My Lords, like my noble friend Lord Dubs, I am a member of the Joint Committee on Human Rights, which carried out legislative scrutiny on the Bill and published its report in October last year. We interviewed many distinguished witnesses with expertise in international law and in combat situations. I am not an expert in law or in military matters, unlike many noble Lords who have contributed tonight. However, I have learned much during the progress of the Joint Committee on Human Rights inquiry, from briefings from several organisations and from this excellent debate today.
Our Armed Forces are generally admired for their commitment, high standards and bravery—that has rightly been said many times. There are uncomfortable truths about the Bill, including its incompatibility with the UK’s obligations under multiple international treaties, and its potential for unintended consequences of increasing legal costs while denying injured service personnel, veterans and their bereaved relatives compensation. Some people oppose the Bill on the grounds of human rights violations and the jeopardising of the UK’s role as a global defender of human rights and a leader in the fight for international criminal justice. It would certainly be sad to lose that reputation.
Part of chapter 2 of the Joint Committee on Human Rights report on the Bill is entitled “Inadequacy of Ministry of Defence Investigations”. There are lists of a number of key inquiries, litigation and investigations relating to Iraq and Afghanistan, which have been mentioned already. However, many investigations have been protracted and repeated due to the inadequacy of the MoD’s systems. This has had unfortunate consequences and has not served the best interests of justice.
The Bill has as a stated objective:
“The MoD must, as a priority, establish an independent, skilled and properly funded service for investigations … so that there is no longer any need for repeated or protracted investigations.”
Investigations will still be required, despite this legislation, but that inadequacy will not be addressed by the Bill, and it does nothing to address the issue of repeat investigations. A review has been announced by the Defence Secretary to ensure that
“those complex and serious allegations or wrongdoing against UK forces which occur overseas on operations”,—[Official Report, Commons, 13/10/20; col. 507WS.]
can be addressed. The JCHR looks forward to receiving updates on that review.
It is concerning that the Bill has had repercussions nationally and internationally for the reputation of our Armed Forces. The JCHR report says:
“Some have seen this as a cynical effort to remove accountability. The Judge Advocate General, the most senior judge in the Armed Forces, has said that this Bill is ‘ill-conceived’ and ‘brings the UK armed forces into disrepute’.”
Clause 12, mentioned by many other noble Lords, including the noble and gallant Lord, Lord Craig of Radley, and my noble friend Lord Foulkes, inserts new Section 14A into the Human Rights Act, which provides that the Secretary of State
“must keep under consideration whether it would be appropriate for the United Kingdom to make a derogation under Article 15(1)”
of the ECHR in relation to
“any overseas operations that the Secretary of State considers are or would be significant.”
Of course, no derogation can be made from certain articles of the ECHR, and the JCHR suggests that the Government may wish to consider restricting this provision to only Article 5, on detention, and Article 8, on the right to respect for private and family life. The report also calls for greater clarity about the parliamentary procedure to be followed in advance of any derogation. The JCHR has called on the Government to
“make an undertaking to consult with the Committee in advance of any proposed derogation under the ECHR. They should provide Parliament with sufficient time to consider any proposed derogation in advance of the UK derogating from its international obligations.”
The committee also expects
“to receive from the Secretary of Defence, a detailed Memorandum explaining how the Article 15 ECHR criteria are met in the case of any proposed or actual derogation.”
With our knowledge of the conditions surrounding the Bill, we should challenge, in the name of justice, any weakening of the laws of human rights. We should amend the Bill according to the suggestions made today, and monitor the consequences.
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