My Lords, once more I have the daunting privilege of following the noble Lord, Lord Thomas of Gresford. I will avoid repetition and begin by dealing briefly with the amendment in the name of the noble Lord, Lord Faulks.
First, I will deal with my own moral position in relation to human rights in overseas operations. I am quite clear that, in a wartime situation, in the heat of conflict, there will and must be a very tailored and limited application of rights and freedoms as we normally understand them domestically, in peacetime. However, the Bill covers all overseas operations, such as peacekeeping, covert operations and the policing and rule of law-establishing operations of an occupying force.
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Many times, in recent years, people have come to these Houses of Parliament and urged interventions overseas on the grounds of human rights. They have wept hot tears over various human rights abuses perpetrated by dictators elsewhere and suggested that we had a responsibility to intervene. In moral terms, this amendment from the noble Lord, Lord Faulks, and—rather surprisingly to my mind—from the noble and learned Lord, Lord Garnier, would mean that, even where our forces were involved in peacekeeping or policing operations or in detaining prisoners, there would be no application of the Human Rights Act. We are not talking about bullets flying in a battlefield; we are talking about rule of law operations—whether covert or overt—in which the Human Rights Act would not apply.
They are also suggesting that there should be no Human Rights Act claims by our own military personnel overseas. No doubt, the noble Lord, Lord Faulks, might say that they still have claims of negligence—up to the absolute six-year bar. There have been many times during the years when the ECHR—first without and then with the benefit of the Human Rights Act—has enabled serving personnel and veterans to improve their lot and obtain fair and dignified treatment by their employers. It is not always the case that people are seeking damages. Quite often, they are seeking a vindication of their rights and a finding that they have been subjected to degrading treatment, whether in a barracks or elsewhere. There have been cases of women in the military who have been raped, but those crimes have not been adequately processed. There have been questions about the fairness of courts martial and so on.
It seems equally wrong that, just because these personnel are overseas, the Human Rights Act should have no reach. It is the closest we have to a modern Bill of Rights. Any amendment of it should be approached with considerable care. I am slightly concerned that there are so few speakers on this group. So that is my moral position on whether the Human Rights Act should or should not apply in relation to overseas operations.
There is a practical point for those who disagree with me, such as the noble Lord, Lord Faulks, and perhaps even the Minister. It is about the relationship between our domestic courts and the Strasbourg court as a result of our Human Rights Act. The noble Lord, Lord Faulks, foreshadowed this when he said, “Oh people will say that if the Human Rights Act has no reach on overseas operations, people will just trot off to Strasbourg—but, of course, Strasbourg can change its mind.” He is quite right. Strasbourg has changed its mind—more than once—in relation to the activities of the UK state but, more often than not, it has done so because of the expert and grounded interventions of our domestic courts and our greater expertise and knowledge of our own systems and processes.
Were the amendment from the noble Lord, Lord Faulks, to pass, no claims would be possible domestically under the Human Rights Act in relation to overseas operations. It would mean that our judges—all the way up to the Supreme Court—would not be able to comment on any human rights claims in relation to overseas operations, whether brought by British personnel and veterans or by those who might claim to be their
victims. That would mean that both the veterans and the other alleged victims of the UK state would go straight to the Strasbourg court, which takes the view that the ECHR has some reach in relation to overseas operations, and those cases would be considered without the benefit, the wisdom and the interventions of our judges. The dialogue model, which was set up under the Human Rights Act so that our courts are to take account of the jurisprudence of the Strasbourg court—only take account of it; they are not bound by it—would be broken, so that the Strasbourg court would no longer have the benefit in ECHR or HRA cases of the wisdom and experience of our highest courts.
That would be a practical, logical and tactical error that would only set up a collision course between the UK courts, potentially the UK Government and the Strasbourg court. If that is a collision that the noble Lord, Lord Faulks, and others are seeking, perhaps they should just be as honest as some Conservatives—not all, by a long chalk—have been in recent years with their desire not only to scrap our Human Rights Act but to leave the Council of Europe altogether. That, to me, is a terrifying prospect, but that is the collision course that is being set up by the noble Lord, Lord Faulks, and others. Perhaps they should just say so, but it is a mistake in my view.
Turning to the main event, so to speak, which is the Clause 12 duty to consider derogation from the convention through a new Section 14A of the Human Rights Act, my noble and learned friend Lord Falconer, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Thomas of Gresford, have described the question marks over this clause very well. Is it necessary? Is it wise? What is it trying to achieve? Is it, as my noble and learned friend Lord Falconer put it so pithily, just phony human-rights bashing for political purposes, because this Bill is so much about signal sending? That is one possibility, which was less flamboyantly, perhaps, but none the less considered in Part 5 by the noble and learned Lord, Lord Hope.
As the noble Lord, Lord Thomas, indicated, given that this Bill in general works so hard to suggest in various places what considerations and tests should be applied by courts, prosecutors and other decision-makers, it must be worthy of note that the new Section 14A of the Human Rights Act proposed by Clause 12 does not replicate the test for derogation under Article 15. Why is that the case? Why does it appear to create this duty to constantly consider derogating but not set out the strict tests that derogation requires? It must be that the derogation would be strictly necessary in time of war or other public emergency threatening the life of the nation, which, of course, is going to be far from the case in many covert or overt operations in the modern world—some short, some longer, some peacekeeping. Why has the Article 15 test not been replicated? Is it again, as happened with other legislation, such as the Internal Market Bill, an attempt to create tension, a collision course or a divergence between domestic law and international law duties? That would be very worrying indeed.
Is there a third possibility, that by creating a new legal duty on the Secretary of State to consider derogation, the Government are inviting litigation on the part of
those who want the Secretary of State to derogate in a situation where the Secretary of State has chosen not to do so, not least on the basis of advice that a derogation would not be justified? It would be a bitter pill indeed if this legislation actually invited vexatious litigation from anti-human rights groups, when so much of the Bill is supposedly about limiting vexatious claims.
I am very concerned about the signals in respect of human rights that are being sent by Clause 12. I am hugely persuaded, of course, by the noble and learned Lord, Lord Hope, in his view that Clause 12 should have no place in this legislation.