Overseas Operations (Service Personnel and Veterans) Bill

Baroness Chakrabarti Excerpts

Committee stage & Lords Hansard
Tuesday 9th March 2021 Lords Chamber

[Baroness Gardner of Parkes (Con) [V]]

My Lords, my father-in-law fought in the desert with the Australian infantry, as part of the Commonwealth forces, during the Second World War. He spoke of some of the horrors he saw, and also of the support that he and his fellow servicemen and their families received on their return home, and over the years, from the Australian charity Legacy, where he himself did a great deal to help widows and orphans of those who had given their lives.

I know that much has changed since the Second World War, I hope for the better, in the treatment of service men and women, with recognition of post-traumatic stress disorder and the examination of alleged crimes and, where appropriate, prosecutions. However, when we ask our service men and women to put their lives on the line on a daily basis for the good of their country, we need to give them certainty as to when they can look forward to the future rather than back at the past.

I speak in favour of retaining the five-year limitation on bringing a prosecution, with the exceptions envisaged by this Bill, rather than the longer 10-year limitation being proposed by these amendments. Over time, memories and recall fade; it is only fair, for the sake of all involved, that any investigation and, if appropriate, prosecution, is brought when these memories are still clear and accurate and evidence is available. We should not forget that, even if an investigation does not result in a prosecution, it can take its toll on the mental health of the people involved and their families. To prolong this for up to 10 years after an event is just too long.

The Minister has previously said that this is not about reducing access to justice. I paraphrase her comments and support them. This is about giving certainty and finality and preventing injustice when, due to the amount of time that had elapsed, adjudicating would otherwise be on unreliable and incomplete evidence. Although my name is on the list, I do not propose to speak again later in this debate.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I am grateful for the opportunity to address this fundamental part of the debate on Part 1 of the Bill. Before I begin, I want to say that, if I do not impugn the motives of Members of your Lordships’ House, I hope that that will be a reciprocal courtesy. I shall not be asking any noble Lords, let alone Ministers or their noble friends on their Benches, to look any victims of war in the eye. I would happily look Major Bob Campbell, or any other brave serviceperson, in the eye, in trying to address the problems that the Government say they are trying to address through this Bill, and in making the best analysis and argument that I can about this very important legislation. The rule of law is too precious for us to be impugning each other’s motives, patriotism, or support for either service personnel or the victims of war. It is not service personnel who make sometimes ill-judged decisions to go to war, and it is not Ministers and politicians who put themselves in harm’s way. I hope that we can continue with a slightly better-tempered debate than to accuse some of us, by implication, of being somehow unsupportive of ordinary servicemen and women.

This is about the rule of law, which is supposed to apply to everyone—although, granted, some people are dealing with particular difficulties. The difficulty that the Government say they are addressing here is that of servicepeople who have been put into sometimes unlawful and certainly very controversial and difficult conflict situations, and then been subject to repeat, lengthy and shoddy investigations, which have caused great anxiety to them and little resolution for the public or, indeed, alleged victims overseas. If that is the problem to be addressed, surely the solution would be to address shoddy, lengthy and repeated investigations, rather than to create a “triple lock” on prosecutions.

It would be better to address the actual problem being suggested to improve investigations, making them more independent, swifter and more robust, so that everyone has confidence in them. The beauty of attacking the actual problem, as posited by the Government, is that it would serve the rule of law rather than undermine it, which would be completely uncontroversial. No victim of an alleged war crime could complain about swifter, more independent and more robust investigations. Improving the investigation system would also, I have no doubt, give greater comfort to the military. Not to do that and, instead, to do what Part 1 of this Bill does—to create shields, locks and triple locks on prosecutions—would quite obviously be in contravention of the rule of law that our brave service men and women seek to serve, not just domestically but all over the world, and perhaps more so, I fear, in the context of modern warfare. That will often involve covert, secret operations that the wider public might not know about for a long time, and alleged crimes may not come to light for a long time. As has been said by other noble Lords, witnesses or, indeed, victims may well be incarcerated for much longer than the five years, or even the 10 years posited in the draft Bill and in amendments. There are people still in Guantanamo to this day. I am sad to say that we are heading for a very grim anniversary in the autumn, of 20 years since the atrocity of 9/11. Part 1 seems completely the wrong way to address the problem that the Government themselves have posited.

I turn to the observations made by noble and noble and learned Lords that, whether it is five years or 10 years, it is a long period to be worried about the risk of prosecution. That, of course, is true of anyone. If five years is an adequate period to justify the first part of a triple lock on prosecuting grave crimes, we would have a presumptive statute of limitations such as that for domestic crimes, but we do not. We believe that that would be anathema to justice because serious crimes such as unlawful killing and so on should not be subject to a statute of limitations, even a presumptive one. It is not considered good enough for British justice here at home, but it is being suggested that such a statute of limitations is good enough overseas.

Of course this sets a dangerous precedent. I would be grateful to hear the supporters of Part 1 say whether they would honestly be happy with a replica of this legislation, in particular this part, to be enacted in other countries around the world—including in those jurisdictions with which we have been at war or with which we have difficult and potentially hostile relations at the moment. Would we be happy with a replica of this being provided in countries that we are worried about in relation to human rights abuses?

The rule of law is about where we try to set a standard across the world, and our Armed Forces are all about a pride in setting that standard. On the argument that there is nothing to fear from the ICC, it is quite right that there should be nothing or little to fear from it at the moment because of the law in this jurisdiction as it stands and because of the respect in which it is held worldwide. But if we continue to chip away at it by limiting its reach through the creation of a triple lock, I fear that people will be subject to greater ICC interference. It is all very well for noble Lords to say, “Nothing to hide, nothing to fear; let the ICC do its worst,” but I do not believe that that would be the argument in reality if that outcome were to present itself.

I urge noble Lords to think again about Part 1, and urge the Government to consider making investigations swifter and more robust and not to keep chipping away at the law which is supposed to apply to all, with support and respect for the circumstances of police officers, prison personnel, doctors and teachers—all sorts of people find themselves the subject of false allegations through no fault of their own because of the nature of their work. Members of the Armed Forces have a special difficulty, but that should be tackled at the investigations end, where the problem lies, not by creating a presumption against prosecution after what is a very short period in relation to the commission of alleged grave crimes overseas.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti. Like she does, I believe that Part 1 of the Bill should be cancelled because it creates a lock on prosecutions. I therefore support the amendments and the proposals to cancel Clauses 1 to 7.

Coming from Northern Ireland, I have denounced on every occasion the mayhem and the murder of members of the Armed Forces who were killed in the most indiscriminate way. They were human beings and they had families, and the way that they were treated by members of the paramilitary organisations was wrong, unacceptable and totally unwarranted, and did not contribute one iota to a political settlement. I want to set that out very clearly. But, like the Equality and Human Rights Commission does, I believe that the provisions in these clauses as they stand do not fulfil the requirements of honouring human rights requirements.

I honestly believe that none of us should be above the law, so I support the position taken by the noble Baronesses, Lady Massey of Darwen, Lady Smith of Newnham, Lady Jones of Moulsecoomb, and the noble Lord, Lord Dubs, who have given notice of their intention to oppose Clauses 1 to 7 standing part of the Bill. By removing these clauses, we would take away the presumption against prosecution. At the very least, I support Amendments 1 to 9 and 13. They would help redress the balance currently in the Bill, which favours the accused, in order to ensure fairness and equality before the law for both claimants and defendants.

--- Later in debate ---

That brings me to Amendment 28, which I also support. The tradition in which I was brought up was firmly against the resurrection of a prosecution after an acquittal, or where an assurance had been given to the accused that no proceedings would be brought. We have to accept, however, that there are cases where compelling new evidence, such as that revealed by DNA testing, requires that further steps be taken. This amendment deserves very careful consideration and strikes the right balance. The new evidence needs to be compelling—as indeed it should—and it needs to be assessed in the light of the totality of the evidence by a very skilled judge. It serves the broader aim of improving the quality of the investigations and the time taken to conduct them. The prospect that it may well do so persuades me that that amendment should be supported.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I will not seek to replicate the eloquence and experience of noble and noble and learned Lords, including noble friends who have spoken before me. Instead, I will take on the challenge of addressing the noble Lord, Lord Lancaster, directly, because he is the person with whom I most disagree. From his comments in the previous group, I think he is particularly concerned about lawyers in this context. Perhaps he shares some of the concerns of his colleagues in the other place about warfare and a lack of warmth and respect for our Armed Forces.

I would like to reply to him in the following way in case it helps us develop some common ground in scrutinising this legislation. For pretty much the whole of my career as a human rights lawyer and campaigner, I have been accused—I would say falsely—of being soft on crime, soft on those suspected of crime and soft on those accused of crime. I would say that I am not soft: I just believe that people should be protected from false accusations and charges by due process, and that a miscarriage of justice—a wrongful conviction —delivers more, not fewer, victims. That has been my view, whether the person accused is in civilian life or in uniform, so I have not given up—nor have other lawyers in this debate or in the country at large—on the jealous protection of due process just because the people who are accused may be members of our military.

The concerns expressed by everyone on this group of amendments, and many on the earlier group, are about this part of the Bill addressing prosecutions—which have not been a problem—instead of investigations. That is why the noble Baroness, Lady Smith, wished that we could have got to the meat—the heart—of the debate sooner, but that is not in the natural order of things. Legislators, as opposed to Governments, are not in a position to do what is really required, which is to redesign and devote investment to a robust investigative system that is suitably independent, swift and resourced. Instead, we have these amendments, which probe what fair and robust investigations would look like to safeguard —I stress, safeguard—military personnel from the concerns that they have expressed over many years from the shadow that hangs over them. That is why the amendments are well put, if only in the first instance as probing.

The noble Lord, Lord Lancaster, said that he did not really see the value of Amendment 3, in the name of my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford—who spoke so ably earlier on—because it would replace Clause 2, which is about prosecutions being “exceptional”, with a new, perhaps more convoluted form of words, which he might think is trees and not wood, about the dangers of being “materially prejudiced” by the passage of time. “Exceptional” is not desperately helpful as a new test when prosecutions have been so truly exceptional up to now. Prosecutions have not been a problem. No one is suggesting that lots of vexatious prosecutions have been a problem but merely that people have been worried about them because of shoddy, lengthy and delayed investigations. The status quo is for prosecutions to be quite exceptional. We are not seeing very much by way of guidance to prosecutors in the current Clause 2, which says that such prosecutions, as part of a triple lock, should be exceptional.

Further, we still have a Human Rights Act, and this legislation has to be predicated on the fact that that will continue—certainly, CHIS legislation was tightly predicated on that proposition. There has been case law during the tenure of the Human Rights Act showing that, if it is necessary to do so to comply with human rights, “exceptional” can be read as something that is much more routine. If, as some of us believe, this legislation, unamended, would give rise to violations of victims’ human rights, “exceptional” in the current Clause 2 would have to be construed by courts as something that is quite possibly less than exceptional and therefore not the position that the noble Lord, Lord Lancaster, would like. Amendment 3 as proposed by my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford, is much more precise about what is sought to be avoided in the interests of the accused, which is a test that they not be materially prejudiced by the time elapsed. We are supposedly here to reassure armed personnel, who we know are very concerned about time elapsing, and their chances of a fair trial being prejudiced by that, because of the shoddy, delayed and repeat investigations that we have seen.

If I were serving in the military, I would take much greater comfort from protections in relation to these investigations in general, but, if we are going to look at provisions of this kind—which I do not support, because I do not support the presumption against prosecution—this concept of being materially prejudiced by the passage of time, through no fault of my own, should give far greater comfort to me as an accused than would the word “exceptional”, which could become devoid of content.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, when the Minister introduced this Bill at Second Reading, she said that she detected broad sympathy with its objectives. If she meant the objective of protecting our veterans against repeated and delayed reinvestigations for which there is no new or compelling reason, I am quite sure she was right. The noble Lord, Lord Dannatt, mentioned Major Bob Campbell, as has the noble Lord, Lord Faulks, today. Major Campbell was investigated multiple times over 17 years in relation to the death of an Iraqi teenager—eight times according to the noble Lord, Lord Dannatt, and 11 times according to the noble Lord, Lord Faulks—before being finally exonerated last year by an inquiry led by the noble and learned Baroness, Lady Hallett.

That multiplicity of investigations is something that surely no noble Lord would wish to defend, although the fact that the ICC prosecutor looked carefully at the case and decided not to proceed only because there had been a thorough investigation by the state should be a warning against any complacency that we can weaken our standards of investigation while still keeping the ICC at bay.

Amendment 28 seeks to attack the problem of multiple investigations directly by injecting an element of independent quality control into the investigations process. It would require further investigations to be conditional on compelling new evidence emerging and on an allocated judge advocate considering the totality of the evidence to be sufficiently strong. Like the Henriques review, which I welcome, Amendment 28 has the advantage of straightforwardly addressing the issue of repeated inconclusive investigations. I would, however, voice two reservations, with ICC-proofing in mind. First, is a judge advocate a sufficiently independent figure to apply the filter? Secondly, a high bar is set by the requirement of “compelling new evidence”, a bar which one would not normally expect to be surmounted without the conclusion of precisely the further investigation for which this test would be a precondition. Perhaps I might suggest “there is a compelling reason” as more realistic wording for proposed new subsection (2)(a).

Amendment 17 seeks to address slow investigations. Proposed new subsections (3) and (5) would put some time limits into the process. That, again, strikes me as a solution which, whether appropriate or not in all its detail, is at least directed to a real problem. Let us take the case of Baha Mousa, who died in British custody in 2003 after being hooded, deprived of food and water, and beaten, sustaining at least 93 injuries. The first round of prosecutions, to which the noble Lord, Lord Lancaster of Kimbolton, referred earlier, was characterised by a closing of ranks and achieved only a single conviction, in 2007, on a guilty plea by a corporal to a charge of inhumane conduct. There followed a three-year public inquiry, led by Sir William Gage, which in its three-volume report of September 2011 made detailed findings about the circumstances of Baha Mousa’s death and identified 19 soldiers directly involved in his abuse. The Iraq Historical Allegations Team was tasked in May 2012 to review that report with a view to assessing whether more could be done to bring those responsible to justice.

--- Later in debate ---

[Baroness Chakrabarti (Lab) [V]]

My Lords, in principle I am quite concerned about overprescribing matters to be taken into account, because I would want all prosecutors in relation to all suspects to have a very broad discretion to take into account all sorts of adverse factors in fairness to a potential accused. None the less the Minister, who is the most gifted and reasonable advocate, says that part of the purpose of the Bill is reassurance—presumably even if that is a psychological comfort rather than an actual legal one, because I am sure that all relevant factors are currently available.

The Minister also talks about balance and equilibrium. In that spirit I am concerned, given that it is said that prosecution after five years is now going to be wholly exceptional, that no factors are listed in the Bill that militate towards that exceptional prosecution. Why not? Surely that would be the balanced thing to do in the spirit of equilibrium. Why is there no mention here of issues such as covert operations, witnesses and indeed victims of war crimes potentially having been incarcerated, or the crime being particularly undetectable because of collusion by people within an operational cohort or even at a higher level? It seems strange as a matter of good law to have put in the factors that militate against prosecution, which we are told is to be exceptional, as two parts of the triple lock, but to have given no guidance at all as to the exceptional circumstances. With that in mind, I can only agree with the Joint Committee on Human Rights, which is such an important committee for both Houses in performing their role in relation to human rights, and with the remarks of my noble friend Lady Massey.

[Lord Lancaster of Kimbolton (Con)]

I am pleased to follow the noble Baroness. I am grateful to her for, dare I say, reaching out during the last group of amendments and attempting to reach some common ground. I think we are seeking to achieve similar things, albeit coming from very different perspectives, since I was a practitioner, as it were, in the past. I looked very carefully at the amendment and, for fear of being damned with faint praise by the noble Lord, Lord Thomas, there are aspects that I absolutely understand.

As ever, though, the problem has just been hit on the head by my noble and learned friend Lord Mackay, and that is the application. It is one thing to say that people who are suffering should not be put into a war zone, and that is absolutely right. However, the application matters when you are already in a war zone—a distant FOB—and within a small group with no ability to blow a whistle and stop the war in order to be withdrawn from the situation, along with the gradual deterioration of the condition over a period of time. This will not necessarily be seen by those around you because they are suffering similar things. It is not quite as easy to put into practical application during operations, which is why we need to be careful.

When I was training to become a bomb disposal officer, I knew absolutely what I was letting myself in for. Having served on operations in Bosnia, Kosovo and Afghanistan, most recently in Afghanistan while I was a Member of Parliament, it is not always possible to see these deteriorations. It is important to realise that a medical or psychiatric condition may or may not be recognised at the time. Prosecutors are already required to have regard to any significant mental or physical ill-health or disability as in some circumstances this may mean that it is less likely that a prosecution is required. Clause 3 simply seeks to ensure that such considerations are put on to a statutory footing within the unique context of an overseas operation.

I recognise that I come at this from a different angle and I can see the precise way in which noble and noble and learned Lords are looking at the Bill, but I will go back to the comments I made earlier. This is also about sending a message. By putting this on to a statutory footing in the Bill, it will send a clear message to members of our Armed Forces that the Government and Parliament understand that we are asking them to do extraordinary things in extraordinary circumstances. This would be a recognition of that.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

My Lords, that was quite interesting, actually, because of course these amendments are trying to create some sort of accountability for the Attorney-General. I thought the noble Lord, Lord Faulks, was going to say something about the Attorney-General being rather more political than in the past, because of course the office of Attorney-General has been sadly undermined in recent years, particularly last year with the Attorney-General’s quick defence of Dominic Cummings’ unlawful behaviour. That was, I fear, just one example, and the fact that she then so quickly rowed back from her position to a position of it being only her political decision and not a legal opinion shows how easy it is for an Attorney-General to step over that increasingly faint line. In that, I think that she mistakenly excused illegality in the name of political expediency. We, of course, cannot become complicit in that, so I was extremely pleased to sign the shadow Attorney-General’s Amendments 10, 11 and 12.

I am concerned that this triple lock in the Bill can actually lock justice out. Even if the power of justice is strong enough to overcome the first two locks, we have to trust the Attorney-General to make the right decision on the third lock, which of course would be very difficult. The Attorney-General therefore has to publish their reasons when making decisions, because these decisions should be made according to normal standards of administrative propriety and should rightly be subject to judicial review. Where the reasons for the decisions are irrational, unlawful or irrelevant, they should be able to be overturned. Where the decision is purely politically motivated and has no foundation in facts, the law or the interests of justice, equally it should be overturned. These amendments are essential to ensure that this is the case.

Such important decisions as those envisaged in the Bill must never be made on a whim or be purely political. Justice has to be done and be seen to be done. I would just like to add that various noble Lords have suggested that some things are impossible to understand if you have not experienced warfare or action of that kind. Of course, that is absolutely true, but we are not talking about a lack of sympathy for service personnel; we are talking about criminal acts. That is the basis of what this law is about; it is not to do with whether we have sympathy or not, it is about criminal acts, and it is important to remember that.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I am grateful to my noble and learned friend Lord Falconer and to the noble Baronesses, Lady D’Souza and Lady Jones, from whom we have just heard, for tabling these amendments. They have cemented in my mind concerns that I expressed at Second Reading about the role of the Attorney-General as the third lock in the architecture of this Bill.

In response to comments made by the noble and gallant Lord, Lord Stirrup, about how, if it is such a problem, we have a problem with the role of the Attorney-General in the constitution per se, I would say not quite. We know that the Attorney-General wears different hats—sometimes legal adviser to the Government and sometimes to Parliament—and sometimes acts in a separate role in relation to the public interest. Those hats are capable of being worn at different times. No doubt it takes a bit of skill to get the balance right, but in normal, civilian prosecutions, I suggest that an Attorney-General is very unlikely to have been giving legal advice on, for example, the investigative process; they would be very unlikely to have given advice directly to the police on the search that gave rise to the prosecution.

This is not the case in war and conflict, where the Attorney-General, as legal adviser to the Government, has undoubtedly been involved in the rules of engagement; they have quite possibly given very detailed advice on those rules and, as my noble and learned friend said, on matters concerning detention and so on. To make potentially the same person who advised on the legality of an operation the third lock on whether alleged criminality should be prosecuted seems to me unlikely to give confidence—the word “reassurance” has been used a lot—to anybody, whether that be civilian members of the public or military personnel. After all, this could be an Attorney-General who advised on the operation or one from a party that was very much opposed to the operation before it came into government. I have real concerns about the politicising of these prosecutions. One has only to think about the controversies in recent conflicts around the world to see that potential damage to public confidence, including among members of the Armed Forces on the front line and their families.

If the noble Lord, Lord Faulks, will forgive me a quick word, there was a little having of cake and eating it in his remarks. He referred—I do not think as a criticism—to the ICC as quasi-political. Given these various hats, someone might well say that of the senior law officer involved in these matters who sits in or comes to Cabinet, including war Cabinets. In terms of accountability, to give this role to the Attorney-General is to give it to a political person who is appointed directly by the Prime Minister—quite possibly, as I say, the Prime Minister who authorised an operation—and for that all to be in the shadows. The Attorney-General’s original advice on the legality of the conflict and perhaps specific operations is currently in the shadows and now the Attorney-General’s veto of the independent prosecutor’s decision will quite possibly be in the shadows as well. That is highly problematic.

I am grateful for these amendments, which I think are probing. In any event, I think the Attorney-General should not be involved in this way at all. It seriously risks politicising already very delicate matters.

[Lord Lancaster of Kimbolton (Con)]

It is a great pleasure to follow the noble Baroness. I am particularly interested in her point about the Attorney-General not only offering advice on the potential conflict but being put in this position as well.

These amendments firmly caught my eye. The noble and learned Lord, Lord Falconer, outlined in his opening comments some of the challenges of overseas operations in a military context and politicisation—although in my mind all conflicts are political in one form or another. I immediately looked to see what historical examples there were of advice being published by the Attorney-General. There are not many. If we were to continue the theme of overseas operations and look back to probably the most controversial one of recent years—from 2003—the Attorney-General’s advice was certainly not published for that. Nor, I understand—though I am happy to be corrected—was it even given to Cabinet at the time. It is worth remembering how times change. There now seems to be an eagerness to publish the advice of the Attorney-General that was not there in 2003.

My instinct is that giving reasons goes against the grain of the constitutional principle regarding law officers’ advice: law officers do not confirm the facts or publish their legal advice or principles. I think that that is an important principle that enables frank advice to be given. If we accept that, an exception would create a slippery slope that could extend to other areas. There is also the reality that the sorts of information that the reasoning would be based on could have security implications, so should not be disclosed and would largely have to be omitted anyway. Lastly—I am no expert and this is a genuine question for noble and learned Lords in the House—I think that a judicial review, based on ordinary public law grounds, would surely be a sufficient check on decisions such as these.

--- Later in debate ---

[Lord Berkeley of Knighton (CB) [V]]

My Lords, the Minister, who has dealt with our concerns so graciously all afternoon, will probably realise that we now come to the winter of our discontent. It is here that I hope—if I may say so, with great respect—that she will consider even more carefully what is being said.

I support Amendments 14 and 36 in the name of my noble and learned friend Lord Hope of Craighead. He made the point—we hear it quite often in your Lordships’ House—that an undertaking from the Government to take seriously—to say that it is the intention of the Government—is not in itself a sufficient replacement for statute where something as vitally important as this is concerned.

Torture does not work—you hear what you want to hear—but it is also abhorrent, and, as the right reverend Prelate just said, it is immoral and uncivilised. We need for that reason to set an example which will protect our service men and women from possible torture if captured. I hope the noble Lord, Lord West, will forgive me if I quote a little further from what he has written:

“What is quite clear, and it was inculcated in us from day one of warfare training, is that ‘there are no circumstances in which torture, cruel, inhuman or degrading treatment can ever be justified’; it’s a principle that all members of our military must, and do, abide. We must be wary of creating a perception and certainly not a reality that this is not the case.”

[Baroness Chakrabarti (Lab) [V]]

My Lords, I do not know whether I am proud to speak in support of my noble friend Lord Robertson of Port Ellen and all the other moving speeches that I have heard or devastated that I feel that I need to. The arguments are clear and compelling and have been made from across your Lordships’ House. I need not repeat them save to remind the Minister that the warning from the chief ICC prosecutor is a very serious matter indeed and not something that any of us can be proud of. I therefore note in particular the speeches of my noble friends Lord Robertson and Lord Browne of Ladyton, former Defence Secretaries and one is a former Secretary-General of NATO. I have not always agreed with them on every matter of human rights disputes but the Minister and all your Lordships will know that their comments would not have been made lightly.

It was also important that the noble and learned Lord, Lord Hope of Craighead, reminded us of the universal jurisdiction over torture. I must therefore support not just Amendment 14 from my noble friend Lord Robertson but all noble Lords who are attempting to limit the reach of the Bill and prevent the presumption applying to war crimes, genocide, torture and crimes against humanity.

I say without hesitation to noble Lords who are not speaking in this group and who perhaps spoke in the past about what members of our Armed Forces would expect and whether we should feel comfortable looking them in the eye, that I have never met a member of Her Majesty’s Armed Forces who has attempted to justify any of those grave offences—quite the opposite. So much of their honour and their vocation is about believing in the rule of law and human rights internationally and putting their lives on the line so that grave offences of that kind are defeated elsewhere in the world and ruled out.

I return to the point made by the right reverend Prelate the Bishop of Leeds about sexual abuse. The Minister said very clearly on an earlier group that sexual offences had been singled out in the Bill because, in her words, the Government wanted to be clear that that kind of behaviour is never acceptable. Clearly, as a matter of domestic and international law, the offences touched on in this group—war crimes, genocide, torture and crimes against humanity—are never acceptable either. So there is a complete illogic about including sexual offences but not these other very grave matters.

The Minister will say that this is not a statute of limitation, it is just presumptive. I am afraid that that will not wash with large numbers of the public nor, crucially, elsewhere in the world, including, it would seem, with the chief prosecutor of the ICC. Furthermore, even if it were impossible for these offences ever to be perpetrated by Her Majesty’s forces in future, we have been told repeatedly that this is as much about reassurance and the signals that we send as it is about the letter of the law. Well, reassurance is a two-way street. It is of course about protection for our Armed Forces, but it is also about sending signals, not just to our Armed Forces but to our allies and friends—and to our enemies, including enemies who, I am sorry to say, might at some point in future have members of Her Majesty’s forces in their custody. That is perhaps the moment when these grave crimes become a matter of even closer concern than they are the rest of the time.

I say to the Minister, for whom I have a great deal of respect—I think she is a very gifted advocate but also a reasonable person, and one of the most decent members of the Government—and to the noble and learned Lord, Lord Stewart of Dirleton, as a law officer, who I think may be in his place, that this group of amendments, perhaps more than any other, should be responded to at the close of this evening’s debate with at least an offer to consider them. It would be unconscionable for something like this group not to be reflected in the legislation when it passes. And the legislation will pass, because of the Government’s mandate and majority. The Minister will remind us at various stages that the Bill was a manifesto commitment, but it was not ever a manifesto commitment to open the door, send a signal or give reassurance in relation to war crimes, genocide, torture and crimes against humanity.

People deserve advocates—even alleged wrongdoings deserve the most gifted and fearless advocates, and everyone should be so lucky as to have such a gifted advocate as the Minister—but we do not deserve the rotten law that is about to be made, exposing our Armed Forces, and humans all over the world, to lines that should never be crossed.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

I have received requests to speak after the Minister from the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord West of Spithead. I will call them in turn: first, the noble Baroness, Lady Chakrabarti.

[Baroness Chakrabarti (Lab) [V]]

I am grateful to the noble—

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

Excuse me, Lady Chakrabarti, the Minister has not completed her speech.

--- Later in debate ---

[Baroness Goldie (Con)]

I apologise for the confusion.

There was a further amendment: Amendment 15. It deals with Clause 6(6), which is the delegated power provision. That provision is there to ensure that the Government are able to respond to new developments and fresh concerns that may emerge in relation to potential offences in future overseas operations without the need to seek primary legislation every time a change is required.

Legislation that confers such a power to amend the list in the schedule to an Act is not unusual. Schedule 1 lists the offences excluded from the requirements set out in Clauses 2, 3 and 5, and the power is limited to amending this list of offences, so it has a very narrow scope. It is also not unusual that any exercise of the power to amend the schedule to an Act be subject to the affirmative procedure before any regulations can be made.

The noble and learned Lord, Lord Falconer, and the noble Lords, Lord Thomas of Gresford and Lord Tunnicliffe, have been supportive of this amendment. Its aim seems to be to further narrow the scope of the power in response to the concerns raised by the Delegated Powers and Regulatory Reform Committee.

I believe, however, that the concern over the power contained in Clause 6(6) has possibly arisen from the wider concerns regarding the requirements set out in Clauses 2, 3 and 5. I have tried to allay these concerns, and I have detected a growing acceptance that the Bill does not represent an absolute bar to future prosecutions of serious crimes. The delegated power will allow future Governments to adapt Part 1 of the Bill according to the lessons they may learn from overseas operations in future. To limit the scope so that offences can only be added to Schedule 1, as the amendment would wish, could have an impact on the Government’s ability to implement the lessons learned and adapt to what is likely to be an evolving operational landscape.

The power already has a very narrow scope and its use will still require the express approval of both Houses of Parliament. In these circumstances, I urge noble Lords to not move this amendment.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I am grateful to the Minister for what I can call only a predictably clear and gracious response. Because the Minister has agreed to reflect on this evening’s debate and consult her colleagues thereafter, I will just press her for a moment longer on the distinction between sexual offences and torture in particular, not with a view to further back and forth this evening but in the hope that it might influence her discussions with her colleagues.

The last 20 years have taught us that when torture is practised as a weapon of war, sexual torture is often one facet of that torture. It is not a nice thing to discuss. The other side of the coin is that of false allegations and clouds hanging over innocent and brave members of Her Majesty’s forces. Our Armed Forces, when overseas, can be as easily subject to false allegations of sexual offences as to false allegations of torture or any of the other offences that are not barred from the presumption against prosecution in the Bill.

If this is not about false allegations, there must be, as I understand the rationale, some kind of thinking, perhaps at the Ministry of Defence or elsewhere, that because our Armed Forces are engaged in violence, there is some kind of fine line, or borderline, between the violence in which we understand they are engaged and torture. If that is the case, I find it very troubling indeed. Are we back in the Bush White House? Are we back with the legal advice that it is not torture when it is enhanced interrogation, for example?

It seems to me that international law and our own ethical and legal norms are very clear on the distinction between the kind of violence that is sadly necessary in war situations and genocide, crimes against humanity and torture. There is not a borderline against torture, and that tacit acceptance of a grey area is just the kind of thinking that got people into such difficulties on both sides of the Atlantic over the last 20 years. So I humbly ask the Minister, in the spirit of genuinely trying to improve this, to examine that distinction between sex and torture, and sexual torture and other forms of torture, in particular, when she goes back to her colleagues in the department and elsewhere.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

Does the Minister wish to respond?

--- Later in debate ---

Therefore, all these amendments are necessary to ensure that there is full compliance with the Belfast/Good Friday agreement and the European Convention on Human Rights, in the context of the courts in Northern Ireland, for any offences that may have been committed in overseas operations. I beg to move.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I am pleased, as always, to speak after the noble Baroness, Lady Ritchie of Downpatrick, in support of her amendment, supported by the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lord Hain, who is of course a former Northern Ireland Secretary.

I need not repeat the point about the importance of the Belfast agreement—it is well known to everyone in your Lordships’ House—or explain the matters that the noble Baroness in self-deprecating fashion referred to as “technical”. These are not of course just technical matters, because the Belfast agreement is an international treaty. However, I will pre-empt any doubts that some sceptics may have about the importance of these rather neat amendments.

The Belfast agreement is not just about what happens in Northern Ireland but about the law and the values in relation to all communities in Northern Ireland and indeed on the island of Ireland. That is why it is so important that, even though the Bill is about overseas operations—not about operations in Northern Ireland itself—it is about the law and the values as they apply to people who may seek redress in the Northern Ireland courts, even if it is in relation to overseas operations in which they served or potentially argued they were otherwise victims.

I urge noble Lords to take these amendments extremely seriously, not least in the context of the group we have just heard about. The Minister and I may disagree about such things as whether I am right or wrong in my plain view that many aspects of the Bill violate the ECHR, but at least these amendments would allow where possible any wriggle room to be used for interpretation so that we do not fall foul of that precious agreement that has been so vital to maintaining relative peace for such a long time.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, these amendments are designed on the assumption that provisions in the Bill might be contrary to the human rights convention and, of course, the Human Rights Act. I regard it as 110% essential that the Belfast agreement is fully respected and implemented. I have therefore supported this amendment on the view that, since a question has been raised about it, it is right that it should be thoroughly checked and that, if necessary, these amendments should be inserted to make sure. I have my doubts as to whether it is necessary but I am all in favour of it being checked in detail by those who drafted the Bill, to make sure that, whatever happens, the Belfast agreement is not damaged in any way by the provisions in the Bill.