Armed Forces (Derogation from European Convention on Human Rights)

Leo Docherty Excerpts

1st reading: House of Commons
Wednesday 9th January 2019 Commons Chamber

[Leo Docherty (Aldershot) (Con)]

I beg to move,

That leave be given to bring in a Bill to require Her Majesty’s Government to derogate from the European Convention on Human Rights in its application to the conduct of members of the armed forces participating in combat operations overseas; and for connected purposes.

I seek this Bill to ensure that our armed forces are protected from legal pursuit and that the resolve and capability of our armed forces to deliver hard fighting power when needed—[Interruption.]

[Richard Benyon (Newbury) (Con)]

On a point of order, Mr Speaker.

--- Later in debate ---

[Mr Speaker]

The right hon. Gentleman is a person of unfailing courtesy in this House, and I think he also knows our procedures. There are no points of order during a ten-minute rule motion, but he is absolutely right that the speech should be heard, I hope, with courtesy and respect. I thank him for helping the Chair. Let us stop the clock and start again. I call Mr Leo Docherty.

[Leo Docherty]

Thank you, Mr Speaker.

I beg to move,

That leave be given to bring in a Bill to require Her Majesty’s Government to derogate from the European Convention on Human Rights in its application to the conduct of members of the armed forces participating in combat operations overseas; and for connected purposes.

I seek this Bill to ensure that our armed forces are protected from legal pursuit and that the resolve and capability of our armed forces to deliver hard fighting power when needed around the world is undiminished. The legal pursuit of our soldiers and veterans is a particularly painful chapter in our country’s history and must be urgently resolved.

I relate as illustration a conversation I had last year in my constituency, in the Aldershot garrison, with a senior soldier who had just left the Army after three decades of distinguished service in the most elite units, in the most brutal and demanding theatres of operation. His experience of sustained legal pursuit in relation to operations in Afghanistan left him with a deep sense of betrayal. Even though he was the son of a soldier and had himself served for 30 years, he told me, “My sons will not serve.” That pained me, because soldiers do not wish to be above the law; they just want to be under the correct laws.

It has been the case for generations that the law of armed conflict and the Geneva conventions have governed warfare in the modern age carried out by our soldiers. That was the case up until 1998 and the unintended consequences of the Human Rights Act and the European convention on human rights, which has led to a catalogue of injustice involving hundreds of soldiers from all operational theatres. Those cases go on today. No other country has such a perverse situation in which soldiers who have done their duty and done no wrong face this kind of sustained legal pursuit. Indeed, 10 countries, including France and Spain, have in effect opted out of certain aspects of the European convention on human rights, so there is a way forward, and we must do the same.

I commend my hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) for his terrific work on bringing this issue to the fore and getting it the attention it deserves since his election to this place in 2015. The excellent Policy Exchange report “Clearing the Fog of Law”, which he co-authored, makes clear the alarming manner in which the British military is today entangled in human rights law, to the extent that the European convention on human rights applies wherever and whenever a British soldier employs force. That means that foreign nationals, including enemy combatants, can sue the United Kingdom for a breach of the European convention on human rights in courts both here in London and in Strasbourg following military operations. To prevent that, we must, as other countries have done, derogate from the European convention on human rights.

I also pay tribute to my hon. and gallant Friend the Member for Plymouth, Moor View (Johnny Mercer), who has tackled headlong the outrageous scandal of the Iraq Historic Allegations Team. Since coming into this place, he has been instrumental, along with other members of the Defence Committee, in rightly urging my right hon. Friend the Member for Sevenoaks (Sir Michael Fallon) to close down IHAT.

The Defence Committee, led by our right hon. Friend the Member for New Forest East (Dr Lewis), continues to investigate the scandal of legal pursuit. We have heard recently from witnesses that the Army is

“running scared of the law.”

That must end, and it must end not only because of legacy cases and the past, but because of our concern for the viability of future operations.

Getting the legal basis of military operations right underpins the central mission of our national defence at this time, which is the rejuvenation of our armed forces to meet a complex new range of manifold threats. It is also part of the process of moving our armed forces from the era of counter-insurgency towards a more conventional posture, which we have lost by necessity through our long engagement in Iraq and Afghanistan. We must state with confidence that we need conventional fighting power. It is not a luxury.

Some commentators suggest that the era of military intervention overseas is over. Whatever the judgment of Members in this House about the wisdom of various past entanglements, the clear lesson of history is that, whether we like it or not, we will need in the future to deploy our soldiers abroad to fight on our behalf—and it will be to fight. We need to be honest with ourselves about that. Soldiers are extremely versatile and adaptable. They can be superb peacekeepers, first-class aid workers, accomplished policemen and effective diplomats. They can do all those roles very well, but they are first and foremost soldiers whose task is to deliver hard fighting power to kill and destroy our enemies. They must have the correct basis in law to do that, in situations where domestic human rights law is completely and utterly inapplicable.

To conclude, we must bring an end to the entanglement of our armed forces in human rights law. We should do that because it is the right thing to do, and we should do it because we have promised to do it; it is on page 41 of our manifesto. We should do it because we need to be honest with our constituents and our society about the role of our armed forces and the fact that they need to fight on our behalf. Our armed forces need to know that they can deploy and fight on our behalf while adhering to the Geneva conventions and the law of armed conflict. They need to know that they can deploy and fight on our behalf and will not then face spurious legal accusations years and decades after the event. Our armed forces need to know that they can deploy and fight on our behalf with the full confidence of our Government and our society, allowing them to serve in good faith and with pride for the safety of our people and the defence of our nation.

Question put and agreed to.

Ordered,

That Leo Docherty, Sir Nicholas Soames, Sir Henry Bellingham, Dr Julian Lewis, Johnny Mercer, Tom Tugendhat, Mr Mark Francois, Sir Mike Penning, Richard Benyon, James Heappey, Jim Shannon and Gavin Robinson present the Bill.

Leo Docherty accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 8 March, and to be printed (Bill 312).