Overseas Operations (Service Personnel And Veterans) Bill

Stephen Timms Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 23rd September 2020 Commons Chamber

[Mr Wallace]

I am going to make some progress. I know that there are lots of people down to speak in this debate and, although I am willing to give way as much as possible, I would like to make sure that other Members across the House get a chance to speak and make their points.

Let me set out what the Bill does and what it does not do. First, the Bill ensures that, in accordance with article 6 of the European convention on human rights, every member of the armed forces and Crown servant is

“entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Not my words, not the Government’s words, but the actual words in the ECHR itself. Note the phrase “reasonable time”. That condition runs right through this Bill.

Clauses 1 to 7 introduce new conditions on prosecution for certain offences. In particular, clause 1 sets out when the presumption against prosecution measures will apply, including that the measures will apply only to alleged events that took place on overseas operations more than five years ago. Clauses 2 to 5 create new thresholds that a prosecutor is required to consider when bringing a case. That will give service personnel and veterans greater certainty that the unique pressure placed on them during overseas operations will be taken into account when decisions are made on whether to prosecute for alleged historical offences. The first threshold is that, once five years have elapsed from the date of an incident, it is to be exceptional for a prosecutor to determine that a serviceperson or veteran should be prosecuted for alleged offences on operations outside the UK.

[Stephen Timms (East Ham) (Lab)]

When the Secretary of State’s Department consulted on the Bill in July last year, it suggested that there were two categories of offence that might be excluded from the Bill. One was sexual offences, and the other was torture. Sexual offences have been excluded; why has torture not been?

[Mr Wallace]

First, I took the decision that, if we look back at many examples of case law or challenges, the debate around torture and murder has often been about the excessive use of an action in doing something that is what a soldier may or may not think is legitimate. For example, it is an act of war to go and attack a target. It is, unfortunately, an act that a soldier may have to do, which is to use lethal force in defence. It is often a side effect or a consequence of an action that you detain people. Often, the legal debate around that has focused on whether the soldier has been excessive in that use of force. If a soldier uses an excessive amount of force in self-defence on duty, that is viewed as murder. That is where we have often seen challenges in courts around both investigations and decisions to charge.

What is not part of war in any way at all is sexual offences. It is not a debatable point. It is not a place where it is possible to turn on a coin and argue that there is a right and a wrong. That is why I took the view that we should exclude sexual offences from schedule 1 but in the main part of the Bill cover all other offences. It is not the case that, even after five years, someone cannot be prosecuted for torture, murder or anything else. It is absolutely clear that it is still possible to prosecute, and it is our intention, should new or compelling evidence be brought forward, to prosecute for those offences. The Bill is not decriminalising torture and it is not decriminalising murder in any way at all. I mentioned earlier the view of the former Attorney General of Northern Ireland, who is himself well practised in that type of law and an expert.

--- Later in debate ---

[Stephen Timms (East Ham) (Lab)]

I am pleased to follow the hon. Member for Morley and Outwood (Andrea Jenkyns) and I share her objective of ending vexatious claims. But it is to our shame that Governments of which I was a member, in circumstances that we still do not fully understand, participated in rendition leading to torture. That should not have happened and it must not be allowed to happen ever again. That is the aim of the all-party group on extraordinary rendition, of which I was recently elected Chair. I am afraid that this Bill will not help with that shared objective. I am troubled, for example, that, in the Bill, the presumption against prosecution will extend not just to the battlefield, not just to the sort of circumstances that the hon. Member for Wolverhampton South West (Stuart Anderson) very powerfully explained to us a few minutes ago, but to peacekeeping operations and to a worryingly undefined category of operations dealing with terrorism. We could so easily slip back to repeating what went so badly wrong before.

The House’s Intelligence and Security Committee has carried out two investigations on extraordinary rendition. There is still a great deal that we do not know, but the Committee has identified hundreds of cases linked to the UK. Many of the people involved still do not know that the UK was involved in what happened to them, and it would be quite wrong to cut them off now from any legal redress. There will one day need to be a judge-led inquiry into what happened with that extraordinary rendition, but, for now, the Government seem to have set their face against that. It may well fall to the Front Bench of this party to do the right thing, but let us not now choose to downgrade the seriousness with which we regard acts of torture. I asked the Secretary of State why, having floated the idea of excluding torture from the remit of this Bill along with sexual offences, the Department did not exclude torture. Sexual offences, I am pleased to say, have been excluded. The Secretary of State did not give an answer. He simply said that that was the decision that he had made. In the case of sexual offences, it is absolutely right: those are not acceptable in any circumstances. Surely the same is true for torture. That must surely be the view of this House and of the British Government as well.