Overseas Operations (Service Personnel and Veterans) Bill

Lord Hope of Craighead Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

Now, in the light of the woeful history of vexatious litigation, it is, I respectfully submit, entirely appropriate for the Government, and for Parliament, to think again. The passage of this Bill is plainly the right time and provides a suitable opportunity to do so. I ask the Minister to seriously consider and accept this amendment.

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Faulks. Before I say a word or two in the light of what he just said, I should explain that I put my name to Amendment 26 and support what the noble and learned Lord, Lord Falconer of Thoroton, said about it, but I also have my name to the Motion to oppose Clause 12—in other words, to propose that it should not stand part of the Bill.

I add just a word to what the noble Lord, Lord Faulks, said about the al-Skeini decision. As he will appreciate, if the decision of the Appellate Committee over which Lord Bingham presided had remained without further recourse to Strasbourg, we would not be discussing Clause 12 at all. I did not sit on al-Skeini, but I sat on a later case called Smith, which I know the noble Lord is aware of, where we had to consider a decision by the Strasbourg court in effect to reverse Lord Bingham’s decision. Indeed, the noble Lord referred to it. It was a very difficult decision for us because we had to analyse exactly what the Strasbourg court was talking about. One thing that emerged from our study of that decision was that it did not really believe that the whole of the convention rights could apply in a situation such as arose in Iraq. There were rights there that simply have no point whatever. It talked about it being a slightly tailored approach to the convention for the particular situation in which our Armed Forces were placed.

We considered the matter very carefully, and one of the features of Smith is that, although we were divided on the issue as to the application of the Human Rights Act invoked by relatives of deceased servicemen, we were unanimous in the view that we could not escape the decision of the Strasbourg court. The current state of play, which the noble Lord, Lord Faulks, very rightly calls in question, is that, for the moment, there is a decision by the Supreme Court that we must follow the al-Skeini decision in Strasbourg and the Human Rights Act—the convention rights, in effect—so far as relevant, applies in the case of operations offshore.

I cannot escape from the fact that in the other part of the Smith decision, we, by a majority, declined to strike out the claims of the servicemen, one of which was referred to earlier this afternoon by the noble Lord, Lord Hendy, and, eventually, those claims were settled. Had we struck them out, we probably would not be as troubled by Clause 12 as we are now, but Clause 12 is there, so we must address it.

That brings me to my real point. I find it hard to know what to make of Clause 12. At first sight it is simply unnecessary. As has been mentioned, the power to derogate from our obligations under the European convention by means of a derogation order under Section 14(1) and (6) of the Human Rights Act 1998 already exists. It has been exercised from time to time, notably in 2001, by an order which would have allowed the indefinite detention of non-national suspected terrorists who could not be deported.

I use the words “would have allowed” because that order was set aside on an appeal to this House. That was because it unjustifiably discriminated against non-nationals on nationality grounds in comparison with UK nationals who were suspected of terrorism. We did not think it right in any way to interfere with the Secretary of State’s decision that the overall test of a state of an emergency affecting the life of the nation was set aside, but we did think that it was a disproportionate exercise of the power.