A new bill will decriminalise torture rather than protect our soldiers. We can't let it pass

This bill creates a dangerous ambiguity, and would undermine the morals that have made the British military such an effective and internationally-respected force

Alistair Carmichael
Thursday 18 June 2020 12:45 BST
Penny Mordaunt reviews Ministry of Defence 'torture guidance'

Torture has been illegal in the UK for over 300 years, and rightly so. It is abhorrent and should have no place in contemporary society.

Yet the government is seeking to overturn that proud history of opposition to torture by effectively decriminalising it. With a new bill going through parliament – the Overseas Operations Bill – the government is giving itself wide-ranging draconian powers to block prosecutions for torture offences.

British troops do the vital job of protecting this country, and we need to stand by them. We should do that by giving them appropriate funding, equipment and support during and after their service. If the government were serious about their commitment to supporting our armed service personnel then this is what they would be prioritising, not the decriminalisation of torture.

British soldiers want nothing to do with torture. But as we have seen in instances such as the Iraq War, they may sometimes come under pressure from politicians and their superiors to bend the rules. This bill creates a dangerous ambiguity, and would undermine the morals that have made the British military such an effective and internationally-respected force. It also risks a situation in which other countries look at our approach and believe it gives them a green light to torture British personnel. No government committed to our armed forces should be able to stomach that prospect.

Torture is not only unlawful and immoral, but counterproductive. The Ministry of Defence’s own doctrine on detainees recognises that there are “no circumstances in which torture, cruel, inhuman or degrading treatment can ever be justified". A landmark US Senate report into the CIA’s actions during the war on terror found not a single case in which torture produced any actionable intelligence.

These proposals are totally unnecessary. As a former prosecutor I know the tough, independent decisions made every day before prosecutions are brought. If there is an allegation of torture then prosecutors will look at the evidence and assess the individual’s culpability. The threshold of evidence must be met, and a consideration of public interest undertaken, in order for a prosecution to proceed.

In the past 20 years, this rigorous system of tests has worked effectively, and there has been only one UK prosecution for torture by British forces. This case involved extensive evidence and led to a conviction. These proposals would not stem a flood of wrongful prosecutions, because no such flood exists.

I question the values of a government that want to decriminalise torture. It is apparent the relevant ministers are out of step with the British Army’s longstanding opposition to torture. For example, Defence Secretary Ben Wallace was last year found to have condoned the use of “mock executions” to interrogate prisoners – an act absolutely prohibited by UK army doctrine and international law.

Despite the government’s bluster it is politicians, not soldiers, who would benefit from this Bill.

Alongside its provisions to block criminal prosecutions for torture, the Bill also blocks civil claims against the MOD for abuses that happen on its watch. To be clear, this would protect ministers and officials, not soldiers.

Nearly half of all legal claims against the MOD between 2014 and 2019 were actually brought by service personnel themselves. The proposals in this bill that would shut out human rights claims against the MOD would also block those by UK soldiers – an appalling betrayal of or brave men and women in uniform.

This bill will do nothing to help UK forces. Instead, it undermines the values for which they fight. We cannot sit back and allow the government to decriminalise torture.

Alistair Carmichael is the Liberal Democrat spokesperson on Brexit and Foreign Affairs, its chief whip and the party's MP for Orkney and Shetland

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