King’s Speech

Baroness Kennedy of Shaws Excerpts

Wednesday 15th November 2023 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I felt very proud today. I felt proud that I live in a country with an independent judiciary that operates on the rule of law, even when it means correcting a mistake made by government in its policy. This morning’s decision on Rwanda was made on the facts—let me make that clear: on the facts and the evidence. The decision relied on the evidence received in great volume subsequent to the memorandum of understanding with Rwanda and the great sums of money put at its disposal.

Since the time of that memorandum of understanding, there have been no applications from Afghans, Syrians or Yemenis that have been successful; there has been a 100% refusal rate. What it calls into question is the ability of decision-making to follow due process. Refoulement —the return of applicants to the places where they were persecuted—is happening regularly at the hands of the Rwandan system.

The court also received evidence of secret transfers of people to Uganda. I know from my own work in cases involving Rwanda’s human rights issues that, consequent to the terrible events of the genocide that took place there years ago, the country is still unstable and does not have a reliable legal system. It was on that—nothing to do with human rights law or the European Convention on Human Rights—that the decision was based; it was based largely on laws passed by our own Parliament. It is a vindication of our own legal principles.

I also felt happy this morning. My heart sang when I saw that the Minister, the noble Lord, Lord Ahmad, was still in office. He is a great Minister and I have had lots of dealings with him, so it was marvellous to see that he remains; he is a stayer and a keeper. I was sad to see the noble Baroness, Lady Goldie, go—my compatriot from Scotland was also a great Minister—but I welcome the noble Earl, Lord Minto, in her place.

I also welcome the noble Lords, Lord Young and Lord Roberts. I do not know the former, but I know the latter. The noble Lord, Lord Roberts, is great writer and I have enjoyed many of his books. My son-in-law has just finished reading his book on Napoleon and says that it is a triumph, so I recommend it to all noble Lords.

I want to talk in serious terms about Israel and Gaza. Three Israeli mothers were in London last week, and their pain was visceral. Their children are being held hostage. As the noble Lord, Lord Mann, said, the return of the hostages has to be a priority, and we should call for it over and over again. Their anguish was beyond imagining, yet they still called for peace—it was remarkable. We all share that heartbreak and dismay at the horrific toll being taken by this conflict.

I believe in law, because I have practised it now for 50 years. When people are howling in pain over horrible things that have happened to them, the law is more necessary than ever before. It is why the state, either domestically or internationally, has to deal with the wrongs that are experienced, to be consistent, to apply law and to be true to law. I hear Ministers saying, “It’s all collateral damage. Look at what happened when we had to bomb Dresden during the Second World War, and they bombed Coventry; look at the great toll it took on the people of both cities”. But that was the very reason that the Geneva conventions, the Universal Declaration of Human Rights and so on were created after the Second World War: to bring more reason to these horrors and more rules to the way we do things.

The world was revolted by 7 October, but it is also horrified by what it is seeing daily on its screens happening to the children and civilians of Gaza. Children do not start wars and babies do not support Hamas. It is an interesting fact that almost half the population of Gaza was not around when Hamas was voted for all those years ago. So we should not be dancing on pins; we should be calling for an immediate ceasefire. International law makes it clear that the principle of proportionality applies to all uses of military force, but people who are watching do not think this is proportionate. They do not hear the arguments about self-defence requiring this level of life-taking.

The other matter is one of distinction. The principle of distinction means you have to distinguish between military objectives and civilians, but that is not happening, either. Those principles are sacred and we should be reminding everyone of how important they are. They mean that if one party does not adhere to the rule of law—and clearly Hamas has not—it is not a green light to the other side to ignore the laws of armed conflict. So I am in favour of a ceasefire as soon as possible, because of the humanitarian needs but also because I strongly believe that we have to listen to the parents of those children who have been taken hostage. We have to return to the peace table and we have to have women at it. We are living in dark times, but the answer to all these issues is adherence to human rights principles. They do not disappear in times of war; they should be our lodestar, along with the rule of law, in times of crisis.

I was offered a minute and a half by my friend, the noble Lord, Lord Stone, because he finished so quickly, so I shall mention something else: universal jurisdiction. We have limited universal jurisdiction in this country, because it applies only to citizens or residents. That means we would not be able to arrest Hamas people if they arrived at Heathrow Airport, such as the man who suggested from Lebanon that it was possible to repeat and repeat the events of 7 October and that in fact Hamas should extinguish the “Jewish entity”, as he called it. We would not be able to arrest the Wagner military if they arrived at Heathrow. So I am calling on the Government to amend their legislation, when they get the opportunity with the Criminal Justice Bill, to remove those limits. If someone arrives here, it should be possible to arrest them for war crimes, crimes against humanity or the perpetration of a potential genocide.

Ukraine

Baroness Kennedy of Shaws Excerpts

Thursday 21st September 2023 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, if anything ever speaks to the value of this House, it is when you hear a debate such as this, the breadth of expertise and the power of the contributions made. I pay tribute to everyone who has spoken so far. I will make specific reference to the noble and gallant Lord, Lord Stirrup, because he raised the matters that have been a large part of my work over the last year: war crimes and the crimes that have been committed in Ukraine.

Shortly after the invasion, President Zelensky was in touch with different leading lawyers and tried to create a task force that would get to work on the crimes being committed. Noble Lords will remember that at a very early stage, within a very short time of Russian forces entering Ukraine, we were seeing civilians being shot dead in the most grievous circumstances and horrific invasions of domestic homes, and we received evidence of sexual assault and the abuse of women and children.

I have been involved in the issue of legal accountability for the invasion and war crimes along with many distinguished lawyers from here in Britain such as Amal Clooney and the noble and learned Lord, Lord Neuberger, a whole succession of King’s Counsel, and lawyers from the United States and Europe. The point that the noble and gallant Lord, Lord Stirrup, made about the monstrous abuse of the rule of law, abuses of human rights and the dismissal of the Geneva conventions and the rules of war is shocking beyond belief in many ways.

I will not detain the House by reciting and repeating many of the things that it has heard about the mountain of war crimes that have taken place—crimes that we somehow thought the rules would contain. That is why I so often stand up and remind the House that we ourselves have to be seen to be maintaining and respecting international law, because it is important that we can speak from that moral position when we come to address the greater horrors that are sometimes committed around the world. We can do that only if we can speak from the high ground of having respected international law on other fronts.

I want to talk about the challenges presented by this war. As many noble Lords know, I work with the International Bar Association; I am the director of its Human Rights Institute, and we work on the rule of law and human rights globally. One subject that we have been addressing is that, if there are to be trials for war crimes, they have to be conducted in a way that abides by the rules of due process and fair trial. That is very hard in war situations. Already in Ukraine there are trials of Russians taking place, and one wants to be supportive of the idea that those trying those cases are well versed and well inducted into international law and the requisite standards that must be complied with.

I pay tribute to the Attorney-General and one of our own judges, Judge Howard Morrison, who sat on the International Criminal Court but who has been involved in Ukraine on behalf of the United Kingdom, helping with the training of judges and inducting them into the standards of trial that there would be for war crimes. There is also the business of training prosecutors and defence lawyers. We must have defence lawyers who are willing to act in these cases, persuade them that that is an essential part of the process and help with the training of those lawyers, and the International Bar Association has been involved in that. The assessment and independent reviewing of those trials are also important—having a presence in the court to make sure that people are able to present a defence if they have one, and that the case is conducted in a fair and just way. Many of these issues are exercising lawyers just now.

The noble and gallant Lord, Lord Stirrup, spoke about the importance of law in war. He said that this was a crime from the outset, and it was. It is a crime against the UN charter to invade another sovereign country in the way that Russia did. It was a crime of aggression. Efforts have been made, and we have still not concluded those efforts, to secure an international tribunal created by countries that recognise that this crime has taken place. At some stage there has to be a preparedness to bring Russia and Putin to account in a tribunal for that crime, in the same way as Nuremberg. That was created in an ad hoc way but was being prepared long before the end of the war, so we have to make sure that we have in place the right tribunal to try Russia for that initial grievous crime from which everything else has flowed.

One of the areas I have particularly been working on are the crimes which have involved sexual violence against women and children, but also against young men, and the abduction of children. I want this House to know that, before warrants were issued by the International Criminal Court, evidence was being accrued. It was so alarming that, here in the United Kingdom, we placed the woman who is the head of the Russian commission on children, who was very active and behind much of the strategy of taking children into Russia, on a sanctions list some months before the warrants were issued by the International Criminal Court. Therefore, Britain was alert to all of this and took important steps to sanction her.

Evidence has built up which shows that this crime is having a huge impact on the morale of families inside Ukraine. The noble Lord, Lord Harrington, spoke about the ways in which things have changed because of modern technology and how people on the front line can now be in touch with their families and give them reassurances—or the opposite—about what is going on. The effect on the morale of those on the front line, who know that their children have been taken, the lives of their families have been disrupted, and they might never be able to bring them back home, is huge; the effect on an army is huge. That was one of the reasons why there was such alacrity in getting those warrants issued—to show that there was not a passive response to what was taking place regarding the children.

I finally want to raise before the House—I ask this of the noble Baroness—the need for an international strategy and a much closer alliance across Europe on how we hold Russia to account for its crimes. This work has to be done with speed, and now. Has there been any headway in collaborating with other European countries and in conversations with the United States about the creation of a tribunal, as in Nuremberg, for the crime which we now recognise as a crime against peace—the crime of aggression?

The other really pressing issue is money. We have the frozen assets of oligarchs; their yachts are sitting, rotting in harbours in the Mediterranean. However, even if you collected all that—together with all the houses and mansions in Belgravia owned by oligarchs, which are currently in a frozen stasis—it will probably never be enough to deal with the horrors that need compensating, and the rebuilding of Ukraine. One is going to have to look at the money in banks—the state assets in the Bank of England, the United States banking system and the European banking system.

It will mean looking at our own state immunity legislation. Other countries will have to do the same if we want to be able to seize any of those assets or to force Russia to part with them in order to reconstruct the nation they have been reducing to rubble. Pain has been caused to so many people and lives have been lost. How do you reconstruct that and deal with the emotional damage, never mind the physical damage? There is a large issue here about how we deal with those assets. Legal ingenuity has been going into this, but we have to indicate a willingness to look at our own law and how we will reform it to seize those assets and put them towards the defence of Ukraine and its reconstruction.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Kennedy of Shaws Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

[The Deputy Speaker (Lord Lexden) (Con)]

I call the next speaker, the noble Lord, Lord Judd. We have no connection at the moment, so I call the noble Baroness, Lady Kennedy of The Shaws.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, once again I am taking the opportunity to express my concerns about this Bill, particularly the five-year window for prosecution and the ability that that will have for the Government to meet their long-standing human rights obligations.

I support Amendment 3. I want to remind everyone that there is already an exclusion in this legislation for rape and other sexual offences. It is there correctly. I suspect that the Government, in putting this Bill together, had their ears bent by women in their own ranks saying, “You can’t possibly put off rape allegations simply because they haven’t been put forward within the five-year window.” There are many reasons why you could not bring a prosecution within that window of five years in relation to sexual offences, which we are now much more willing to recognise as one of the horrors of war. The reasons why people do not come forward and are not able to put their case within short order may be fear or lack of resources. They are often in denial about the horror they have experienced. They may be experiencing coercion or threats or a desire to avoid reliving the past. I am afraid I know all this directly. The reason why evidence is gathered over time to become strong enough to bring cases—it does not happen with speed—is because it is difficult, hard work involving sensitivity to victims. The same is true for victims of torture and other grievous war crimes.

Without the present exemption, the vast majority of rape victims, largely women, would be barred from accessing justice through no fault of their own. Victims of other forms of abuse and violence, such as torture, should be afforded the same opportunity to seek justice on their own terms and in their own time. For example, we are now gathering evidence from places such as Syria—a war that started in 2011. The triple I investigatory processes are gathering that evidence. Prosecutions will happen much further down the line; that is the nature of this.

We have led the world in advocating for the rule of law. I have met the most wonderful lawyers in the ranks of the British Army working for the British Army. They are champions of the rule of law. We should recognise that we have been at the heart of creating the well-established principles and provisions of international human rights law and international humanitarian law. It is a source of pride to me and should be to everybody. We lose our moral authority by going down this road.

I work closely with the United Nations Human Rights Council on matters of law. Senior officials are shocked, deeply alarmed and disappointed to their hearts that the UK of all nations should be retreating from this high ground, so I want to emphasise the implications of this on our standing in the world. The United Kingdom has ratified the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the United Nations convention against torture. We have heard about the convention in relation to genocide, of which I have spoken many times in this House. They all mandate the absolute prohibition of torture. The absolute nature of the prohibition is at odds with the restrictions in this Bill.

I speak with sadness that we have come to this place. In answering the questions, “What has persuaded the Government? How have they come to be in such a wrong place?”, I think this Bill was put together at a time in relation to matters to do with Iraq, and of course with memories and considerations in relation to Ireland. Courage was given to this Bill by the fact that in the United States of America there was someone like Donald Trump, who had such little respect for the rules-based international order and wanted something somewhat different. He was not interested in international law or international courts. We stand as one of the nations that has been true to those things. We have been one of the few nations that has not experienced fascism, and perhaps that has given us the experience of sticking with law and knowing why it is so important. The value of our commitments becomes meaningless and rings hollow across the international stage by bringing this Bill into being.

The people who experience torture end up deeply traumatised. The families of those who have experienced the horrors of these terrible crimes are traumatised. It takes time to work with them to put together evidence to consider prosecutions. The United Nations Human Rights Committee has also found that a state’s lack of response to an investigation of a complaint is in itself a violation of the prohibition of torture.

We are coming up against a whole body of law that we have been at the heart of creating. What are we thinking about? I wonder whether there are other lawyers in government like Elizabeth, the great lawyer in the Foreign Office who was really alarmed over the Iraq war, who are experiencing the same anxiety that something of serious consequence is being lost here. In its present form, this Bill will not only violate individual procedural human rights and create a culture of impunity for torture and inhumane treatment, but will diminish our capacity to influence in the international human rights sphere, as the noble Lord, Lord Alton, described.

I urge this House and the Government to have a rethink because the consequences of this legislation will be far-reaching. Here we are trying to speak in a world that is currently dealing with the horrors perpetrated on the Uighurs and those in Myanmar and the anxieties and fears about what is going on in Hong Kong. We need to have our voice strong in the world right now. Look at Belarus, look at the different places where horrors are taking place; we need to be a voice for values.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Kennedy of Shaws Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Baroness Kennedy of The Shaws (Lab) [V]]

I start by adding my voice to the tributes that have been paid to our Armed Forces, who put themselves in harm’s way to keep us safe, to uphold our values and protect our society and to do things that are so important, as they are doing now during this pandemic. I also understand completely the concerns of this House that members of the Armed Forces should be protected from unfounded allegations. The idea of a lawyer ambulance-chasing and trawling for clients to launch civil actions against our serving military is repellent; however, the idea that crimes should go unpunished, or that victims of wrong- doing or of injury should not receive justice, is also unworthy —and, of course, that affects our veterans too.

I support all those who have already said it: torture should be excluded from the remit of the Bill, just as rape and sexual violence have been. Veterans should not be protected from investigations into allegations of torture. Like the noble and learned Lord, Lord Hope, I cannot accept the derogation from the European Convention on Human Rights correctly having a place in the Bill. I shall not rehearse his arguments, but I agree with them entirely.

This legislation breaches international human rights law and international humanitarian law, and I shall just mention the ways in which it does that. The absolute prohibition on torture is sacrosanct; it really is. It is not something where there can be equivalence. The idea that we might be creating a statutory presumption against the prosecution of an international crime such as torture is shocking. Secondly, we have a duty in international law to investigate and prosecute crimes against international law, and this Bill undermines that commitment.

The third thing I want us to look at is that this is creating a de facto amnesty. International law prohibits amnesties for grave breaches of the Geneva conventions: for torture and other serious crimes. Yet the Bill effectively prohibits prosecutions except in exceptional circumstances. That amounts to a de facto amnesty. The other concern we should have is about justice for victims, as I mentioned. The right of victims to justice, to truth and to appropriate compensation is fundamental to the rule of law.

Finally, I will raise the business about vexatious prosecutions. There is something of a coalition of the civil and the criminal here, and I speak as a criminal lawyer. Vexatious litigants are usually linked to civil claims. I know that there are concerns about the Ministry of Defence having to make settlements which amount to a lot of money, but let us just think about the area of crime—we should not conflate the civil and the criminal. Concerns about vexatious prosecutions are totally misplaced. There are very few prosecutions, and I would like the Minister to tell us just how many there have been, for example, in the last 10 or 20 years.

I want to tell the House about a letter that was sent to the Prime Minister. It has been circulated a bit, but it is important for this House to hear it. It was sent just before Second Reading in the other place in September. The letter states:

“Dear Prime Minister, we are writing to you in connection with the Overseas Operations (Service Personnel and Veterans) Bill, due to receive its second reading on 23 September. We believe that this Bill has dangerous and harmful implications, for the reputation of the armed forces and for the safety of British troops who risk their lives in overseas operations. This Bill purports to protect soldiers. In reality, it risks making them more vulnerable. The Geneva Conventions form the cornerstone of International Humanitarian Law and exist to protect all parties. Accountability is an essential part of that. Vexatious claims are an important issue, which should be addressed. We find it disturbing, however, that the Government’s approach in Part 1 of this Bill creates a presumption against prosecution of torture and other grave crimes … We believe that the effective application of existing protocols removes the risk of vexatious prosecution. To create de facto impunity for such crimes would be a damaging signal for Britain to send to the world. This Bill would be a stain on the country’s reputation … We urge the Government to reconsider these ill-conceived plans.”


Who wrote that letter? It was written by Field Marshal Lord Guthrie, a former Chief of the Defence Staff. It was signed also by General Sir Nicholas Parker, a former Commander-in-Chief of UK Land Forces. It was signed also by the right honourable Sir Malcolm Rifkind, Queen’s Counsel, a former Foreign Secretary and Defence Secretary. It was signed also by the right honourable Dominic Grieve, QC, a former Attorney-General, and it was signed by a colleague with whom I have often worked who has been a really fine judge and was Director of Service Prosecutions, Bruce Houlder, QC. All of them are calling on us to ensure that this Bill is reconsidered or, at the very least, that we amend it to ensure that it has the confidence of the world and that we remain one of the great protectors of the rule of law.

Counter-Terrorism and Border Security Bill

Baroness Kennedy of Shaws Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I will say just a few words on this. I agree with what my noble friend Lord Anderson said to this extent: I am not convinced that the Government have got the proportionality of this right. I invite Ministers to reflect on what has been said—not so much on the words of the draft amendments but to try to achieve something that is more acceptably proportionate to those of us who have a reasonable amount of knowledge of these issues and are concerned that the law should not go too far.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I too support the noble Lord, Lord Anderson, in what he said about the wide nature of what is suggested in the clause. Unlike the two previous speakers, my experience in this field is by acting in cases. I have acted for family members such as wives on a number of different occasions, and it is important that we maintain the trust of families and communities. Drawing legislation too widely will in many ways reduce the effectiveness of the state in seeking to deal with terrorism.

The noble Lord, Lord Anderson, was absolutely right to say that we have to be mindful of the parameters of this. Academics who have analysed what has taken place in the past and what is and is not effective have been our advisers on what is likely to work. So I hope that the Government will listen, look again and agree that Amendment 39 might be an appropriate way of restricting these powers.

[Lord Judd (Lab)]

My Lords, like the previous amendment, Amendment 39 comes close to the overriding, overarching issue of how we protect our security without changing the nature of our society from the society we want to protect. It is a delicate path which we have to tread carefully. I know that the Minister takes this point seriously, but the last amendment and this one come close to that consideration.

We must always remember that in these situations it is not only the people immediately involved to whom action may convey messages but the wider community. We must bust a gut in difficult situations to ensure that we always demonstrate that we are a different kind of society in which the principles of law matter and we do not lightly undermine them.

Zimbabwe

Baroness Kennedy of Shaws Excerpts

Thursday 23rd November 2017 Lords Chamber

[Earl Howe]

I entirely agree with my noble friend.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, the new political leader has a history of abusing human rights. Will the Government raise with him the question of people who have been detained during this intervention, who have disappeared and are unaccounted for, and whether lawyers are being threatened or will be made available to those who have been detained? Abuses of human rights are one of the matters that we ask the noble Earl to raise.

[Earl Howe]

My Lords, the UK regularly calls for an end to human rights abuses in Zimbabwe and the restoration of internationally accepted standards. An important element of that will be the implementation of the 2013 constitution. We have raised specific cases with the authorities in Zimbabwe and we will continue to stress the importance of human rights in our engagements with any new Government that may emerge from the current crisis.

Genocide

Baroness Kennedy of Shaws Excerpts

Monday 26th June 2017 Lords Chamber

[Baroness Goldie]

I thank the right reverend Prelate for his question. North Korea is a secretive regime that is difficult to access in terms of information. In principle, the International Criminal Court could be an appropriate forum to hold North Korea to account for its behaviour, but the International Criminal Court can take action only when a war crime or crime against humanity is suspected to have been committed in or by a country which is party to the Rome statute or when the situation is referred to it by the United Nations Security Council. North Korea is not a party to the Rome statute and, as we have seen with Syria, it can be difficult to achieve such a referral when a country is not a signatory to the ICC. The right reverend Prelate may rest assured that the United Kingdom Government, in conjunction with international partners, remains concerned about activities in North Korea and we shall use all endeavours available to us to continue to register these concerns.

[Baroness Kennedy of The Shaws (Lab)]

My Lords—

[Lord Elton (Con)]

My Lords—

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, we have time for both questions, so shall we go first to the noble Baroness, Lady Kennedy?

[Baroness Kennedy of The Shaws]

The matter being raised by my noble friend Lord Alton relates to the torture of women and others—Christians and Yazidis. Rather alarmingly, President Trump, in campaigning, said that he was in favour of torture, that there was nothing wrong with torture and that, as far as he was concerned, it worked. Have we in any way addressed his publicly expressed opinion on torture?

[Baroness Goldie]

The noble Baroness will be aware of the United Kingdom Government’s attitude to torture. We are very robust about that. What other sovereign states choose to do is largely their affair. I am not aware of any specific exchange to which the noble Baroness alludes. I shall do some research, and if I discover any information I shall be in touch with her.

Armed Services: Claims

Baroness Kennedy of Shaws Excerpts

Thursday 24th November 2016 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, first, I thank the noble and learned Lord, Lord Hope, for encouraging caution in following the suggestion that we should withdraw from our legal obligations.

Mention has been made of the case of Baha Mousa. I know that many noble Lords in this House will have heard the name but will not be sure to whom it refers. The killing of Baha Mousa was a terrible blot on our reputation. Here was a man with a young family, found in the wrong place at the wrong time—he was a receptionist in a hotel—who was beaten to death, unfortunately, by British forces. Without the Human Rights Act, which forced the Government to hold an inquiry, there would have been no investigation, no accountability and no justice. We should remember that. The Human Rights Act places in the hands of individuals the right to petition and the power to seek justice.

I remind your Lordships that an inquiry, chaired by William Gage, found that Baha Mousa had been killed after sustaining more than 93 identifiable injuries to his body—this makes uncomfortable listening but we have to hear it so that we remember. He found that several other Iraqi men were placed in a circle and beaten sequentially, creating what the soldiers involved called a “choir”. They were hooded, forced into stress positions, made to dance and doused with toilet water—that is, water from a toilet bowl. One detainee had liquid poured over him while a soldier, pretending that it was petrol, appeared to use a lighter. These terrible abuses resulted in broken bones, damage, swelling to internal organs and post-traumatic stress disorder.

As a nation, we seek to uphold our values against those intent on destroying them. If we compromise, we lose our moral standing and betray the trust of those we seek to protect. Hypocrisy does not win wars, and neither does it win hearts and minds. Only three or four years ago I went to Iraq as an independent assessor of human rights programmes that had been established there after the withdrawal of troops. One of the things that stood us in good stead was that we, with our great respect for the rule of law, had investigated, proceeded appropriately and paid compensation appropriately in cases where we felt our Armed Forces had misbehaved. That we take those stands was a lesson to those who sought to advance the cause of human rights in Iraq.

I am currently involved in a similar sort of activity with regard to the rape of women in refugee camps, where often the rapes are conducted by peacekeeping forces, whose nations do not prosecute them. We had the moral standing in the world to be able to say, “We do prosecute”. There are independent law firms—we have an independent legal profession and judiciary, and we bring cases appropriately. Sometimes they will not be well founded, but even if that happens in a small number of cases, it is important that we are seen by the world to do this.

This whole campaign to retreat from legal obligations and our moral responsibility for wrongs committed by our military is built on a false narrative. The claim that there is an industry of vexatious claims and spurious allegations is not supported by evidence. First, I concede immediately that in all law, claims will be brought that do not withstand careful examination, and they will collapse. I accept that such claims cause horrible distress to those against whom allegations are made. We have discussed it in this House with regard to sexual allegations and other areas of crime where people face allegations, and we know about the horrible experience of the innocent who are put through that. At the same time, we know that the right route is through the law.

The military and some right-leaning think tanks have been pushing for this withdrawal from our human rights obligations, and I urge caution on this House. I quote from a letter written to the press by Reverend Nicholas Mercer, a former lieutenant-colonel in the British forces who had been a senior legal military adviser to the 1st Armoured Division during the Iraq war. He attacked the Government for inventing this orchestrated narrative account, saying that,

“the idea that the claims are largely spurious is nonsense. The Ministry of Defence has already paid out £20m in compensation to victims of abuse in Iraq. This is for a total of 326 cases, which by anyone’s reckoning is a lot of money and a shocking amount of abuse. Anyone who has been involved in litigation with the MoD knows that it will pay up only if a case is overwhelming or the ministry wants to cover something up”.

That was written by someone who was a senior person in the military but is also someone who, I suggest, is unlikely to make easy accusations about wrongdoing.

I urge this House to recognise that, as the noble and learned Lord, Lord Hope, has just said, even derogation carries with it its problems, as we saw in Northern Ireland. When some of the techniques used against Baha Mousa were tested, not only were they found to cause needless suffering but it was felt that they turned the troops into the enemies of ordinary citizens. That is what terrorists want, and it is what human rights law helps to stop.

It was suggested by the mover of this Motion, the noble and learned Lord, Lord Brown, that we should simply rely on international humanitarian law, but I am afraid that, on its own, it just does not cover the waterfront. It would not give people the access to the courts and inquiries that was possible under the Human Rights Act.

On the subject of derogation, I remind everybody that we have signed up to international conventions against torture and cruel and inhumane treatment. Certainly the majority of the cases that I know of were about the abusive treatment of people taken into custody. I quote the director of Liberty, Martha Spurrier:

“There is a dark irony in our government proposing derogation in wars of its choosing, even though many of those conflicts, like in Iraq and Afghanistan, are fought ostensibly in the name of human rights … If ministers held our troops in the high regard they claim, they would not do them the disrespect of implying they can’t abide by human rights standards. For a supposedly civilised nation, this is a pernicious and retrograde step”.

I agree with that. I want your Lordships to know that my father and grandfather—

[Viscount Younger of Leckie (Con)]

My Lords—

[Baroness Kennedy of The Shaws]

I am coming to a conclusion now. I want your Lordships to know that my father and grandfather were in the military, and my male cousins recently fought in Northern Ireland and Iraq, so I will not be told that I am not being loyal to this country or to the military when I say that respect for human rights is one of the things that makes me feel proud of our military. I want it to be held up as a banner which we abide by and which is our beacon to the world.

[Viscount Younger of Leckie]

My Lords, it would be an appropriate moment to remind the House that this is a time-limited debate. For Back-Bench speeches, Peers are reminded to conclude their remarks when the Clock reaches six minutes.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

Does the noble Earl accept that in the Baha Mousa case there would have been no inquiry but for the European Convention on Human Rights? It was used to force the Government to have an inquiry, which in turn led to investigation and so on. That was the tool in the hands of the family of Baha Mousa, which enabled us to know fully what had taken place, and for us all to express the horror we are expressing today. Otherwise, could we be sure that something would have happened?

[Earl Howe]

My Lords, I will look into the sequence of events that led up to that inquiry because I am not in a position to gainsay what the noble Baroness has just pointed out. I agree that it is important that we tease out these issues.

Moving to a slightly different issue, we have taken steps to tackle improper conduct by those in the legal profession, as mentioned by the noble Lord, Lord Ramsbotham. It is only right that law firms should not be incentivised or encouraged to represent or put forward unfounded or speculative claims, and where a solicitor’s conduct falls short of expected professional standards, action should be taken to address this. Noble Lords will recall the grave concerns expressed following the publication of the al-Sweady public inquiry report. The Ministry of Defence took the unprecedented step of referring these matters to the Solicitors Regulation Authority, which investigated them thoroughly. As a result, the solicitors concerned will face disciplinary tribunal hearings in 2017.

I reassure the noble and gallant Lords, Lord Craig and Lord Richards, that we are seeking to clarify the issue commonly referred to as combat immunity—the common law doctrine that excludes civil liability for injury caused by the negligence of those engaged in the course of hostilities. The doctrine also means that members of the UK Armed Forces are under no duty of care in tort to avoid causing loss or damage to another member of the UK Armed Forces, or anyone else. It is essential, as a number of noble Lords have made clear, to ensure that this doctrine should be applied in full, and that the courts should not be called upon to adjudicate matters which should be the subject of military decision-making. It goes without saying that those who have been injured or suffered bereavement in the course of combat or hostilities have our deepest sympathies, but the uncertainty that has resulted about the circumstances in which the doctrine should be applied is a cause for concern and leaves the Ministry of Defence and the Armed Forces open to a raft of claims. More importantly, as pointed out very cogently by the noble and gallant Lord, Lord Stirrup, it potentially calls into question the professional judgment of military commanders, giving rise to the prospect of what has been called the “judicialisation” of war. We take this matter very seriously. We are considering it closely, and we expect to be in a position to announce our proposals very shortly.

The noble Lord, Lord Thomas, suggested that the combat immunity cases are essentially about procurement rather than battlefield decisions. With respect, I do not think that is quite right. I apologise again if I have misunderstood him but I believe that he suggested—