There are three amendments in this group, Amendments 10, 11 and 12, which deal with the question of the need for the consent of the Attorney-General before a prosecution covered by the presumption goes ahead. This is an important but quite short series of issues; in effect, the Bill is adding in the consent of the Attorney-General as the third part of the triple lock, before prosecution is brought against military personnel in respect of overseas operations. Therefore, the consent will be required only when a prosecutor has decided that a
case where over five years have gone by is exceptional, and the Attorney-General’s consent, or lack of it, will be of real significance only when he or she does not give it.
The consequences of the Attorney-General not giving consent are, in my view, threefold. First, it may well give rise to suggestions that the issue has been politicised. Secondly, the Attorney-General is very frequently involved in making or overriding decisions made in relation to operations overseas. For example, the Attorney-General will often give instruction and advice in relation to conditions of detention. It is worth reading the evidence given by Nicholas Mercer to the Joint Committee on Human Rights, where he described the involvement of the Attorney General’s Office in decisions that he had been involved in as a lawyer when, in foreign theatres of war, the use of force was involved. As such, my second point is that the Attorney-General may well have been involved in decisions that affect that theatre of war. From my own experience as Solicitor-General, I can tell you that that was indeed the case.
My third point is that, if the Attorney-General is going to override the prosecutor’s view that a prosecution should be brought, he will inevitably be increasing the risk that the matter is referred to or taken up by the ICC—because it will see a case where the prosecutor thinks that the prosecution has an over-50% chance of success and the public interest allows it, yet the Attorney-General has not allowed it to go ahead. Fourthly, if the Attorney-General is overriding the view of the prosecutor, which is the only time when this would be significant, questions will arise as to whether that puts the United Kingdom in breach of a whole range of international obligations—the Geneva convention, the United Nations Convention against Torture, Articles 2 and 3 of the human rights convention and the Rome convention, which is the International Criminal Court statute, in effect.
As such, our amendments first require the Attorney-General to give “reasons” as to whether he is giving or withholding consent, and laying them before Parliament. Secondly, Amendment 11 proposes that he must consider whether refusing consent will
“increase the likelihood of the International Criminal Court exercising its own competence”.
Thirdly, Amendment 12 proposes that he must consider whether his refusing consent would constitute a “breach of international law”. These amendments are laid by way of probing. We have real concerns about this provision and that it will not provide added protection but will instead give rise to very significant legal risks. I beg to move.