Overseas Operations (Service Personnel And Veterans) Bill

Debate between Stephen Timms and Ben Wallace

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.