Overseas Operations (Service Personnel and Veterans) Bill

Lord Hope of Craighead Excerpts

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

[Lord Hope of Craighead (CB) [V]]

My Lords, there are indeed various reasons to be concerned about the Bill but I should like to concentrate on two of them: the omission of torture from the list of offences which are excluded from the restrictions on prosecution in Part 1, and the duty to consider derogation from the convention in Clause 12. In doing so, I am drawing on my experience when I was sitting as a member of the Appellate Committee of this House in the cases of Pinochet in 1999, which was brought under the torture convention, and A v the Secretary of State in 2004, in which we held that a derogation order allowing for indefinite detention should be quashed.

Prohibition of the crime of torture has been recognised for many decades as one of the most fundamental obligations of the international community. It cannot be derogated from in any circumstances and all nations have an equal interest in the apprehension and prosecution of the offenders. In 1987 the UN Convention against Torture, which the United Kingdom did much to promote, came into force. One of its achievements is to prevent evasion of punishment by the torturer moving from one state to another. This is because article 5 requires each state party not only to establish its jurisdiction over torture when the alleged offender is a national of that state, but to take jurisdiction over any alleged offender who is found within its territory. This is an international crime against which there is no safe haven.

For us to apply the measures listed in Part 1 of the Bill, the practical effect of which would, at the least, risk conferring immunity on the torturer after five years, would run counter to everything that the convention stands for. For that to happen would be a manifest breach of international law. As for the offender, such immunity as he may obtain in this country would be no protection against his being brought to justice elsewhere, as Senator Pinochet was to discover. It is not only the risk of having to face the International Criminal Court; it is the risk of being prosecuted for his crime in any other state that is a party to the convention to which he may go. The damage to our reputation, if that humiliating situation were to occur, would be incalculable. How could we be taken seriously in our attempts to promote the rule of law in those countries that least respect it? Torture should be on the list of exclusions.

Article 15 of the convention on human rights allows the state to

“take measures derogating from its obligations … In time of war or other public emergency threatening the life of the nation”

but only to the extent that this is “strictly required”. The words

“threatening the life of the nation”

are understood to mean an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community. The standard that these words set is very high. Furthermore, derogation from protection of the right to life, for which we should note our own Armed Services personnel may also benefit, is permitted only for lawful acts of war, and no derogation at all is permitted from the prohibition of torture or inhuman or degrading punishment. This leaves the right to liberty, derogation from which would allow indefinite detention without charge, as the Secretary of State looked for in the case of A.

We are concerned in this Bill only with overseas operations, in which members of the Armed Forces come under attack or face the threat of attack or violent resistance. It seems that the need to conduct operations overseas, however significant, is very unlikely on its own to meet the test for derogation. Could it be said in these circumstances that the Secretary of State was facing a crisis or emergency which affects the whole population of this country and constitutes a threat to the organised life of the community? If not, prompting him nevertheless to consider derogation from the convention would be pointless, as the attempt would fail. In any event, do we really think that the Secretary of State would need to be reminded of this provision if the extreme situation that really does justify derogation were to occur? This clause looks like mere window-dressing. I suggest that it should be removed from the Bill.