Overseas Operations (Service Personnel and Veterans) Bill

Lord Hannay of Chiswick Excerpts

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

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

My Lords, I will speak in support of Amendment 14 in the names of the noble Lords, Lord Robertson, Lord Alton, Lord West and Lord Campbell, and Amendment 36 in the name of my noble and learned friend Lord Hope of Craighead. In doing so, I apologise for not having spoken on Second Reading, due to an inadvertent mistake over timing.

I back the amendments not out of any objection to the Bill as a whole. The Bill’s objectives are laudable ones of giving protection to our service personnel against vexatious inquiries and prosecutions. However, the Bill as drafted actually increases those risks rather than reduces them. I oppose these defects, which the amendments seek to remedy on the grounds of both practicality and principle. The practical problem is a very obvious one. While the Bill places limitations in time in our domestic law on the pursuit of inquiries and prosecutions, it does not and cannot impose such limitations with respect to our international obligations under the Rome statute, which established the International Criminal Court and which Parliament ratified and gave effect to before its entry into force. The Rome statute, in whose negotiation we participated fully—I was myself involved to a modest extent when I was the UK’s Permanent Representative to the UN in 1995—contains no such limitations with respect to the crimes identified in the statute. The risk is therefore, as many other noble Lords have said, that our service personnel could be prosecuted in the International Criminal Court even though we had declined, under the provisions of this Bill, to take any action.

That is no theoretical risk. Quite recently, the prosecutor of the International Criminal Court decided not to pursue cases against our personnel on the explicit grounds that we had domestic legislation to deal with the alleged offences and had demonstrated our willingness to use it. This could therefore be a case, I fear, of being out of the frying pan and into the fire if we do not take steps to remove from the scope of the Bill the extraordinarily serious offences set out in the Rome statute.

The argument of principle in favour of these amendments leads on from the practical argument. The International Criminal Court is an important part of that rules-based international system which the Government have argued, quite correctly in my view, that it is in our national interest to sustain. In recent years, the Government have done a good job in doing precisely that against the intemperate onslaughts of the Trump Administration against the International Criminal Court. Here, however, we are being asked to legislate in a way that could put us in contradiction with our obligations under the Rome statute. That clearly is not a sensible or principled thing to do. At worst, it could lead to British service personnel being prosecuted unnecessarily in the ICC, which would inevitably lead to an outcry in this country, possibly challenging the basis of our membership. Less dramatically, it will be seen by the critics and opponents of the International Criminal Court around the world—in places like Russia and China, and the US in some parts of the body politic—as a weakening of our support of the court and as undermining its authority. For both the reasons of practicality and principle, I hope that the Government will, before we get to Report, reconsider these flawed aspects of the Bill and remedy them.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Hannay of Chiswick Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

[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.

[Baroness Blower (Lab) [V]]

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.