Overseas Operations (Service Personnel and Veterans) Bill

Lord Kirkhope of Harrogate Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Lord Kirkhope of Harrogate (Con) [V]]

My Lords, I first declare my interest as a practising solicitor and as the president of the West Yorkshire branch of the Soldiers’, Sailors’ and Airmen’s Families Association. No one could or has claimed that the issues bringing about this legislation are straightforward. One only has to look at the way it has progressed through the other place to recognise that there are many complexities, and the emotions which have been shown are a further indication of how much is at stake.

I support this Bill. It is a clear and timely attempt to find a way through. It acknowledges the vital and valued role of our Armed Forces in carrying out their duties to protect us and our values all over the world. It also acknowledges that being engaged on military operations is not like any other occupation. Fighting battles is both dangerous and testing. All those who do so need our support and gratitude. Sometimes the pressures of conflict inevitably result in behaviour which is outside the norms of civilian conduct, and when that results in unauthorised actions and other adverse results, it is perfectly proper to investigate it in a way that is appropriate and controlled, and to prosecute if necessary.

The international community has recognised the special features of conflict over the years. The Geneva convention, which has been referred to by many speakers, dates from 1929. It laid down requirements, especially for wartime prisoner treatment, and established the basis for the protection of civilians in a war zone. It was ratified by 196 countries and remains in effect. International humanitarian law is based on a series of accepted treaties which appreciate the legitimate use of force and is the basis for military operations. Abuse of those provisions can ultimately be brought to the international criminal tribunals.

Within the armed services there are clear codes of discipline and punishment and I would suggest, despite some noble Lords suggesting otherwise, that our country leads the world in maintaining those codes. I would submit that, with modifications, these should remain as the first base for our military engagements and would normally offer the right balance between our ability to take action and the need to avoid unnecessary suffering or abuse.

However, as other speakers have said, the complications afforded by the European Convention on Human Rights and the Human Rights Act 1998 are now matters which have had direct implications for this area. The two codes simply do not mix. Some noble Lords are, in my view, trying to confuse even further by trying to mix them. This has unfortunately resulted not only in confusion but, in some cases, great unfairness. The emergence of the so-called shocking “lawfare”, with bad and egregious lawyers trying to apply strict human rights law to conflict situations, has produced results which I do not believe are acceptable. Even the European Court of Human Rights, in the 2014 case of Hassan, accepted that any application of the convention should be respectful of the wider and more understood international humanitarian law.

Because no previous Government have effectively tackled these contradictions, large numbers of vexatious claims have been encouraged, which sadly have eclipsed some genuine and disturbing cases but which—based on the wrongful use of domestic legislation—have left service men and women in unfair jeopardy. The proposals in this Bill are rather modest, but necessary. Unfortunately, they cannot be retrospective, and I hope the Government will consider making amendment to ease the terrible burdens lying on the shoulders of some veterans.

I know some noble Lords are unhappy about the possibility of any derogation from the European Convention on Human Rights. I am, in general, a supporter of the convention and would certainly not wish us to abandon it or emasculate domestic application. However, I do not think that a specific derogation when we are engaged in conflict will be anything other than the proper course, and any derogation is a permissible step under Article 15, which refers to being

“in time of war or other public emergency threatening the life of the nation.”

Ultimately, anything we can do to clarify the responsibilities of our Armed Forces when engaged in warfare must be helpful. We owe it to those who risk their lives to protect us to offer them understanding and full support.