Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Thomas of Gresford and Baroness Chakrabarti

Committee stage
Thursday 11th March 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Baroness Chakrabarti (Lab) [V]]

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

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

--- Later in debate ---

[Baroness Chakrabarti (Lab) [V]]

I am speaking in support of my noble friend Lord Tunnicliffe and his amendment. Of course, it would be open to the Minister not just to embrace this amendment but to go further; and not to wait for 12 months, but assure your Lordships that the Government will provide legal advice and support and, if necessary, representation to any member of Her Majesty’s Armed Forces who has need of it as a result of an overseas operation—whether they are an anxious suspect, an anxious defendant, an anxious witness to civil proceedings or, indeed, whether they are suing the MoD. It seems an absolute no-brainer, given speech after speech in both Houses about the anxiety that the interaction between law and war is causing our personnel. Why would the Government bring forward a Bill that causes such controversy and restricts the reach of the law without first giving the assurance that we would all like to hear from the Minister? Can the Government do this? Can the Government honour our existing service personnel and veterans with an automatic right to advice and representation, whenever they have need of it, as a result—from whatever perspectives I have described—of serving the Crown?

[Lord Thomas of Gresford (LD) [V]]

My Lords, this is a very important amendment and I support it thoroughly. I should declare to your Lordships that I am still chairman of the Association of Military Court Advocates. Although I am not in receipt of legal aid in respect of any case at the moment, I have received legal aid on many occasions in the past. In my experience, the legal aid authority was excellent, probably ahead of its civil counterparts in supporting counsel and solicitors who were defending servicemen, whether in this country or abroad.

There are particular circumstances that apply in this field which do not apply in ordinary civil practice. First, there are a limited number of military court advocates, mostly people who have some experience of the service. Secondly, the courts are at a distance. Catterick and Bulford—or occasionally Colchester—are at opposite ends of the country. There is also a very experienced military lawyer in Northern Ireland who deals with issues that derive there. In addition to court appearances, it is necessary to give protection to soldiers facing charges and to Air Force and Navy personnel. It is necessary to be in at the beginning, which requires driving long miles to various bases to be present at interviews, to be present when a person is charged and to give advice. There are particular exigencies in this type of practice. Full support from legal aid, which in my experience has been given in the past, is essential for the system to work well. As in every part of the justice system where people are properly represented, a fair result is likely to be arrived at.

Legal Services Act 2007 (Chartered Institute of Legal Executives) (Appeals from Licensing Authority Decisions) Order 2020

Debate between Lord Thomas of Gresford and Baroness Chakrabarti

Monday 9th March 2020 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I support the order. I declare an interest in that a close family member is a judge in the First-tier Tribunal—but not, I believe, in the General Regulatory Chamber.

I have been a strong supporter of CILEx from its inception. Indeed, I addressed some of its early conferences due to, as I mentioned in relation to the previous order, my experience 50 years ago of the integrity and probity of legal executives who needed a body to represent their interests in the way that that has happened. I am delighted to see that it has been given this particular power. The strange thing is that there was a temporary appeals provision with a panel set up by CILEx itself; clearly that was unsatisfactory. Far better that it should go through the tribunals system. What are the fees of the tribunal likely to be? Will they be more expensive than the present appeals system, unsatisfactory as it is?

[Baroness Chakrabarti (Lab)]

My Lords, again I will be completely uncontroversial, and I can be very succinct: the First-tier Tribunal is undoubtedly more appropriate than the interim arrangement.