Amendment 3

Overseas Operations (Service Personnel and Veterans) Bill - Report – in the House of Lords at 3:15 pm on 13th April 2021.

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Lord Robertson of Port Ellen:

Moved by Lord Robertson of Port Ellen

3: Clause 6, page 4, line 11, at end insert—“( ) An offence is not a “relevant offence” if it amounts to—(a) torture, within the meaning of section 134 of the Criminal Justice Act 1988 (torture); or(b) genocide, a crime against humanity or a war crime as defined in section 50 of the International Criminal Court Act 2001 (meaning of “genocide”, “crime against humanity” and “war crime”).”Member’s explanatory statementThis amendment provides that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide or torture.

Photo of Lord Robertson of Port Ellen Lord Robertson of Port Ellen Labour

My Lords, Amendment 3 is in my name and that of the noble Lord, Lord Alton, and my noble friends Lord Campbell and Lord West. The amendment will provide that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide and torture.

Maybe after a lifetime in politics I was affected by some uncharacteristic naivety in thinking that the Government, faced by almost universal and expert opposition on this aspect of the Bill, would by now have changed their mind. Reasonable and knowledgeable people can only be dismayed by the obduracy of Ministers in this situation, and it is why there is a more than normal responsibility on this House to ask the Commons to look again, reflect and change the Government’s mind, before lasting and serious damage is done to the interests of our Armed Forces and the reputation of this country.

The objective of the Bill is clear and understandable: it is to protect our troops in foreign operations from vexatious prosecutions. Who could reasonably object to that? Certainly not me. But sadly, the Bill does not do what it claims to do and instead actually harms those whom we seek to protect. At best it would prevent only 1% of prosecutions, but it would not prevent seemingly endless investigations. Not only would this legislation not do what it claims to do but it would single out our Armed Forces for a privileged protection previously unknown in British law—what the Law Society, in its submission to us today, calls a “quasi-statute of limitations”.

For the first time in the history of British law we would be creating a two-tier justice system in which troops acting for us abroad would be treated differently from other civilians in society. That is serious enough, and alone should make Ministers worry about what they are embarking on, but, additionally, by saying that there is a presumption against prosecution for the most serious of all crimes—namely genocide, crimes against humanity and torture—the Bill undermines some of the most basic international legal standards for which this nation was renowned.

It does not end there. As a result of this quasi-statute of limitations, our troops might, for the first time, have to appear in front of the International Criminal Court. The chief prosecutor of the ICC, Mrs Fatou Bensouda, has said that

“were the effect of applying a statutory presumption be to impede further investigations and prosecution of crimes allegedly committed by British service members … the result would be to render such cases admissible before the ICC”.

The next chief prosecutor of the ICC is a British nominee, Mr Karim Khan, and the irony might be that among his first cases could be a British one.

Like so many of my predecessors as Defence Secretary or NATO Secretary-General, in these positions I had to take weighty decisions about foreign deployments and sending people into harm’s way. These were never easy or lightly thought decisions, and there were many sleepless nights involved. No one should underestimate my feeling when I say that I believe that this Bill is bad for our troops, bad for our British legal system and very bad for our national reputation.

I ask the Minister today to reflect for a moment on a few additional factors. First, there was unanimous criticism from the noble and gallant Lord, Lord Craig, the noble Lord, Lord Dannatt, and my noble friend Lord West, in the last debate that we had. Field Marshal Lord Guthrie, former Conservative Defence Secretary and Foreign Secretary Sir Malcolm Rifkind, and former Conservative Attorney-General Dominic Grieve, have all publicly opposed this measure. What about General Sir Nick Parker, former commander of British land forces, who urged Ministers not to damage the reputation of British Armed Forces overseas? Then there is Bruce Houlder QC, a former Director of Service Prosecutions, who told the Financial Times that the five-year limit would be “an international embarrassment”. On top of all these salvos, just yesterday the UN High Commissioner for Human Rights, Michelle Bachelet, issued a statement of real significance, saying that this Bill

“in its current form, risks undermining key human rights obligations that the UK has committed to respect.”

I remind the House of the report of the non-partisan committee of both Houses of the British Parliament, the Joint Committee on Human Rights, which considered this Bill and said that

“we have significant concerns that the presumption against prosecution breaches the UK’s legal obligations under international humanitarian law (the law of armed conflict), international human rights law and international criminal law. It risks contravening the UK’s obligations under the UN Convention Against Torture, the Geneva Conventions, the Rome Statute and international customary law.”

Those are devastating comments.

Perhaps, in my naive hopefulness, I allowed myself to think that no Government, still less one ostensibly committed to the interests of our Armed Forces, would pursue a measure which would harm them, their reputation and the reputation of our country as a stalwart upholder of the highest international legal standards. That is why I hope that now, at the last minute, the Minister will recognise the forces of reason arrayed against her and, in good military parlance, make a tactical retreat. I beg to move.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I am a signatory to the amendment tabled by the noble Lord, Lord Robertson of Port Ellen. I wholeheartedly endorse his comments. He has made the case so well, having spoken with all the advantage and experience of high office in government and NATO, that I can be relatively brief.

In Committee, the noble and learned Lord, Lord Falconer of Thoroton, pointed, as the noble Lord, Lord Robertson did, to the broad coalition inside and outside this House which spans from well-experienced military personnel to the United Nations, human rights charities and former Defence Secretaries. Those diverse voices have cogently argued that we should extend the exclusions from the presumption to cover genocide, torture and crimes against humanity. Echoing those concerns when speaking earlier today on a previous amendment, my noble and learned friend Lord Hope of Craighead also set out some of the compelling reasons why the House should support Amendment 3.

I will say a few words about the crime of genocide. Following the overwhelming support which the House gave to the all-party amendments on genocide that I recently moved to the Trade Bill, the House will have noted that many of the same arguments advanced during those debates about strengthening the rule of law also apply to Amendment 3.

Reflect for a moment that the International Criminal Court’s prosecutor has urged the United Kingdom

“to ensure that the exemption clause extends to all crimes within the jurisdiction of the Court”.

Are we seriously going to ignore this admonition? What calculation have we made of the reputational damage and the danger of being accused of being Janus-faced when we call out genocide in places such as Xinjiang, against the Uighurs, or Myanmar, against the Rohingya, but do not hold ourselves to the same stringent test?

Showing contempt or disdain for the ICC is something that we usually associate with authoritarians and dictators. We should be leary of being found in such disreputable company. It also stands in stark contradiction to the vaunted claims in the integrated review that the United Kingdom will be a world leader in promoting British values and a rules-based international order. Global Britain will be measured by its actions and not as a slogan.

The ICC’s chief prosecutor has said that, as this Bill stands, the result would be to

“render such cases admissible before the ICC”,

and that the UK would

“forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide on a statutory presumption against prosecution after five years.”

As we have just heard from the noble Lord, Lord Robertson, the United Nations Commissioner for Human Rights, Michelle Bachelet, added her voice only yesterday, urging us, as parliamentarians, to heed warnings that, in its current form, the Bill risks undermining key human rights obligations that the United Kingdom has committed itself to respect. She urged us to ensure that the law

“remains entirely unambiguous with regard to accountability for international crimes perpetrated by individuals, no matter when, where or by whom they are committed”.

She went on to pay tribute to our courts and what she called

“the independence and fairness for which they are known around the world”.

She urged us to maintain and strengthen our judicial approach to atrocity crimes—to strengthen, rather than diminish, their standing and reputation.

It disturbs me that there are some within government—not the noble Baroness, I should say—who have become increasingly indifferent to our obligations under the 1948 convention on the crime of genocide and the 1998 Rome statute, which created the International Criminal Court. In their hostility to making these international treaties and obligations effective, an alarming pattern is emerging. We already have the spectre of the Chinese Communist Party using the British Government’s formula that genocide can be determined only by “competent courts”, knowing that no such court is able to do this and that this formulaic response is a guarantee that nothing will be done.

Genocide is the crime above all crimes. I end by urging Ministers to urgently change course to take our responsibilities seriously in holding the perpetrators of the worst crimes imaginable to account. If we set a precedent with the Bill as drafted, I fear that other countries will soon follow. The noble Lord’s amendment deserves our overwhelming support today.

Photo of Lord Campbell of Pittenweem Lord Campbell of Pittenweem Liberal Democrat Lords Spokesperson (Defence) 3:30 pm, 13th April 2021

My Lords, I support Amendment 3 and have added my name to it. I have the advantage of having heard the last two contributions to this debate, which is, to some extent, a rehearsal of that which we held in Committee. I will take issue with the noble Lord, Lord Robertson, on one point—I have often known him to be hopeful but never naive.

I am tempted to adopt a speech that I made in Committee and sit down, but I will not do that because, like those who have spoken already, I do not understand the intransigence of this Government. I do not recall any noble Lord, other than the noble Baroness herself, making any speech in favour of the Government’s position either at Second Reading or in Committee. How much does it take? How much evidence is necessary to persuade this Government to change their mind?

Of course, we have heard the weight and the quality of the evidence of the noble Lord, Lord Robertson, with his extensive experience. We heard, essentially, the forensic destruction of the government case, line by line, by the noble and learned Lord, Lord Falconer of Thoroton, in Committee, and we continue to hear the well-known and, one might think, well-informed opposition of Lord Guthrie of Craigiebank and General Sir Nick Parker. Some of these have been mentioned already, but no one has mentioned Elizabeth Wilmshurst —that most courageous opponent of the legality of military action against Saddam Hussein’s Iraq, who resigned from her position in the Foreign Office—and Sir Malcolm Rifkind, who has been both Secretary of State for Defence and Secretary of State for Foreign Affairs. How is it that, in the face of the mounting volume of evidence against them, the Government insist on holding to this position? I fail to understand.

In Committee, I quoted from the Bingham Centre for the Rule of Law. At that stage, its approach to this was to provide an executive summary, in the course of which it said that

“murder, torture and other grave war crimes face substantial legal barriers before there can be a prosecution … The Bill undermines our obligations under the Geneva Conventions and the UN Convention Against Torture”.

Again, I ask: what further evidence is required to persuade the Government that they are in the wrong place? Since then, the Bingham centre has produced a more detailed analysis of this proposed legislation. If your Lordships wish to see it reinforce what it has previously said, you will find that on page 16 of that analysis.

What do we know now? The chief prosecutor of the International Criminal Court has made pretty clear a view that might result in a British citizen, a member of the British Armed Forces, possibly being taken to the International Criminal Court—can you imagine it? This country takes pride in our being advocates for the rules-based order in the face of other countries that simply want to ignore it or toss it aside.

I refer to the interests of the United Nations and the official responsible for human rights. Can you imagine the embarrassment of a prominent member of the Security Council asserting the rules-based order, in the teeth of Russian and Chinese unwillingness? I would love to know what the permanent representative of the British mission at the United Nations thinks about the position now being adopted.

Perhaps we should not be surprised. To plagiarise Lewis Carroll, laws mean what we want them to mean. That is certainly the position that was adopted when we came to Part 5 of the Internal Market Bill. What does this do for our standing and influence? How can we make those who breach international law understand the consequences of what they are doing if we are, on the face of it, doing exactly the same ourselves?

I have some sympathy for the noble Baroness because she has gallantly sought to defend the Government’s position. However, I finish by offering her some advice: Oliver Cromwell, in a substantial disagreement with the General Assembly of the Church of Scotland, wrote on 3 August 1650—the language is perhaps of its time:

“I beseech you, in the bowels of Christ, think it possible that you may be mistaken.”

The language may no longer be appropriate, but the sentiment is surely something to which she should give effect.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

I wish to speak briefly in support of Amendment 3 in the name of the noble Lord, Lord Robertson of Port Ellen, and others. I say at the outset that I will not be able to match the eloquence of the noble Lord, Lord Campbell, who preceded me and whose views I totally share.

I speak in support of this amendment, as I did in Committee, on the grounds of both principle and pragmatism. The arguments of principle that underpin this amendment are clear. Unamended, the Bill would effectively—de facto if not de jure—open the door to a time limitation on the inquiry into and, where justified, the prosecution of the most heinous of crimes set out in the Rome statute, establishing the International Criminal Court—war crimes and genocide—and those set out in the convention against torture.

I say gently to the Minister that I was a bit disappointed that, in one of her replies to earlier amendments, she suggested that the suggestion that this was a de facto limitation was quite wrong. I question what she said then because if it is not a de facto limitation, what on earth is the point of the Bill? I really do not understand it. I happen to support the main thrust of the Bill.

Neither the Rome statute nor the torture convention provides for any such time limitation on the crimes covered by them, nor in my view should they do so for crimes of that extraordinary seriousness. I suggest that to allow such a limitation into our domestic legislation is not consistent with this Parliament’s ratification of the Rome statute and of our acceptance of the jurisdiction of the ICC. At a time when there is so much evidence worldwide of these sorts of crimes being committed—the noble Lord, Lord Alton, has spoken movingly about them—we should not be playing fast and loose with our own obligations to inquire into them and to prosecute.

The arguments of pragmatism are equally compelling. Unamended, the Bill will actually increase, not decrease, the chances of British service personnel falling within the purview of the ICC. We know that because we have been explicitly warned of it by the court’s prosecutor, who has hitherto relied on our willingness to prosecute crimes under the Rome statute as a sufficient reason not to pursue such cases through the ICC machinery. If that commitment were in any way removed or questioned, the chances of action by the ICC would sharply increase. I was glad to hear the Minister, in responding to earlier amendments, recognise that that risk really exists. It would be a supreme and shameful irony if action by the ICC had to be taken by the recently appointed ICC prosecutor, a British national.

I hope that the House will amend the Bill in the sense proposed to remove from it any limitations of time for crimes set out in the Rome statute and the torture convention and will do so without in any way calling into question the original objective of the Bill: to lift the shadow of vexatious inquiries and prosecutions for lesser offences from our service personnel.

Photo of Baroness Blower Baroness Blower Labour

My Lords, it is a pleasure to follow the noble Lord, Lord Hannay of Chiswick. I support Amendment 3. As your Lordships may know, I have no legal or military experience and therefore enter this debate today as someone who has listened to and participated in all previous stages of the Bill, and has been powerfully persuaded that my own concerns about the Bill at the outset were rightly felt.

As did the noble Lord, Lord Campbell of Pittenweem, I shall quote from the conclusion of the recent executive summary of the briefing from the Bingham Centre:

The UK has a long and proud reputation of decisive action against war crimes. This Bill weakens that reputation. It makes it harder, not easier to stamp out abuses that our own troops have committed. We do not protect British troops and British values by hiding from the truth or acting with impunity.”

Although it invokes “British values”, surely these are international values, based on the international rule of law.

The UN Commissioner for Human Rights, Michelle Bachelet, quoted previously by my noble friend Lord Robertson, this week urged the UK Government to heed the warnings that the Bill in its current form risks undermining the human rights obligations that the UK has committed itself to respecting. As a former teacher, when people make a commitment to respect something, I expect them to follow through.

The UN press release says:

“In its present form, the proposed legislation raises substantial questions about the UK’s future compliance with its international obligations, particularly under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment … as well as the … Geneva Conventions. These include obligations to prevent, investigate and prosecute acts such as torture and unlawful killing, and make no distinction as to when the offences were committed … ‘The prohibition of torture in international law is both clear and absolute,’ Bachelet said. ‘Article 2 of the Convention against Torture is unequivocal, stating that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”’ The obligations in the Convention to investigate and prosecute such allegations recognize none of the new distinctions that the Bill would now bring into law.”

Surely that is a reason for amendment.

Michelle Bachelet concludes:

“The ability of the UK’s courts to resolve the most serious allegations against military personnel, with the independence and fairness for which they are known around the world, should be maintained and strengthened, rather than be cut back on such problematic grounds”.

I join the noble Lord, Lord Campbell of Pittenweem, in asking why the Government cannot be persuaded that they are simply in the wrong place on this? Perhaps the Minister could offer a response to these views so clearly held by the UN and many others and, even at this stage, indicate a change of heart.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 3:45 pm, 13th April 2021

My Lords, it must be a rare thing in nature, and in life, for so many doves and hawks to fly together. I agree with every speech that has been made so far in this part of the debate, with perhaps the small caveat that I disagree with the protestations by the noble Lord, Lord Hannay, that he lacked the eloquence of my noble friend Lord Robertson of Port Ellen—he certainly did not.

I need not repeat the various points particularly regarding the coalition of disapproval in relation to refusing to, at the very least, put war crimes, crimes against humanity, genocide and torture in an excepted category. Like others, I cannot understand the Government’s intransigence, especially as they are so well served in relation to the Bill in your Lordships’ House by the noble Baroness, Lady Goldie.

As the Minister spoke gently to me with her usual charm earlier in the debate, I will speak respectfully to her in return. Five years is a very short time indeed in the context of war, covert operations or peacekeeping operations that may be ongoing five years after an alleged atrocity, so in practice this triple lock will make it very difficult to prosecute some of the gravest offences that unfortunately sometimes arise in conflict. As we have said repeatedly during the passage of this legislation, the Government have already conceded the need for certain excluded offences, particularly sexual offences, which have been placed in Schedule 1 to the Bill so do not become subject to the five-year limitation. So it is inexplicable that in the light of everything that has been said to the Government, in the most constructive tone possible, they should not listen to your Lordships’ House and add the offences mentioned in this amendment to that list.

Whenever the Minister has been asked about the distinction between these grave offences and sex offences, she has presented a response from the department about the importance of sending signals and giving confidence in relation to sex offences and overseas operations. We need that comfort and those assurances on these grave offences, not least to avoid the perversity of a situation where, in the context of sexualised torture—sadly, we know this has been perpetrated in conflict situations even by allied forces in recent decades—a veteran or a serving member of personnel could be prosecuted for indecent assault when the allegation is of sexualised torture because the five-year period had passed. That is absolutely perverse.

I urge the Minister yet again to listen to this coalition of opinion from people who do not always agree with me by any stretch of the imagination on human rights matters. Hawks and doves are in complete agreement about this. I urge her to think again. My noble friend Lady Blower may not be a lawyer or a military person, but she is an educator. As she spoke I wondered how we will explain this legislation to our children and grandchildren, let alone to the various hard men of the world cited by the noble Lord, Lord Alton, who will be applauding the opportunity that the duplicity of our position on these crimes presents them whether in China, Myanmar or elsewhere.

I can only support these amendments and hope that the distinguished signatories to them will, if the noble Baroness does not concede, test the opinion of the House.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords)

I call the next speaker, the noble Lord, Lord Judd. We have no connection at the moment, so I call the noble Baroness, Lady Kennedy of The Shaws.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, once again I am taking the opportunity to express my concerns about this Bill, particularly the five-year window for prosecution and the ability that that will have for the Government to meet their long-standing human rights obligations.

I support Amendment 3. I want to remind everyone that there is already an exclusion in this legislation for rape and other sexual offences. It is there correctly. I suspect that the Government, in putting this Bill together, had their ears bent by women in their own ranks saying, “You can’t possibly put off rape allegations simply because they haven’t been put forward within the five-year window.” There are many reasons why you could not bring a prosecution within that window of five years in relation to sexual offences, which we are now much more willing to recognise as one of the horrors of war. The reasons why people do not come forward and are not able to put their case within short order may be fear or lack of resources. They are often in denial about the horror they have experienced. They may be experiencing coercion or threats or a desire to avoid reliving the past. I am afraid I know all this directly. The reason why evidence is gathered over time to become strong enough to bring cases—it does not happen with speed—is because it is difficult, hard work involving sensitivity to victims. The same is true for victims of torture and other grievous war crimes.

Without the present exemption, the vast majority of rape victims, largely women, would be barred from accessing justice through no fault of their own. Victims of other forms of abuse and violence, such as torture, should be afforded the same opportunity to seek justice on their own terms and in their own time. For example, we are now gathering evidence from places such as Syria—a war that started in 2011. The triple I investigatory processes are gathering that evidence. Prosecutions will happen much further down the line; that is the nature of this.

We have led the world in advocating for the rule of law. I have met the most wonderful lawyers in the ranks of the British Army working for the British Army. They are champions of the rule of law. We should recognise that we have been at the heart of creating the well-established principles and provisions of international human rights law and international humanitarian law. It is a source of pride to me and should be to everybody. We lose our moral authority by going down this road.

I work closely with the United Nations Human Rights Council on matters of law. Senior officials are shocked, deeply alarmed and disappointed to their hearts that the UK of all nations should be retreating from this high ground, so I want to emphasise the implications of this on our standing in the world. The United Kingdom has ratified the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the United Nations convention against torture. We have heard about the convention in relation to genocide, of which I have spoken many times in this House. They all mandate the absolute prohibition of torture. The absolute nature of the prohibition is at odds with the restrictions in this Bill.

I speak with sadness that we have come to this place. In answering the questions, “What has persuaded the Government? How have they come to be in such a wrong place?”, I think this Bill was put together at a time in relation to matters to do with Iraq, and of course with memories and considerations in relation to Ireland. Courage was given to this Bill by the fact that in the United States of America there was someone like Donald Trump, who had such little respect for the rules-based international order and wanted something somewhat different. He was not interested in international law or international courts. We stand as one of the nations that has been true to those things. We have been one of the few nations that has not experienced fascism, and perhaps that has given us the experience of sticking with law and knowing why it is so important. The value of our commitments becomes meaningless and rings hollow across the international stage by bringing this Bill into being.

The people who experience torture end up deeply traumatised. The families of those who have experienced the horrors of these terrible crimes are traumatised. It takes time to work with them to put together evidence to consider prosecutions. The United Nations Human Rights Committee has also found that a state’s lack of response to an investigation of a complaint is in itself a violation of the prohibition of torture.

We are coming up against a whole body of law that we have been at the heart of creating. What are we thinking about? I wonder whether there are other lawyers in government like Elizabeth, the great lawyer in the Foreign Office who was really alarmed over the Iraq war, who are experiencing the same anxiety that something of serious consequence is being lost here. In its present form, this Bill will not only violate individual procedural human rights and create a culture of impunity for torture and inhumane treatment, but will diminish our capacity to influence in the international human rights sphere, as the noble Lord, Lord Alton, described.

I urge this House and the Government to have a rethink because the consequences of this legislation will be far-reaching. Here we are trying to speak in a world that is currently dealing with the horrors perpetrated on the Uighurs and those in Myanmar and the anxieties and fears about what is going on in Hong Kong. We need to have our voice strong in the world right now. Look at Belarus, look at the different places where horrors are taking place; we need to be a voice for values.

Photo of Lord Stirrup Lord Stirrup Crossbench 4:00 pm, 13th April 2021

My Lords, in speaking to this amendment, I start by saying that I accept a number of the arguments that the Government have advanced against it. I do not think that the Bill is intended to provide UK forces with a blank cheque for torture or genocide; nor do I consider that, as currently worded, it has that legal effect. Investigations into and prosecution of those suspected of such offences should and could be pursued even after the five-year limit, provided that the evidential case is sound. I am in no doubt that those involved in such decisions would consider the facts carefully and conscientiously before coming to a decision one way or the other.

I do not regard the exclusion of sexual offences, and not of torture or genocide, as attributing any hierarchy of seriousness to these crimes. I accept that in claims of torture or genocide, the admitted outcome—the death or wounding of individuals—might reasonably be the consequence of legal military action. Sexual assault, on the other hand, can never be the result of anything but a criminal act. There is a logic behind the distinction. Nor do I accept the argument that the Bill as worded would make our own military personnel more likely to be tortured themselves. During the first Gulf War, I commanded aircrew who were shot down, captured and tortured. The Iraqis did not have, nor did they require, the incentive and cover of this Bill for their actions. I seriously doubt that future captors of UK military personnel would be likely to say to themselves, “Well, I would not ordinarily have tortured these prisoners but, in view of the UK overseas operations Act, I now will.” Regimes that are going to torture captors will; those that are not, will not. I do accept, however, that this Bill might make it harder for us to protest such actions or subsequently to hold the perpetrators to account.

My concern about this part of the Bill has less to do with its legal intent and effect, and more to do with the perceptions it may create and the consequences of such perceptions. I have said that in my view, the Bill does not diminish the seriousness with which we view or treat torture or genocide, but it is clear that many people disagree, and that they will not be persuaded by any words of mine or of the Government. This is important. What people think about such matters is crucial, regardless of whether we regard their interpretation as correct. Reputations, national as well as personal, depend on perception as well as on fact, and the UK’s reputation in the international arena is not something to be taken lightly or to be hazarded without great cause.

One possible consequence of a diminished reputation for an unswerving opposition to torture or genocide could be the increased interest of the International Criminal Court in accusations against UK military personnel—an outcome that I would regard as disastrous. I have heard the arguments against this likelihood, and I am unconvinced by them. I have in the past heard similar arguments advanced about the negligible impact that human rights legislation would have on military operations, only to see those confidently expressed opinions proved dramatically wrong. The Government no doubt feel that they are on firm legal ground with regard to the International Criminal Court, but that view has yet to be tested. Meanwhile, risk must be measured as a combination of probability and consequence. Even if the chance of challenge by the ICC is not large, the severe damage it would cause demands that we do all we can to guard against it.

The risks that I have identified might nevertheless be borne if they were sufficiently outweighed by the advantages that Clause 6 offers, but I do not believe this to be the case. The underlying problems that need to be addressed are the protracted and repeated investigations of speculative and malicious claims, along with the extension of human rights legislation into areas for which it is ill-suited. The Bill, of necessity, comes at these issues obliquely and is therefore likely to be of limited value. I know that the Government believe that the measures proposed on prosecutions will have an impact on the timeliness of investigations. I hope they are right, but the potential benefit is not obviously overwhelming. So, while I support the Government’s aim, and while I understand the logic behind the drafting of Clause 6, I believe that the current wording poses risks that far outweigh the potential benefits. Unless I hear in this debate a far more compelling argument than has so far been made against it, I shall support Amendment 3.

Photo of Lord Dubs Lord Dubs Labour

My Lords, it is a pleasure to follow the noble and gallant Lord, Lord Stirrup, as well, indeed, as my noble friend Lady Kennedy in the arguments they have put forward. The House has enormous respect for the Minister. I share that respect but it is noticeable that, despite her arguments, she had no support in Committee. I looked at her closing arguments then and found this one:

“In the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. They fight, they use force”.

That seemed to be the justification for this provision: that force has to be used. I do not believe that force is the same as torture. If there were to be confusion between the two, it would be up to the courts to make a decision. It would not be up to a government Minister to say whether an action was unacceptable or, indeed, appropriate for it to be excused altogether by the provisions of this Bill.

In her closing remarks—she was trying to be helpful—the Minister also said:

“I undertake to consider with care the arguments that have been advanced and to explore if there is any way by which we can assuage your Lordships’ concerns.”—[Official Report, 9 /3/21; cols. 1575-77.]

I am not sure that anything has happened about that commitment. I understand why Ministers make such commitments and why she did so; perhaps she was not comfortable with the Government’s whole argument. However, I am not clear what she has done to assuage our concerns; I do not believe she has.

As has been said before, the reputation of this country is at stake. One thing we surely value very much is our reputation for adhering to the rule of law—for having a proper system for considering it and, indeed, being implacable in our opposition to any breach of it. That reputation is surely worth preserving, yet it is now at stake. We deal all the time with countries that do not observe the rule of law, be it Hong Kong, China in respect of the Uighurs, or Myanmar in respect of the Rohingyas—or, indeed, of their own citizens. There are too many examples of the rule of law being breached; we can ill afford to join the ranks of countries that breach it. We have had severe warnings that we might find our service men and women up before the International Criminal Court—which would be mortifyingly embarrassing and absolutely appalling were it to happen.

I am a member of the Joint Committee on Human Rights, which made a detailed assessment of the Bill and its various provisions and produced a report. At paragraphs 63 and 64, the report says that

“we have significant concerns that the presumption against prosecution” runs the risk of contravening

“the UK’s legal obligations under international humanitarian law (the law of armed conflict)” and

“international human rights law ... It risks contravening the UK’s obligations under the UN Convention Against Torture, the Geneva Conventions, the Rome Statute and international customary law.”

The report goes on to say:

“At a minimum, the presumption against prosecution should be amended so that it does not apply to torture, war crimes, crimes against humanity or genocide.”

Nothing could be clearer than that.

We have also heard quoted today Michelle Bachelet, the UN High Commissioner for Human Rights. She said:

“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

I can think of no clearer comments than those I have quoted. I fully support this amendment.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, we have heard some very distinguished speeches this afternoon and the passionate speech from the noble Lord, Lord Campbell of Pittenweem, destroyed any case that the Government might have. As an old soldier—a national serviceman—and a Defence Minister many years ago, I yield to no one in my concern to protect the armed services from vexatious investigations and prosecutions. As Attorney-General, I played a very small part in encouraging the late Robin Cook’s successful advocacy for the setting up of the International Criminal Court. As an active member some years ago, I advocated successfully at the IPA conference in Cape Town for the international recognition by all nations of the offence of torture. I believe I was kicking at an open door when the paper that I had prepared was accepted. All civilised countries now accept that the offence of torture is unique; likewise, of course, genocide.

My noble friend Lord Robertson comprehensively and eloquently moved the amendment. The Bill proposes a presumption against prosecution of torture and other grave crimes after five years, except in exceptional circumstances. As my noble friend states, this risks the creation of de facto immunity after that time. That is the bottom line. Unfortunately, the result is that our troops risk being open to prosecution by the International Criminal Court. The effect of the Rome statute is that the court can prosecute where there is no robust domestic civil process. Perhaps the Minister will say specifically what the danger is of our troops being brought before the International Criminal Court?

As a former law officer, I had the task of advising Her Majesty’s Government on international law; I cannot see how we can avoid process before the International Criminal Court. May I make a practical suggestion to the Minister? Before Third Reading, will she consult the law officers and get their views—if they have not given them already, as I suspect they may have—on the point raised by so many Members of this House, without opposition, that we are in danger of allowing our troops to be hauled before the International Criminal Court?

I strongly support the exclusion of the most serious crimes, such as torture, war crimes and genocide, from the immunity proposals. Put simply, in international law—I can only emphasise this—there is no expiry date for the prosecution of torture, war crimes and crimes against humanity. I am grateful to my noble friend for moving this amendment. The bottom line is that there is no expiry date for the prosecution of these offences. It may not have been the intention, but the unfortunate consequence is that our troops might find themselves before the International Criminal Court.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat Spokesperson (Defence) 4:15 pm, 13th April 2021

My Lords, this amendment has had no opposition. I thought very briefly that the noble and gallant Lord, Lord Stirrup, was perhaps going to speak against it because he raised concerns about the nature of some aspects of what has been said. The Minister has heard nobody from her own Benches, or rebel Labour, Liberal Democrat or Cross-Bench Peers, speaking against the amendment. Nobody has given any reason why this amendment should not be supported. That has been true at virtually every stage. The only noble Lords who perhaps could have given the Minister some succour at an earlier stage, at Second Reading, were the noble Lord, Lord Lancaster, and, in particular, the noble Lord, Lord King of Bridgwater, who listened very carefully to what the Minister said. However, even the noble Lord, Lord King, said that maybe the Government needed to think again about torture and genocide.

If there is a presumption that sexual violence and exploitation should be left out of Part 1 of the Bill, what possible justification can the Government have to leave out genocide, torture, war crimes and crimes against humanity? As the noble Lord, Lord Dubs, said, the Minister, at previous stages of the Bill but also in her written response to the Delegated Powers and Regulatory Reform Committee, has said that the Government would never ask our Armed Forces to perpetrate crimes of sexual violence or sexual exploitation. Good—that is obviously what we want to hear. However, the Minister does not say the same thing about war crimes and torture. She merely says that the Government take them very seriously. While, clearly, the Bill does not make it impossible that prosecutions could be brought against allegations of torture, genocide, war crimes and crimes against humanity, surely the logic of the Minister’s response to the Delegated Powers and Regulatory Reform Committee is that the Government, if not endorsing or requesting that people perpetrate torture and war crimes, somehow do not view them in the same way.

Occasionally on these Benches we have very different views from the Minister. We know that we are never going to change the Minister’s mind; nevertheless, we listen and we understand where the Government are coming from. Perhaps the Government have a point of principle. On this occasion, it is almost incomprehensible what the Government’s point of principle can be. If somebody has committed torture or a war crime, that needs to be investigated and prosecuted. The fact that the Government merely take it very seriously simply is not good enough. This amendment rights a complete defect in the Bill. We support the amendment and I believe that many noble Lords from all sides of the Chamber support it.

I ask whether the Minister did go away and think carefully after Committee. As several noble Lords have said, we respect the Minister but we have not yet heard any sense of reflection from the Government. We have not had a scintilla of a change. We have heard nothing that makes anybody feel that the Government are likely to change their mind. If the Government cannot find a way of changing their mind, it is essential that this House asks the other place to think again.

Photo of Lord Tunnicliffe Lord Tunnicliffe Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Defence), Shadow Spokesperson (Treasury), Shadow Minister (Transport)

My Lords, there is almost universal support in this House for ensuring that torture, genocide, war crimes and crimes against humanity are excluded from the presumption. It is clear what the ICC thinks: if we do not do so, as has been quoted many times, the UK would

“forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide.”

That is why there is such strong support for Amendment 3 and, importantly, for its approach to protect these offences so that they cannot be removed by statutory instrument at a later date. I hope that the Minister has listened closely to the powerful debate and the broad coalition that spans military figures and human rights experts, and will promise that government amendments will come forward at Third Reading. Otherwise, we support my noble friend Lord Robertson in his important amendment and urge him to divide the House.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

My Lords, first, I thank the noble Lord, Lord Robertson, and all other noble Lords for their thoughtful contributions. We heard some exceedingly powerful speeches on these issues in Committee, and they were echoed today. I recognise the understandable concern and emotion that accompany the arguments that have been adduced. This is an extremely important matter, perhaps the most passionately debated part of the whole Bill, and I do not underestimate the scale of my task to address the arguments advanced by the noble Lord, Lord Robertson, and his supporters, but it is my job to try. The noble and gallant Lord, Lord Stirrup, made a telling point about perception, and it is my job to try to address that issue as well.

I reassure the House that the Government have given considerable and careful consideration to the offences that are excluded from the measures in Part 1. The intent of the Bill, as drafted, ensures that the Part 1 measures will apply to as wide a range of offences as possible, in order to provide that necessary reassurance to our service personnel that the operational context will be taken into account, in so far as it reduces a person’s culpability, in the circumstances of allegations of criminal offences on historical overseas operations. The broad objective of the Bill is to support our Armed Forces personnel, and I accept that that has been recognised across the Chamber. The divergence of opinion is on how we can deliver that reassurance.

In considering the provisions of the Bill, the Government gave careful thought to the physical environment of an overseas operation. As noble Lords who have served on such operations will know, the range of activity is diverse and the threat of danger ever present. It is a lethal environment in which our Armed Forces are called upon to deal with unimaginably challenging situations, and it is predictable that, arising from such activity, allegations of wrongdoing may be made. The one type of activity which can never have any place in such an operation is the commission of a sexual offence, so I say to the noble Baroness, Lady Smith, that is why sexual offences are excluded from the Bill. She referred to that as a presumption: it is not a presumption—it is an explicit exclusion.

Some have argued that such an exclusion means that the Government are relegating other crimes to a lower classification of gravity. We are not. We are acknowledging that in an overseas conflict, because of the inherent nature of such activity, there is a predictability about allegations being made that crimes have been committed. The Government are neither defining nor categorising what these crimes may be, we are merely creating a clearer framework and structure as to how such allegations are to be handled. It goes without saying that of course we shall take other offences, such as war crimes and torture, extremely seriously. I repeat that the Government’s decision to exclude sexual offences only, as I set out in detail in Committee, does not mean that we will not continue to view with the utmost gravity other offences such as war crimes and torture.

Nor will the Bill somehow provide an excuse for poor behaviour or enable impunity for very serious crimes allegedly committed by our Armed Forces personnel. I am very grateful to the noble and gallant Lord, Lord Stirrup, for his comments in that respect and I am pleased that many noble Lords recognise that the presumption against prosecution does not amount to either an amnesty or a statute of limitations, nor the creation of a de facto immunity. I say to the noble Lord, Lord Hannay, that a bar on prosecution in gremio of the Bill would be an amnesty—it would be a statute of limitations and a de facto immunity— but there is no such provision in the Bill. I remind noble Lords that the severity of an alleged offence will continue to be an extremely important factor for a prosecutor in determining whether to prosecute. We should remember that the presumption is, of course, rebuttable.

A number of noble Lords, including the noble Baronesses, Lady Chakrabarti and Lady Kennedy, referred to the five-year period. I just observe that the period was informed by the response to the consultation carried out on the Bill. Interestingly, the period of five years was visited at an earlier stage, in Committee, and has not been revisited.

I have listened to the very real concerns expressed by many in this House, including references to many third parties holding similar views, that the Bill undermines the United Kingdom’s continuing commitment to, and damages our reputation for, upholding international humanitarian and human rights law, including the United Nations Convention against Torture. I say to the noble Lord, Lord Dubs, that I seek to assuage these concerns and to reassure once more on this 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. Our Armed Forces will continue to operate under international law, including, of course, the Geneva conventions, and we will continue to expect that others will do the same.

I would like to explain further why the Government’s view is that Amendment 3 should be resisted. First and foremost, we are concerned that it would undermine the reassurance that we are seeking to give to our service personnel and veterans by excluding a considerable list of offences from the application of the measures in Part 1. The Bill does not prevent such offences being investigated nor prosecuted. Indeed, in relation to prosecution, the gravity of the crime will be a cogent factor. It is perhaps also worth adding that, in the interests of clarity and to preserve the structure of the Bill as currently drafted, we believe that all the excluded offences should be listed in the same place in the Bill, and that the appropriate place is Schedule 1, instead of being spread across the Bill, as the noble Lord’s amendment would provide.

I have endeavoured to present the Government’s position and, in these circumstances, I ask the noble Lord, Lord Robertson, to consider withdrawing his amendment.

Photo of Lord Robertson of Port Ellen Lord Robertson of Port Ellen Labour

My Lords, I do not have to repeat the respect that the House has for the Minister, but she does not speak with any great enthusiasm. That is not surprising because her case is so weak that enthusiasm and passion certainly cannot be part of her argument. I do not want to take up a lot of the time of the House at this stage, but let me quote what General Sir Graeme Lamb, the former director of Special Forces in the British Army, said in the weighty Policy Exchange document that was critical of this Bill. He said

“good intentions are not enough as the Bill as it stands may fail to protect our troops adequately … it does nothing to address the problem of repeat investigations.”

Then there was Bruce Houlder, the former Director of Service Prosecutions whom I quoted in my original speech, who told the Financial Times that the five-year limit would be an “international embarrassment”. I did not quote what he added, which was that

“the idea that we then treat torture and other grave crimes including homicide as excusable, and legislate in effect to make it difficult in the extreme to prosecute after five years, is really outrageous.”

The Minister has not quoted anybody in support of her contention that what the Government are saying is reasonable. I and other noble Lords and noble and gallant Lords have quoted endless examples of those who say that what is happening here today in this Bill is outrageous. Even today’s Daily Mail editorial condemns the Government for apparently legitimising torture in the way that the Bill does.

In light of the fact that the Minister has given no defence whatever, I insist that we test of the will of the House on this amendment.

Ayes 333, Noes 228.

Division number 1 Overseas Operations (Service Personnel and Veterans) Bill - Report — Amendment 3

Aye: 333 Members of the House of Lords

No: 228 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Division conducted remotely on Amendment 3

Amendment 3 agreed.

Amendment 4 not moved.

Clause 7: General interpretation etc

Amendment 5 not moved.