I think that this Bill is a terrible piece of legislation – worse than terrible. It is actually quite shocking. It is the international version of the “spy cops” Bill, which granted broad legal immunity to state agents who commit criminal acts. How can that be right? It is one of those Bills that I think is so bad that we need to scrap it entirely.
I am joining the Lord Dubs and Lady Massey and Lady Smith of Newnham, to oppose the question that Clauses 1 to 7 stand part of the Bill. If a “delete-all” amendment were in order, I would do that instead. I hope that we can build an alliance to oppose the Bill’s Third Reading.
It struck me listening to the Lords who have spoken already that the support for the Bill is actually based on fake news. The Office of the Prosecutor of the International Criminal Court has written to our Joint Committee on Human Rights, chaired by Harriet Harman. In a letter, she says that the number of vexatious claims has been “exaggerated”—by our Government, obviously—to justify the proposed legislation. We do not have a whole heap of vexatious, baseless claims, which is what the Government seem to be suggesting.
The Bill clashes with the whole point of our justice system. The whole point of our justice system is that the guilty are found guilty and the innocent are found innocent—that is obviously what we have to do. The noble and learned Lord, Lord Mackay, mentioned the strain of all these vexatious claims, but in fact they do not exist, so the argument for the Bill is extremely weak.
I consulted two ex-generals and an ex-admiral of my acquaintance about the Bill, and they all had severe qualms. They all felt that this could backfire quite seriously on our service personnel and that it would make things worse. Lord Thomas of Gresford demolished the argument for the Bill, but he said as well that service personnel could be brought to the ICC, which would be much worse than being dealt with here.
The Government are now introducing, or trying to introduce, a messy exception for military personnel from the law that the innocent should be found innocent and the guilty found guilty. We do not care if they were guilty as long as their offending happened five years ago. That is absolutely appalling—we cannot say that about any crimes. It is another attempt by the Government to put our often brutal military history in the past, suppressing those who speak the truth and insisting that only patriotic narratives are allowed to prevail. Lord Morris of Aberavon said that no person should be above the law. The Government do not seem to agree with that anymore—and this is from the party of law and order. Have they sort of slipped those bonds of law and order? The House of Lords must not be complicit in this denial of justice and rewriting of history. We must do whatever we can to scrap this Bill.
These amendments are trying to create some sort of accountability for the Attorney-General. I thought Lord Faulks was going to say something about the Attorney-General being rather more political than in the past, because of course the office of Attorney-General has been sadly undermined in recent years, particularly last year with the Attorney-General’s quick defence of Dominic Cummings’ unlawful behaviour. That was, I fear, just one example, and the fact that she then so quickly rowed back from her position to a position of it being only her political decision and not a legal opinion shows how easy it is for an Attorney-General to step over that increasingly faint line. In that, I think that she mistakenly excused illegality in the name of political expediency. We, of course, cannot become complicit in that, so I was extremely pleased to sign the shadow Attorney-General’s Amendments 10, 11 and 12.
I am concerned that this triple lock in the Bill can actually lock justice out. Even if the power of justice is strong enough to overcome the first two locks, we have to trust the Attorney-General to make the right decision on the third lock, which of course would be very difficult. The Attorney-General therefore has to publish their reasons when making decisions, because these decisions should be made according to normal standards of administrative propriety and should rightly be subject to judicial review. Where the reasons for the decisions are irrational, unlawful or irrelevant, they should be able to be overturned. Where the decision is purely politically motivated and has no foundation in facts, the law or the interests of justice, equally it should be overturned. These amendments are essential to ensure that this is the case.
Such important decisions as those envisaged in the Bill must never be made on a whim or be purely political. Justice has to be done and be seen to be done. I would just like to add that various Lords have suggested that some things are impossible to understand if you have not experienced warfare or action of that kind. Of course, that is absolutely true, but we are not talking about a lack of sympathy for service personnel; we are talking about criminal acts. That is the basis of what this law is about; it is not to do with whether we have sympathy or not, it is about criminal acts.
The Government are trying to create this triple lock against prosecution as a safe harbour for military criminals—regardless of how serious their crime—and then, out of nowhere, the Bill says, “Ah, well, these protections apply to any crime, but not sexual offences.” I am fascinated to find out the real reason for excluding sexual offences in this way. Five years after their offence, a murderer, a torturer and a thief all get protected, but an accused sexual offender gets prosecuted regardless. Even if the murderer, torturer or thief actually did it, they can get off, but an innocent person accused vexatiously of sexual offences would be prosecuted. It really does not make sense to make this exception of one category of offences.
It is not just rape; the list in Schedule 1 includes things such as “possession of extreme pornographic images”, “outraging public decency” and any offence under the Sexual Offences Act 2003, such as Section 71, which criminalises sexual activity in a public lavatory. A soldier could have consensual sex in a public toilet, kill their partner and face the outrageous prospect under this Bill of being prosecuted only for having sex in the toilet—they might be protected from the murder charge.
Likewise, the Bill singles out slavery, but only slavery for sexual exploitation—take as many slaves as you like, after five years you will probably get away with it, but you might get prosecuted for any slaves who are sexually exploited.
It staggers me that the Government have chosen this specific exemption to their messy triple lock. Of course I support it, but we must have those other exemptions as well. I ask those noble Lords who have spoken so strongly on this issue: where were they during the spy-cops Bill, when we heard criminals—police spies and police agents—being given immunity from all these crimes? In any case, it all loops back to the obvious conclusion that this Bill is ridiculous. It creates obvious and unacceptable injustice and needs to be scrapped entirely.
Read the whole debate on Hansard