My Lords, I shall concentrate on Clause 12. The international court will accept that it is primarily a matter for the state requiring derogation to judge the imminence and severity of the threat faced. But the court is not going to give a free pass. Has the state gone beyond what is strictly required by the exigencies of the situation? The danger must be actual, clear, present and imminent. Derogation will not be allowed because of a mere apprehension of potential danger.
The link between a public emergency threatening the life of the nation and an overseas operation must be established. To quote Lord Bingham:
“It is hard to think that these conditions”—
of Article 15—
“could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw.”
Put simply, there is no guarantee that the Secretary of State will gain derogation for an overseas operation. A prior hurdle for the Secretary of State would almost certainly be that parliamentary approval, possibly even beforehand, must be gained.
There are further historical issues. When the Human Rights Act 1998 was being debated, and I first raised concerns about the legal conflicts between it and the Armed Forces Acts, the Lord Chancellor for the Government argued that it would always be possible
to derogate and clear the high bar required. But since then the Act’s reach, both territorially and temporarily, has been extended by judgments in the European court and our own Supreme Court.
There is a further problem. Much of the UK’s resistance to these enlarging findings was based on the submission that the HRA applied territorially only to the UK. Were the Secretary of State to seek derogation in support of an overseas operation, this would mean the UK’s acceptance of increased territorial reach, and so would be inconsistent with our previous, strongly argued position.
So my conclusion is that Clause 12 is flawed. I agree with the noble and learned Lord, Lord Hope of Craighead, that it is no more than window dressing and it would be more honest to delete it. The Secretary of State does not need a statutory diktat to consider derogation. The possibility was accepted way back when the Human Rights Act became law.
When the forthcoming human rights legislation review takes place, it should consider how to resolve its incompatibilities with the Armed Forces Act. The most critical concern should be how to protect a commander in the heat of battle from having to weigh up the concerns of human rights legislation with the command and direction of armed conflict when the pressure of events leaves little or no time to consider anything more than the successful execution of a military action. The boundaries of combat immunity should be clear before conflict, not established seriatim years later in a court of law. I regret that this even more worrying aspect of the interaction between the convention and armed conflict has not been addressed fully in the Bill.
I have one final thought. Legislation of critical importance to the activities of our armed forces should be consolidated into the Armed Forces Act. Having a single source of legislation critically important to the Armed Forces would help those in the forces and their legal authorities and would avoid inconsistencies in the separate legislation. This Bill does that for the Human Rights Act and the Limitation Act: why not, where relevant, for the Armed Forces Act? The quinquennial reviews would then ensure that these difficult issues were regularly considered.
5.35 pm