Armed Forces Bill

Lord Faulks Excerpts

Committee stage
Tuesday 8th September 2026 Lords Chamber

In removing all involvement of the voluntary membership, the changes proposed in respect of the RFCAs in the Armed Forces Bill, by amending the Reserve Forces Act 1996, fly in the face of Prime Minister Burnham’s stated aim to push power down to the regions of the UK. The Permanent Secretary’s position as accounting officer requires him to have oversight of the funds allocated to the RFCAs. This accountability and financial authority is already in place, vested through a letter of delegation through the RFCAs’ chief executive. None of the things being done through the Armed Forces Bill—such as replacing the current board with unelected so-called independent people selected by Ministers, on advice, through the OCPA process, with no special commitment to the Reserve Forces and cadets—will do anything at all to improve the Permanent Secretary’s oversight of the funds, but they will do considerable damage to a large body of people who can advocate for defence in the regions and nations of the UK. I therefore support my noble friend’s objection to the clause and the schedule standing part.

[Lord Faulks (Non-Afl)]

I too support this amendment. I took part in the debate initiated by the noble Lord, Lord De Mauley, in January 2020 when it appeared that the then Government were leaning towards adopting the recommendation that now appears from the Sullivan report. All the Back-Bench speakers on that occasion were against that course of action, with the possible exception of the Labour Front Bench, which did not commit itself one way or another. The only speaker who was cautiously in favour was the noble Baroness, Lady Goldie, who is normally a formidable advocate for the Government or any other cause. On this occasion, she acknowledged all the points that were made against the Government’s suggestion but nevertheless advanced some arguments in its favour. I wonder if her heart was really in it.

I look forward to hearing from the noble Lord, Lord Coaker, who we much respect, about the real advantages that will follow from this reorganisation—advantages which are supposed to compensate for the undoubted loss of the various links that have been so eloquently described around the Committee. In particular, I ask him to clarify whether there is any legal requirement to make this change. I suspect his notes will contain words such as “governance”, “accountability”, “assurance”, “transparency” and “public confidence”, but, stripping away the language, I need to be convinced that there is any actual legal requirement for a change of this sort.

I turn to the budget, which I think in the debate in 2020 was said to be £112 million. This is not a trivial sum, but when it is compared with the £333 billion-odd we spend on welfare and social security, it is. Is it felt that there has been some financial failure generally on the part of the organisations, apart from the changes which have been implemented from the Sullivan report? Is it considered better to have paid rather than volunteer participants in the organisation? How much will this increase expenditure? As has been said a number of times, how does this fit in with the devolution agenda? At the moment, although I do not in any way challenge the sincerity of the civil servants who have no doubt advised the Government that the change is for the better, I think the Committee needs persuading that the RFCAs’ unique characteristics are worth sacrificing on the altar of tidying up or centralisation.

[Lord Dannatt (CB)]

My Lords, I intend to speak to further amendments in this general area later today, and I do not wish to repeat the sensible arguments that noble Lords and noble and gallant Lords have already made as far as this matter is concerned. However, it seems to me that, with this fundamental series of changes, we are taking a pretty large sledgehammer to crack a nut. That nut is the Sullivan report of 2019, which itself has been largely attended to and many of the changes already made—so the sledgehammer is being applied to the wrong nut.

My greatest concern is that if these measures were to be implemented, the local character of our reserve and cadet forces would be changed beyond recognition, and the volunteering ethos on which they currently depend would itself go. Many noble Lords will know that since Covid many of our volunteering organisations have struggled to recruit further volunteers. I believe we would be putting a stake through the heart of our reserve forces and cadets associations, and their local character and volunteering ethos, if these measures were to go through.

Armed Forces Bill

Lord Faulks Excerpts

Committee stage
Tuesday 8th September 2026 Lords Chamber

I appreciate that we will not reach a point of agreement on this issue tonight, but can the Minister at least tell me how the Government plan to prevent human rights law being weaponised against British troops in any potential future conflict? How will the Government give them the certainty that they will be able to do their jobs in an environment of conflict requiring immediate decisions, often of potential lethality, without fear of years of ensuing harassment and investigation? The present situation is unsatisfactory. The ECHR is jeopardising our war-fighting capability and security. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, I think we generally agree that our country needs our Armed Forces, including the reserves and the cadets, more than ever. We need to encourage people to join, and we need to look after them when they do. We ask them to risk their lives on our behalf. If we do that, we should ensure that they have the appropriate legal protection.

There used to be a common-law principle of so-called combat immunity. That meant that the courts did not get involved in measuring the responsibility for what occurs in the heat of battle. Aggression that may, with the benefit of hindsight, be seen to be excessive should not be analysed, many years later, in the studied calm of a courtroom, with lawyers employing slippery words such as “proportionality”. This is to say nothing of so-called blue-on-blue or friendly-fire incidents, which are inevitable from time to time.

I would not want to give our Armed Forces a free pass legally; they would not want one. The law of armed conflict is necessary and well established. The Geneva conventions and the accumulation of international conventions and treaties are generally described as international humanitarian law, which is generally respected. What worries me, as it does the noble Baroness, Lady Goldie, is the ECHR and its incorporation into our law by the Human Rights Act 1998. It has brought the law into places where it has no business.

The Strasbourg jurisdiction in this area has become exorbitant. It has held, for example, as the noble Baroness said, that the European—yes, European—Convention on Human Rights applies to theatres of war in Afghanistan and Iraq. Reference was made to Al-Skeini. There is also a case called Al-Jedda. These cases brought about, among other things, the persecution of our troops by lawyers such as Phil Shiner, a lawyer eventually imprisoned for his deeds but not without causing immense damage expense before his imprisonment. The causation, I fear, is clearly established by the decisions of human rights lawyers to rely on the convention in an inappropriate way.

The rights embodied in the convention are in themselves wholly unexceptionable, but the living instrument approach has meant that judges have approached its application in what might be described as an open-textured way, resulting in real uncertainty as to what our troops are entitled to do legally. Article 2, on the right to life, has, for example, been held to justify a claim against the Ministry of Defence in connection with the supply of Land Rovers: it is the case of Smith v Ministry of Defence.

For some time now, the think tank Policy Exchange has focused on the so-called problems of lawfare. Tom Tugendhat MP, now shadow Foreign Secretary, wrote a paper some time ago, entitled The Fog of Law. It remarked on all these facets, which are causing such a difficulty for our troops.

We have now reached a position where our troops are embarrassed in front of allies, and we are accused by our allies of legal freeloading when lawyers try to explain our legal position. Lawyers are conservative in the advice that they give, if not in their politics. The result is that our troops are vulnerable to legal attack, and their leaders may well become inappropriately circumspect in their approach, in the light of the legal advice that they receive.

The amendment attempts to give our reserves and all our troops proper protection from the incursions of the ECHR. I ask the Minister, for whom we all have great respect, to explain whether the Government consider that the current state of the law is justifiable and whether it is truly in the interests of our servicemen and servicewomen or, indeed, in the public interest.

[Baroness Brinton (LD)]

My Lords, I am very grateful to both the noble Baroness, Lady Goldie, and the noble Lord, Lord Faulks, for their introduction to the amendment and for explaining it in detail. I am not a lawyer, so forgive me for not being able to respond to some of the cases that the noble Lord raised. From these Benches, we have complete sympathy with the principles of sorting out this lawfare issue, because it is clearly a problem.

Having listened particularly to the noble Baroness, Lady Goldie, our concern is whether, under the terms of Article 15 of the ECHR, even this level of derogation is permissible. She quoted from paragraph 1 of Article 15 but not from paragraph 2, which says:

“No derogation from Article 2”—


the right to life—

“except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7”—

torture, slavery and retrospective criminal penalties—

“shall be made under this provision”.

That paragraph means that it is not possible for the UK to derogate.

I just wondered whether, when the noble Baroness was Minister, there were any discussions with the Council of Europe on this issue, rather than a particular court case. We cannot be the only country affected. It may be that it is particularly bad in the UK. I understand that—not just from Article 15 of the ECHR itself, but from the Government’s independent review of the Human Rights Act in 2021, which referred to the progress of the Overseas Operations (Service Personnel and Veterans) Bill, which the noble Baroness, Lady Goldie, referred to. It is explained that the amendment was withdrawn partly because of the very strong feelings in your Lordships’ House. It referred specifically to this point in Article 15 of the ECHR, and the then Government decided that they could not continue with the amendment. Having asked the noble Baroness, Lady Goldie, the question, which is perhaps slightly unfair because she is no longer a Minister, I ask the Minister whether any further discussions have been had with the Council of Europe on this problem. As we know, the ECHR is a living document, and if there are issues it is quite probable that the members would agree to some changes—perhaps expanding the level of articles that can be covered by a derogation.

[Lord Coaker (Lab)]

My Lords, I thank noble Baroness, Lady Goldie, for introducing her amendments, and acknowledge the points she has made. I also thank the noble Lord, Lord Faulks, for his contribution to the debate. I say to him that clearly—not only in the context of this Bill but also within a whole range of other Bills, debates and topics—many of the cases that he mentions will be raised. There will be a more extensive debate on a whole range of those issues, and we need them to be discussed.

On the point made by the noble Baroness, Lady Brinton, about the Council of Europe, the debate about the ECHR goes on continuously. Whether anyone has raised the specifics of this amendment with it, I am simply unaware.

The ECHR provides for legally enforceable rights within the jurisdiction of the state. In some circumstances, that jurisdiction can extend beyond the territory of the state—namely, extraterritorial jurisdiction. Extraterritorial jurisdiction does not apply uniformly in relation to the various ECHR obligations, and the position has evolved over time through the case law of the UK courts and the European Court of Human Rights in Strasbourg. I understand the concerns about how extraterritorial jurisdiction of the ECHR has been interpreted, but I want to make this very important point, which gets to the heart of why this amendment should not be made. Amending the Human Rights Act directly does not change the UK’s international law obligations under the ECHR, to which this Government wish to adhere.

For instance, new Section 7A seeks to restrict the territorial extent of the Human Rights Act in relation to overseas operations. However, Article 13 of the ECHR requires the UK to provide an effective domestic remedy for anyone with an arguable claim that their convention rights have been violated. In other words, if the extraterritorial application of the Human Rights Act is removed, the UK will still need to ensure that there is a domestic remedy in respect of arguable ECHR breaches occurring in an overseas operation. Additionally, the existence of a domestic remedy separate from that provided for by the Human Rights Act would not prevent the European Court of Human Rights hearing a case where an applicant had exhausted that domestic remedy.

[Lord Faulks (Non-Afl)]

I thank the noble Lord for allowing me to intervene. He is right up to a point, in the sense that it is true that, provided we remain a member of the European convention, there is potentially a remedy if there is considered to be a breach of the convention right, at Strasbourg. But we chose, in 1996, to incorporate the convention in our domestic law. What this amendment is doing—the noble Baroness, Lady Goldie, may correct me if I am wrong—is amending our domestic law to restrict the remedy. Of course, ultimately, it might be possible to go to Strasbourg to pursue a remedy, but what this is concerned with doing is limiting the possibility of anybody relying on a statute passed by this Government—that is, the Human Rights Act—and seeking a remedy in our courts relying on that.

[Lord Coaker (Lab)]

I understand the point, very well made, by the noble Lord, Lord Faulks—but that is the debate we are having. The argument the Government put forward is that the disapplication of the Human Rights Act does not prevent the application of the ECHR. That is the point that is being made, and that is the point of difference between us.

[Lord Faulks (Non-Afl)]

May I simply say this one thing? Until we had the Human Rights Act, we were a member of the European convention. We did not initially even have the right to go to Strasbourg. We then allowed those who wanted to bring an action to go to the Strasbourg court, but it was completely unnecessary. It was thought by the then Government—the Labour Government in fact—to incorporate the convention. So, this is considerably diluting the right, and it is an important difference. The Government may say that we need this right incorporated into our law in the United Kingdom, and that is a different point. If the Minister is simply saying yes, we are a member of the convention, and there is always a right to go to Strasbourg, then I agree with that. But that is not quite what the amendment is focusing on.

[Lord Coaker (Lab)]

The Government would make both points; I am just speaking to the amendment. If I was not responding to the amendment but putting the whole point around the Human Rights Act and the ECHR, I would say that the Government are proud to have the Human Rights Act, which a Labour Government passed, and the consequent ability to go to the ECHR. However, I am speaking to the amendment that the noble Baroness, Lady Goldie, has moved. In doing so, we see that the disapplication of the Human Rights Act does not work as the noble Baroness wants because you can still go to the ECHR. That is the point that I am making.

For example, before derogating, an assessment must be made of whether the circumstances amount to a

“war or other public emergency threatening the life of the nation”;

whether derogation is necessary; which convention obligations require limitation, noting that some rights are absolute and cannot be departed from; and whether any measures adopted are

“strictly required by the exigencies of the situation”.

These assessments are inherently context specific. By seeking to make derogation mandatory whenever an overseas operation is deemed significant, the amendment risks replacing the individualised assessment that is required by Article 15 with a blanket statutory presumption of derogation. On the basis of this, I ask the noble Baroness to withdraw her amendment.

[Lord Faulks (Non-Afl)]

I promise the Minister that this is the last intervention that I will make. It is to deal with the point made by the noble Baroness, Lady Brinton. Her understanding was that the Government cannot derogate. I understand the Minister’s answer to the noble Baroness, Lady Goldie, that we want to consider the position and whether it is appropriate. However, from what I understand from the Minister, it is accepted that the Government have the right to derogate but they do not want it to be mandatory for it to be exercised in overseas operations because it will be context specific. Is that the position?

[Lord Coaker (Lab)]

In all the time that I have been in this House, that is the first time that I have not understood what the noble Lord means. I have said what I have said and I will leave it there.

[Lord Faulks (Non-Afl)]

I will give it one more go; it is probably my lack of clarity. Do the Government have the right to derogate at all? That was the issue that was being raised; maybe I have misunderstood it. The Minister’s understandable answer is that the Government have the right to derogate but do not feel that this ought to be automatic because they need to consider the circumstances to decide whether it is appropriate to derogate.

[Lord Coaker (Lab)]

The Government can make the laws and derogate should they wish to do so. I have pointed out the inconsistency of the amendment moved by the noble Baroness, Lady Gouldie, which would require us to derogate from the Human Rights Act but would not achieve her objective because it still leaves us liable to the ECHR, which would allow people to pursue it in that way.