Overseas Operations (Service Personnel and Veterans) Bill

Lord Craig of Radley Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received two requests to speak after the Minister, one from the noble and gallant Lord, Lord Craig of Radley, and the other from the noble Baroness, Lady Chakrabarti. I will call them in that order.

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

My Lords, the Minister has reminded us that, when Defence Secretary, Michael Fallon said:

“before embarking on significant future military operations, this government intends derogating from the European Convention on Human Rights, where this is appropriate in the precise circumstances of the operation in question.”

In her letter of 26 February, the Minister indicated that Clause 12 was included to reflect this undertaking. Significantly, Clause 12 does not give the same weight to a decision to derogate as was indicated by Mr Fallon. If that is what is intended, should it not say so in words that reflect the commitment explained by Mr Fallon? What is the Government’s intention? Is it to seek to have in place an effective form of combat immunity for active operations overseas? That would be welcome but, at present, as many noble Lords have said, Clause 12 seems worthless and should not form part of the Bill.

[Baroness Goldie (Con)]

The Bill has been drafted to reflect the overall policy intentions to try to reassure our service personnel that, before overseas operations are committed to, careful thought is given to them. As the noble and gallant Lord understands, because of the deliberate way that the Bill is drafted, the impact of Clause 12 is merely to consider, not to compel, derogation. I simply repeat my undertaking to the noble and learned Lord, Lord Hope of Craighead: I will look very carefully at these arguments.

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Moved by

[Lord Craig of Radley]

34: Clause 13, page 8, line 36, at end insert—
“( ) In particular, regulations may amend the Armed Forces Act 2006 for the purpose of consolidating the provisions of Part 1 and this section in that Act.”

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

My Lords, I will speak to Amendment 34. The noble and gallant Lord, Lord Boyce, is a co-signatory and supporter of this amendment, but he had a clinical appointment that could not be changed.

What is immediately striking about the Bill is that it is an amending Bill to others for limitations and for the Human Rights Act, but it does not attempt to amend the overarching Armed Forces Act, though I believe that with a little ingenuity in drafting it could be done. In my amendment, I have suggested a post-enactment approach, because it would have been complicated to attempt to rewrite the first part of the Bill in a series of amendments. The reason for my approach is, of course, to bring all legislative matters of direct import for, and impact on, Her Majesty’s Armed Forces under the cover of the Armed Forces Act.

I have been advocating this approach for many years, going back to the problems that have arisen of conflicting legislation for the Armed Forces in their Acts and the Human Rights Act 1998. When that was being debated, I urged, without success, that human rights matters that the Armed Forces must follow were spelled out in their own legislation. Subsequently, I ensured that the Armed Forces covenant received its own part in the Armed Forces Act. Other legislation of direct impact on the Armed Forces and their discipline has been incorporated, in addition to the melding together of the three single-service discipline Acts into the current Armed Forces Act 2006.

As the services get smaller and are liable to be engaged in operations, their legislation under the umbrella of one Act not only makes for tidier legislation but enables those who have to live under and operate the laws that govern the Armed Forces, and to produce manuals of service law to guide individual commanders, to have a much easier task. Certainly for the particular topic of overseas operations, there is a cast-iron case for the relevant content of this Bill to be part of the Armed Forces Act 2006, just as the clauses on limitations and human rights are transcribed to the appropriate Acts.

This a probing amendment, but I am hoping for an acknowledgment of the benefit that this would bring. I beg to move.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I remind the Committee of course of my interests and say what a pleasure it is to follow the noble and gallant Lord, Lord Craig of Radley. He makes a very important point, which is tied to some of the points I am making, about how there has been, at times, an inconsistency in the way that we have dealt with defence matters through a series of different Acts. He made the powerful point that potentially it would help if we were to bring them together into a single Act.

I will speak to the very simple amendment in my name, which seeks to extend the territorial application of the Bill to include the Crown dependencies and overseas territories. In much the same vein as the amendment in the name of the noble and gallant Lord, Lord Craig, this would align the Bill with the Armed Forces Act, which this Bill references throughout. The Bill currently applies to a member of the regular or reserve forces, or a member of a British Overseas Territory force, as defined by Section 369(2) of the Armed Forces Act 2006, but it does not extend to the territories themselves. This creates ambiguity in its application and my amendment seeks to remove this. I am grateful to my noble friend the Minister for writing to me since I tabled this amendment. Her letter, a copy of which she has placed in the Library, addresses some, but not all, of my concerns.

I will take a moment to explain why this inconsistency concerns me. It stems, frankly, from a mistake I made as the Minister responsible for taking the last update of the Armed Forces Act through Parliament in 2016. At the time, I questioned why the territorial extent of the Bill applied to all overseas territories and Crown dependencies with the exception of Gibraltar. I was told that Gibraltar wanted to pass its own mirroring legislation and that officials did not anticipate a problem.

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We felt that it was important to ensure that, when there are joint UK Armed Forces and British Overseas Territory forces operations outside the British Isles, all personnel would be covered in the same way by the Part 1 measures in the event of allegations of historical offences on these operations—although in practice we consider any allegations of this nature unlikely to arise. I hope that, with the benefit of that slightly fuller explanation, my noble friend will not press his amendment.

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

My Lords, I thank the noble Lord, Lord Lancaster, the noble Baroness, Lady Smith of Newnham, and the noble Lord, Lord Tunnicliffe, for their support for my probing amendment. At the close of two heavy days in Committee, this is not of prime importance in the spread of amendments, but the Bill does offer an opportunity to press for this as a default approach to legislation for the Armed Forces.

I also thank the Minister and will look very closely at what she said in defence of the current arrangements. She raised one point which could be argued both ways when she referred to the fact that the Armed Forces Act has a quinquennial review. It seems to me that these overseas operations would very much benefit from some form of review. Several amendments in the course of the last two days have suggested a review process for this Bill, however it eventually turns into legislation.

I conclude by thanking the Minister again for her considered approach, which I will study very closely. In the meantime, I beg leave to withdraw the amendment.

Amendment 34 withdrawn.