Overseas Operations (Service Personnel and Veterans) Bill

Lord Hope of Craighead Excerpts

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

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

Lord Boyce, we will come back to you later. I now call the noble and learned Lord, Lord Hope of Craighead.

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

My Lords, I spent four years at an earlier stage in my career as a prosecutor in Scotland. I was one of the Lord Advocate’s relatively small team of Crown counsel, known as his advocate deputes. For much of that time, the Lord Advocate was the noble and learned Lord, Lord Mackay of Clashfern. It is a real pleasure to see him taking part in our proceedings this afternoon. It was part of my job to take decisions under his authority as to whether or not a prosecution should be brought, and to conduct the prosecution if it was decided that it should proceed. I therefore have some insight into how these decisions are taken.

Of course, there are differences between my job then and what we are contemplating now. I was working in Scotland, under its own system of criminal law, about 40 years ago. While nothing much was actually written down then, there were some well-understood principles to guide us. Much of this was based on the fact that we were acting in the public interest. We had to balance the interests of justice against the accused’s right to a fair trial. Within those broad concepts, there was room for a variety of other factors that we would take into account, guided by common sense and what we had learned by experience.

That having been said, I acknowledge that in today’s world there is the need for a more formalised system of rules. That helps to achieve consistency in decision-making, and it helps to reassure the public that these important decisions are soundly based. In the context of this Bill, I acknowledge that “the public” must include service personnel serving or who have served in operations overseas. After all, reassurance to them is what this Bill is all about.

That brings me to Amendment 3, and afterwards to Amendments 5, 6 and 28. The wording of Amendment 3 does not come as any surprise to me. It relates to the ability to conduct a fair trial, and makes a proposition that hardly needs to be said. As the noble Lord, Lord Lancaster of Kimbolton, said, this principle applies as a matter of course. I cannot imagine that the proposition would have escaped my attention had I been responsible for taking these decisions, but of course the real point of Amendment 3 is to challenge the presumption and replace it with something else which has equivalent force, removing the hard edge of presumption.

On the whole, I am uneasy about a presumption that applies after a particular time limit. Cases vary and the facts differ from case to case; what might be absolutely right in one case could be very unfortunate in another. There is a real difference, however, between the presumption in Clause 3, which uses the word “exceptional”, and the word “materially”, which is the key word in the amendment. It is a much softer alternative. I am uneasy as to whether it really is an adequate replacement for the presumption if the aim is to get rid of the presumption and replace it with something of equal force.

--- Later in debate ---

I return to where I started—I say this to the noble Lord, Lord Lancaster, in all decency—and repeat my respect, admiration and, indeed, affection for those who serve us in uniform. They are special people and we owe them so much. The Bill pretends to offer support for them, but instead it undermines their reputation. It pretends to protect them from vexatious prosecution and investigation but instead opens them to ICC prosecution. It pretends to uphold strong, reputable British legal standards but actually undermines and devalues these very standards. I urge the Government to think again and accept this amendment. I beg to move.

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

My Lords, I support Amendment 14 for all the reasons that the noble Lord, Lord Robertson of Port Ellen, has given. But I also wish to speak to Amendment 36 in my name, which would add torture to the list of statutory offences in Schedule 1, and to Amendments 37 to 45 in the name of the noble Lord, Lord Tunnicliffe, which broaden the list of exceptions to include genocide and crimes in breach of the Geneva conventions.

In effect, what we are seeking to do is to provide the Government with an alternative to the approach taken by Amendment 14, which would place these exclusions in the body of the Bill—and in that way be more secure—and not in the schedule. For what it is worth, I should explain that I got in first with my Amendment 36, but I certainly do not claim primacy for my approach. I was seeking to fit in with the structure of the Bill, and it did not occur to me to deal with these issues in the rather more skilful way proposed by the noble Lord, Lord Robertson.

My particular interest, for the reasons mentioned at Second Reading, is to ensure that torture is not a relevant offence for the purposes of the Bill. It is all very well—if I may say so with great respect—for the Minister to say that the Government take that offence very seriously. But the case for excluding it is compelling—as indeed it is for the other offences on this list. The risk, if this is not done, of our armed personnel being prosecuted in the ICC has been addressed by others, including the noble Lord, Lord Robertson. However, I wish to emphasise the nature and strength of our international obligations and the importance of adhering to them and of our being seen to do so.

The torture convention stands out as an instrument which places torture carried out by public officials or others acting in an official capacity, such as those in our armed services, at the very top of crimes abhorred by the international community. Of course, the same could be said of genocide, although the rather primitive genocide convention lacks the teeth that the torture convention provides. Lord Bingham of Cornhill, as the senior Law Lord presiding over the Appellate Committee of this House, said in one of his judgments that the nature of the prohibition of torture requires the states that are parties to the convention, as we are,

“to do more than just eschew the practice of torture.”

Condemnation carries with it the obligation to punish acts of torture wherever and whenever the perpetrator is found within our territory. There is no time limit on this obligation. As the noble and learned Lord, Lord Morris of Aberavon, said earlier today, there is no exemption for this offence.

The idea that there should be a presumption against prosecution, making it exceptional for proceedings to be brought, as Clause 2 provides, simply cannot be reconciled with our obligations under Articles 4 and 5 of the convention to establish jurisdiction over and punish the torturer. These obligations are not qualified. They are not in any way reduced or softened by the passage of time. The plain and simple breach of the convention, which that provision amounts to unless torture is excluded from its reach, would be very regrettable, to say the least. It is certainly not the example we should be setting for other signatories of the convention which may be less concerned to uphold it than we are or have legal systems less strong than ours. We should uphold the convention, not undermine it, as the Bill seeks to do. I am sorry to put it that way, but, quite frankly, that is what is happening here.

There is another point, mentioned by the noble Lord, Lord Dubs. One of the innovations in the torture convention was the concept of universal jurisdiction. All states that signed that convention have a duty to establish jurisdiction over an offender. We recognised our obligation to do this in the case of Senator Pinochet. We will be doing members of our armed services a great disservice if, by declining to prosecute them here by applying this presumption, we expose them to the risk of being prosecuted by other contracting states anywhere in the world that are more alert to their obligations under the convention than we would be. Let us avoid that risk, as the amendment of the noble Lord, Lord Robertson, seeks to do.