How the UK Government could effectively decriminalise torture in 3 easy steps

Edited image of Parliament from Shutterstock

By Sam Johnston Hawke, Legal and Policy Officer

The Overseas Operations Bill is being pushed through Parliament this year.

It’s been sold to MPs and the public as legislation to protect British soldiers. But senior military figures have concerns. They believe the Bill, in its current form, would effectively decriminalise torture. That’s why they are calling on the Government to rethink it – and we are too.

Former Chief of the Defence Staff Field Marshall Lord Guthrie, has spoken out against the Bill. He says that it “provides room for a de facto decriminalisation of torture.” [1]

What is the “triple lock” against prosecutions and why does it matter?

The Bill would effectively decriminalise torture by introducing a “triple lock” against prosecutions. Broken down, the “triple lock” is three new barriers that will make it virtually impossible to prosecute torturers after five years.

  1. The first is an unprecedented ‘presumption against prosecution’ for offences that happened more than five years ago. That means that after five years, prosecutions should only ever happen in “exceptional” circumstances. Even if there is strong evidence of torture, and even if a prosecution could be firmly in the public interest, the Government wants independent authorities to ‘presume’ that a prosecution won’t happen. In other words, prosecuting torturers will not be the default in the UK.
  2. The second builds on the first. It will force prosecutors to give “particular weight” to the reasons “against” prosecutions – even when the offence is torture. But independent prosecutors already have to take these factors into account. So this extra requirement in the Bill can mean only one thing: that Ministers want to ensure prosecutors do not go after torturers.
  3. But in case these two barriers weren’t enough, there’s a third and final one. The Attorney General will be able to block prosecutions using a Ministerial veto power. That means that the Government’s own chief legal advisor can decide to ignore hundreds of years of domestic law, as well as international law against torture – the same laws that the UK Government helped set up after the Second World War.

The effect of these barriers would be to effectively decriminalise torture. Nicholas Mercer – the British army’s chief lawyer during the war in Iraq and now a retired Lieutenant Colonel – says the ‘triple lock’ will make the prospect of prosecutions “basically nil.”

What is decriminalisation – and how does it work here?

Decriminalise: to remove or reduce the criminal classification or status of especially : to repeal a strict ban on while keeping under some form of regulation [2]

The Bill in its current form – including the ‘triple lock’ – would have the effect of ‘remov[ing] or reduc[ing] the criminal classification or status’ of torture offences in the UK – effectively decriminalising torture.

Decriminalisation affects the way in which certain offences are treated in practice: for instance, where authorities turn a blind eye or prosecutors decline to pursue cases (for example, in the case of some drug offences), this is an example of decriminalisation. The crimes in question may remain on the statute books, but their criminal status is lessened.

What does the Bill mean to the soldiers the Governments claims it protects?

If the Bill becomes law in its current form, it will reverse centuries of history, put UK soldiers at risk and jeopardise operations overseas. And that’s why British soldiers are speaking out against the Bill.

The Ministry of Defence’s own doctrine states, “there are no circumstances in which torture, cruel, inhuman or degrading treatment can ever be justified.” [3] So why does the Government want to protect torturers? It’s not about protecting soldiers.

Lieutenant Colonel Mark Goodwin-Hudson states that “it’s misleading to suggest that this bill is to protect our soldiers”. Rather, where the UK gets involved in abuses, “it puts British soldiers in greater danger.” [4]

Nicholas Mercer makes clear that the Bill is instead designed to “protect the Government.” He adds that it will ensure that “war crimes in the future are effectively sealed off.”

That’s not acceptable. So, we’re calling on the Government to amend the Overseas Operations Bill. You can too – join the campaign here.


[1] “Letters to the Editor: EU double standard on trade deal talks,” The Times June 7, 2020.
[2] “Decrimimalize,” Merriam Webster (accessed September 11, 2020).
[3] “Joint Doctrine Publication 1-10: Captured Persons (CPERS),” Minister of Defence (January 2015).
[4] Watch a clip of our interview with Mark Goodwin-Hudson here.