My Lords, it is a pleasure to follow the noble Lord, Lord Touhig, and to assure him that we will stand with him in his opposition to the Bill.
It is a hot and sticky night in Iraq; in a small prefabricated, concrete guard hut, 20 men are detained by British soldiers. Their heads are hooded and their arms bound behind their backs. There is no battlefield stress—this is the secure British headquarters in Basra, and these are civilians. They are forced into stress positions, half-squatting without support. They cannot see, but they can certainly hear; they are yelled at and called “apes”. Their moans are orchestrated by their mocking captors into a choir, with a corporal in charge conducting them—literally. If they move from the stress positions they are struck, either with a stick or a fist. The smell is indescribable. Passing soldiers are invited into the hut to get their own punch in, and some do. The post mortem reveals 93 separate injuries to a man who died, Baha Mousa. That was the evidence I heard unfold at the court martial in Bulford.
Let us reverse the picture and suppose that the men being beaten are captured British soldiers. Every noble Lord can think of a young and enthusiastic serving soldier who risks that fate. Their captors say to them: “You do this to us; we will do it to you”. Let us wind the clock on in this scenario and suppose that the enemy state has investigated. It has taken its time, but it has identified the torturers—but their law follows the British precedent set by the Bill. They cannot be prosecuted, and the British soldiers cannot claim compensation because it all happened six years ago. There is no prosecution, no punishment and no compensation.
Veteran soldiers have been trained to go into battle, to face bullets and bombs on our behalf, but the Government suggest that questioning by a British court would be too stressful—too stressful for the soldiers to go into a witness box or the dock; they would have to relive horrific events, even if they have themselves caused or participated in them. Everything is wrong about this Bill. “We are against ‘lawfare’”, they say—legal constraints around armed conflict. What do they want, “unlawfare”? Is there a single noble and gallant Lord speaking today who will say that his decisions made in actual conflict were hampered by the Geneva conventions; that he would have acted differently if it were not for the law; that he would have tortured prisoners of war for information? War is a bloody and barbaric event. Western democracies have sought to curb its worst excesses. Is it to be the policy of Her Majesty’s Government to abandon those international standards and to give effective immunity against anything to her Armed Forces in the field? Can you abuse, shoot and kill not just the armed opposition but civilians like Baha Mousa, a hotelier, without any consequences at all?
Looking at the Bill, it is obvious that the Government have forgotten that there can be no prosecution without an investigation. It is two stages: investigation first, prosecution second. There is absolutely nothing in the Bill—no time limitation—which prevents an investigator knocking on the door of a veteran 30, 40 or 50 years after the event and arresting, interrogating and charging him. The Minister called it “corrosive uncertainty”.
Well, that is stressful, but investigation may not seem worth the trouble. If the investigator has produced a file with sufficient evidence of, say, torture, to convict, the Bill obliges the director to ignore it. He must go straight to the second question: is it in the public interest? Regardless of the merits, the presumption against prosecution kicks in. Even if he decides to prosecute, he can be overruled by the political decision of the Attorney- General, which probably depends on how many people are protesting in Parliament Square.
There is an anomaly. Sexual offences are excluded from the presumption, so if a soldier tortures, rapes and kills a civilian, there is a presumption against prosecuting him for the torture and the murder but not for the rape. This is surely indefensible on any policy or moral basis. I hope that amendments to excise Part 1 entirely will be brought forward to preserve our moral leadership in the world, which is the passionate plea from Theresa May in today’s papers.
What about the five-year limitation period for criminal proceedings? Investigating what has happened in overseas operations is no easy task. Witnesses have to be found. There are language difficulties which can mislead an investigator. There are logistical difficulties in bringing witnesses to this country for the trial. I shall never forget the lady brought all the way from a dusty village in Iraq to give evidence to the 3 Para court martial in Colchester in 2005. She stepped into the witness box, took the oath on the Koran and addressed us. She said that now she had sworn on the Koran she had to tell the truth. The incident she had described to investigators, of a soldier ripping off her clothing, was entirely a figment of her imagination. Former Judge Advocate-General Jeff Blackett told the Commons Committee on the Bill that the two murder cases from Iraq in which he was the judge—the 3 Para and Marine A cases—had been brought to trial within two years of the events. It is not the prosecuting procedures which cause delay, it is protracted investigations, about which the Bill says nothing.
What signal does it send to an enemy if a Minister announces a derogation from the European Convention on Human Rights? Will Parliament have a say on the wilful killing or torture of prisoners? The Bill is silent. Does the Minister agree that such a serious step, of such danger to any of our troops falling into enemy hands, should be taken only with the consent of both Houses, on a vote, and that that should appear on the face of the Bill?
On the civil side of this litigation, the current system has not failed. Unmeritorious claims have been dismissed and Paul Shiner has been struck off the roll. That is over, but the Government have paid out some £32 million in compensation to claimants, mostly for allegations of torture during interrogation. In answer to my Written Question last June, the Minister herself replied:
“If … it is found that there is substance to the allegations and there has been negligence on our part, compensation is paid”—
£32 million. So all the claims that have been brought are not unmeritorious. The Government have settled rather than face a court hearing when the allegations can be publicly ventilated. The Bill does not protect veteran servicemen because they do not need protection. They are never involved in the proceedings, even as a
witness, because it all happens in discussions in the robing room outside court—if it ever gets that far. It is surely wrong to pretend that immunity from suit is for veterans when, in practical terms, it only saves the Government paying out millions on claims which they would agree are meritorious.
The Bill is all wrong. It creates greater risks for currently serving soldiers, whose enemies will do unto us as we do to them. It destroys even further the British reputation for the rule of law and the upholding of human rights. It does not protect veterans from intrusive investigations years after the event. The International Criminal Court is watching us today. We promoted and ratified the Rome treaty, which binds us to it. It has no limitation period, no presumption against prosecution, no triple lock. It opened a dossier on the UK two years ago, to monitor whether we deal properly with war crimes such as torture. People may think that the court is concerned with Bosnian leaders or African dictators but, if the Bill goes through, we will one day suffer the ignominy of seeing a British serviceman dealt with by that court because our system has failed to bring him to justice. In the Baha Mousa murder trial, there was only one conviction: of the corporal who “conducted the choir”. He pleaded guilty to a war crime. That was the first ever, and the last, conviction of a British soldier for a war crime. He was sentenced to 12 months’ imprisonment.
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