Amendment 26

Overseas Operations (Service Personnel and Veterans) Bill - Committee (2nd Day) – in the House of Lords at 3:30 pm on 11th March 2021.

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Lord Falconer of Thoroton:

Moved by Lord Falconer of Thoroton

26: Clause 12, page 8, line 20, at end insert— “(1A) No order may be made by the Secretary of State under section 14 following consideration under this section unless a draft of the order has been laid before, and approved by, each House of Parliament.”Member’s explanatory statementThis amendment would require significant derogations regarding overseas operations proposed by the Government from the European Convention on Human Rights to be approved by Parliament before being made.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

My Lords, this introduces a new topic, namely the purpose of Clause 12. Its effect is to impose, in relation to

“any overseas operations that the Secretary of State considers are or would be significant”,


“the Secretary of State must keep under consideration whether it would be appropriate for the United Kingdom to make a derogation under Article 15(1)” of the European Convention on Human Rights. Why has that been introduced? Is it worthwhile? As noble Lords will know, when states sign up to the human rights convention they agree not to violate or take any steps in breach of it. States are entitled to derogate from the human rights convention:

“In time of war or other public emergency threatening the life of the nation”.

That is Article 15.1. No state has derogated from the convention due to war with another state. Most derogations have been in response to internal conflicts and terrorism. In these cases, states relying on the power to derogate have tended to rely on a

“public emergency threatening the life of the nation”.

The courts will give states a wide margin of appreciation when it comes to deciding whether there is a public emergency. The UK derogated from the human rights convention in 1970 following terrorist attacks relating to Northern Ireland, and in 2001 after 9/11.

As noble Lords will know, there are very considerable limits on derogating measures. First, states can take measures derogating from the human rights convention only

“to the extent strictly required by the exigencies of the situation”.

That is in the article itself. Secondly, states can never derogate from non-derogable rights; that is in Article 15.2. That means they can never derogate from Article 2 or Article 3, from the articles that prohibit slavery, or from the right not to be convicted of a criminal offence for acts which were not criminalised at the time, and nor can they subject people to greater penalties for a criminal act than existed at the time the offence was committed. What is more, derogations must be consistent with the state’s other obligations under international law. In the context of overseas operations, that means that we in the United Kingdom could never derogate from international humanitarian law.

To some people, new Section 14A might seem a recipe for the state to get away, in relation to overseas operations, from human rights obligations that have been unpopular in some quarters—absolutely not. In effect, all that the right to derogate does is to allow the state—in certain, very unusual circumstances—in practice to detain people without what would otherwise be regarded as a due process, because of the public emergency. Although there are other rights that could be derogated from, in practice that is the only one that would ever genuinely be in consideration in relation to the sort of situation we are dealing with in this Bill.

My concern is that Clause 12, which would add Section 14A to the Human Rights Act, is a totally phoney piece of human rights bashing by the Government, put in only to try to say that we are really “taking on the Human Rights Act” in relation to overseas operations. The only effect of this clause is that consideration would have to be given to the question of whether there should be detentions without trial. I cannot imagine circumstances in which a Government, if that was a possibility, would not consider it without the need for this clause.

I hope that the Minister will be able to reassure me that this is not a completely phoney and empty provision made for bad reasons. On any basis, if a derogation is considered and given effect to because of this clause, an explanation should be given immediately to Parliament, and it should be given effect to only with the approval of Parliament. That is why I put my name to the first of the amendments in this group. I beg to move.

Photo of Lord Faulks Lord Faulks Non-affiliated

My Lords, the then Human Rights Bill came to Parliament without a Green Paper or a White Paper or any consultation paper preceding it. It did so shortly after the Labour Government came to power in 1997. Although there were no detailed debates in Parliament about the extraterritorial reach of the then Human Rights Bill, a number of concerns were expressed at the time about whether the convention —the ECHR—was really appropriate in the case of armed conflict abroad. There were those who took the view that there should be an express carveout in those circumstances, but that is not what happened. There was, however, a power in the HRA 1998—as it became—which permitted the Government to derogate from the European convention. It is important to note that the power was not used in Iraq or Afghanistan.

The inclusion in this Bill of an obligation to consider derogation might be regarded as rather unnecessary, since the power exists anyway. I suppose it might be considered to be part of the reassurance agenda vis-à-vis our Armed Forces. In any event, I respectfully ask the Minister about the Government’s interpretation of Article 15. I find it hard to disagree with much of what the noble and learned Lord, Lord Falconer, said about the right to derogate, and I ask her to clarify for the Committee the relevance of this obligation vis-à-vis overseas operations. My Amendment 27, which is supported by the noble and learned Lord, Lord Garnier, is an attempt to grasp a nettle. He would have liked to address the Committee but unfortunately is unable to do so.

I think it will be broadly accepted that vexatious claims and repeated investigations arising out of overseas operations, principally in Iraq and Afghanistan, lie behind this legislation. There is an old saying that generals always fight the last war. There is a similar risk with legislation, and I acknowledge that lessons will have been learned and that there should in the future be an improvement in investigations, as compared with those that went so badly wrong in Iraq and Afghanistan. But the ability to bring claims under the Human Rights Act, including the so-called investigative duty, principally under Article 2, was undoubtedly a significant factor in the vexatious claims brought against the military. In turn, they often led to investigations leading to potential—if not very often actual—prosecution. I think it would be broadly accepted that the investigations and their failure contributed significantly to the proliferation of often vexatious claims, with all the human damage of ruined reputations and lives that followed, accompanied sometimes by prolonged and expensive litigation.

For some time, the think tank, Policy Exchange, has called into question the wisdom of claimants being allowed to rely on the Human Rights Act in relation to overseas operations. Noble Lords may be familiar with the publications The Fog of Law and Clearing the Fog of Law—among others—which discuss the way in which the law has often fallen short in protecting our military from vexatious claims.

It may also be worth reminding noble Lords of what the Explanatory Notes to the Bill say:

“This Bill seeks to address issues that have partly arisen from the expansion of the European Convention on Human Rights … to cover overseas … operations where the UK had assumed that international humanitarian law had primacy.”

That was certainly an assumption which existed until the case of Al-Skeini. Jack Straw told the House of Commons Defence Select Committee in 2013 that

“to the very best of my recollection it was never anticipated that the Human Rights Act would operate in such a way as directly to affect the activities of UK forces … abroad” and that, if so,

“there would have been a very high level of opposition to its passage, on both sides, and in both Houses”.

The case of Al-Skeini concerned the issue of whether the Human Rights Act had extraterritorial application. Lord Bingham—probably the outstanding judge of my and perhaps other generations—came to a clear view on the matter. He was not, incidentally, a judge with anything other than considerable enthusiasm for the protection of human rights in law. But his careful analysis was based on statutory construction and was a clear reflection of precedent. He set out in his judgment the relevant principles, and concluded as follows:

“I would accordingly hold that the HRA has no extra-territorial application. A claim under the Act will not lie against the Secretary of State based on acts or omissions of British forces outside the United Kingdom. This does not mean that members of the British armed forces serving abroad are free to murder, rape and pillage with impunity. They are triable and punishable for any crimes they commit under the three service discipline Acts already mentioned, no matter where the crime is committed or who the victim may be. They are triable for genocide, crimes against humanity and war crimes under the International Criminal Court Act 2001. The UK itself is bound, in a situation such as prevailed in Iraq, to comply with The Hague Convention of 1907 and the Regulations made under it. The Convention provides (in article 3) that a belligerent state is responsible for all acts committed by members of its armed forces, being obliged to pay compensation if it violates the provisions of the Regulations and if the case demands it. By article 1 of the Geneva IV Convention the UK is bound to ensure respect for that convention in all circumstances and … to prohibit (among other things) murder and cruel treatment of persons taking no active part in hostilities. Additional obligations are placed on contracting states by protocol 1 to Geneva IV. An action in tort may, on appropriate facts, be brought in this country against the Secretary of State: see Bici v Ministry of Defence … What cannot, it would seem, be obtained by persons such as the present claimants is the remedy they primarily seek: a full, open, independent enquiry into the facts giving rise to their complaints, such as articles 2 and 3 of the Convention have been held by the Strasbourg court to require. But there are real practical difficulties in mounting such an enquiry.”

I hope noble Lords will forgive me for quoting Lord Bingham’s speech at some length, but it is most important for me to emphasise that my amendment in no way means that war is, or should be, a law-free zone. As Lord Bingham set out, there is a vast number of different restraints on unlawful activity, including, of course, claims in negligence.

The Secretary of State, in his submissions before the House of Lords in al-Skeini, had argued that the HRA had no application to public authorities outside the borders of the UK. That, presumably, was the view of the then Labour Government. To the surprise of many, the judgment of the European Court of Human Rights in al-Skeini was at variance with the views of Lord Bingham.

Thereafter, the Government were, in their view, constrained to set up an inquiry, with all the consequences that ensued. The final sentence of Lord Bingham’s speech about the practical difficulties in mounting such an inquiry was indeed prescient. It was this inquiry which generated much of the mischief that lies behind this legislation. There is no right, for example, to an inquiry attendant upon the right to sue for negligence, although such a cause of action will continue to exist, whatever view your Lordships take of this amendment.

Enthusiasm for the al-Skeini decision is not universal among the judiciary here. Mr Justice Leggatt, as he then was—he is now Lord Leggatt in the Supreme Court—said in 2014, in the Serdar Mohammed case, with masterly judicial understatement, that it was

“not obvious why Afghan citizens should be able to assert European Convention rights on Afghan territory.”

But he felt bound by al-Skeini.

I have mentioned the government submission in the al-Skeini case. I respectfully ask the Minister whether that is still the Government’s view. I acknowledge that Sir Peter Gross and his committee have been asked to consider, among other issues, whether or not claims should be brought based on the Human Rights Act in respect of overseas operations. The Minister may in response to this amendment say simply that the Government are awaiting Sir Peter’s report. But surely the Government must have at least a preliminary view. What if Sir Peter were to recommend no change, or were he to suggest that it was essentially a matter for the Government, and then for Parliament, whether there should be the appropriate amendment in the Human Rights Act to clarify the position? What then?

Another response that I anticipate may come from the Minister is that whatever the Government may think about the matter, we have our international obligations as a result of being a party to the convention, and we do not want to be in breach of those obligations or to encourage people to have to go direct to Strasbourg rather than seek remedies in our courts.

May I anticipate that argument? The first point is that there is always the possibility that Strasbourg will change its mind on this particular point, as it has done before in the light of a better understanding of the effect of one of its rulings, or because further evidence has come before it in one form or another. Take, for example, the reversal of the well-known decision in Osman v UK by the European Court of Human Rights in Z v UK. Al-Skeini itself marked something of a departure from the decision in Bankovic v Belgium. It must also be emphasised that Strasbourg does not have a system of binding precedent in the way that our courts have, so it is perfectly free to take a different view.

Finally, I mention the fact that, although our courts initially took to the Strasbourg jurisprudence with, some would say, unnecessary enthusiasm, we have now reached the position where our courts are prepared to depart, if appropriate, from a decision by the Strasbourg court. So it is perfectly open, I suggest, to the Government to accept this amendment.

We joined the European Convention in 1953, and for 40 years, before the Human Rights Act, there were rights under the convention which could be sought by individuals in Strasbourg. We were not in breach of our treaty obligations for 40 years by failing to provide for a domestic remedy. What the Human Rights Act did was, in that memorable phrase “to bring rights home”. It was not—and this is made clear in the al- Skeini Lord Bingham judgment—an obligation on the part of the Government to incorporate the convention. Rather, the Government chose to do so, and Parliament, with a massive majority, endorsed that decision.

Now, in the light of the woeful history of vexatious litigation, it is, I respectfully submit, entirely appropriate for the Government, and for Parliament, to think again. The passage of this Bill is plainly the right time and provides a suitable opportunity to do so. I ask the Minister to seriously consider and accept this amendment.

Photo of Lord Hope of Craighead Lord Hope of Craighead Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords), Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords) 3:45 pm, 11th March 2021

My Lords, it is a pleasure to follow the noble Lord, Lord Faulks. Before I say a word or two in the light of what he just said, I should explain that I put my name to Amendment 26 and support what the noble and learned Lord, Lord Falconer of Thoroton, said about it, but I also have my name to the Motion to oppose Clause 12—in other words, to propose that it should not stand part of the Bill.

I add just a word to what the noble Lord, Lord Faulks, said about the al-Skeini decision. As he will appreciate, if the decision of the Appellate Committee over which Lord Bingham presided had remained without further recourse to Strasbourg, we would not be discussing Clause 12 at all. I did not sit on al-Skeini, but I sat on a later case called Smith, which I know the noble Lord is aware of, where we had to consider a decision by the Strasbourg court in effect to reverse Lord Bingham’s decision. Indeed, the noble Lord referred to it. It was a very difficult decision for us because we had to analyse exactly what the Strasbourg court was talking about. One thing that emerged from our study of that decision was that it did not really believe that the whole of the convention rights could apply in a situation such as arose in Iraq. There were rights there that simply have no point whatever. It talked about it being a slightly tailored approach to the convention for the particular situation in which our Armed Forces were placed.

We considered the matter very carefully, and one of the features of Smith is that, although we were divided on the issue as to the application of the Human Rights Act invoked by relatives of deceased servicemen, we were unanimous in the view that we could not escape the decision of the Strasbourg court. The current state of play, which the noble Lord, Lord Faulks, very rightly calls in question, is that, for the moment, there is a decision by the Supreme Court that we must follow the al-Skeini decision in Strasbourg and the Human Rights Act—the convention rights, in effect—so far as relevant, applies in the case of operations offshore.

I cannot escape from the fact that in the other part of the Smith decision, we, by a majority, declined to strike out the claims of the servicemen, one of which was referred to earlier this afternoon by the noble Lord, Lord Hendy, and, eventually, those claims were settled. Had we struck them out, we probably would not be as troubled by Clause 12 as we are now, but Clause 12 is there, so we must address it.

That brings me to my real point. I find it hard to know what to make of Clause 12. At first sight it is simply unnecessary. As has been mentioned, the power to derogate from our obligations under the European convention by means of a derogation order under Section 14(1) and (6) of the Human Rights Act 1998 already exists. It has been exercised from time to time, notably in 2001, by an order which would have allowed the indefinite detention of non-national suspected terrorists who could not be deported.

I use the words “would have allowed” because that order was set aside on an appeal to this House. That was because it unjustifiably discriminated against non-nationals on nationality grounds in comparison with UK nationals who were suspected of terrorism. We did not think it right in any way to interfere with the Secretary of State’s decision that the overall test of a state of an emergency affecting the life of the nation was set aside, but we did think that it was a disproportionate exercise of the power.

I mention that case because it serves as a warning that derogation orders are open to judicial review, so the power is not something to be exercised lightly. But that is not the real point that I wish to concentrate on today, because I question the need for this clause. Where there is a power, as there is here, there is already a duty to consider whether, should circumstances require, it should be exercised. So why should the clause refer to that duty? It adds nothing to the existing law—so why is it there?

The Explanatory Notes shed little light on this mystery. They do make the point that there is a threshold that must be crossed if the order is to meet the criteria in Article 15 of the convention. Clause 12 says that this is where the operations “are or would be significant”. Article 15, on the other hand, says—as the noble and learned Lord, Lord Falconer of Thoroton, has reminded us—that derogation may be resorted to only:

“In time of war or other public emergency threatening the life of the nation”.

I found it rather hard to see how conducting operations overseas in themselves, if that is what we would be doing, could satisfy that test, even if they were or would be significant. The fact that the clause shrinks from using the words of Article 15 makes one wonder whether the meaning and effect of Article 15 has been properly analysed. There was no such problem in the case of the 2001 order. The suspected terrorists presented a very real risk to the safety of the public, and thus to the life of the nation, if they were not capable of being detained. For the moment it is enough to say that I wonder whether this clause is really facing up to what would be needed to justify derogation in this kind of case where we are operating overseas.

There is no sign either in the wording of the clause or in the Explanatory Notes that the Government have appreciated the other limitations in Article 15, to which the noble and learned Lord, Lord Falconer, referred. That provision states that no derogation from Article 2, the right to life, can be made except in respect of deaths resulting from lawful acts of war, or from Article 3, the prohibition of torture and inhuman and degrading treatment, or from Article 4.1, the prohibition of slavery, or from Article 7, no punishment without law.

There remains Article 5, the right to liberty and security—the only reasonable situation in which the power referred to in the clause could be exercised. That is what the 2001 case was about. Is this the purpose of the clause? Is it there so that our Armed Forces can lock up any people whom they happen to detain during their operations without trial indefinitely? If so, why does it not come out into the open and confine its scope to that article, which is really all that can be achieved?

As for vexatious claims, I suspect that almost all of them were directed to the ground covered by Article 3, the prohibition of torture and inhuman or degrading treatment—and, of course, that is something from which no derogation is permitted.

I therefore ask the question: is Article 5, the right to liberty, what this clause is all about? Or is there some other purpose? Is it there simply to send a message? If so, to whom, and why, and what is the message? These are vital questions and, unless the Minister can give clear and convincing answers to them, I suggest that the clause should be removed from the Bill.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 4:00 pm, 11th March 2021

My Lords, it is always a pleasure to listen to the analysis of the noble and learned Lord who has just spoken. I am very impressed by his view, and I agree with him. I have written extensively and admiringly about the first Earl of Minto—a significant but forgotten governor-general of India in Napoleonic times. He oversaw overseas operations in 1811, he drove the French out of the Indian Ocean at Martinique and Reunion and captured Java from the Dutch at the Battle of Cornelis. He could boast to Spencer Perceval, the Prime Minister, that the French and their allies had been banished all the way from the Cape of Good Hope eastwards to Cape Horn. He abolished slavery wherever he found it, and cast instruments of torture into the sea.

The radical MP and pamphleteer William Cobbett was not enthusiastic. Writing from prison, where he spent more time than he did in the House of Commons, he warned that the conquest of Java was of no value. It was a country of the same extent as Britain but with 30 million people—nearly twice the population of this country at the time. He said that it placed upon the British

“the trouble of governing, especially in those two important particulars, the administration of justice and the collection and disposal of the revenues; that is to say, the absolute power over men’s lives and purses.”

So it was in Basra and in Helmand Province. It was precisely those considerations—power over men’s lives—that caused the Grand Chamber of the European Court of Human Rights unanimously to conclude that one of the exceptional circumstances in which the European Convention on Human Rights would apply extraterritorially was when a state bound by the ECHR exercised public powers on the territory of another state. In Iraq the UK had assumed the powers normally to be exercised by a sovereign Government—in particular, responsibility for the maintenance of security in south-east Iraq.

In a later case, in 2011, the European Court of Human Rights held that the UK’s power to detain prisoners in Iraq gave jurisdiction to a finding that the UK had violated Article 5 of the ECHR, the right to liberty and security. In July 2013 the Supreme Court here upheld a claim on behalf of British service personnel who were killed as a result of friendly fire—the case to which the noble Lord, Lord Hendy, referred. The claim was founded on both a violation of human rights and civil liability for negligence in the provision of training and equipment.

The Supreme Court held that a soldier had the protection of Article 2 of the ECHR, the right to life. The Equality and Human Rights Commission commented that the ruling of the Supreme Court had provided

“a reasonable balance between the operational needs of our armed forces and the rights of those serving in our armed forces to be protected in the same way as we expect them to protect the rights of civilians abroad”.

This upset Conservative elements in the coalition Government, but they could do nothing with their Liberal Democrat colleagues at their side. However, in March 2016, when the Liberal Democrats had gone, the noble Lord, Lord Faulks, then Minister of State for Justice, said that the Defence and Justice Secretaries were preparing a legislative package to “redress the balance”.

Indeed, in the 2016 Conservative Party general election campaign, a strident call was put out to scrap the Human Rights Act. That had been watered down by the 2019 election manifesto into a call for a committee —chaired, I thought, by the noble Lord, Lord Faulks, but perhaps there is another chairman now. We await the committee’s deliberations breathlessly.

I was, therefore, rather surprised to observe the cautious nature of Clause 12. It imposes statutory duties on the Secretary of State to “consider” whether to derogate under Article 15. One would expect him to consider that when deploying forces in overseas operations. The problem is that Article 15 gives power to derogate only

“in time of war or other public emergency threatening the life of the nation.”

The power to derogate may be exercised only where strictly required by the exigencies of the situation. As noble Lords have said, it is not possible to derogate from Article 2—the right to life,

“except in respect of deaths resulting from lawful acts of war.”

It is also not possible to derogate from Article 3, on the prohibition of torture; Article 4, on the prohibition of servitude or forced labour; or Article 7, on no punishment without law. I realise that I am repeating what has already been said.

The UK gave notice of derogation in relation to the situation in Northern Ireland in the 1970s, so that it could take powers of arrest, detention and internment without trial. In 2001, following 9/11, we issued a notice of derogation concerning the power to detain foreign nationals without trial. France similarly exercised the power to derogate following the terrorist attacks in Paris in 2015. Other countries, such as Ukraine, have also done so when the life of the nation was threatened.

On investigating Clause 12 of the Bill, however, one sees that the circumstances in which the Secretary of State must consider derogation are not at all those as set out in Article 15. The clause provides for a scenario for operations

“outside the British Islands in the course of which members of those forces may come under attack or face the threat of attack or violent resistance”.

Of course, those circumstances do not, of themselves, give rise to a power to derogate. Can the Minister please explain why the preconditions in Article 15(1) do not appear in the Bill as the trigger for the Minister’s consideration of whether to derogate?

One academic lawyer described the cry in the 2016 Conservative manifesto to scrap the Human Rights Act as clickbait. That is all this clause amounts to. If your Lordships require confirmation, they have only to turn to the amendment in the name of the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Garnier. For them, the trumpet sounds with an uncertain note in the Bill as promoted. In their amendment we see the red meat. “Do not bother about derogating from the ECHR, just say ‘No claim can be brought under the Human Rights Act, derogation or no derogation’—that’s it.” I can only assume that the clarion call of Mrs May to scrap the Human Rights Act is about to emerge from the independent commission, chaired by the noble Lord, Lord Faulks.

If the two leading lawyers on the Conservative Benches think this is a useless provision, perhaps they will join the rest of us in throwing it out.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, once more I have the daunting privilege of following the noble Lord, Lord Thomas of Gresford. I will avoid repetition and begin by dealing briefly with the amendment in the name of the noble Lord, Lord Faulks.

First, I will deal with my own moral position in relation to human rights in overseas operations. I am quite clear that, in a wartime situation, in the heat of conflict, there will and must be a very tailored and limited application of rights and freedoms as we normally understand them domestically, in peacetime. However, the Bill covers all overseas operations, such as peacekeeping, covert operations and the policing and rule of law-establishing operations of an occupying force.

Many times, in recent years, people have come to these Houses of Parliament and urged interventions overseas on the grounds of human rights. They have wept hot tears over various human rights abuses perpetrated by dictators elsewhere and suggested that we had a responsibility to intervene. In moral terms, this amendment from the noble Lord, Lord Faulks, and—rather surprisingly to my mind—from the noble and learned Lord, Lord Garnier, would mean that, even where our forces were involved in peacekeeping or policing operations or in detaining prisoners, there would be no application of the Human Rights Act. We are not talking about bullets flying in a battlefield; we are talking about rule of law operations—whether covert or overt—in which the Human Rights Act would not apply.

They are also suggesting that there should be no Human Rights Act claims by our own military personnel overseas. No doubt, the noble Lord, Lord Faulks, might say that they still have claims of negligence—up to the absolute six-year bar. There have been many times during the years when the ECHR—first without and then with the benefit of the Human Rights Act—has enabled serving personnel and veterans to improve their lot and obtain fair and dignified treatment by their employers. It is not always the case that people are seeking damages. Quite often, they are seeking a vindication of their rights and a finding that they have been subjected to degrading treatment, whether in a barracks or elsewhere. There have been cases of women in the military who have been raped, but those crimes have not been adequately processed. There have been questions about the fairness of courts martial and so on.

It seems equally wrong that, just because these personnel are overseas, the Human Rights Act should have no reach. It is the closest we have to a modern Bill of Rights. Any amendment of it should be approached with considerable care. I am slightly concerned that there are so few speakers on this group. So that is my moral position on whether the Human Rights Act should or should not apply in relation to overseas operations.

There is a practical point for those who disagree with me, such as the noble Lord, Lord Faulks, and perhaps even the Minister. It is about the relationship between our domestic courts and the Strasbourg court as a result of our Human Rights Act. The noble Lord, Lord Faulks, foreshadowed this when he said, “Oh people will say that if the Human Rights Act has no reach on overseas operations, people will just trot off to Strasbourg—but, of course, Strasbourg can change its mind.” He is quite right. Strasbourg has changed its mind—more than once—in relation to the activities of the UK state but, more often than not, it has done so because of the expert and grounded interventions of our domestic courts and our greater expertise and knowledge of our own systems and processes.

Were the amendment from the noble Lord, Lord Faulks, to pass, no claims would be possible domestically under the Human Rights Act in relation to overseas operations. It would mean that our judges—all the way up to the Supreme Court—would not be able to comment on any human rights claims in relation to overseas operations, whether brought by British personnel and veterans or by those who might claim to be their victims. That would mean that both the veterans and the other alleged victims of the UK state would go straight to the Strasbourg court, which takes the view that the ECHR has some reach in relation to overseas operations, and those cases would be considered without the benefit, the wisdom and the interventions of our judges. The dialogue model, which was set up under the Human Rights Act so that our courts are to take account of the jurisprudence of the Strasbourg court—only take account of it; they are not bound by it—would be broken, so that the Strasbourg court would no longer have the benefit in ECHR or HRA cases of the wisdom and experience of our highest courts.

That would be a practical, logical and tactical error that would only set up a collision course between the UK courts, potentially the UK Government and the Strasbourg court. If that is a collision that the noble Lord, Lord Faulks, and others are seeking, perhaps they should just be as honest as some Conservatives—not all, by a long chalk—have been in recent years with their desire not only to scrap our Human Rights Act but to leave the Council of Europe altogether. That, to me, is a terrifying prospect, but that is the collision course that is being set up by the noble Lord, Lord Faulks, and others. Perhaps they should just say so, but it is a mistake in my view.

Turning to the main event, so to speak, which is the Clause 12 duty to consider derogation from the convention through a new Section 14A of the Human Rights Act, my noble and learned friend Lord Falconer, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Thomas of Gresford, have described the question marks over this clause very well. Is it necessary? Is it wise? What is it trying to achieve? Is it, as my noble and learned friend Lord Falconer put it so pithily, just phony human-rights bashing for political purposes, because this Bill is so much about signal sending? That is one possibility, which was less flamboyantly, perhaps, but none the less considered in Part 5 by the noble and learned Lord, Lord Hope.

As the noble Lord, Lord Thomas, indicated, given that this Bill in general works so hard to suggest in various places what considerations and tests should be applied by courts, prosecutors and other decision-makers, it must be worthy of note that the new Section 14A of the Human Rights Act proposed by Clause 12 does not replicate the test for derogation under Article 15. Why is that the case? Why does it appear to create this duty to constantly consider derogating but not set out the strict tests that derogation requires? It must be that the derogation would be strictly necessary in time of war or other public emergency threatening the life of the nation, which, of course, is going to be far from the case in many covert or overt operations in the modern world—some short, some longer, some peacekeeping. Why has the Article 15 test not been replicated? Is it again, as happened with other legislation, such as the Internal Market Bill, an attempt to create tension, a collision course or a divergence between domestic law and international law duties? That would be very worrying indeed.

Is there a third possibility, that by creating a new legal duty on the Secretary of State to consider derogation, the Government are inviting litigation on the part of those who want the Secretary of State to derogate in a situation where the Secretary of State has chosen not to do so, not least on the basis of advice that a derogation would not be justified? It would be a bitter pill indeed if this legislation actually invited vexatious litigation from anti-human rights groups, when so much of the Bill is supposedly about limiting vexatious claims.

I am very concerned about the signals in respect of human rights that are being sent by Clause 12. I am hugely persuaded, of course, by the noble and learned Lord, Lord Hope, in his view that Clause 12 should have no place in this legislation.

Photo of Baroness D'Souza Baroness D'Souza Crossbench 4:15 pm, 11th March 2021

My Lords, I am pleased to speak on this Bill for the first time in Committee. The Bill seems so far to have divided the House into at least two camps: those who oppose the Bill altogether and those who seek to amend it radically. I am of the latter camp. Amendment 26, to which I have attached my name, introduces yet another safeguard, one that upholds and supports the UK’s human rights obligations under the two main conventions on human rights. Briefly, as has been said time and again, the Government should not be further enabled to derogate significantly from these conventions in the absence of parliamentary approval.

The emptiness of this clause has already been addressed by the noble and learned Lord, Lord Hope. I would support the removal of the clause altogether. In case that does not happen, however, Amendment 26 serves as an important safeguard and should prevail. The question of derogation in this context, as we heard from the noble and learned Lord, Lord Hope, is somewhat contradictory. We all know that torture is a grave breach of the Geneva conventions, with corresponding obligations and sanctions, and, as we have learned, commission of the act of torture in any shape or form is a non-derogable offence.

By including this clause, the Government are acknowledging the extraterritorial application of the European Convention on Human Rights, something that they have hitherto declined to acknowledge. If the clause is included, there will be those who will welcome it precisely due to its support of the extraterritorial application of the European Convention on Human Rights. That said, its inclusion in its current form appears to go against the absolute prohibition on torture and is therefore a dangerous hostage to fortune and should not be in the Bill.

Photo of Baroness Whitaker Baroness Whitaker Labour 4:30 pm, 11th March 2021

My Lords, I speak in support of Amendment 26 and against Clause 12 stand part. My noble and learned friend Lord Falconer of Thoroton and all who have spoken have set out the case exactly with force and clarity, so I will just add that clearing with Parliament any proposal to derogate from the European Convention on Human Rights makes proper acknowledgment of the role of Parliament in such a serious decision, although it is not always honoured in the same way by this Government. In any case, the idea of derogation in the circumstances posited by the Bill is not only misconceived and ineffectual, as noble and noble and learned Lords have said, it undermines the basis of our standing in the world as advocates and practitioners of an international order.

The international rule of law is not the same creature as the national one. Enforcement comes up against sovereignty and is not strong. This is reflected in the part played by the veto, so it depends even more on consent, and it is that consent which is sabotaged by the multiple breaches of international law on torture, genocide, war crimes and crimes against humanity in a set of national legislative proposals as unfocused as this provision. The Bill’s aim of clarity, fairness, certainty and speed of judicial action for our Armed Forces is admirable; the blunderbuss means of ineffective and probably unachievable derogation from the ECHR is not. It betrays our long and distinguished role as one of the founders in creating the instruments for the international rule of law.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat Spokesperson (Defence)

My Lords, the noble Baroness, Lady D’Souza, suggested that this Bill divides your Lordships’ House into two parts: those who wish to see the Bill disappear in its entirety and those who wish to amend it substantially. I think that the situation might be a little more nuanced than that, but like the noble Baroness, I would place myself in the camp who believe that the Bill should probably go through, but heavily amended.

On this occasion, I want to associate myself with the suggestion that Clause 12 should not stand part. Obviously, my noble friend Lord Thomas of Gresford has signed that he will suggest that it should not stand part, alongside the noble and learned Lord, Lord Hope of Craighead. On Tuesday, the noble Baroness, Lady Jones, rather hoped to kill the Bill. I think that removing this clause is important. It is neither necessary nor desirable, as almost all noble and noble and learned Lords who have spoken already have pointed out.

Some severe issues are raised by this clause, in part about what message we are sending internationally. The United Kingdom left the European Union last year. We have said that, as a country, we still respect human rights and the rule of law and that we wish to play a global role. We are still an active player in NATO and in the United Nations, but what message are we sending if we say, “We might want to derogate from the European Convention on Human Rights”? Do we really want to derogate from human rights laws? Is this not a siren call? Is there not a danger that this is trying to speak to a domestic audience? I know that the Minister does not like the concept of lawfare and that she does not care for the term. However, in some ways, the clause as it stands and the amendment tabled by the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Faulks, seem to suggest that this is about speaking to an audience that wants to say, “We should not be too worried about human rights. Let us strike down some of these rules.” Surely our role in the international arena should be precisely that of supporting human rights. We will not do that by derogating from the European Convention on Human Rights.

As various noble and noble and learned Lords have already pointed out, in particular the noble and learned Lords, Lord Falconer of Thoroton and Lord Hope of Craighead, this clause is unnecessary because it is already possible to derogate. Can the Minister explain why she feels that it is necessary? If there is no good reason, the Liberal Democrat Benches will certainly not support the clause.

However, there is always a danger that, however much we might want to remove a clause, it cannot be done and amendment to it might be more appropriate or feasible. To that end, it is clear that Amendment 26 tabled by the noble and learned Lords, Lord Falconer and Lord Hope, my noble friend Lord Thomas and the noble Baroness, Lady D’Souza, is important. If derogations were to be proposed, it is clear that the appropriate people to make that decision are parliamentarians. It is hugely important that the Government should remember the appropriate relations between the institutions of the Executive, the legislature and the judiciary. At times over recent months and years, it has appeared that Her Majesty’s Government seem to think that only the Government should make decisions. If any derogations were to take place, they should be brought forward for a decision on an affirmative vote by both Houses of Parliament. I strongly support Amendment 26.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for the informed proposal in his amendment and other noble Lords for their genuinely thought-provoking contributions. I will try to address them in detail, although I realise that to the perception of some I may do so inadequately.

Amendment 26 would require designated derogation orders proposed by the Government in relation to overseas operations to be approved by Parliament before being made. It is important to begin by repeating the fact that, as some noble Lords have noted, the Government already have the power to derogate some aspects of the ECHR without reference to this Bill, and the Bill will not change that. The noble and learned Lord, Lord Falconer, is correct that the bar is set high to justify derogation, but it can still be done. It is important to remind noble Lords that Parliament already has a crucial role in approving any derogation decision. It is not the intention of this Bill to change the existing robust processes which the Government and Parliament follow if and when a decision to derogate has been made.

The noble and learned Lord, Lord Falconer, and my noble friend Lord Faulks asked why we have Clause 12. The clause merely ensures that all future Governments will be compelled to consider derogating from the ECHR for the purpose of a specific military operation. There is no sinister or malign agenda here, as was implied by the noble Baroness, Lady Chakrabarti. This does not create new law in relation to the ECHR or the procedures for designating a derogation order. In effect, it puts the intent of the 2016 Written Ministerial Statement on to a statutory footing and it will ensure that operational effectiveness can be maintained, for example, by enabling detention where appropriate for imperative reasons of security in a time of war or other public emergency threatening the life of the nations.

It is worth reflecting on the procedure that attends a derogation from the ECHR. If such a decision is ever made, the Human Rights Act requires that the Secretary of State must make an order designating any derogation by the UK from an article or a protocol of the ECHR. The Secretary of State must also make an order amending Schedule 3 to the Human Rights Act to reflect the designation order or any amendment to, replacement of or withdrawal from that order. Crucially, for those concerned that Parliament does not have a say in the process, I would remind noble Lords of the procedures that are already in place. A designation order to derogate ceases to have effect—it evaporates effectively—if a resolution approving the order is not passed by each House of Parliament within 40 days of the order being made. This means that both Houses will always be able to approve or reject any derogation order within 40 days of a decision. That is the process and these are the procedures.

In addition to the requirements laid out in the Human Rights Act 1998, the Government must also communicate a decision to derogate to the Secretary-General of the Council of Europe. This should include details of the measures taken and the reasons for taking them. The Secretary-General should also be informed when derogations have ceased. These existing measures provide for the appropriate level of parliamentary debate and approval of a decision to derogate. To the best of my knowledge, successive Governments have not sought to change that. I am sure that the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Thomas of Gresford, will correct me if I am mistaken.

However, requiring a parliamentary debate on a decision to derogate ahead of time, instead of after it is made, as Amendment 26 proposes, could undermine the operational effectiveness of MoD activity or compromise covert activity that we would not wish hostile operators to be aware of. It is generally accepted, without reference to derogation powers, that military action must at times be taken without gaining the prior consent of Parliament—for example, in situations where the Government’s ability to protect the security interests of the UK must be maintained, and in instances when prior debate and disclosure of information could compromise the effectiveness of our operations and the safety of British service personnel. I submit that the same principles apply here: requiring a debate before an order is made could, similarly, have a detrimental impact upon operational effectiveness. It would effectively shackle the MoD, preventing it from doing what it needs to do, when it needs to do it. It would defeat the purpose of derogation in relation to overseas military operations, which should enhance operational effectiveness. I cannot believe that the noble and learned Lord, Lord Falconer of Thoroton, would wish to impose that stricture. I therefore urge him to withdraw his amendment.

Although I have argued against the proposal from the noble and learned Lord, Lord Hope of Craighead, that Clause 12 should not stand part of the Bill, it has more logic than Amendment 26. I wonder if it is a mischievous stratagem to make the Government look at Clause 12 again. I listened to the noble and learned Lord with great care and I will look at his arguments again. When they are advanced with the lucidity with which he is rightly associated, they have an allure.

Amendment 27, in the name of my noble friend Lord Faulks, is intended to prevent claims connected with overseas operations being brought in England and Wales under the Human Rights Act, whether from service personnel, local nationals or any other claimant. I thank my noble friend for an incisive analysis of the ECHR and the Human Rights Act. He rightly identified the need to bring clarity to an issue that has been dogged by uncertainty and the divided opinion of senior legal personnel. His analysis and conclusions richly inform the debate around the ECHR and the Human Rights Act, but I will comment on his amendment, which I thought was unfairly characterised by the noble Lord, Lord Thomas of Gresford. The noble Baroness, Lady Smith, was a little more charitable. I detect that she is warming to the Bill, albeit with reservations.

In relation to Amendment 27, the Human Rights Act’s extraterritorial application mirrors the scope of extraterritorial jurisdiction under the European Convention on Human Rights. Therefore, it is important to note that, whatever the position under domestic legislation, as a signatory to the ECHR, to which the UK remains committed, we would still be under an obligation to ensure compatibility with the convention. My noble friend acknowledged that. We would still need to provide an effective route for people to bring claims in the United Kingdom in relation to any alleged breach of their convention rights. This was recognised by Professor Ekins during the House of Commons committee’s evidence-gathering session for this Bill.

I reassure the noble Baroness, Lady Chakrabarti, of how mindful of our obligations we are. The issue of extraterritorial jurisdiction under the ECHR has been the subject of complex legal debate, and it continues to be addressed and developed through European Court of Human Rights case law. This case law has led to some uncertainty about the ECHR’s application and has extended the territorial scope of convention obligations beyond what was understood when the ECHR was originally drafted.

My noble friend Lord Faulks has courageously recognised and gripped the reality. In recognition of that uncertainty, he acknowledged that the Government have committed to a review of the Human Rights Act. That manifesto commitment of the Conservatives was put before the electorate prior to the last general election. We have now launched the independent Human Rights Act review to examine the framework of the HRA, how it is operating in practice and whether any change is required. As part of this, the panel will examine the circumstances in which the Human Rights Act applies to acts of public authorities taking place outside the territory of the United Kingdom. It will consider the implications of the current position and whether there is a case for change.

I know that my response will disappoint my noble friend, but I do not want to pre-empt the review’s conclusions. It is the ministerial responsibility of the Ministry of Justice, not the MoD, but I anticipate and hope that my noble friend will be an informed and powerful contributor to the review.

The review does not change the commitment of the United Kingdom to the ECHR and human rights. We will continue to champion human rights at home and abroad. The review is expected to conclude in the summer, and we will consider its recommendations then. Given that current process, I respectfully request that my noble friend withdraw his amendment; that the noble and learned Lord, Lord Falconer of Thoroton, withdraw his; and that Clause 12 stand part of the Bill.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees 4:45 pm, 11th March 2021

I have received two requests to speak after the Minister, one from the noble and gallant Lord, Lord Craig of Radley, and the other from the noble Baroness, Lady Chakrabarti. I will call them in that order.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

My Lords, the Minister has reminded us that, when Defence Secretary, Michael Fallon said:

“before embarking on significant future military operations, this government intends derogating from the European Convention on Human Rights, where this is appropriate in the precise circumstances of the operation in question.”

In her letter of 26 February, the Minister indicated that Clause 12 was included to reflect this undertaking. Significantly, Clause 12 does not give the same weight to a decision to derogate as was indicated by Mr Fallon. If that is what is intended, should it not say so in words that reflect the commitment explained by Mr Fallon? What is the Government’s intention? Is it to seek to have in place an effective form of combat immunity for active operations overseas? That would be welcome but, at present, as many noble Lords have said, Clause 12 seems worthless and should not form part of the Bill.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

The Bill has been drafted to reflect the overall policy intentions to try to reassure our service personnel that, before overseas operations are committed to, careful thought is given to them. As the noble and gallant Lord understands, because of the deliberate way that the Bill is drafted, the impact of Clause 12 is merely to consider, not to compel, derogation. I simply repeat my undertaking to the noble and learned Lord, Lord Hope of Craighead: I will look very carefully at these arguments.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, I apologise to the Minister for not putting this short question clearly enough in my earlier remarks. Do the Government agree that the new duty in Clause 12, which would become the new Section 14A of the Human Rights Act, on the Secretary of State to consider derogation a judicially reviewable duty? Will it be, as I suspect it will, open to challenge in relation to the Secretary of State’s considerations, so that litigants will be able to judicially review the adequacy of the considerations, whether or not the operations were significant, and the Secretary of State’s decision not to derogate—or, indeed, to derogate—in relation to every single potential overseas operation?

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

The way in which I anticipate Clause 12 operating is that it is simply an ex facie reminder on the face of the Bill that a Secretary of State, if he were contemplating an overseas operation, should consider derogation. I suggest to the noble Baroness that thereafter, the existing law would govern whatever subsequent activity took place and whether or not the designated derogation order was deployed. The law is there and it is clear as to what is to be done. I think the acceptance of ministerial power to make these decisions is understood. As I have said before, that is with reference to parliamentary scrutiny, which has a very public capacity to call Ministers to account. I therefore merely ascribe to Clause 12 a reassurance that a Minister will give thought to this, but is not obliged to derogate.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

[Inaudible.] The noble Baroness, Lady Chakrabarti, asked an incredibly clear question and I think the House is entitled to an answer. Would an exercise of the power to derogate in accordance with this new section of the Human Rights Act be judicially reviewable? Although the Minister gave a long answer, she did not answer the question directly. I can understand why she feels uneasy about answering it without a clear steer from officials, but I think it would be appropriate if she wrote to the noble Baroness, Lady Chakrabarti, and the rest of us with the answer to that very important question.

I thank the noble Lord, Lord Thomas of Gresford, the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Hope, and the noble Baronesses, Lady Whitaker and Lady Smith of Newnham, for their support for Amendment 26 or for the clause not standing part. I also note that the Minister said on behalf of the Government that they would consider the allure of the argument of the noble and learned Lord, Lord Hope, that this clause should not be part of the Bill at all. I am grateful for that and I think the House will be interested to hear her conclusions.

The speech of the noble Lord, Lord Faulks, was interesting but broadly irrelevant to Amendment 26 and whether the clause should stand part. I understood him to say that actually, the problems that have arisen in relation to overseas operations will never be addressed in any real form by any sort of possible derogation under the Human Rights Act, and that he could not therefore see what derogation has to do with the problems the overseas operations Bill is addressing. He then went on, in an interesting speech which I profoundly disagree with, to say that the problem is not whether or not derogation is possible but whether or not the Human Rights Act should extend to overseas operations generally.

The noble and gallant Lord, Lord Craig of Radley, absolutely put his finger on it when he asked the Minister, if derogations are not intended—if derogations cannot give combat immunity—what is the point of them? As the noble and gallant Lord pointed out, it is plain from what the Government are accepting has been said in this debate that combat immunity is not on offer from derogation. I strongly urge the Minister to drop this clause, because it is a pretend clause. It pretends that derogations can help with the problem this Bill seeks to address, when they plainly cannot.

I beg leave to withdraw Amendment 26.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

Before we do that, does the Minister wish to respond?

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

I am grateful for the opportunity to comment. When I responded to the noble Baroness, Lady Chakrabarti, I did not have before me specific information relating to her question. I am now informed by my officials that if there were a derogation under Clause 12—or, presumably, a decline to derogate—this could be subject to a judicial review. I thought it preferable to share that with the House at this stage. That is without prejudice to my previous remarks that I undertake to consider everything that has been said in the debate, perhaps most significantly by the noble and learned Lord, Lord Hope of Craighead.

Amendment 26 withdrawn.

Amendment 27 not moved.

Clause 12 agreed.

Amendments 28 and 29 not moved.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

We now come to the group beginning with Amendment 30. Anyone wishing to press this amendment to a Division must make that clear in the debate.