My Lords, predictably this debate surrounding Clause 6 and Schedule 1 has given rise to the passionate, informed and powerful advance of arguments, which I was expecting. I have listened to the sentiment and emotion that have accompanied the articulation of the arguments and I would have to be completely mute not to hear the force of those emotions. As the noble Lord, Lord Berkeley of Knighton, indicated, the Minister has come to her winter of discontent—an apt description because the debate around this part of the Bill has encapsulated the major areas of anxiety and concern.
As I set out earlier, Clause 6 details those offences that are excluded from the measures in Part 1 of the Bill. Those are set out in Schedule 1, including offences committed against a member of the regular or reserve forces. All the excluded offences listed in the schedule are sexual offences. I shall come to that in a moment; a
number of questions have been posed about it but it reflects the Government’s strong stated belief that the use of sexual violence or sexual exploitation during overseas operations is never acceptable in any circumstance.
The exclusion of sexual offences from Part 1 does not mean that we will not continue to take other offences such as war crimes and torture extremely seriously. I realise that some may dismiss these as mere words and feel unconvinced. I should say that the presumption against prosecution still allows the prosecutor to continue to take decisions to prosecute those offences, and the severity of the crime and the circumstances in which it was allegedly committed will always be factors in their considerations.
The noble Lord, Lord Thomas of Gresford, asked why we have not excluded torture offences from Part 1 measures and why we have excluded sexual offences. In the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. They fight, they use force, they may use lethality, and they may detain. All these activities are predictable in an overseas operation. What is not predictable, and has no place in an overseas operation, is committing a sexual offence. However, the other activities to which I referred can expose service personnel to the possibility that their actions may result in allegations of, for example, torture. If the prosecutor, having received the results of an investigation, considers that there is no case, he will not prosecute, but if he considers that there is a stateable case, Part 1 of the Bill will not prevent prosecution of torture. That is why we have made the distinction between the two different characters of crime: one that you would never expect to find in an overseas operation, and one that could arise because of action that may have been taken in good faith by Armed Forces personnel believing that it was legitimate and proportionate.
In response to the noble Lord, Lord Robertson, on the strong emotions which this part of the Bill has elicited, I am aware that certain interpretations have arisen, with the suggestion that the continuing commitment to upholding international humanitarian and human rights law, including the United Nations convention against torture, is somehow undermined by the Bill. I submit that this is a misconception, which I am happy to address and correct.
The UK does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law. It is worth remembering that, whenever a prosecutor currently makes a decision to prosecute an offence, including offences under the International Criminal Court Act, they must consider the public interest factors in the prosecutor’s full code test, in addition to making a judgment about the strength of the available evidence.
The public interest factors include the severity of the offence, the level of culpability of the suspect, the circumstances of and the harm caused to the victim, and the suspect’s age and maturity at the time of the offence. There is no suggestion when exercising this
existing discretion that our prosecutors are not acting in compliance with international law, and we consider that the same is true when they will, in future, be required to take into account the measures in Part 1 of the Bill.
The noble Lord, Lord Robertson, and other noble Lords raised the matter of the International Criminal Court and the recent letter, which I have read in detail. It is interesting that the letter postulates that where the effect of applying a statutory presumption be to impede further investigations—the Bill does not do this—or to impede prosecution of crimes, because such allegations would not overcome the statutory presumption, the ICC would want to monitor what was happening. This is a perfectly legitimate position for the ICC to adopt. Given that this was raised by the noble Lords, Lord Robertson, Lord Campbell of Pittenweem, Lord West and Lord Browne of Ladyton, and the noble and learned Lord, Lord Hope of Craighead, it might be helpful to note here the relationship between the UK and the International Criminal Court. Some of your Lordships may be unaware of what the current relationship is, which suggests to me that something arising out of the blue would, frankly, be beyond credibility.
In accordance with International Criminal Court procedures, a preliminary examination would first need to be initiated by the Office of the Prosecutor to decide whether to take that step. In practice, in the event that the OTP was to raise issues with us about a possible investigation, that would trigger a long and very detailed preliminary examination of the situation, within which we would be consulted at each step of the way, for the OTP to determine whether it was necessary to open any investigation. That means that we would have many opportunities to prevent UK service personnel from being prosecuted at the ICC. We would be able to show that the UK national system was both willing and able to conduct investigations and prosecutions, thus rendering unnecessary the ICC’s jurisdiction over UK service personnel. I offer that additional information in the hope that it will provide some reassurance that these activities are not all operating in silos. There is a co-operative and positive relationship with the ICC.
Amendment 14, proposed by the noble Lord, Lord Robertson, seeks to add wording to Clause 6(3) to explicitly exclude further offences from being a “relevant offence” under Part 1. These are torture, under the Criminal Justice Act 1988, and genocide, a crime against humanity or a war crime under the International Criminal Court Act 2001.
The noble and learned Lord, Lord Hope of Craighead, made a very powerful submission in support of Amendments 36 to 45, which in combination would have a similar effect by ensuring that torture offences contained in Section 134 of the Criminal Justice Act 1988, under the law of England and Wales, and the offences of genocide, crimes against humanity and grave breaches of the Geneva convention contained within the International Criminal Court Act 2001 as it applies in England and Wales, Northern Ireland and Scotland, were listed as excluded offences in Schedule 1. These amendments would amount to a comprehensive list of very serious offences to be excluded from the application
of the measures in Part 1. The noble and learned Lord advanced his case cogently and with purpose, as one would expect, and others did likewise in their support of the amendments.
I am fully aware of the deep concerns that have been expressed that the Bill does not exclude these offences, and I have already set out the Government’s reasoning for excluding only sexual offences from the coverage of Part 1. I believe the perception has arisen that the absence of crimes from Schedule 1 has been equated with the non-prosecution of such serious crimes because it is assumed that the Bill will bar such prosecutions. However, I reiterate that the severity of an alleged offence will continue to be an extremely important factor for a prosecutor in determining whether or not to prosecute.
I realise that my response may be regarded by your Lordships as inadequate, so I will endeavour to provide some concluding thoughts. I have argued that the measures in Part 1 will require a prosecutor to give additional consideration to some specific matters—most importantly, the unique context of overseas operations. However, quite rightly, these measures will not prevent the prosecutor determining, having considered all the circumstances of the case, that it is appropriate to prosecute. The presumption in Clause 2 may be rebutted where it is appropriate for the prosecutor to do so.
The Bill as drafted ensures that the Part 1 measures will apply to a wide range of offences. That is to provide reassurance to our service personnel that the operational context will be taken into account, so far as it reduces a person’s culpability in the circumstances of allegations of criminal offences on historical overseas operations. I believe that we can take this approach in the knowledge that the prosecutor retains their discretion to make the appropriate decision on a case-by-case basis, including in respect of the most serious offences.
The Government have felt that, with the exception of sexual offences, all other crimes should be covered by the measures in Part 1. However, I am in no doubt as to the strength of feeling expressed by the Committee, which was neatly encapsulated by the noble and learned Lord, Lord Falconer, because I did not find too many supporters speaking up for my side of the argument. I undertake to consider with care the arguments that have been advanced and to explore if there is any way by which we can assuage your Lordships’ concerns. I hope that, in these circumstances, that will persuade the noble Lord, Lord Robertson, to withdraw his amendment and the noble and learned Lord, Lord Hope of Craighead, not to move his.
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