Government added 'free pass for torture' to Overseas Operational Bill at last minute, MPs told

Legislation originally included exemption

Jon Stone
Policy Correspondent
Monday 28 September 2020 17:00
Comments
British soldiers would be covered by the law
British soldiers would be covered by the law

The government decided at the last minute to make British troops immune from prosecution for torture under a controversial new law, MPs have been told.

An evidence session of parliament's Human Rights Committee heard that torture had originally been exempted from the government's Overseas Operations Bill, alongside sexual violence - but that ministers had removed the exemption from the final draft.

The bill, which will end the right to bring legal cases against British soldiers for alleged offences that are more than five years old, has been criticised by senior military figures and human rights groups, who say it will damage Britain's reputation abroad and act as a "licence to torture".

But on Monday MPs heard from legal experts familiar with the legislation that the torture immunity had been a deliberate and last-minute inclusion rather than an oversight. Sexual offences are still exempt from the bill's provisions, the only such exemption.

"I understand that torture was originally in the same category as sexual offences and therefore excluded. So someone's put torture back into the included offences. That itself is very hard to understand given the absolute prohibition on torture in international law," said Nicholas Mercer, a lieutenant colonel who was chief legal officer for the British Army during the 2003 invasion of Iraq.

He added: "Looking to the Rome Statute and the various war crimes that are included: we've got crimes against humanity, which are not included, we've got war crimes, which is another category, and then we've got other serious violation of the laws of war, none of which appear in the excluded offences. In my view all those offences should be excluded in the bill."

Reverend Mercer, who left the armed forces in 2011 to retrain as an Anglican priest, told MPs that he believed sexual offences alone had been exempted from the bill because the government feared bad publicity from actress and campaigner Angelina Jolie.

"The sexual offences really stands up like a sore thumb and it's very hard to give rhyme or reason as to why that's been chosen," he said.

"When I saw it I simply assumed that because Lord Hague and Angelina Jolie had spearheaded an initiative for victims of sexual violence in conflict, that they didn't want to get into a situation where Angelina Jolie for instance would turn around and say 'we've spearheaded an initiative, how dare you betray me downstream?' But it looks very odd.

Committee chair and Labour MP Harriet Harman asked: "What you're saying there's no intellectual or legal justification for exempting sexual offences from this restriction, it's just that the government was running scared of Angelina Jolie denouncing them from a global platform?"

The former lieutenant colonel replied: "That's all I can assume, it makes no other sense."

Asked his view, Martyn Day, a prominent solicitor specialising in international law also giving evidence to the session, said: "I totally agree", while Mark Goodwin-Hudson, a former British army officer also appearing, said: "I agree with what Nicholas has said."

The former officer added: "I think as a British army officer overseas you have huge credibility because of the esteem and the virtue we have been held in over generations and by watering down the rule of law you begin to diminish some of that respect and authority that you carry as members of the British army. That would be a mistake."

Reverend Mercer also warned that the bill as currently constituted could breach international law because the international convention on torture that the UK is signed up to does not allow a statue of limitations for such crimes. 

The government's Overseas Operations Bill passed its second reading last week by 334 votes to 77. Labour controversially decided not to oppose the bill, with party leader Keir Starmer sacking an MP who voted against it, and two more resigning to do so.

In total 15 MPs from the main opposition party voted against the law, joining the SNP, Plaid Cymru, and Liberal Democrats who provided the bulk of the opposition. Labour says it will try to improve the bill at committee stage.

The government says the bill is needed to stop vexatious legal claims against British troops, but critics say it would open them up to prosecutions at the international criminal court if domestic law is made inadequate. 

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