Overseas Operations (Service Personnel and Veterans) Bill

Lord Craig of Radley Excerpts

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

[Lord Craig of Radley (CB) [V]]

My Lords, I shall concentrate on Clause 12. The international court will accept that it is primarily a matter for the state requiring derogation to judge the imminence and severity of the threat faced. But the court is not going to give a free pass. Has the state gone beyond what is strictly required by the exigencies of the situation? The danger must be actual, clear, present and imminent. Derogation will not be allowed because of a mere apprehension of potential danger.

The link between a public emergency threatening the life of the nation and an overseas operation must be established. To quote Lord Bingham:

“It is hard to think that these conditions”—


of Article 15—

“could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw.”

Put simply, there is no guarantee that the Secretary of State will gain derogation for an overseas operation. A prior hurdle for the Secretary of State would almost certainly be that parliamentary approval, possibly even beforehand, must be gained.

There are further historical issues. When the Human Rights Act 1998 was being debated, and I first raised concerns about the legal conflicts between it and the Armed Forces Acts, the Lord Chancellor for the Government argued that it would always be possible to derogate and clear the high bar required. But since then the Act’s reach, both territorially and temporarily, has been extended by judgments in the European court and our own Supreme Court.

There is a further problem. Much of the UK’s resistance to these enlarging findings was based on the submission that the HRA applied territorially only to the UK. Were the Secretary of State to seek derogation in support of an overseas operation, this would mean the UK’s acceptance of increased territorial reach, and so would be inconsistent with our previous, strongly argued position.

So my conclusion is that Clause 12 is flawed. I agree with the noble and learned Lord, Lord Hope of Craighead, that it is no more than window dressing and it would be more honest to delete it. The Secretary of State does not need a statutory diktat to consider derogation. The possibility was accepted way back when the Human Rights Act became law.

When the forthcoming human rights legislation review takes place, it should consider how to resolve its incompatibilities with the Armed Forces Act. The most critical concern should be how to protect a commander in the heat of battle from having to weigh up the concerns of human rights legislation with the command and direction of armed conflict when the pressure of events leaves little or no time to consider anything more than the successful execution of a military action. The boundaries of combat immunity should be clear before conflict, not established seriatim years later in a court of law. I regret that this even more worrying aspect of the interaction between the convention and armed conflict has not been addressed fully in the Bill.

I have one final thought. Legislation of critical importance to the activities of our armed forces should be consolidated into the Armed Forces Act. Having a single source of legislation critically important to the Armed Forces would help those in the forces and their legal authorities and would avoid inconsistencies in the separate legislation. This Bill does that for the Human Rights Act and the Limitation Act: why not, where relevant, for the Armed Forces Act? The quinquennial reviews would then ensure that these difficult issues were regularly considered.

UN Mission in Mali: Armed Forces Deployment

Lord Craig of Radley Excerpts

Monday 14th December 2020 Lords Chamber

[Baroness Goldie (Con)]

I thank my noble friend for raising a very important point. I also pay tribute to her role as chairman of the International Relations and Defence Committee and to its very positive and useful report, The UK and Sub-Saharan Africa: Prosperity, Peace and Development Co-Operation. My noble friend was in discussion with the FCDO. I think she received a fairly full letter of clarification about the points she felt were not addressed. I hope that has gone some way towards reassuring her of the Government’s good intent to make a positive contribution in this region of Africa.

Preparation and equipment are very important. There has been analysis of the tasks the UK contingent will conduct on mission, particularly the terrain and the threat they will face. For example, the deploying vehicles have been specifically selected to address these singular and challenging demands. There will be a number of vehicle types used for different tasks. They have previously been tested on operations and will include the Foxhound, Ridgback, Coyote and Jackal. When I read these, I wondered whether we were talking about a zoo, but we are talking about mechanical devices on wheels that will clearly be a very important support to our forces out in Mali. These vehicles have been chosen for a specific purpose. The analysis identified these types of vehicles as being most appropriate for the terrain and the tasks faced.

Our Armed Forces are professional and well trained. This is a United Nations mission, so they are under the command of Lieutenant General Gyllensporre, who is the Swedish commanding officer. I say to the noble Baroness that, yes, previous conflicts have identified the particular challenges of operating in difficult terrain—in coping with extremes of heat or cold—and lessons have been learned from that. I reassure my noble friend that our Armed Forces and their commanding officers are very mindful of that before asking troops to deploy to any region in the world.

[Lord Craig of Radley (CB) [V]]

My Lords, is the Minister aware that more than 200 MINUSMA troops have been killed and others wounded? This deployment to a faraway country of which we know little is risky. For the record, and to reassure the families and loved ones of any UK casualty, will the Minister explain why deploying in Mali fully justifies these acknowledged dangers to our forces? Have our rules of engagement been agreed with the UN force commander?

[Baroness Goldie (Con)]

The noble and gallant Lord raises a very important point. We very much hope our Armed Forces remain safe and that they will not come under threat of loss of life or of injury. He is right to inquire why they are there, what we expect them to do and how we expect them to do it. As I said earlier, this is part of our contribution to the security response. We recognise that security interventions alone will not address the instability in the Sahel and continue to advocate for state-led progress in the peace process in Mali. As I said earlier, that involves political and institutional reform in the wider region.

We believe it is very important the United Kingdom supports the United Nations in attempting to deal with this area of instability. It matters because if that instability is not addressed then it has an effect of contagion. Instability is a threat that can spread. It can allow hostile operators to flourish and can encourage them to take their unwelcome activities to other countries. That could include the United Kingdom. There is an underlying purpose and we believe it is important that the United Kingdom supports the United Nations in this important mission.

I said earlier that the mission, being a United Nations mission, is led by a civilian—a special representative of the United Nations Secretary-General. The peace- keeping force element involves our own military and highly trained soldiers. Because it is a peacekeeping mission, and our forces are principally concerned with reconnaissance, this is clearly slightly different from an operation such as Operation Barkhane. But our force will provide critical capabilities at a vital time. MINUSMA was selected as a mission on the basis that it was where the UK could provide maximum benefit based on the expertise the UK Armed Forces have to offer. I reassure the noble and gallant Lord that this is a carefully constructed contribution from the UK; it is for a specific period; it involves an identified, set number of personnel; and it is a contained contribution.

Covid-19: Military Operations and Support

Lord Craig of Radley Excerpts

Thursday 10th September 2020 Lords Chamber

[Baroness Goldie (Con)]

I thank my noble friend for her tribute to the Armed Forces; it enables me to put on the record my absolutely unbounded admiration for all they have done in the most extraordinary circumstances, displaying the very best of our defence professionalism. We all owe them a huge vote of thanks. They displayed throughout the United Kingdom —not just in England but in the devolved nations—their skills of logistical planning and strategic advice. I am very grateful to my noble friend for bringing attention to the report to which she referred.

[Lord Craig of Radley (CB) [V]]

My Lords, in order to observe social distancing, were service personnel required to vacate their accommodation and expected to sleep elsewhere? What steps were taken to cancel accommodation costs and refund inevitable transport costs for those so instructed?

[Baroness Goldie (Con)]

I will have to undertake to write to the noble and gallant Lord with a more specific response. I can say that, in general, arrangements were made for isolation and that these arrangements were flexible depending on what was best for the individual involved. Obviously, we adhered to the rules in the same way as we would for any other UK citizen, with appropriate modification to take account of the atypical accommodation often found in defence. I shall write to the noble and gallant Lord with further detail.

Covid-19: Security Risks

Lord Craig of Radley Excerpts

Tuesday 19th May 2020 Lords Chamber

[Baroness Goldie]

I am unable to comment specifically on the role of the United States; I am here to answer questions on behalf of the United Kingdom Government. I reassure your Lordships that the United Kingdom Government have been engaged closely with NATO. I refer to some of the tasks that we have undertaken, and we are currently reviewing additional requests for support from the EADRCC for Albania, North Macedonia, and Bosnia and Herzegovina.

[Lord Craig of Radley (CB)]

My Lords, NATO’s Rapid Air Mobility initiative, RAM, was activated by the North Atlantic Council on 31 March to help the movement of supplies critical to combating Covid-19. Have many flights by RAF transport aircraft been made in support of RAM? Were last month’s RAF A400M Atlas transportations of personal protective equipment from Turkey to the UK some of these RAM flights?

[Baroness Goldie]

We have not used the Rapid Air Mobility initiative at all, so the Turkish flight was not one of these flights. However, we have deployed our assets to respond to NATO requests.

Armed Forces Act (Continuation) Order 2020

Lord Craig of Radley Excerpts

Monday 16th March 2020 Grand Committee

In short, we owe the brave men and women of our Armed Forces a sound legal basis for them to continue to afford us their vital protection. I hope that noble Lords will support the draft continuation order, and I beg to move.

[Lord Craig of Radley (CB)]

My Lords, I support this renewal of the Armed Forces Act. In previous debates on renewing the Act, I have taken the opportunity to raise the thorny issue of combat immunity and the failure of successive Administrations to provide clear statutory authority and legal guidance on how difficulties that arise are resolved and on how to avoid difficulties in future conflicts.

I and others have long forecast that such difficulties would arise from the incompatibility between the laws of armed conflict and human rights legislation. The ongoing ways in which human rights issues affecting the Armed Forces have been adjudicated have only added to the problem. It took a considerable time, but the difficulties have been acknowledged by Governments. A variety of promises and even some tentative solutions have been aired, but there seem to be insoluble stumbling blocks. Progress has stalled, although I was interested to hear what the Minister has just said.

There is talk of providing for possible combat immunity if appropriate when conflict starts, but surely that is like a sticking plaster. It might cover the wound, but it will not stop the injury or a festering sore. Surely, we have seen enough examples of the problems that have arisen, whether in the course and aftermath of armed combat and military offensives or in the field of counterterrorism, as in Northern Ireland and Operation Banner there. We must demand resolution. Interestingly, a temporary fix to the Northern Ireland issue involving the Attorney-General was mooted in a weekend newspaper. What do the Government have in mind or was that just flying a kite?

The wider resolution should be to have pre-prepared statutory arrangements considered, thought out and enacted in peacetime so as to be ready to be applied immediately as necessary in conflict. Successive Defence Secretaries have expressed concern, along with their determination to put this right, so I am delighted to hear that a new Bill addressing the issue is on the stocks. Maybe the Minister will be able to give an update, or if not now, by a letter in the Library.

As I have pressed for before, whatever statutory solution is found, would it not best be incorporated into the Armed Forces Act to ensure that the incompatibilities between peacetime humanitarian law and those of armed conflict and the Geneva conventions are resolved, and future incompatibilities thus avoided? A target to do so might be by the next enactment of the Armed Forces Act.

[Baroness Smith of Newnham (LD)]

My Lords, I welcome this statutory instrument which, as the Minister has pointed out, is a short but crucial piece of legislation. She has rightly highlighted the importance of our Armed Forces and the crucial role they play both in the United Kingdom and abroad, highlighted by their response to flooding, piracy, terrorism and challenges to fisheries. I realise that I might be going slightly beyond the remit of the legislation, but if we did not have any Armed Forces, they would not be able to do what I am about to ask. Might she be able to say a little about what the Armed Forces might be expected to do in the coming months and years?

We are now being asked to ensure that the Armed Forces can continue for a year. That is clearly important, but this is a year when we may, for example, see Parliament being prorogued. My one question is: given that the Minister said that the Armed Forces would essentially cease to exist if Parliament did not authorise their continuation, what would happen in the event that Parliament were prorogued at a time when such a statutory instrument was needed? Clearly, at the moment we are sitting and able to give our views, but this is an important issue for the longer term. I would be really interested to know to what extent the Government are assuming that the Armed Forces may be deployed domestically in the coming weeks and months. What provisions are in place for that?

Further, what do the Government have in mind for the integrated security and defence review? We were told that it was to take place ahead of the comprehensive spending review but that was all on the assumption that it was business as usual. However, the current situation is far from business as usual.

The Prime Minister has just announced that we should be suspending social contact, and, as far as possible, working from home. It is difficult to see how the Grand Committee could work from home. It is even more difficult to see how most of the Armed Forces could work from home. Obviously, civil servants and Ministers could work virtually when they are thinking about the integrated security review. Is that the plan or is there a possibility that the longer-term thinking about security and defence could be deferred so that Ministers and civil servants can give sufficient thought to what we might require? That is because what we might have expected to be the security challenges if we had been heading towards a review on 30 November 2019 will look quite different on 31 March this year. Are the Government thinking about any alternatives? However, we are obviously very supportive of this statutory instrument to make sure that the Armed Forces can continue at least for the next year.

--- Later in debate ---

[Baroness Goldie]

My Lords, I thank all noble Lords for their contributions, which have been very helpful. To some this might seem to be a routine and almost ritual debate, but underneath it are very important issues, as all contributors have indicated.

The points raised by the noble and gallant Lord, Lord Craig of Radley, were interestingly echoed by the noble Lord, Lord Tunnicliffe, in his final point. These are very important issues. Your Lordships will be aware that the Government have been concerned about the position in which members of our Armed Forces find themselves placed when in a situation of conflict. They take action that they deem to be proportionate and necessary, yet they have not been sure that they can return home without recriminations following, which might be either criminal law prosecution or civil law action for damages. The Government take that backdrop very seriously because when we ask men and women to undertake service in the name of the country, and frankly to expose themselves to situations and do things that many of us are not required to do, we are asking a very great deal of them. The least we can do is try to reassure our service men and women that when they act in the interest and under the orders of our national direction, we value what they are doing and we wish to try to protect them.

Your Lordships will be aware that last year we carried out an extensive consultation on overseas operations focused on three proposed measures that the Government want to take: a statutory presumption against prosecution; a proposal to consider the creation of a new partial defence to murder; and a proposal to restrict the court’s discretion to extend the normal time limit for bringing civil claims for personal injury and/or death in relation to historical events outside the United Kingdom. I am pleased to inform your Lordships that the Government will very shortly introduce a legislative package to ensure that our service personnel and veterans have access to the legal protections that they deserve. That legislation will build on the consultation held last summer on proposed legal protections and measures for our Armed Forces personnel and veterans who have served in operations outside the United Kingdom.

The noble and gallant Lord, Lord Craig of Radley, specifically raised the issue of Northern Ireland. That will be dealt with in a separate Bill—a Stormont Bill—which will seek to replicate the same types of protections that we are trying to achieve. I hope that reassures your Lordships that something is likely to come before Parliament imminently.

[Lord Craig of Radley]

Just to be absolutely clear in my own mind, are we talking about legislation? The noble Baroness has talked about giving the Armed Forces assurances, but I think she just said that there will be legislation. I want to make sure that we will legislate and that this is not just about assurance.

[Baroness Goldie]

I can reassure the noble and gallant Lord that, yes, I said that we will introduce a legislative package and that is what we will do. The legislation has been drafted and will imminently come before Parliament. As I say, I hope that that offers reassurance.

The noble Baroness, Lady Smith of Newnham, raised a number of very interesting points. She specifically asked what will happen if Parliament is prorogued when, for example, an SI might be needed to renew the operation of our Armed Forces. We are dealing with extraordinary circumstances, the extent and impact of which are probably not yet quantifiable. There is an assumption that Parliament will sit. There is a recognition that the parliamentary process, particularly in a time of crisis, is extremely important. I want to reassure her that every effort will be made to ensure that the parliamentary process can continue in one form or another. She is absolutely right to say that there are consequences to Parliament being prorogued which could be very grave, and therefore every effort will be made to ensure that, whatever legislation is required for essential purposes, some mechanism will be found to make sure that that is addressed.

The noble Baroness also asked about the current pressures on the MoD, particularly in relation to the Covid-19 pandemic. I assure her that arrangements are in place for Defence to provide support to civil authorities if requested. We are working hard to identify where we can best provide support. At this time, there are no immediate plans for any large-scale deployments of the military to assist with public services, but we do stand ready to assist if requested to by other government departments. It goes without saying that we will continue to maintain the delivery of our key operations and outputs, such as the continuous at-sea deterrent and overseas operations.

War Widows’ Pension

Lord Craig of Radley Excerpts

Tuesday 25th February 2020 Lords Chamber

[Baroness Goldie]

I thank my noble friend for her question—I am beginning to feel a formidable array of onslaught opening up before me. I also thank her for her invaluable role as president of the War Widows’ Association. The department is very anxious to continue a dialogue and to continue to hear what war widows are experiencing. The noble Baroness, Lady Crawley, referred to data, which is notoriously difficult to quantify. No one has the data but the association might now be able to pinpoint more accurate information. Anything that adds to our aggregate knowledge will be welcome. I say to my noble friend Lady Fookes that the Central Advisory Committee on Compensation, chaired by the Minister for DPV—which covers service charities, including the War Widows’ Association—is meeting tomorrow. I very much hope that the association will use that forum to make plain the strength of views that I am detecting clearly in the Chamber today.

[Lord Craig of Radley (CB)]

My Lords, the Minister is relying on the usual excuse of no retrospection. I remind her that in the 1980s an award was given to widows. It was deemed to be an award and therefore did not get caught by retrospection. Perhaps she could see whether such an approach could be used on this occasion.

[Baroness Goldie]

I thank the noble and gallant Lord for that helpful contribution. I am unaware of that situation but I undertake to look carefully at what he has said and to have it explored.

Syria: British Armed Forces

Lord Craig of Radley Excerpts

Thursday 24th October 2019 Lords Chamber

[Baroness Goldie]

Let me be clear that the United Kingdom focus on Syria has always been on Daesh, which is a lethal, toxic threat. That continues to be where our efforts are focused.

[Lord Craig of Radley (CB)]

My Lords, has the Minister seen the report that the mayor of Limassol, the town close to the Akrotiri peninsula, wishes to expand its tourism arrangements on to the peninsula and believes that it is time that the United Kingdom gave up the sovereign base area there? Have the Government reacted to these proposals?

Defence: Expenditure

Lord Craig of Radley Excerpts

Tuesday 11th June 2019 Lords Chamber

[Earl Howe]

My Lords, I am in considerable sympathy with my noble friend. We can be proud of what defence has achieved over the last few years, but we must also be vigilant. We must respond to growing threats, especially the more persistent and aggressive state competition we face. The question my right honourable friend said we should be asking ourselves is whether we should be spending more on defence. That is precisely the question that will be asked in the forthcoming spending review.

[Lord Craig of Radley (CB)]

My Lords, is it true that additional resources will be required to fund the existing proposed defence programme?

[Earl Howe]

My Lords, we recognise that there is an affordability gap in our equipment programme. I have said this before. If we did nothing, the programme would be unaffordable. But we are taking action and, with careful management, particularly using the contingencies we have and budgeting for efficiencies, which we are already scoring, we believe that the equipment programme will be affordable.

D-day: 75th Anniversary

Lord Craig of Radley Excerpts

Tuesday 4th June 2019 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, it is fitting to remember the 75th anniversary of D-day, not just because it was an amazing feat of arms by the allied forces involved but because it gives the nation a chance to honour those still alive who fought at the time, and to remember with everlasting gratitude the thousands who lost their lives making the supreme sacrifice or who have since died, some facing and coping with life-changing injuries.

It is sobering to realise that the deaths and casualties on each side were in the many thousands, each one a deeply personal tragedy for a family, a fiancée or a girlfriend. War is a brutal endeavour, no less so now than in years gone by. Today, individual families and partners still suffer and bear the same sense of grief and loss, just as much as those in World War II, but we have been saved the horrors of massive casualties because the nature of recent conflicts has been far more contained. Modern trauma treatments and rapid casualty evacuation have also saved hundreds of lives; in earlier generations, those people would not have survived. Modern medicine helps even the severely wounded to make remarkable physical recoveries. Sadly, success with mental illness is still elusive.

While it is fitting to celebrate the anniversary, it should be a celebration of an extraordinary allied effort in which all involved played their full part. It irritates me to see claims that either the Americans or the British made the greater contribution to D-day. It was not a football contest with one team scoring more than the others. All the many nations involved, including the Commonwealth, the colonies of the day, the Free French and other Europeans, were playing a team game together. To claim that more troops were put ashore, more attack missions were flown or more barrages were fired from ships as a means of arguing who did the most on D-day is ridiculous. Normandy was not the only theatre of war in 1944; all allies were engaged in fighting elsewhere as well as in France. It was a collective effort to which all contributed massively, not least in blood and treasure.

Like other noble Lords, I have been involved in events helping to mark the 75th anniversary of D-day. Last Saturday, I formally opened a special heritage event at Langham, near Blakeney, in Norfolk. A small, dome-shaped building was the centrepiece of the event. It was used to train anti-aircraft gunners in how best to shoot down enemy aircraft. Indeed, more than 40 of these secret trainers were built during World War II. After the war, they were all decommissioned and almost all were bulldozed into hardcore for new motorways or building sites. Although a listed building, the one at Langham was just left to decay. It escaped the bulldozers, slowly deteriorating as all neglected buildings will do.

Then, in 2010, a group of enthusiasts, recognising the historic value of this near-unique building, raised funds to refurbish it to its original role as an anti-aircraft trainer. However, they did much more. The building is now a speciality museum and visitor centre, recording and demonstrating not only its trainer role but a host of information and displays about the Royal Air Force, the airfield at Langham, and the Royal Australian Air Force and the Royal New Zealand Air Force squadrons of coastal command, which were based there in 1944, operating mainly against enemy shipping off the coasts of Norway and Holland. There is information there about individual Australian and New Zealand air crew. Many had travelled from home via Canada to train before joining their national squadrons at Langham. There is information about the loss of life and the deaths of more than 150 air crew from this one airfield. Many have no known grave but are remembered on the memorial at Runnymede. Others lie in graves in Norway, Holland, Germany or this country. One is buried in Sweden.

All this information, and the information about the subsequent Cold War use of the airfield until it was closed in 1958, gives a most interesting and telling account of Langham’s war. What particularly impresses me is the effort to tell the story of those years with contemporary touch screens and other devices in ways to interest and attract all ages. Special efforts have been made to excite and engage the interest of the younger generations. As the Friends of Langham Dome team say, they want to make it clear to all what fathers and grandfathers—indeed, mothers and grandmothers too—did then to ensure that we live in peace and freedom today. This mini-museum and visitor centre has just been awarded the exclusive and prestigious Queen’s Award for Voluntary Service, and the unique facility has been much praised on social media, TripAdvisor and the like. If your Lordships are ever on a visit to Norfolk, spare an hour or two to visit the Langham Dome; you will be impressed.

Many other venues and imaginative schemes about this period in our nation’s history are to be found all around the country. Their great achievement and attraction is to help to bring life to history, to explain and pass on to today’s generations what their predecessors did and thought and felt. As a mark of respect for all those who fought on D-day, these efforts deserve universal praise and support.

Armed Forces Act (Continuation) Order 2019

Lord Craig of Radley Excerpts

Wednesday 20th February 2019 Lords Chamber

To that I say, “Hallelujah!” Today, almost everything we are doing here and in Grand Committee relates to the proposed withdrawal from the European Union. It is a great relief that, squeezed in among all those other EU exit statutory instruments, we are at last doing something that is relevant to us in the United Kingdom irrespective of whether we are in or out of the European Union.

[Lord Craig of Radley (CB)]

My Lords, I support this legislation. Other noble Lords and I have pressed on a number of occasions for new arrangements to deal with the difficulties that Armed Forces involved in conflict experience with human rights legislation. Such difficulties are well known to this House. What steps are Her Majesty’s Government taking to address them, hopefully with a view to introducing such a measure when the Act is renewed in 2020?