Schedule 1 - Excluded offences for the purposes of section 6

Part of Overseas Operations (Service Personnel and Veterans) Bill – in the House of Commons at 3:45 pm on 27th April 2021.

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Photo of David Davis David Davis Conservative, Haltemprice and Howden 3:45 pm, 27th April 2021

Thank you for the hint, Mr Deputy Speaker. I will confine myself to issues around Lords amendment 1R in order to limit what I have to say.

Last week’s concessions from the Government on the matters relating to amendment 1R were long overdue. With their tabling of the amendments removing genocide, torture and crimes against humanity, some of the most egregious errors in the Bill were corrected, which is why I voted in favour of the Government amendment last week. However, as I warned on Wednesday, that amendment left one serious matter unresolved—war crimes are still subject to a presumption against prosecution. Thankfully, further representations from Lord Robertson and others have led the Government now to rectify this oversight with the amendment we are considering today. I welcome that further concession. In government, as I said last week, it is always difficult to change your mind once you set out on a specific course of action, but the Government are to be commended for doing just that in the case of this Bill. In particular, I again commend the new Minister for his extremely rational approach to this and using the time that ping-pong has given him to good effect.

The original drafting of the Bill created a situation whereby the UK’s standing on the international stage would have been threatened. Our reputation as an upholder of the rule of law would have been tarnished and we would have run the risk of potentially having our troops hauled before the International Criminal Court. That would have been a truly shameful outcome. The ICC is usually in the business of prosecuting tyrants and torturers, not the soldiers of law-abiding democracies, let alone one with the United Kingdom’s reputation. The concessions last week would still have left our soldiers open to charges of war crimes. To be clear, these are not theoretical concerns of myself or other Members either here or in the other place. When I asked the chief prosecutor of the ICC for her consideration of the Government’s concessions on this point, she said in her response to me last Friday that

“any gap between the scope of coverage in the excludable offences under the proposed legislation and conduct which might otherwise constitute a crime within the jurisdiction of the Court would risk…rendering relevant cases concerning such conduct admissible before the ICC.”

In other words, the Bill in its state last week would have still left our soldiers open to prosecution.

Today’s amendment means that torture, war crimes, crimes against humanity and genocide will all now, quite rightly, be excluded from the presumption against prosecution contained in the Bill. That is to be welcomed. On that basis, I am entirely supportive of the Government and they will get my vote today. However, I will just make a comment en passant relating to what the right hon. Members for Wentworth and Dearne (John Healey) and for North Durham (Mr Jones) said. The Ministry of Defence now needs to take the advice of people like former Judge Advocate General Blackett, and others, and improve its own investigation system to stop soldiers from going through the same problems again in future. The problem has always rested, in part, within the walls of the Ministry of Defence, so improvements to the investigation process must be made. Our troops need to be reassured that if they ever face allegations of wrongdoing they will be investigated fairly, rapidly, and without the threat of constant reinvestigation. Only then will our service personnel be properly protected from vexatious and damaging litigation, and only then will this Bill and its associated policy have properly achieved its aim.