My Lords, the speech just given by the noble and learned Lord, Lord Hope, was characteristically clear and compelling. I hope that in
Committee we can expand on what he has brought to us. On 20 July last year my noble friend the Minister, whom I thank for her opening remarks today and for her helpful briefing on the Bill last week, repeated an Answer given in the other place to an Urgent Question about this Bill. In essence, my noble friend said that the policy behind the Bill was to protect our Armed Forces from being relentlessly harassed by investigations into their alleged conduct when on dangerous overseas operations, often many years ago. She said that the Government wanted to be fair to complainants and to the military personnel under investigation, hence the provisions in the Bill; she said as much again today.
I understand the policy. I can think of nothing worse for a serving or retired member of the Armed Forces of any rank than to have to live under the shadow of prolonged investigations to do with operations in Kenya, Northern Ireland—although that is not in the Bill—Iraq or Afghanistan, never knowing whether being absolved of blame meant the end of the matter or was the prelude to a new investigation. Lasting exoneration on the one hand, and a just but concluded finding of civil or criminal liability on the other, are essential in these matters. Justice and the public interest demand finality. Delay and uncertainty sap a soldier’s peace of mind and entitlement to finality; nor do they assist the complainant.
Although I listened with care to the noble Lord, Lord Thomas of Gresford, I will support the Bill today. That said, I am not convinced that, having posed the right question, the Government have arrived at the right answer to the problem. Like the noble Lord, Lord Dannatt, and the right reverend Prelate the Bishop of Portsmouth, I see this as a Bill that promises more than it can deliver. While its proponents are well motivated, I am fearful that expectations will be disappointed. It will need close scrutiny hereafter.
In this short contribution, I cannot cover every part of the Bill so I will concentrate on Part 1. But before doing so, when my noble friend the Minister comes to wind up, can she define the word “significant”, which is to be inserted by Clause 12 into Section 14A of the Human Rights Act? Last July I asked my noble friend why, if the factors set out in Clause 3 that support a decision not to prosecute five years after an offence are so powerful, they do not apply before five years have elapsed. I was told that they do, but not in statutory form.
We do not have limitation periods in our criminal law and, properly considered, this Bill does not introduce one. However, some may be confused into thinking that Clause 1(4) means that after five years there is immunity from prosecution. It does not and there is not. Under this Bill, certain crimes committed by service personnel on overseas operations can be prosecuted long after the event, so long as the Attorney-General consents and the statutory considerations have been undertaken. The need for exceptionality in Clause 2 is not going to prevent a 75 year-old veteran being prosecuted many years hence on a charge of torturing or murdering a prisoner or committing war crimes 50 years before—nor should it. But, rather than allowing people to get the impression that the Bill will create a new regime when it will not, why not just be straight- forward?
Instead of these complicated provisions, we should provide that, no matter when the offence took place, there can be a prosecution with regard to an overseas operation only with the consent of the Attorney-General in England and Wales or the Lord Advocate in Scotland. Clause 5(3)(b) refers to the consent of the Advocate-General for Northern Ireland for proceedings under the law of that jurisdiction. That office is held coterminously by the Attorney-General, not by a Northern Ireland law officer, but in all UK jurisdictions the relevant law officer’s consent should be required for a prosecution at all times and not just after five years.
It is not—and here, as a former Solicitor-General, I disagree with the noble Lord, Lord Thomas of Gresford —the political decision of a political Minister, but a legal decision of an independent law officer. Political convenience or the Government’s preferences are irrelevant. I note that presently the Bill does not appear to require the Lord Advocate’s consent for a Scottish law prosecution five years after the event. The same requirement should apply across the whole of the United Kingdom. This simpler approach means that the relevant law officer will always apply the prosecutors’ code before initiating a prosecution to ensure that there is both a sufficiency of evidence and that it is in the public interest to prosecute.
The matters in Clause 3, which are to be given particular weight, can be considered under the public interest limb of the code either side of a five-year timeline. It is not necessary, still less permissible, to rape or sexually abuse anybody, military or civilian, in pursuit of a military objective, so crimes of that nature are rightly excluded from the Bill’s current qualifications on a prosecution. While I heard the Minister’s explanation of why torture is not to be excluded, I hope, like my noble friend Lord King, the noble Lord, Lord Robertson, and the noble and learned Lord, Lord Hope, that in Committee we will be able to test that reasoning more fully than we can today.
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