Overseas Operations (Service Personnel and Veterans) Bill

Lord Dubs Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

[Lord Stirrup (CB)]

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.

[Lord Dubs (Lab) [V]]

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.

[Lord Morris of Aberavon (Lab) [V]]

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.