“After section 14 of the Human Rights Act 1998 insert—

‘14A Duty to consider derogation in relation to overseas operations

(1) Where the Secretary of State considers that any overseas operation is, or is likely to be, significant, the Secretary of State must consider whether it is appropriate for the United Kingdom to make a derogation under Article 15(1) of the Convention.

(2) In this section—

“overseas operations” means operations of Her Majesty’s forces 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;

“Her Majesty’s forces” has the same meaning as in the Armed Forces Act 2006 (see section 374 of that Act).’”—(Mr Francois.)

This new clause reinstates a duty, removed during passage of the Overseas Operations Act 2021, requiring the Secretary of State to consider derogation from the European Convention on Human Rights during significant overseas operations.

Brought up, and read the First time.

I beg to move, That the Clause be read a Second time.

With this it will be convenient to discuss new Clause 15—Exemption from the European Convention on Human Rights for deployed members of the reserve forces—

“A member of the reserve forces who has been deployed for operations under this Act may not be subject to the provisions of the European Convention on Human Rights for the duration of that deployment.”

This new clause would make provision for the members of the reserve forces who have been deployed under this Act to be exempt from the ECHR for that period of deployment.

I hope that we are all much refreshed. I should say up front that, while we have been able to conduct this Committee for most of the time in a relatively consensual manner, I fear that on this subject there may be some fundamental differences of principle at stake and that therefore we may find it genuinely difficult to agree. I would have been intrigued to know the attitude of Liberal Democrat members of the Committee, as we are debating the effect of the European convention on human rights on service personnel, but unfortunately they are no longer here.

Nevertheless, the essence of new Clause 13 is that it would reinstate a duty removed during the passage of the Overseas Operations (Service Personnel and Veterans) Act 2021 to require the Secretary of State to consider derogation from the ECHR during significant overseas operations. Similarly, the essence of new clause 15 is that it would make provision for members of the reserve forces who have been deployed under the provisions of the Bill to be exempted from the ECHR for the period of that deployment.

Let me say at the outset that I have never met a member of His Majesty’s armed forces, whether past or present, who believed that the military should not operate subject to legal constraint. After all, soldiers fight to defend our democratic way of life and, in Northern Ireland, they fought to uphold the rule of law. We have had for decades the law of armed conflict, which has at its heart the well-established Geneva convention. It is not as if we have never had any boundaries to control the actions of armed forces personnel.

How did we get to the situation in which we are today, where the European convention on human rights has spread to the battlefield, not just within Europe but globally? The history is significant, and it lies behind why we have tabled the new clauses. It all came about because of something called the al-Jedda case, which was heard before the Appellate Committee of the House of Lords a couple of years or so before the United Kingdom Supreme Court was created. I think, from memory, that the UKSC was stood up in 2009, but this case, or at least at the first crank of the handle, as I will go on to explain, predated that.

In essence, the al-Jedda case was about the treatment of a prisoner detained in Iraq. The case was brought by a now disgraced lawyer called Phil Shiner. His name will be known to anyone who has ever served in the British Army. For the record, he was subsequently convicted of fraud and was struck off as a practising solicitor, although, at least to date, he never went to jail.

The Appellate Committee of the House of Lords heard this case, and Phil Shiner instructed legal counsel to put forward his case to the House of Lords. The lead appellant in that case, before he became a Member of Parliament and our Prime Minister, was one Keir Starmer QC. The Minister for Veterans and People got into some trouble over this, because when we raised it in the Commons, she was adamant that that individual had not been working for Shiner and was merely acting as a so-called third party, as a kind of expert witness to the court on a point of law.

Unfortunately for the Minister, we had the court records from the House of Lords, which showed very clearly that Keir Starmer, as he then was, was the lead appellant, appointed and “instructed”—that word is used in the records—by Phil Shiner’s law firm, Public Interest Lawyers. That law firm, I am pleased to say, is no longer in business, and quite right too. The Minister for Veterans subsequently had to come to the Commons in February and go through the embarrassment of having to correct the record and admit that our version of events, as explained to the Commons, was true.

How did we get from there to now? Phil Shiner was a persistent man, particularly when money was at stake, so several years after losing in the House of Lords, he took the case to the European Court of Human Rights in Strasbourg. To be clear, the current Prime Minister was not involved in the case at that stage, but he clearly had been previously. Shiner won, so the ECHR, which we were then subject to, ruled that the European convention on human rights would then apply to any theatre in which British armed forces personnel were serving. Through that judgment, they effectively created an industry that Shiner was very expeditious in exploiting. He brought literally hundreds of cases against current and past British armed forces personnel—many of the cases were funded by British taxpayers through legal aid and were completely and utterly fabricated—for money. It was the use of the ECHR that allowed him to do that.

In other debates in the Chamber, we have heard senior Ministers, including the Secretary of State for Northern Ireland, say that there is no such thing as a vexatious prosecution. Self-evidently there is, because otherwise why was Shiner struck off and convicted of fraud by a court of law? There can be—in fact, there were—hundreds of vexatious prosecutions against British military personnel. It was, for the record, Johnny Mercer when he served on the Defence Committee some years ago, when he was the Member for Plymouth, Moor View, who led a sub-committee to look into this issue. Its very powerful report helped to bring Shiner to book, no doubt saving the taxpayer a lot more money, and led to his career ending in disgrace.

But what if there was a ceasefire in Ukraine? Let us posit a situation in which, under the auspices of the coalition of the willing, British service personnel were deployed to Ukraine. If, by some happenstance, they became involved in a firefight with Russian people who had perhaps crossed the line of ceasefire, who is to say that years—maybe decades—later, those personnel will not end up in a court of law for obeying what they believed to be perfectly legitimate orders, but which were subsequently second guessed by a human rights lawyer? For the avoidance of doubt, that is why the new clauses would alleviate such a situation.

In short, we cannot allow this Government’s obsession with human rights to put our armed forces at risk—either now, in the future or, indeed, historically—and potentially force them to fight ruthless opponents with one arm tied behind their back. This issue is not going to go away, and at some point the Government, be it through the Northern Ireland Troubles Bill or some other mechanism, will be forced to address it. The purpose of these new clauses is to force them to address it today. It is a shame that we are not going to hear the Liberal Democrats’ view on this, but I will be intrigued to hear the Government’s. Before that, however, I suspect that we will hear from my hon. Friend the Member for Exmouth and Exeter East.

I will speak in support of new clauses 13 and 15. My right hon. Friend has laid out quite a scary case study of what happens when international legal frameworks are used to affect our service personnel.

New Clause 13 deserves support because it reflects a clear and honest understanding of the legal position. While our long-term view is that the United Kingdom should not remain bound by the European convention on human rights, the reality is that the convention still applies today. Until that changes, the Government have a duty to use every lawful tool available to protect our armed forces, safeguard the national interest and uphold the integrity of operations overseas. The new clause would do that by requiring Ministers to consider derogation when significant overseas operations make it appropriate. This is not an acceptance of the status quo; it is a recognition of the conditions in which decisions are currently made.

Our forces operate in dangerous, fast-moving and legally complex environments. They should not be constrained by frameworks designed for peacetime while Ministers fail to even consider whether the convention’s emergency provisions should be engaged when circumstances clearly demand it. Failing to do so is not leadership; it is a refusal to confront responsibility. A Government committed to the rule of law should also be committed to using the law as it is intended. Where a significant overseas operation is under way, the Secretary of State should be required to address the straightforward question: is derogation appropriate in these circumstances? That is a responsible approach.

I raise this point because it has happened in recent history. In the aftermath of 9/11, the Government at the time derogated from article 5 of the ECHR, enacting part 4 of the Anti-terrorism, Crime and Security Act 2001, which authorised the indefinite detention of foreign national terrorism suspects.

Given that the hon. Member is outlining cases where a previous Government—in 2001, if I am right, that was a Labour Government—derogated from ECHR articles without being required to in a piece of legislation such as this, why would he not expect any future Government to be equally rational in making choices about whether to derogate? We have the example of our great allies in Ukraine, who remain signatories of the ECHR but have taken the appropriate derogations to deal with their wartime emergency. They are fighting an enemy that withdrew from the ECHR in 2022, and I am getting a hint that, morally, the hon. Gentleman is on the side of the line of the country that withdrew from the ECHR, rather than the one that is continuing under it with appropriate derogations.

I am not sure that I welcome that Intervention. To say that I am aligned with the people who—

indicated dissent.

That is exactly what the hon. Member just said. I will go back in Hansard to check what he just said.

It is very clear that the hon. Member for North Durham basically implied that we are aligned with the Russians. That is a despicable thing to say.

I have spent my entire adult life serving my country, and I view being in this House as an extension of that service. For the hon. Member for North Durham even to hint that I am aligned in that way is absolutely atrocious, and I hope he will withdraw his remark.

I am happy to clarify that I had no intention of hinting that the hon. Gentleman was in any way politically allied with Russia. Clearly, he is an ally of Ukraine, as we are on the Government side of the House, but it is a matter of fact that the only countries in Europe that are not signatories to the ECHR are Russia and Belarus. I do not wish us to make the same choice that they have made.

The fact that other countries that we consider to be close allies are also considering this is an important point that I will come on to. In the aftermath of 9/11, the Government chose to derogate from article 5 of the European convention on human rights through part 4 of the Anti-terrorism, Crime and Security Act. That permitted the indefinite detention of foreign nationals suspected of terrorism who could not be deported without breaching other international obligations. While contentious, that step showed that, in the face of exceptional threats, Ministers can and should use the mechanisms available within the convention itself.

In the same spirit, the provision requires Ministers to take clear, accountable decisions when national security and operational effectiveness are in play. It ensures that responsibility cannot be delayed or sidestepped when prompt judgment is needed to protect our personnel and maintain the proper conduct of military operations. That is important and that principle is evident. The provision follows that precedent by ensuring that Ministers must take clear and accountable decisions where national security and operational effectiveness are at stake. It prevents responsibility from being deferred or avoided in circumstances where timely judgment is essential to the protection of our personnel and the proper conduct of operations. The importance of that is clear. The convention has increasingly been interpreted in ways that place strain on operational decision making, encourage litigation and create uncertainty for those serving on the frontline.

Our armed forces need clarity and confidence. They need to know that the Government stand firmly behind them, not that they will face legal challenges long after the events. New Clause 13 would move us towards that clarity. If we are serious about restoring control over our legal framework, we should not pretend that the current arrangements are working in Britain’s interests. Ministers are at least required to consider derogation when our forces are engaged in demanding and hostile conditions. The new clause is a practical and measured step. It does not claim to resolve every difficulty, but it does establish the simple and necessary principle that Ministers must take responsibility, make considered decisions and put the interests of the country and those who served it at the forefront.

I also support new clause 15, which seeks to provide exemption from the European convention on human rights for members of our reserve forces when they are deployed under the Act. The intention behind that proposal is both practical and just. Our reservists serve alongside regular personnel in demanding and often perilous conditions. They shoulder the same responsibilities, face the same threats and act under the same operational pressures. It is therefore right that they should be safeguarded under the same legal framework that recognises the realities of military deployments.

In recent years, some interpretations of the convention have become stretched and detached from the practical realities it was designed to address. The world that we face today is very different from the world of the 1950s. I will not digress too much—in fact, I will not digress at all, Mr Efford—but this is an important point. The structures of the ECHR, designed in the 1950s by the people that experienced world war two, were all just and morally sound, and we can all accept that point. But the world has moved on rapidly in the years since the 1950s. Since the ECHR is broad in scope, we have had a number of different lawyers see interpretations—and able to move things—that may be outside of our national interest.

My hon. Friend the Member for South Northamptonshire raised the interesting point that this is not just a problem for us in the UK—it is also a problem for a number of our allies across Europe who are considering either derogating or leaving the convention because it is not serving their national interest. Bear in mind that we are a tolerant country with a good legal system. I have no doubt that a lot of these Laws would be reproduced. We need to be in a position to give our forces the legal confidence that they can operate in those environments and that we have the jurisdiction here in the UK to be able to carry out that legal framework. I very much support the new clauses, and I hope the Committee will consider them.

I will reinforce the points made by my hon. Friend. As he said, the ECHR was created in a completely different environment and age from that in which we are living now. It is its interpretation, in particular, that has given rise to some of the problems we are facing across the board, whether on migration or dealing with these cases here. The hon. Member for North Durham made a point that he hopes the Government would act in the same way as previous ones. Unfortunately, hope is not enough in these situations and actually having legal clarity set out in black and white gives the certainty that we require. Given that our current Prime Minister prides himself on being a lawyer—and I am a former lawyer, so I will say this myself—we are giving him the opportunity to have it in absolute black and white exactly what he should do in the circumstances, rather than leaving it to chance.

I thank the right hon. Member for Rayleigh and Wickford for tabling new clauses 13 and 15.

New Clause 15 seeks to exempt members of the reserve forces deployed on operations from the European convention on human rights for that period of deployment. As the Committee will know, the UK has an international legal obligation to comply with the provisions and protections contained in the ECHR. The ECHR provides for legally enforceable rights within the jurisdiction of the state. That includes, in exceptional circumstances, extraterritorial jurisdiction which applies beyond the territory of the state. The UK is obliged to guarantee rights under the ECHR in circumstances where the armed forces either exercise authority and control over an individual, for example a detainee, or over an area, for example military occupation.

New clause 15 seeks to change domestic law, but it should be made clear that that would not remove the UK’s international obligations under the ECHR. As a signatory to the ECHR, the UK cannot simply opt out of its obligations on a case-by-case basis. Removing the potential for these matters to be considered in the UK courts merely provides a fast track to Strasbourg. The only formal route to avoid the UK’s obligation under the ECHR would be to withdraw from the convention itself, and it is this Government’s position that we remain a party to the European convention on human rights.

That leads us to new clause 13, which seeks to emulate clause 12 of the Overseas Operations (Service Personnel and Veterans) Bill introduced by the last Government. That clause would have required any future Secretary of State to consider whether to make a derogation under article 15 of the ECHR. That article provides:

“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”

At the time, concerns were raised that clause 12 of the Bill risked damaging the UK’s reputation for upholding the rule of law and our commitment to human rights. It was also seen as unnecessary, in that the Government can already derogate under article 15 of the ECHR, meaning that the provision did not add any additional legal power; its inclusion seems to have been largely symbolic. I am uncertain why the Opposition would seek to reintroduce the provision in this Bill, when the last Government agreed to its removal from the Bill. I therefore urge the right hon. Member not to press these new clauses.

I have listened to the contributions during this debate, one of which I think was particularly unworthy; having heard that contribution in particular, I now wish to press both new clauses to a vote.

Question put, That the clause be read a Second time.

The Committee divided: Ayes 3, Noes 7.

Question accordingly negatived.