Overseas Operations (Service Personnel and Veterans) Bill

Before we start, I welcome the new Minister to his place, and I would like to wish the previous Minister all the best. Whatever side we sit on, I think everybody has great respect for Johnny Mercer.

Clause 6

“Relevant offence”

I beg to move, That this House disagrees with Lords amendment 1.

With this it will be convenient to discuss the following:

Government amendments (a) to (o) in lieu.

Lords amendment 2, and Government motion to disagree.

Lords amendment 3, and Government consequential amendment (a).

Lords amendment 4, and Government motion to disagree.

Lords amendment 5, and Government motion to disagree.

Lords amendments 6 to 8.

Before moving to the main meat of my speech, I wish to formally put on record my thanks to my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer) for his fantastic work on veterans’ issues for many years and his work in getting the Bill to this point. I know that he will share my satisfaction that, with a following wind, it will make further progress today.

Importantly, although it is not in the scope of the debate, I would like to confirm to the House that a Bill will soon come forward from the Northern Ireland Office that will protect our Northern Ireland veterans of Operation Banner and address the legacy of the troubles. I know that this will be of sincere interest to many Members here today.

I thank the brand-new Minister for allowing me to intervene. That is very good news indeed, and I look forward to it. If that does not happen, we have second-class veteran soldiers, because those who have served abroad are first-class in the way they are treated, and those of us who served many times in Northern Ireland would be second-class.

I thank my right hon. and gallant Friend for that intervention. I acknowledge his significant service on operations in Northern Ireland, and I know that he will share my keen expectation that we will, through legislation, in due course, deliver the protection that our Op Banner veterans so richly deserve.

I congratulate the Minister on coming into his post and very much look forward to working with him, as I did with his predecessor. I wish him well. Obviously, we owe a great debt to those who have served in Northern Ireland, including the right hon. and gallant Member for Beckenham (Bob Stewart). I reiterate that we in the Democratic Unionist party and Unionist people as well want to put on record our thanks to all those who served and made a contribution. We very much look forward to that legislation coming through, which we feel is only correct and right for everyone.

I thank the hon. Member for that intervention and I agree entirely with him. Those who have served are the finest among us, and this Government are resolutely committed to delivering through legislation the protections that our veterans of the troubles of Northern Ireland deserve.

I turn to the Government amendments in lieu of Lords amendment 1. The Lords amendment adds a new subsection to clause 6 that has the effect of excluding genocide, crimes against humanity, war crimes and torture offences from the measures in part 1 of the Bill. In proposing the Government amendment to include genocide, crimes against humanity and torture in schedule 1, I repeat what has been said many times during the passage of the Bill: the decision to exclude only sexual offences from the measures in part 1 did not mean that the Government would not continue to take the international obligations in respect of other offences extremely seriously. I should like to reassure hon. Members once more on that point. The United Kingdom does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law. However, the Government have listened to the very real concerns expressed by many in both Houses. I would like to express my thanks to Lord Robertson of Port Ellen for his constructive and collegiate approach on this issue.

I congratulate the Minister on his appointment. I very much welcome the concession he has just announced, but why are the Government retaining the presumption against prosecution in the case of war crimes, because that leaves open the risk of UK troops in future being summoned to the International Criminal Court? Surely nobody wants that.

I am grateful to the right hon. Gentleman for that intervention. I think he will derive reassurance from the remarks that I am shortly about to make, so I ask him to bear with me.

These concerns are that, by not excluding other serious offences, the Bill risks damaging not only the UK’s reputation for upholding international humanitarian and human rights law, including the UN convention against torture, but the reputation of our armed forces. Although we can be absolutely reassured that our armed forces would never resort to acts of genocide or crimes against humanity, and that it would be extremely unlikely for individual members of the services to be charged with such offences, not explicitly excluding these offences from the Bill is clearly an omission that must be rectified, and I am therefore happy to propose that now.

In addition, in order to prevent any further perceived damage to the UK’s reputation in respect of our ongoing commitment to uphold the rule of law and our international obligations, particularly the UN convention against torture, the amendment would add torture offences to the list of excluded offences in schedule 1. The intent of the Bill as drafted is to ensure that the part 1 measures will apply to as wide a range of offences as possible in order to provide reassurance to our service personnel that the operational context will be taken into account in relation to allegations of criminal offences on historical overseas operations. Excluding further offences beyond those of genocide, crimes against humanity, torture and sexual offences would, however, undermine that reassurance by excluding a considerable list of offences from the application of the measures in part 1. We believe that we can take this approach safe in the knowledge that the prosecutor retains their discretion to make the appropriate decision about whether to prosecute a service person on a case-by-case basis, including in respect of other serious offences. The presumption, therefore, against prosecution is a high threshold; it is not a bar.

May I also welcome my hon. Friend to the Front Bench? It is an overdue promotion.

May I bring him back to this question of war crimes? He will talk about the Henry VIII clause in a minute, but I want to bring him back to this question. Many of us who are emotionally very supportive of the Bill and, indeed, its successor in respect to Northern Ireland do not want to see, under any circumstances, British soldiers brought before the International Criminal Court. That would be a shame on them and a shame on our country. The International Criminal Court’s chief prosecutor has made it plain that, in the event that we hinder—and this would be a hindrance—the prosecution of war crimes, they would see it as appropriate for them to bring the prosecution. Much of this is a fantastic improvement, but that seems to me a fairly sizeable hole in the improvement.

I take my right hon. Friend’s point, but the point to bear in mind is that nothing in the Bill will hinder a prosecution of that sort. What we must bear in mind is that the prosecutor retains the absolute discretion to prosecute if there is a serious allegation. The prosecutor will take into account the severity of the crime, but removing any more categories from the Bill would unnecessarily weaken the reassurance to service personnel and veterans. We must remember that it is a high threshold and not a bar. I hope that he is reassured by my words.

By accepting that change is necessary in the case of torture, the Minister is surely accepting that there is a problem here and that war crimes need to be excluded in the same way, otherwise, we run exactly the risks that nobody wants to see.

I accept the sincerity with which the right hon. Gentleman makes his point. The bottom line is that, because the prosecutor will retain the agency to pursue a prosecution in the event of a grave allegation, that will provide for the required investigation. It will not make more likely the ICC pursuing a prosecution of a member of our armed forces. I hope that he takes reassurance from the fact that this is a high threshold, and not a bar, to prosecutions. If there is a case to answer, the prosecutor will make sure that it is answered.

I shall conclude my remarks in relation to Lords amendment 1 by saying that these proposed amendments go a very long way to addressing the concerns of the House of Lords in respect of relevant offences. I therefore urge that these amendments be accepted in lieu of their Lordships’ amendment 1.

I will move now to Lords amendment 2, which seeks to introduce artificial timelines for the progress of investigations, including what appears to be an arbitrary cut-off point at six months for referral to the Service Prosecuting Authority, and a power for the Judge Advocate General to make directions in respect of investigations. The Government do not support introducing any such legislative limitations on the investigative process, not least as they would bring the real risk that to do so could lead to a contravention of our domestic and international legal obligations. They would also bring inconsistency of approach as these limitations would not apply to service police investigations in the UK, or to those conducted by civilian police forces.

I am also strongly of the view that it would be premature to propose any changes to the investigative process while Sir Richard Henriques’s review of investigative processes in relation to overseas operations is still in progress. I will briefly set out the key reasons why the Government are resisting the Lords amendment.

Subsection (2) includes a requirement for referral of investigations to the service prosecuting authority and sets an arbitrary timeline for that. However, a referral threshold—the evidence sufficiency test—already exists in the Armed Forces Act 2006. Furthermore, section 116 of that Act contains a statutory obligation on the service police to consult the service prosecuting authority before deciding not to refer certain serious cases.

I welcome the Minister to his position—it is a long overdue promotion and a vast improvement on what went before. He said that the Henriques investigation will make recommendations. In Committee, I tabled a series of amendments that would get to the heart of the matter. The real issue in the Bill is the length of investigations. I accept that it should not be arbitrary. In Committee, I proposed that investigations would have to be brought before a judge to ensure that at least there were grounds for them to continue. If the idea is to let the Bill go through now and make changes later, surely we should make them in this Bill rather than miss that opportunity.