Armed Forces Act (Continuation) Order 2018

Lord Campbell of Pittenweem Excerpts

Tuesday 20th March 2018 Grand Committee

[Lord Campbell of Pittenweem (LD)]

My Lords, I am also lost in admiration for the quality and character of the Armed Forces, who serve this country so well. Since the noble Earl introduced the debate with characteristic clarity there is no need for me to rehearse the statutory position. I also welcome the detail of the Explanatory Memorandum, but I draw the noble Earl’s attention to page 2, paragraph 7.3, the second line of which says that the Bill of Rights is of 1688. All my schooldays were based on the proposition that it was 1689. Along with the Act of Settlement of 1701, it forms a part, at least, of the constitution of the United Kingdom. It does not really matter whether it was 1688 or 1689—at least it shows that I have read the Explanatory Memorandum.

Although this is a regular event, we should not allow ourselves to ignore its constitutional and political significance. The commander-in-chief of our Armed Forces remains the sovereign by law, but now the Government exercise the royal prerogative. That has assumed a political dimension, because Governments of both parties have accepted the need for parliamentary approval, whereas if the prerogative were simply exercised in purity, as it were, that would not be so. I think of the approval sought by Prime Minister Blair for the military action against Saddam Hussein and that sought by Prime Minister Cameron in relation to Libya. In both instances, the Government were successful, but when it came to the question of Syria in 2013, the Government discovered that there was no majority for the action proposed, which the then Prime Minister accepted almost immediately.

The Bill of Rights of 1689 arose out of the civil war that had so disfigured England. It was a particularly torrid time in the history of England, with Oliver Cromwell and the execution of Charles I. Given that Cromwell went to Edinburgh, where he stabled his horses in the basement of the Court of Session, Scotland was to a certain extent involved as well. There has been no civil war on this island since then, with the possible exception of the last convulsions of Jacobitism in 1715 and 1745.

I want to make three points, if I may, although the noble Earl has anticipated me to an extent. We do not always keep in mind the fact that the service of our Armed Forces takes place around the world in a whole variety of roles. I wonder how many citizens know that members of our Armed Forces are embedded in the Pentagon as part of the defence relationship between the United Kingdom and the United States or understand the extent to which our training commitments in Afghanistan are important. Although these are not the forgotten army of the Second World War, it is important on such an occasion to acknowledge the contribution that they make. One further contribution has some resonance with the events of the last 10 days: what I would call NATO’s forward deployment in the Baltics but what is known by NATO as its enhanced forward presence. That is being done to make it clear to Russia and Mr Putin that NATO accepts and undertakes the obligations under Article 5 in relation to its members Estonia, Latvia and Lithuania.

My second point, which has also been foreshadowed, is assistance to the civil power. As the noble Earl pointed out, this takes a variety of roles. In Edinburgh, military transport took medical staff to hospitals to perform necessary and urgent operations. As we have heard most recently, a particular skill set has been brought to the Salisbury investigation. It was reported in some newspapers that there was formerly a battalion with those particular skills but that it had been disbanded. Perhaps the noble Earl could tell us a little about the history of that, because if there was any watering down of that capability, that is obviously a matter of some importance.

--- Later in debate ---

[Earl Howe]

My Lords, not for the first time, we can be grateful to the noble Lord, Lord Campbell of Pittenweem, for drawing our attention to what may seem an anomaly in the date I read out from the Bill of Rights. I hope that I can convince him that I was correct—and that he too was correct. The Bill of Rights, a copy of which I have in my hand, is indeed dated 1688. However, the noble Lord may be interested to know that in the preamble of the Bill, the following words appear:

“Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome”,


and so on. It is apparent from the notes attached to the Bill that:

“The Bill of Rights is assigned to the year 1688 on legislation.gov.uk … although the Act received Royal Assent on 16th December 1689. This follows the practice adopted in The Statutes of the Realm, Vol. VI (1819), in the Chronological Table in that volume and all subsequent Chronological Tables of the Statutes, which attach all the Acts in”,


the first year of William and Mary’s reign,

“to the year 1688. The first Parliament of William and Mary (the Convention Parliament) convened on 13th February 1689 (1688 in the old style calendar—until 1st Jan 1752 the calendar year began on March 25th)”.

So I am afraid that we are at the mercy here of a historical quirk which has, quite rightly, prompted the noble Lord, Lord Campbell, to question the accuracy of what I said.

[Lord Campbell of Pittenweem]

I am grateful to the noble Earl for his extensive investigations into these matters. I can say only that I would not have dared to correct the First World War veteran who taught me history to tell him that it was 1688 and not 1689.

[Earl Howe]

I think that in modern parlance we can safely say that it was both, but as a working basis, 1689 will do very well.

The noble and gallant Lord, Lord Craig, returned us to the issue of human rights, as he has done in the past. I understand entirely the concerns that he outlined. Clearly, we need to address what many people see as a flaw in the way that the law has come down upon certain events and situations experienced by the Armed Forces in the course of combat and in conflict zones.

For the future, and I make it clear that we cannot do anything about the past, the Government have already announced that they would consider on a case-by-case basis a derogation from the European Convention on Human Rights, where that is appropriate in the context of a future operation overseas. That could help to ensure that our troops can confidently take difficult decisions on the battlefield, and enable us to focus on the defence budget rather than on lawyers. Some would say that lawyers have had too big a slice of the cake in recent years when it comes to the cross-questioning of our Armed Forces personnel in various contexts. I am the first to agree that it has been very burdensome and difficult for many individuals.