My Lords, I support Amendments 1 and 2. As I did not take part at Second Reading, I must resist the temptation to cover a whole range of subjects in my contribution to this debate.
As an old Defence Minister, and, indeed, an old soldier who served in Germany as an infantry subaltern and was involved in courts martial there, I broadly welcome the aims of the Bill to introduce a measure of protection against unfounded claims against military personnel, some of which go back many years. I deprecate the cottage industry in the growth of claims.
Let me say immediately that when there is wrongdoing, no person is above the law. Torture is a typical example where we should never propose exemption. I have argued before at the annual conferences of the Inter-Parliamentary Union in Cape Town and, more recently, in St Petersburg to persuade all countries to accept the need to ensure that there is no exemption for this offence.
As a law officer, I played a very small part in encouraging the Foreign and Commonwealth Office under Robin Cook to create the International Criminal Court. As John Healey MP said in the other place on Third Reading of the Bill, the risks of
“British troops being dragged before”—[Official Report, Commons, 3/11/20; col. 277.]
the ICC are there. There may be an argument about this, but that is what he said and we should always bear it in mind. Perhaps the Minister could give an assurance on that very point of what—if any—the dangers are of going before the ICC.
The wise words of Professor Michael Clarke, the former director-general of the Royal United Services Institute, on the dangers of an idea gaining
“international traction that the UK operates a ‘quasi-statute of limitations’”,
and hence might be in danger of being indicted before the International Criminal Court, should always be borne in mind. They need rebuttal, and they need clarification.
When the Government launched their consultation on the changes to the legal protection for our Armed Forces serving overseas, the consultation included proposals to create a statutory presumption for alleged criminal offences which occurred more than 10 years ago. I repeat: 10 years was the issue that went out for consultation.
The Bill is a major departure from the norms of our international obligations
“under international humanitarian law … international human rights law and international criminal law.”
These are not my words; they are the words of Parliament’s Joint Committee on Human Rights. They are words that we should bear in mind and rebut if it is possible to do so.
That is the background, and hence it is a basic requirement that any provisions in the Bill need thorough justification. Therefore, I support Amendments 1 and 2 to change the presumption against prosecution from five to 10 years. My question, very simply, is: what is the Government’s justification for the change from 10 years in the consultation document to five years? I would like an answer before the end of this debate.