My Lords, the then Human Rights Bill came to Parliament without a Green Paper or a White Paper or any consultation paper preceding it. It did so shortly after the Labour Government came to power in 1997. Although there were no detailed debates in Parliament about the extraterritorial reach of the then Human Rights Bill, a number of concerns were expressed at the time about whether the convention —the ECHR—was really appropriate in the case of armed conflict abroad. There were those who took the view that there should be an express carveout in those circumstances, but that is not what happened. There was, however, a power in the HRA 1998—as it became—which permitted the Government to derogate from the European convention. It is important to note that the power was not used in Iraq or Afghanistan.
The inclusion in this Bill of an obligation to consider derogation might be regarded as rather unnecessary, since the power exists anyway. I suppose it might be considered to be part of the reassurance agenda vis-à-vis our Armed Forces. In any event, I respectfully ask the Minister about the Government’s interpretation of Article 15. I find it hard to disagree with much of what the noble and learned Lord, Lord Falconer, said about the right to derogate, and I ask her to clarify for the Committee the relevance of this obligation vis-à-vis overseas operations. My Amendment 27, which is supported by the noble and learned Lord, Lord Garnier, is an attempt to grasp a nettle. He would have liked to address the Committee but unfortunately is unable to do so.
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I think it will be broadly accepted that vexatious claims and repeated investigations arising out of overseas operations, principally in Iraq and Afghanistan, lie behind this legislation. There is an old saying that generals always fight the last war. There is a similar risk with legislation, and I acknowledge that lessons will have been learned and that there should in the future be an improvement in investigations, as compared with those that went so badly wrong in Iraq and
Afghanistan. But the ability to bring claims under the Human Rights Act, including the so-called investigative duty, principally under Article 2, was undoubtedly a significant factor in the vexatious claims brought against the military. In turn, they often led to investigations leading to potential—if not very often actual—prosecution. I think it would be broadly accepted that the investigations and their failure contributed significantly to the proliferation of often vexatious claims, with all the human damage of ruined reputations and lives that followed, accompanied sometimes by prolonged and expensive litigation.
For some time, the think tank, Policy Exchange, has called into question the wisdom of claimants being allowed to rely on the Human Rights Act in relation to overseas operations. Noble Lords may be familiar with the publications The Fog of Law and Clearing the Fog of Law—among others—which discuss the way in which the law has often fallen short in protecting our military from vexatious claims.
It may also be worth reminding noble Lords of what the Explanatory Notes to the Bill say:
“This Bill seeks to address issues that have partly arisen from the expansion of the European Convention on Human Rights … to cover overseas … operations where the UK had assumed that international humanitarian law had primacy.”
That was certainly an assumption which existed until the case of Al-Skeini. Jack Straw told the House of Commons Defence Select Committee in 2013 that
“to the very best of my recollection it was never anticipated that the Human Rights Act would operate in such a way as directly to affect the activities of UK forces … abroad”
and that, if so,
“there would have been a very high level of opposition to its passage, on both sides, and in both Houses”.
The case of Al-Skeini concerned the issue of whether the Human Rights Act had extraterritorial application. Lord Bingham—probably the outstanding judge of my and perhaps other generations—came to a clear view on the matter. He was not, incidentally, a judge with anything other than considerable enthusiasm for the protection of human rights in law. But his careful analysis was based on statutory construction and was a clear reflection of precedent. He set out in his judgment the relevant principles, and concluded as follows:
“I would accordingly hold that the HRA has no extra-territorial application. A claim under the Act will not lie against the Secretary of State based on acts or omissions of British forces outside the United Kingdom. This does not mean that members of the British armed forces serving abroad are free to murder, rape and pillage with impunity. They are triable and punishable for any crimes they commit under the three service discipline Acts already mentioned, no matter where the crime is committed or who the victim may be. They are triable for genocide, crimes against humanity and war crimes under the International Criminal Court Act 2001. The UK itself is bound, in a situation such as prevailed in Iraq, to comply with The Hague Convention of 1907 and the Regulations made under it. The Convention provides (in article 3) that a belligerent state is responsible for all acts committed by members of its armed forces, being obliged to pay compensation if it violates the provisions of the Regulations and if the case demands it. By article 1 of the Geneva IV Convention the UK is bound to ensure respect for that convention in all circumstances and … to prohibit (among other things) murder and cruel treatment of persons taking no active part in hostilities. Additional obligations
are placed on contracting states by protocol 1 to Geneva IV. An action in tort may, on appropriate facts, be brought in this country against the Secretary of State: see Bici v Ministry of Defence … What cannot, it would seem, be obtained by persons such as the present claimants is the remedy they primarily seek: a full, open, independent enquiry into the facts giving rise to their complaints, such as articles 2 and 3 of the Convention have been held by the Strasbourg court to require. But there are real practical difficulties in mounting such an enquiry.”
I hope noble Lords will forgive me for quoting Lord Bingham’s speech at some length, but it is most important for me to emphasise that my amendment in no way means that war is, or should be, a law-free zone. As Lord Bingham set out, there is a vast number of different restraints on unlawful activity, including, of course, claims in negligence.
The Secretary of State, in his submissions before the House of Lords in al-Skeini, had argued that the HRA had no application to public authorities outside the borders of the UK. That, presumably, was the view of the then Labour Government. To the surprise of many, the judgment of the European Court of Human Rights in al-Skeini was at variance with the views of Lord Bingham.
Thereafter, the Government were, in their view, constrained to set up an inquiry, with all the consequences that ensued. The final sentence of Lord Bingham’s speech about the practical difficulties in mounting such an inquiry was indeed prescient. It was this inquiry which generated much of the mischief that lies behind this legislation. There is no right, for example, to an inquiry attendant upon the right to sue for negligence, although such a cause of action will continue to exist, whatever view your Lordships take of this amendment.
Enthusiasm for the al-Skeini decision is not universal among the judiciary here. Mr Justice Leggatt, as he then was—he is now Lord Leggatt in the Supreme Court—said in 2014, in the Serdar Mohammed case, with masterly judicial understatement, that it was
“not obvious why Afghan citizens should be able to assert European Convention rights on Afghan territory.”
But he felt bound by al-Skeini.
I have mentioned the government submission in the al-Skeini case. I respectfully ask the Minister whether that is still the Government’s view. I acknowledge that Sir Peter Gross and his committee have been asked to consider, among other issues, whether or not claims should be brought based on the Human Rights Act in respect of overseas operations. The Minister may in response to this amendment say simply that the Government are awaiting Sir Peter’s report. But surely the Government must have at least a preliminary view. What if Sir Peter were to recommend no change, or were he to suggest that it was essentially a matter for the Government, and then for Parliament, whether there should be the appropriate amendment in the Human Rights Act to clarify the position? What then?
Another response that I anticipate may come from the Minister is that whatever the Government may think about the matter, we have our international obligations as a result of being a party to the convention, and we do not want to be in breach of those obligations or to encourage people to have to go direct to Strasbourg rather than seek remedies in our courts.
May I anticipate that argument? The first point is that there is always the possibility that Strasbourg will change its mind on this particular point, as it has done before in the light of a better understanding of the effect of one of its rulings, or because further evidence has come before it in one form or another. Take, for example, the reversal of the well-known decision in Osman v UK by the European Court of Human Rights in Z v UK. Al-Skeini itself marked something of a departure from the decision in Bankovic v Belgium. It must also be emphasised that Strasbourg does not have a system of binding precedent in the way that our courts have, so it is perfectly free to take a different view.
Finally, I mention the fact that, although our courts initially took to the Strasbourg jurisprudence with, some would say, unnecessary enthusiasm, we have now reached the position where our courts are prepared to depart, if appropriate, from a decision by the Strasbourg court. So it is perfectly open, I suggest, to the Government to accept this amendment.
We joined the European Convention in 1953, and for 40 years, before the Human Rights Act, there were rights under the convention which could be sought by individuals in Strasbourg. We were not in breach of our treaty obligations for 40 years by failing to provide for a domestic remedy. What the Human Rights Act did was, in that memorable phrase “to bring rights home”. It was not—and this is made clear in the al- Skeini Lord Bingham judgment—an obligation on the part of the Government to incorporate the convention. Rather, the Government chose to do so, and Parliament, with a massive majority, endorsed that decision.
Now, in the light of the woeful history of vexatious litigation, it is, I respectfully submit, entirely appropriate for the Government, and for Parliament, to think again. The passage of this Bill is plainly the right time and provides a suitable opportunity to do so. I ask the Minister to seriously consider and accept this amendment.