by-line basis.
Graham Stringer (Labour, Blackley and Broughton)
Q We will now hear from His Honour Judge Jeff Blackett, who very recently retired as Judge Advocate General. We have until 4 o’clock for this session. Welcome, Judge. Would you care to introduce yourself for the benefit of the Committee?
Johnny Mercer (Conservative, Plymouth, Moor View)
Q Hi, Judge Blackett. Thank you for coming in today. We have had broad discussions along this issue already, so I will not reheat any of those. What would you do within the art of what is possible? There are plenty of ideas—taking out the six-year limit, applying it to one set of claimants and so on—but within the art of the possible and the strategic aim of the Bill, what would you do to improve it?
Johnny Mercer (Conservative, Plymouth, Moor View)
Q One of the difficulties I think people like me face is that we have had General Parker, x-Armed Forces Ministers and others, saying that this and that should happen; why, over the last 10 or 15 years have none of these things been done?
Johnny Mercer (Conservative, Plymouth, Moor View)
Q Why do you think the MOD has not taken on your advice?
Stephen Morgan (Labour, Portsmouth South)
Thank you, Q Judge Blackett, for being so willing to come before the Committee to hear our concerns and to help us improve the Bill. You described the Bill as ill conceived. Can you explain why you had that view?
Stephen Morgan (Labour, Portsmouth South)
Q Thank you for that thorough and comprehensive answer. You mentioned earlier being kept out of discussions. One theme that has come out from the witnesses over the last few days has been about more engagement and consultation on what the Bill is trying to do and its contents. Is it unusual for someone in your position not to be formally consulted on the Bill’s contents?
Stephen Morgan (Labour, Portsmouth South)
Q So it was quite unusual?
Stephen Morgan (Labour, Portsmouth South)
Q What difference would that formal consultation have made?
Stuart Anderson (Conservative, Wolverhampton South West)
Q On a point of clarification, you said it is very unusual for you not to be consulted, but you started off by saying you were not consulted on any of the other investigations when they were set up. Is that correct?
Stuart Anderson (Conservative, Wolverhampton South West)
Q Thank you for clarifying that. You mentioned some practical steps that you wanted to put in the Bill. I am by no means a legal expert, so for clarity could you explain, are they steps that you have the power to put in or would they require an Act of Parliament to go through for them to be put into place?
Stuart Anderson (Conservative, Wolverhampton South West)
Q I am trying to understand the process for someone with your influence and experience. Have you ever taken forward discussions with the MOD to say, “I believe this legislation, this Bill or this Act, if brought through Parliament, will solve A, B and C”?
Stuart Anderson (Conservative, Wolverhampton South West)
Q I am certainly not knocking your work ethic or your proactive approach, but was anything formally put into the MOD with recommendations for overseas operations that ended with Ministers?
Stuart Anderson (Conservative, Wolverhampton South West)
Q You were the only person in that time who could have done that—is that correct?
Stuart Anderson (Conservative, Wolverhampton South West)
Q I am on the Defence Committee, so I saw that letter. How long have you been in the position of Judge Advocate General?
Stuart Anderson (Conservative, Wolverhampton South West)
Q Has any Minister come to you or consulted you about putting such a Bill through Parliament?
Stuart Anderson (Conservative, Wolverhampton South West)
Q I get that. I came into Parliament at the end of 2019 as a veteran, wondering why soldiers have been prosecuted and gone through everything they have. I understand your points, and there are a lot of good ideas here, but Parliament has been going for many years and I wonder why it has taken till now to get to this situation. I have a fear, as we heard from the veteran community, that the Bill would get stopped. What I really want to find out is whether anybody has thought of this before. It is without a doubt a hard subject to address. Is it too hard? Has anyone sat down and said, “We want to put this through”?
Stuart Anderson (Conservative, Wolverhampton South West)
Q Do you think the Bill is needed?
Stuart Anderson (Conservative, Wolverhampton South West)
Q I slightly disagree. I do not believe that veterans want amnesty—perhaps a small percentage. If something has gone wrong, professional soldiers, men and women, would expect or want that to be followed through.
Finally—I am not sure whether you heard the last witness—
Stuart Anderson (Conservative, Wolverhampton South West)
I asked him how the 5,000 Iraq and Afghanistan veterans and the 20,000 overall veterans he has contact with would feel if the Bill were stopped. I do not know whether you heard his answer.
Stuart Anderson (Conservative, Wolverhampton South West)
What would you say to that, then, with your recommendation that the Bill be stopped?
Stuart Anderson (Conservative, Wolverhampton South West)
Sorry, I do not want to put words into your mouth. First, do you think that this Bill should be stopped?
Stuart Anderson (Conservative, Wolverhampton South West)
Okay. So now you have said that, what would your words to him be?
Carol Monaghan (Scottish National Party, Glasgow North West)
Judge Blackett, did you support the exclusion of sexual offences from the BillQ ?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q How do you feel about the inclusion of torture and war crimes?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q The Minister asked you why advice over the past 15 or 16 years had not been heeded. Are you confident that your advice, and the evidence that you have given to the Committee today, will be heeded?
Carol Monaghan (Scottish National Party, Glasgow North West)
Q How long ago was that meeting?
Carol Monaghan (Scottish National Party, Glasgow North West)
Before Second Reading.
Carol Monaghan (Scottish National Party, Glasgow North West)
Q So were you surprised not to see any change, or any of this within the Bill that was presented?
Carol Monaghan (Scottish National Party, Glasgow North West)
We have heard that many times, but we are slightly concerned.
Carol Monaghan (Scottish National Party, Glasgow North West)
Q I was going to ask about the re-investigations, but we have already covered that, so I will move on. Do you have any concerns about part 2 of the Bill?
Carol Monaghan (Scottish National Party, Glasgow North West)
Yes.
Kevan Jones (Labour, North Durham)
Q In your letter to the Secretary of State you said:
“The bill as drafted is not the answer.”
You have been very clear on that today. You have made four suggestions there. I can see a problem with the legal aid one, but the other three relate to procedure for criminal trials in the service justice system. Could they be incorporated into the Bill?
Kevan Jones (Labour, North Durham)
Q That would clear out a lot of frivolous and vexatious cases, the difference being that it would not be about a presumption not to prosecute. An independent legal body—a judge or a magistrate—would make that decision. That is the important thing there. It is not the chain of command or the MOD making that decision, or the Attorney General. It is independent legal—
Kevan Jones (Labour, North Durham)
Q On raising the bar, how would that work in effect?
Kevan Jones (Labour, North Durham)
Q I am aware of the criminal case review because I have just been involved with the Post Office Horizon cases that are going before that. It is a high test to get them there, but it does give that. I will come on to one of your third points in a minute, but the issue that has come out throughout all the evidence that we have taken so far is around investigation and—I think this came through from the last witness—the trauma, not only for individuals but for families, because things are taking too long, although the two cases you mentioned were done quite quickly. In terms of judicial oversight, can you explain how that would work?
Kevan Jones (Labour, North Durham)
Q Would the judge have the ability, if he or she were not satisfied with the evidence put forward, to say, “You should investigate it further”?
Kevan Jones (Labour, North Durham)
Q So it would not be an automatic cut-off.
Kevan Jones (Labour, North Durham)
On the issue around the International Criminal Court, in that case, you could argue to them that it would be judicially independent oversight, and that is the important point.Q
Kevan Jones (Labour, North Durham)
Can I turn to clause 3? I think it is a very strange one. It refers to “exceptional demands”, but I think your letter to the Secretary of State outlines that the service justice system already takes that into account. That is certainly why I am a big supporter of it, in the sense that it recognises the nature of military service, which of course civil courts cannot take into account. Can you talk us through your concerns about clause 3?Q
Kevan Jones (Labour, North Durham)
In your letter, you give the example of Marine A. Could you talk the Committee through how that worked in practice in that case?Q
Kevan Jones (Labour, North Durham)
In that case, he was charged with murder and convicted of murder and then, on appeal, that new evidence came in and it was reduced to manslaughter. Is that correct?Q
Kevan Jones (Labour, North Durham)
Do you have concerns—I certainly do—that there is a danger that the way in which the Bill is constructed could give credence to some of those who are advocating the abolition of the service justice system? I am not one of those who want to do away with the service justice system, because I think it is a system that protects its unique nature.Q
Kevan Jones (Labour, North Durham)
You have already mentioned the presumption to prosecute. I have said this before and I will say it again, but in my opinion, the Bill fails the Q Ronseal test: it does not do what it says on the tin. I find the presumption not to prosecute remarkable—the idea that you can investigate someone, but start the process with a presumption that you are not going to prosecute them. The argument made is that this will mean that people will not face courts later on. However, is it not true that this will open up an entire system of judicial reviews, not only of decisions to not prosecute, but where the Attorney General decides to?
Kevan Jones (Labour, North Durham)
Q Well, in terms of the way judicial review is done, if you have a presumption at the start to not prosecute and somebody then says, “We are not going to prosecute you even when we have done the investigation,” could that not lead to other court action coming in through judicial review?
Kevan Jones (Labour, North Durham)
Q No, you do investigate, but you have the presumption at the back of your mind that you are not going to prosecute at the end of it.
Graham Stringer (Labour, Blackley and Broughton)
I call Liz Twist.
Liz Twist (Labour, Blaydon)
I wanted to follow up on a couple of points. Ms Monaghan asked you about the exclusion of the issue of torture. Are you satisfied by the Government’s assurances that torture and other war crimes will always be prosecuted under this Bill?Q
Liz Twist (Labour, Blaydon)
Q So in your view, it is a weakness that it is not written on the face of the Bill. Would that be right?
Liz Twist (Labour, Blaydon)
Q Finally, would you agree that the definition of overseas operations contained in the Bill goes beyond its “on the battlefield” refrain, covering not just armed conflict but peacekeeping and overseas policing activities?
Liz Twist (Labour, Blaydon)
Q Not really. Is there a concern about grey areas, would you say?
Liz Twist (Labour, Blaydon)
Q And that is not on the battlefield.
Liz Twist (Labour, Blaydon)
Q It is in the wider sphere of operations.
Stuart Anderson (Conservative, Wolverhampton South West)
Q I have a supplementary question, following Kevan Jones’s question about the five-year presumption against prosecution. We do not know what we are going to come up against next year. We could go into a conflict that lasts 20, 30 or 40 years. If this Bill was introduced in 1969—the start of the Northern Ireland conflict—would veterans who are in their 80s now be getting those knocks at the door, and would they be going through the same thing?
Stuart Anderson (Conservative, Wolverhampton South West)
Q Not all of those were investigated.
Sarah Atherton (Conservative, Wrexham)
Q Given that you were the Judge Advocate General in 2010 when IHAT and Operation Northmoor were established, were you consulted or involved? Did you have any jurisdiction on their functioning?
Sarah Atherton (Conservative, Wrexham)
Q Do you not think you would have had the responsibility—perhaps moral if not professional—to raise any alarms or concerns you may have had?
Sarah Atherton (Conservative, Wrexham)
Q And you were ignored, I take it.