My Lords, I am grateful to my noble friend Lady Goldie for introducing this debate today and for following through on an important manifesto commitment. More than 600 British service men and women lost their lives in the conflicts in Iraq and Afghanistan. It is essential that we protect our Armed Forces from the growing number of vexatious legal claims that undermine the ability of our Armed Forces to achieve their objectives in what may be inhospitable and dangerous territory.
Furthermore, our Armed Forces are rightly renowned as the best in the world because they are well trained and well led, but the growing incursion of human rights legislation, and in particular the European Convention on Human Rights, into the area previously reserved for international humanitarian law has undermined the effectiveness of the military chain of command. This reduces the ability of a serviceman to claim that he was acting under orders and places on him an obligation to question whether an order his superior officer has given him is legal.
Paradoxically, and in spite of what opponents of the Bill argue, the incursion of human rights law into the military arena has increased the risks and dangers facing our service men and women on the battlefield. I was particularly struck by the evidence given to the Public Bill Committee in another place by General Sir Nick Parker, in which he repeatedly stressed the need for the Armed Forces to keep accurate records to ensure that any claim can be quickly and efficiently investigated. The Bill seeks to change the rules on prosecutions but does nothing to improve the efficiency and accuracy of investigations, which would deal with the problem of repeated investigations and vexatious claims.
The noble and learned Lord, Lord Hope of Craighead, is quoted in the frontispiece to the 2013 Policy Exchange paper The Fog of War by Tom Tugendhat and Laura Croft as saying:
“It is of paramount importance that the work that the armed forces do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong.”
The noble and learned Lord did not mention this in his characteristically forensic speech earlier today, but I trust he still holds to his opinion.
Like the noble Lord, Lord Carlile of Berriew, I much look forward to the arrival in your Lordships’ House of Mr Dean Godson of Policy Exchange and to his future contributions.
Hilaire Belloc is quoted as saying in The Pacifist, published in 1938:
“Pale Ebenezer thought it wrong to fight,
But roaring Bill (who killed him) thought it right.”
My right honourable friend Theresa May had recognised in 2016 that we should derogate from the ECHR in future conflicts and said that the Government would put an end to the industry of vexatious claims that had pursued those who served in previous conflicts. Those who think that we should not derogate should acknowledge that the European judiciary looks at the law of armed conflict differently from the way in which our British judges traditionally have done. That is why the armed forces of many European countries are considered to be less reliable partners in conflict situations: their soldiers are not allowed to do anything warlike on the battlefield. As Policy Exchange suggests in its new paper, Clause 12 might usefully be strengthened by requiring the Secretary of State normally to derogate or account to Parliament as to why the Government have decided in any particular case not to derogate.
Both the five-years threshold and the exceptionality test give the impression that the Bill amounts to a statute of limitations, which it is not. Can the Minister explain why the exceptionality rule in Clause 2 is necessary given that other provisions in Part 1 specify the conditions that the prosecutor should consider? Should they not be taken into account at any time before or after five years have elapsed? Does the Minister not share my concern that the Bill may encourage the International Criminal Court wrongly to conclude that the UK is failing to discipline its own forces?
While in general I welcome the Bill and the Government’s resolve to address an undoubted problem, there are many questions which your Lordships will wish to examine in Committee, not least of which is the apparent illogicality of treating sexual offences differently from torture and other war crimes.
6.31 pm