My Lords, the amendment stands in my name and those of the noble Lords, Lord Alton and Lord Campbell of Pittenweem, and my noble friend Lord West. It provides that the presumption against prosecution does not apply to war crimes, crimes against humanity or torture.
I am an instinctive supporter of our Armed Forces and the civilians who support them. I always was, but as Secretary of State for Defence and then Secretary-General of NATO, and with the heavy responsibilities that both posts impose, my regard and admiration grew and was magnified. In those posts, it is a huge responsibility to bear in the duty of care, not only to the staff who work for and to oneself but in carrying responsibility for the safety and security of those who we and they seek to protect. In the light of those factors and the fact that I have had personally to make the decision to deploy forces into danger overseas, I was almost automatically in favour of legislation that would have prevented vexatious investigations and prosecutions that make life a misery for so many of those we send to defend the country’s interest.
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I want to ensure that we keep our legal system so trusted and clean that the International Criminal Court would be so confident of our system that it would instead focus its attention on the many outrageous examples of military excess elsewhere in the world. If this legislation had effectively dealt with these two objectives, I would be not only supporting this Bill but championing it. Sadly, neither of these criteria have been satisfied, and instead the Bill does the opposite. Not only that, but the Government—Her Majesty’s Government—have resolutely and implacably ignored and contradicted the universality of criticism of the Bill. In the face of warnings from all corners, they seem to be ploughing ahead with a measure which will damage the reputation of our legal system and that of Britain’s Armed Forces. That is why this amendment is before the Committee today and why it has so much support.
The problem—one might even go as far as to say the scandal—was summed up in a report that we have already heard about by Parliament’s Joint Committee on Human Rights. This is a bipartisan committee of both Houses of the British Parliament, which said
“we have significant concerns that the presumption against prosecution breaches the UK’s obligations under international humanitarian law (the law of armed conflict), international human rights law
and international criminal law. It risks contravening the UK’s obligations under the UN Convention Against Torture, the Geneva Conventions, the Rome Statute and international customary law.”
When we consider the opprobrium that was heaped on the Government regarding the internal market Bill, the Northern Ireland Secretary’s actual admission at that time that they had broken international law, and the Government’s subsequent surrender on that point, this is an unprecedented accusation for a bipartisan committee of Parliament to make of a parliamentary Bill.
The committee went on to say:
“At a minimum, the presumption against prosecution should be amended so that it does not apply to torture, war crimes, crimes against humanity or genocide.”
That is precisely what Amendment 14 does. Passing it could yet go some way to saving our country’s reputation and standing in the world.
As everybody has been saying, the Minister is a decent and intelligent person, and I deeply respect her. Will she tell us why she thinks that it is of no matter that this legislation is a signal to the world that we, the United Kingdom, are reneging on our commitment to the very standards that we, the British, had so much to do in the designing and upholding of? Why was torture specifically excluded from the presumption against prosecution when it was in the consultation, and then changed when it came to the Bill itself?
Saving our troops serving overseas in our name from the jurisdiction of the International Criminal Court has already been raised in the debate. I was in the Cabinet in 1997 which took the decision to sign the United Kingdom up to the International Criminal Court. In a world scarred by atrocities, massacres, war crimes and genocidal attacks, it was a trailblazing international effort to bring to justice those who transgress against the norms and international standards of the civilised world. Of course, there were some who advised against Britain participating in the ICC; the United States, China and five other countries had opted out, after all. The doubters believed at the time that our troops could be tried twice, but Robin Cook—the Foreign Secretary at the time—and I were of the same mind.
Britain’s exemplary legal system and processes, honed over the centuries, were robust enough to ensure that the ICC could raise no objection to our domestic processes, and that has been the case until this legislation appeared in its present form. Now, our current Defence Secretary, Ben Wallace, has received a letter from the chief prosecutor of the International Criminal Court, Fatou Bensouda, giving him a salutary warning. It is a tough letter and a grave message that should not be ignored or dismissed.
Fatou Bensouda said that were the effect of applying a statutory presumption to impede further investigations and prosecutions of crimes allegedly committed by British service members, the result would be to
“render such cases admissible before the ICC”.
She also said:
“I believe we would all lose, victims, the Court and ICC state parties, were the UK to forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious
violations of international humanitarian law, crimes against humanity and genocide on a statutory presumption against prosecution after five years.”
These are salutary words from the chief prosecutor of the ICC.
I did not believe that our country’s legal system should give any cause for concern to the ICC. It has not, but only up until this point. In its briefing for Committee, the Law Society makes the point about how the new
“presumption against prosecution in the Bill creates a special category of criminal case, hitherto unrecognised in UK law.”
As such, in the Bill, the Government meddle recklessly with principles of British law that have lasted for centuries, and, in doing so, they have opened a door to the questioning of the very integrity of our domestic legal processes. The statute of the ICC, signed up to by this country, states starkly in Article 29:
“The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.”
I remind the Committee that, in the Rome statute, the crimes referred to are genocide, crimes against humanity and war crimes—the very crimes we are talking about in this amendment.
I will make one final point. In its report on the Bill, the Delegated Powers and Regulatory Reform Committee of this House pointed out that
“torture is just one example of a serious offence that could be added to, or (subsequently) removed from, Schedule 1.”
The Government’s response to the committee noted this point and suggested that, if there were to be such a change by secondary legislation,
“then it may be appropriate to engage with the public under these circumstances, for example, via a public consultation.”
If my amendment is accepted, I do not believe for a moment that there would be any need for a public consultation to remove from the schedule the likes of torture, which the committee has drawn attention to. That is why this amendment to Clause 6 is so important: it renders irreversible the inclusion of torture and war crimes and prevents Henry VIII powers being abused in this connection.
I return to where I started—I say this to the noble Lord, Lord Lancaster, in all decency—and repeat my respect, admiration and, indeed, affection for those who serve us in uniform. They are special people and we owe them so much. The Bill pretends to offer support for them, but instead it undermines their reputation. It pretends to protect them from vexatious prosecution and investigation but instead opens them to ICC prosecution. It pretends to uphold strong, reputable British legal standards but actually undermines and devalues these very standards. I urge the Government to think again and accept this amendment. I beg to move.