My Lords, the Minister started this debate by saying that the Armed Forces Bill would renew the Armed Forces Act 2006, which provides the legal basis for the existence of the Armed Forces as disciplined bodies. I have just returned from addressing the 71st course at the Defence Services Staff College in Wellington in the Nilgiri hills in south India. I have known the institution since my childhood. When I was a little boy, my father was a major attending the course. When I was at boarding school in neighbouring Ooty, my uncle, Lieutenant-General Sethna, was commandant. Later, in the 1980s when I was at Cambridge, my father, Lieutenant-General Faridoon Bilimoria, was commandant. I returned there eight years ago to address the 63rd course in 2008. When I was there this week, I was taken by the immaculate condition of the staff college. It was the best I have ever seen it, under the leadership of its current commandant, the Guards officer Lieutenant-General SK Gadeock. He reminded me of the motto of the staff college—“To war with wisdom”—and the mascot of the staff college, its emblem, the owl. Of course, the owl stands for wisdom.
Are we being wise as a country when it comes to the law and the Armed Forces? The noble and learned Lord, Lord Brown, spoke of the fog of war, and we have been speaking about The Fog of Law. Penny Mordaunt, the Armed Forces Minister, has spoken openly about the spurious cases being brought by parasitical lawyers whose behaviour is the,
“enemy of justice and humanity”.—[Official Report, Commons, 27/1/16; col. 203WH.]
We have heard of “lawfare”. Legal firms have brought more than 1,500 allegations of abuse and killings against British troops in Iraq. Ms Mordaunt said that that they are bringing morally unjustifiable cases on an industrial scale. For instance, Public Interest Lawyers, founded by Phil Shiner, has brought a case against British troops even though it was accepted 11 years earlier that Danish troops were responsible and Danish forces had already accepted responsibility and paid compensation in 2003. Ms Mordaunt said that we will take action against any legal firms we find to have abused the system and made spurious and fabricated claims. Will the Minister say why this issue is not being addressed in the Bill? IHAT has a huge backlog. It spent £57 million to find evidence of wrongdoing in only one case. A team of more than 145 detectives and staff will not complete its work until 2019. We hear that further allegations may be brought against troops who have served in Afghanistan. According to Johnny Mercer, the situation is out of hand. No other country has legislation put to the Armed Forces in the way we are experiencing here.
The Prime Minister wants to stamp out spurious legal claims against British troops returning from war and this awful no-win no-fee culture. The Defence Secretary has spoken of ambulance-chasing British law firms and said that there is a case for suspending European human rights laws when sending forces into action. Does the Minister agree? The Prime Minister has said that the National Security Council has been ordered to produce a comprehensive plan to stamp out this industry. Will the Minister update us on this? This is stopping the Armed Forces doing their job. How long will it take to finalise the proposed new British Bill of Rights which it is hoped will replace the Human Rights Act and make Britain’s Supreme Court more powerful than the European court? In the mean time, as the noble Lord, Lord Burnett, said, does the Minister agree that we can derogate from the ECHR, as we did after 9/11, to protect ourselves from being sued if we are going to a theatre of operations where we think compensation could be applied? After all, France has opted out of certain elements of the ECHR in order to protect its military from the threat of litigation. Portugal, the Czech Republic and Spain have all derogated in the way that France has. Why can we not? Why should we not?
The noble and gallant Lord, Lord Boyce, spoke about fighting effectiveness and about lawfare. Surely the ECHR was designed for civilian situations to protect the public from the misuse of state powers. Instead it is being used to bring legal claims against the military during times of war. The Geneva protocols should apply in conflicts of war. Does the Minister not agree?
The Policy Exchange, talking about its report The Fog of Law, says that,
“human rights laws mean British troops operating in the heat of battle are now being held to the same standard as police officers patrolling the streets”,
of London on a Saturday evening. This is completely out of proportion. In fact, Article 15 of the ECHR allows countries to derogate in times of war or other public emergency threatening the life of the nation.
My father commanded his battalion of the 2/5th Gurkhas in the liberation of Bangladesh in 1971. When they were about to take over a town, the brigade commander phoned my father and said, “I want that town taken by breakfast tomorrow morning”. My father said, “No, sir, I will not obey your order. I will give you that town by lunch. If I take it by breakfast I will lose too many of my men”. He did indeed take the town by lunch. Sadly, he still lost lots of his men. However, he made that decision in war.
I come to the question of adequate equipment. Since we are talking about the Gurkhas, whose 200th anniversary we celebrated last year, I say that my father’s battalion won three Victoria Crosses in the Second World War. I am on, and for six years was proud to chair, the committee for the Memorial Gates on Constitution Hill. In the ceiling of the pavilion there are the names of the Gurkha Victoria Cross winners. How many of them had adequate equipment? Their adequate equipment entailed a kukri with which they would single-handedly combat troops with a cry of “Ayo Gorkhali”—“Here come the Gurkhas”. Field-Marshal Manekshaw, another former commandant of
the Defence Services Staff College in Wellington, famously associated with the Gurkhas, said that if a man says he is not afraid of dying, either he is lying or he is a Gurkha. This sort of bravery has no place for human rights lawyers.
Under the Geneva convention, lethal force is allowed as a matter of first resort against the enemy. Under the ECHR, lethal force should be used only as a last resort and only in exceptional circumstances. That is wholly inappropriate. The Minister said that the Bill is modest, and I am afraid I have to agree with him. It does not address a major issue. Last year was the 200th anniversary of the Battle of Waterloo. What was the motto of the Duke of Wellington, one of the most famous heroes in this country? “Fortune favours the brave.”
In my talk to the Defence Services Staff College, which trains officers for armies, navies and air forces from all over the world, I spoke about the article 10 Things Entrepreneurs and Military Pilots Have in Common, written by Ron Yekutiel. Two of those 10 things were “Be bold” and “Just get the job done”. How can you just get the job done when you have the ECHR breathing down your neck and human rights lawyers ambulance-chasing you? This year at Harvard Business School, which I have attended for 14 years, we talked about the difference between playing to lose and playing to win. I believe that the British Army is famous for playing to win.
The SDSR 2015 was very positive, after the very negative one in 2010. Defence spending will rise by 5% by 2020-21. We will restore our lost capability after a decade of no carriers and no maritime patrols. We have one of the five highest levels of defence expenditure in the world. We are one of less than a handful of countries that now adhere to our 2% of GDP spending NATO commitment.
We are not a superpower; there is only one superpower on this planet and that is the United States of America. However, we are not a regional power or local power. We are at the top table of the world in every sense—the UN Security Council, the G7, the G8, the G20, NATO and the European Union. We are a global power.
The House of Commons Defence Committee produced a report, Flexible Response? An SDSR Checklist of Potential Threats and Vulnerabilities. It identified the following threats:
“Cyber-attack and espionage … Growing instability in the Middle East and North Africa … Increases in extremism, radicalisation and other enablers of terrorist activity … Non-state actors and hybrid warfare undermining the international rules-based order … Potential for conflict in the South and East China Seas … Potential for Russian aggression in Europe and the High North and possible dilution of the commitment to Article 5 … Economic dependence on unreliable partners … Inability to react to sub-conventional threats … Inadequate training opportunities for UK Armed Forces … Lack of numbers in UK Armed Forces and gaps in capabilities”.
On that note, when I was in India this time with the Indian Army it reminded me of when my father commanded the largest corps in the Indian Army. That corps has a strength of 100,000. The army that he commanded was 350,000 strong. Our troops now number 80,000. Lastly, the committee identifies:
“Lack of expertise in Whitehall”.
The report concludes:
“The SDSR must demonstrate adequate awareness of them all, and configure the Armed Forces to provide the flexibility, versatility and ability to expand which are essential for the defence and security of the United Kingdom”.
This is about the services. The motto of Sandhurst, where my grandfather was commissioned, is, “Serve to lead”. The motto of the Indian military academy where my father was commissioned, if I may paraphrase it, is, “The honour, safety and welfare of your country come first, always and every time. The safety and welfare of the troops that you command come second, always and every time. Your own safety and welfare come last, always and every time”.
We have had three varied and excellent maiden speeches today. The noble Lord, Lord Shinkwin, spoke movingly of the Armed Forces covenant. We now have an annual report prepared on the covenant. Let us remind ourselves of what this is all about. The Armed Forces covenant is an enduring covenant between the people of the United Kingdom, Her Majesty’s Government and all those who have served the Armed Forces of the Crown and their families.
The first duty of government is the defence of the realm. Our Armed Forces fulfil that responsibility on behalf of the Government, sacrificing some civilian freedoms, facing danger and sometimes suffering serious injury or death as a result of their duty. In return, the whole nation has a moral obligation to the members of the naval service, the Army and the Royal Air Force. Together with their families, they deserve our respect, support and fair treatment. Recognising those who perform military duties unites the country and demonstrates the value of their contribution. This has no greater expression than in upholding this covenant. The covenant is at the heart of everything. We have to address the major lack in the Bill. I hope that we do.
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