Overseas Operations (Service Personnel and Veterans) Bill

Lord Campbell of Pittenweem Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Lord Campbell of Pittenweem (LD) [V]]

My Lords, it is a pleasure to follow all who have spoken in this debate, because it has been of rare quality. Like others, I want to begin by expressing my admiration and affection for the Armed Forces and recognising the particular imposition their families are subject to when they find their loved ones are engaged in extended deployment across the world, often in harm’s way.

As the debate has progressed it has become clear that the Bill enjoys considerable sympathy for its intentions, but it has little support for its substance. This is all the more surprising since there was prior consultation in relation to it. This necessarily creates a dilemma: should the Bill be supported and energy invested in amendments, or should it be rejected?

My noble friend Baroness Northover pointed out early in the debate that, in spite of a wealth of amendments in the other place—many of them similar to the observations and criticisms made today—the Government refused to accept any of them. So, what confidence can we have that amendments made in this House on, for example, the matters of torture or war crimes would not simply be rejected again? If we accept that it is our responsibility to do our best to put this Bill into proper order, we are entitled to expect a change of heart from the Government and certainly no repeat of their apparent unwillingness to accept any amendment or notion which deviates in any way from the exact terms of the Bill.

If the Bill remains in its present form, how can we possibly accept provisions which constitute a breach of international law? This is not new territory, as the noble Lord, Lord Touhig, reminded us at the outset of the debate. He recalled, as others have done, the now enacted United Kingdom Internal Market Bill.

The noble Baroness, Lady Kennedy, made a powerful case regarding our responsibilities according to those elements of international law relevant to our consideration. Would we really be willing to consider a possible breach of the United Nations Convention against Torture? Would we really, in spite of the observations made about the creation of the Geneva conventions, be willing to consider breaching them? If any individual member of our Armed Forces found himself or herself subject to prosecution by the International Criminal Court, would we really be willing to act in a way that constitutes a breach of the Rome statute of that court?

In a very short report, no doubt under the pressure of time, your Lordships’ Constitution Committee raised a number of issues. I wish to return to one raised by the Minister, who opened the debate in, as has already been pointed out, her characteristically frank and helpful fashion. The committee said:

“The House may wish to seek the reasons for including most war crimes and crimes against humanity in the presumption against prosecution.”

The Minister offered some kind of explanation for that. I say to her, with all due deference, that she will have to find something rather better than what she offered today, because up to now I do not accept—and I believe I am not alone—that the Government have found sufficient justification for the way they have framed the presumption. That, in many respects, is the most damaging feature of this Bill. I hope we will have the opportunity to get the Bill into a condition which achieves the Government’s intentions, even though it cannot now necessarily be read as capable of achieving these intentions at all.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Campbell of Pittenweem Excerpts

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

[Lord Campbell of Pittenweem (LD)]

My Lords, I support this amendment, to which I have added my name. It is always a pleasure to follow the noble and learned Lord, Lord Hope of Craighead, not least as, like him, I had the privilege of serving as an advocate depute, as Crown counsel, under the authority of the noble and learned Lord, Lord Mackay of Clashfern.

As others have done, I begin by saying that the Armed Forces have my unequivocal support and admiration, not least because they often put themselves at risk of their lives in the interests of this country. More particularly, in recent months they have demonstrated precisely the flexibility and capability that have enabled us to deal with the problems caused by the coronavirus.

I can be brief because I shall speak only to Amendment 14. In doing so, I accept and adopt the speech of the noble Lord, Lord Robertson of Port Ellen, authoritative as it was because of his previous responsibilities as Secretary of State for Defence and Secretary-General of NATO. It is clear that the purpose of this amendment is simple: to remove the presumption against prosecution for war crimes, crimes against humanity, genocide and torture. I accept that the Bill does not prevent prosecution, but I believe that a presumption against it is misconceived.

In support of that, I pray in aid the executive summary of the Bill produced by the authoritative Bingham Centre for the Rule of Law on 19 January 2021. I begin with a direct quote. It says 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 United Nations Convention Against Torture.”

Further, it says that the Bill weakens the United Kingdom’s reputation for decisive action against war crimes and increases the likelihood that British soldiers may be prosecuted in the International Criminal Court. We heard, in the introduction by the noble Lord, Lord Robertson, of this amendment, the particular interest that the Chief Prosecutor of the International Criminal Court is taking in this legislation.

I have great difficulty in understanding the Government’s position on this matter. I have tried. I listened to and, indeed, read again the speech of the noble Baroness at Second Reading. She was kind enough to extend the opportunity to me and others to discuss particular issues connected with the Bill. I have read, too, the letter that the Government produced.

Respectfully, one difficulty is the fact that there is opposition such as I have described. I have no recollection, in the proceedings on the Bill so far, of any noble Lord speaking enthusiastically in support of the provisions that we seek to remove. That opposition consists, for example, of the Joint Committee on Human Rights—as the noble Lord, Lord Robertson, has just told us—General Sir Nick Parker, Elizabeth Wilmshurst and the noble and gallant Lord, Lord Guthrie of Craigiebank. I would add to that panoply the noble and learned Lord, Lord Falconer of Thoroton, because, in the latter part of his speech on the first group that we discussed today, quoting the perceptive remarks of Mr John Healey, Member of Parliament, in the other place, he made the case against the Government’s provisions as eloquently as I have heard. If this were a piece of civil litigation, it would be easy to argue that all the authorities favour the amendment. I favour the amendment for this reason: it is necessary for both reputation and regulation, and I shall vote for it.

[The Lord Bishop of Leeds [V]]

My Lords, I understand the stated rationale for this Bill and I state at the outset that I have enormous respect for the noble Baroness the Minister, but I am struggling. I am not a lawyer, but I would like to focus on a couple of specific questions. I understand the difficulty with vexatious and untimely litigation, which is a curse, but legitimate litigation, however inconvenient, is surely the blessing of a free and civilised society that honours international law and a rules-based system in more than words.

The basic reason why I speak in support of Amendment 14 is that I fear the law of predictable or conscious consequences more than the law of unintended consequences. I ask the Minister to explain clearly this anomaly, which I cannot get my head around: this Bill, as currently drafted, will make it possible for an incident of torture or murder not to be prosecuted while a sexual offence committed in the same incident would be subject to prosecution. That suggests to me either that the reference to sexual offences is arbitrary or that torture and crimes against humanity and so on should also be admitted in the same category.

I understand the assertion that the Bill does not prevent prosecution, but we are dealing with law, not just with assertions of what may or may not be possible—it is what is written in the body of the Bill. I have said that I am not a lawyer, but I support the Armed Forces—my first career was at GCHQ in Cheltenham, providing direct support to our forces, not least during the Falklands conflict—and, despite not being a lawyer, I know that torture is absolutely forbidden in both domestic and international law and that no bars to prosecution are possible.

As Field Marshall Lord Guthrie pointed out more than once, these restrictions in the Bill cannot stand unchallenged. He said:

“By introducing a statutory presumption against prosecution and statutes of limitations, this bill undermines the absolute and non-derogable nature of the prohibition of torture and violates human rights law as well as international criminal and humanitarian law.”


Making torture an excluded offence under the Bill would, I think, have the double benefit of first, avoiding what Lord Guthrie rightly called the “de facto criminalisation” of the offence and, secondly, keeping the UK in line with the rules-based international order that we claim to uphold.

Genocide, crimes against humanity and war crimes are similarly forbidden in law. Amending the law as proposed in the triple lock would make the UK the only country in the world to have deliberately legislated to restrict the Geneva conventions. Where does this place us in a world to which we claim to be an example of law and civility? Most oddly to my mind, however, as a signatory to the 1998 Rome statute, which enables the International Criminal Court to prosecute genocide, crimes against humanity and war crimes when a Government are unable or unwilling to do so, the Bill will make it possible for British soldiers to be prosecuted in the Hague—that is, before a foreign court. Really?

I strongly support the amendment not just because of the legal questions, but because there is a strong moral case for it. I recognise that the last time I made a moral argument in this House during the internal market Bill, it was dismissed by another Minister with the words, “We will not be listening to moral strictures,” but there is a moral case here. The church that I represent stands with victims of torture, and I think that our nation has done hitherto and should continue to do so. Our reputation as a country that is committed to the rules-based international order matters more than I think we sometimes realise. This amendment would further incentivise the UK to maintain the highest standards on the battlefield. It is this that differentiates the civilised from the uncivilised in combat.

If the Government will not accept the amendment, I would be grateful if they could explain rationally, legally and consistently, and perhaps even morally, why these anomalies are acceptable.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Campbell of Pittenweem Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

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.

[Lord Campbell of Pittenweem (LD)]

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.

[Lord Hannay of Chiswick (CB) [V]]

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.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Campbell of Pittenweem Excerpts

Consideration of Commons amendments
Monday 26th April 2021 Lords Chamber

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

My Lords, the following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord Campbell of Pittenweem, Lord Anderson of Ipswich and Lord Lansley. I call the noble Lord, Lord Campbell of Pittenweem.

[Lord Campbell of Pittenweem (LD)]

My Lords, I begin by congratulating my noble friend Lord Robertson of Port Ellen on leading the opposition to the original proposals contained in the Bill. He did so with great skill and persuasion. At the same time, I thank the Minister, who clearly listened avidly throughout the proceedings in connection with these matters. I think it is fair to say that she did not always give the impression of being enthusiastically in favour of the provisions of the Bill. The noble Baroness was brought up in the Roman law traditions of Scots law. In those circumstances, the expression “pacta sunt servanda”—promises have to be kept—will come as no surprise. I suggest that this remark should be reproduced above the desk of every policymaker in government. I am at some pains to understand who in the Government endorses proposals which are, prima facie, contrary to law. I say that not only in relation to the topics the House is discussing today but also drawing your Lordships’ attention to Part 5 of the internal market Bill in which this House and the other place were encouraged by the Government to create circumstances in which the Government could break the law without any adverse reaction. It seems to me that there is a unit of opinion—or, perhaps, some powerful policymaker—somewhere in the Government which does not appear to have sufficient understanding of the important fact that, for a country which argues as frequently as it can for the rules-based system, our ability to do so is substantially undermined if we are not shown to be adhering to that very system. If you want to preserve your reputation, you cannot play ducks and drakes with the law.

The Government may have been saved the consequences of the original provisions, but it is important to remember that, as the Minister and the noble Lord, Lord Robertson, made clear, they had excited the concerned interest of the United Nations and the International Criminal Court. The UK is a permanent member of the Security Council of the United Nations. How embarrassing would it be if it was thought that this country had departed from the provisions of the United Nations charter and conventions made under and in respect of it? As the noble Lord, Lord Robertson, pointed out, there was a discussion about whether the United Kingdom should join the International Criminal Court—I remember it. The balance of opinion was that it should and, if my recollection is correct, the United Kingdom was a founder member. How equally embarrassing it would be if, as a former original member of the International Criminal Court, the United Kingdom had to be brought before it.

There is a benevolent outcome in this matter, but it will take some time. We may have saved the Government from the consequences of the original provisions, but we will not save ourselves from damage to the reputation of this country. We should be very sure that, from now on, we will do everything in our power to make certain that that reputation is justified and, in particular, that our legitimate claim that we embrace the rules-based system on all occasions can be shown to be endorsed, not just in principle, but in practice as well.

[Lord Anderson of Ipswich (CB)]

It is a pleasure to follow the noble Lord, who speaks with such great authority in this area. I spoke about war crimes at Second Reading and again in Committee, and supported, though did not sign, the amendment in the name of the noble Lord, Lord Robertson, that was carried on Report. I came in today because I thought it was important to emphasise that the omission of war crimes from the list of exclusions, which I understand to have been the Government’s position until just now, was not some minor footnote to the noble Lord’s amendment. It tore the heart out of it because it destroyed its objective of protecting our troops from prosecution in the ICC. For that reason, I was delighted to hear just a few minutes ago that the Government have finally agreed not to oppose Motion A1.

It was of course right in principle to exclude genocide and crimes against humanity from the presumption against prosecution, but the practical implications of doing that were, frankly, negligible. After all, the crime of genocide requires,

“intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Crimes against humanity qualify as such only when they are

“part of a widespread or systematic attack directed against any civilian population”.

Not even in the extravagant imagination of Mr Phil Shiner could British forces be accused of these most serious of crimes. Of course, the original concession also extended to torture. That could have practical effects because British servicemen are, unfortunately, sometimes accused of that crime. It is right that the presumption against prosecution should not apply after five years to that very serious crime.

However, torture is only one war crime among the dozens listed in Article 8(2) of the Rome statute. Let me remind noble Lords of just some of the others: wilful killing; inhuman treatment; causing great suffering; the destruction and taking of property; unlawful confinement; attacking civilians; excessive incidental death, injury or damage; attacking undefended places; killing or wounding a person hors de combat; and outrages upon personal dignity.

In contrast to genocide and crimes against humanity, it is, I am afraid, quite possible to imagine such crimes being alleged—perhaps credibly—against British service personnel. The noble Lord, Lord Robertson, mentioned the letter sent last Friday from the ICC chief prosecutor to David Davis MP, in which she said:

“Some of the most serious cases pending before the competent investigating and prosecuting authorities in the UK, including those examining pattern evidence and command responsibility, concern such alleged crimes.”


If this Bill were to result in a decision not to prosecute after five years had passed, this latest letter puts it beyond doubt that such cases would be considered admissible before the ICC on the basis that the UK was unable or unwilling to prosecute. I respectfully suggest to the Minister that prosecutors could well take on cases of this kind that were deemed sufficiently strong, not least because the prosecution of British service personnel would be a firm warning to other states within the jurisdiction of the ICC that might be toying with the idea of following the dismal international lead set by the original version of this Bill.

For these reasons, I congratulate the noble Lord, Lord Robertson, and his supporters on holding their ground, the Minister on her efforts and the Government on finally agreeing to do the right thing.