Armed Services: War Crimes

Lord Faulks Excerpts

Tuesday 1st March 2016 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks)]

My Lords, international humanitarian law and domestic criminal law are the bodies of law to determine whether British troops have committed war crimes. Our Armed Forces are among the best in the world and operate to the highest standards of discipline. The forthcoming Bill of Rights will protect their ability to do their jobs without being subject to persistent human rights claims.

[Lord Naseby (Con)]

Does the Minister agree that British troops should only be sued for violation of human rights if they have already been convicted of crimes contrary to the laws of armed conflict?

[Lord Faulks]

All our troops should, of course, be subject to the law: none is above it. However, the question of the Human Rights Act raises rather different matters. There has been a number of claims based on alleged contraventions of the convention and, thus, the Human Rights Act. These have caused considerable —and sometimes unjustified—difficulties for soldiers and the Armed Forces. This is why our forthcoming Bill of Rights will attempt to deal with these persistent human rights claims.

[Lord West of Spithead (Lab)]

My Lords, long-retired members of our military who fought for us in Northern Ireland are open to arrest, bail and investigation for events that happened up to 40 years ago. Is it true that members of the retired military community who believe there is no even-handedness between the treatment of the terrorists who are trying to kill us and the military who are protecting us are raising with the PSNI a raft of incidents—some 40 so far—where members of the IRA and splinter-IRA have killed or maimed uniformed people? How are these cases being taken forward?

[Lord Faulks]

The noble Lord makes a good point. I am unable to answer his specific query, but the Prime Minister has tasked the National Security Council to produce a comprehensive plan to stamp out this industry of claims, which is causing precisely the sort of difficulties which the noble Lord has highlighted.

[Lord Craig of Radley (CB)]

My Lords, will the Government introduce any form of Crown immunity for operations overseas?

[Lord Faulks]

The noble and gallant Lord asks an entirely pertinent question. The Prime Minister has asked the Defence and Justice Secretaries to prepare a legislative package to redress the balance. That is clearly one of the matters under consideration, as is derogation from the Human Rights Act. There are a number of other matters which I would rather not go into detail about now, but I can assure the noble and gallant Lord that all these matters will be carefully considered.

[Lord Lester of Herne Hill (LD)]

Is not the Minister in some difficulty in his replies? So long as we remain bound by the European Convention on Human Rights and subject to the jurisdiction of the Strasbourg court, if the Minister and his colleagues introduce a new-fangled Bill of Rights that in any way is incompatible with the convention, it would be futile because the Strasbourg court—if not our own courts—will rule on that incompatibility. Is it not better, therefore, to answer this Question by indicating that for the sake of our soldiers, sailors and airmen, as well as others, we need the proper law to be both a human rights law and international humanitarian law?

[Lord Faulks]

I am sure that the noble Lord will not have forgotten the margin of appreciation. Provided our British Bill of Rights respects the European convention but tailors it to suit the particular challenges that the military faces, it is likely that Strasbourg will respect our interpretation. Of course, we will continue to protect human rights under any regime that exists, and also to respect our international humanitarian law obligations.

[Lord Vinson (Con)]

My Lords, is the Minister aware that the French, much earlier on, exempted their armed forces from prosecution under the Human Rights Act, so we would be following an excellent precedent?

[Lord Faulks]

I am grateful to my noble friend. We are aware of that and it is a matter that shall be taken into consideration.

[Baroness Symons of Vernham Dean (Lab)]

My Lords, the Minister was unable to answer the specific point raised by my noble friend Lord West of Spithead in relation to Ireland. Would he be kind enough to write to him on that?

[Lord Faulks]

I am happy to do that when I have the relevant information to hand.

[Lord Dannatt (CB)]

My Lords, given that there can be no blanket, technical explanation for these circumstances, is the Minister prepared to give an undertaking that where a soldier, sailor or airman acts in palpable good faith, there will be a presumption by the Government to stand with him and behind him in his defence against any action that might be taken against him?

[Lord Faulks]

The Government always stand behind our soldiers but to give a blanket undertaking like that would be exceeding my authority. With regard to battlefield immunity, which the noble Lord may be referring to, combat immunity remains part of the common law, although its contours are rather unclear at the moment, particularly in light of the Smith v Ministry of Defence case about the interrelationship of the Human Rights Act and that immunity. These are matters on which the Prime Minister and the Government are profoundly exercised.

[Baroness Nicholson of Winterbourne (LD)]

Will the Minister allow, under the current military law, for some information to be given to the families of the military police who were killed in Karmat Ali, and which they have so far not received. I was in that city the day after the deaths and all the information is readily available. When will the ministry allow it to be released to the families concerned?

[Lord Faulks]

I will take that request back to the Ministry of Justice and try to have some inquiries made.

[Lord Bach (Lab)]

My Lords, when can we look forward to the draft Bill of Rights and will its timing be affected by the EU referendum?

[Lord Faulks]

My Lords, we are in the hands of the Prime Minister, who has a number of elections to consider —local elections, elections of the devolved assemblies, and the small matter of the European referendum. Noble Lords may have to wait a little longer, but it will of course be well worth waiting for.