Overseas Operations (Service Personnel and Veterans) Bill

Baroness Whitaker Excerpts

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

[Baroness Whitaker (Lab) [V]]

My Lords, I declare an interest as a member of the advisory board of the British Institute of Human Rights. I speak as someone who became aware of the conduct and, especially, the high reputation of our Armed Forces overseas in the actual areas where they operated when I was involved in international development. We are fortunate in the high standards of our Armed Forces and can be rightly proud of them.

That is the main reason why I find parts of the Bill distressing and inappropriate. The level of prosecutions hitherto has been very low. There has not been victimisation of soldiers through due process. A recent freedom of information request by the Minority Rights Group found that from all operations in Iraq, from 2003 to the present, there was only one prosecution under the ICC Act and in the lesser category of offences alleged by members of the public there were only five prosecutions. In Afghanistan from 2001 to the present—some 20 years—there were only nine convictions. This is hardly a picture of soldiers needing supralegal protection, even if it were desirable. For that matter, since the Bill deals only with prosecutions, it would not prevent vexatious litigation in the course of investigations, and even those cases have been speedily thrown out under our current legislation.

Yet the Bill appears to assume that very serious crimes may be committed by service personnel and proposes to reduce substantially their openness to prosecution, even in cases of torture, war crimes and genocide, after only five years. As a signatory to the UN convention against torture the UK has always repudiated torture, and freedom from torture is the only absolute unqualified right in the whole armoury of human rights. It would tarnish our reputation indelibly to allow it tacitly in any circumstances. That is not the only international standard that the Bill breaches—those which by definition cannot be set aside, not excluding the law of armed conflict itself. The result will be that our servicemen, in the unlikely event that there is such an allegation against them, will, as has been said very widely in your Lordships’ House, go before the International Criminal Court, which was hitherto reserved for states which are too undemocratic to hold a fair and legal trial. That is a matter of shame.

Then there is the issue for service personnel of the deprivation of the right to profit by the discretion of the court if claiming after the expiration period is over, of which there have again been very few examples. This would adversely affect veterans who have served their country, and those veterans’ families. The provision may even breach the Armed Forces covenant, according to the Royal British Legion. There would indeed be merit in a better investigation procedure, as the noble Lord, Lord Anderson, said, and there is certainly a case for more certainty, but that is what the Bill lacks.

Our Armed Forces deserve better. I echo Lord Guthrie, General Sir Nick Parker, the Royal British Legion and many noble and noble and gallant Lords this evening in saying that we have no justification for abandoning our respected tradition of upholding international human rights law, nor for jeopardising our reputation and that of our soldiers in the international community.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Whitaker Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

[Baroness Whitaker (Lab) [V]]

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

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

[Baroness Smith of Newnham (LD) [V]]

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

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

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

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

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