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Human Rights Legislation

Volume 493: debated on Monday 1 June 2009

1. What his policy is on the application of human rights legislation to service personnel on the battlefield. (277533)

3. What guidance he issues to armed forces personnel on operations on their obligations under the Human Rights Act 1998. (277535)

We are strongly committed to protecting the human rights of our armed forces. However, the implications of the recent Court of Appeal judgment in the case arising from the tragic death of Private Jason Smith could open the door to routine legal challenges against the Ministry of Defence to decisions made by service personnel entrusted with the conduct of operations. The Chief of the Defence Staff has made these concerns clear in his own message to the armed forces. I am urgently considering the matter, and will decide shortly whether we need to appeal the decision to the House of Lords.

What assessment has the Secretary of State made of the number of retrospective claims that may be brought against the Department in the light of the recent Court of Appeal judgment?

I have not made any assessment of that; it is not clear to me that the judgment would have retrospective effect. That would have to be examined initially as part of the careful consideration that lawyers in the Ministry need to give the judgment. However, my real concern is whether we can stand aside and see bold decision making by battlefield commanders inhibited by anxiety about a legal process over which they will have no say and no control. Those are very serious matters. We have a clear duty of care to our soldiers, sailors and airmen, which we intend to discharge fully, but the case raises a set of issues that are complicated and fundamental. That is why it is right that—with your permission, Mr. Speaker, and that of others—we take time to consider it carefully.

I am sure that the House wishes to send its condolences to Jason Smith’s family; it is a tragic case. However, although we wish the Government well, I fear that the problem is one of the Government’s own making, through their human rights legislation. There is no greater breach of human rights than being shot on the battlefield—and that is what we expect our soldiers to go out and risk. What exactly are the Government planning to do, beyond appeal? If the law stands, will not the Government have to change it to rectify the situation?

I do not want to indulge in hypotheticals, but I cannot resist the temptation. If we were to lose the appeal and the current interpretation of the law were confirmed, it would pose us a serious problem, which would have to be addressed. I personally do not believe that the framers of the European convention had it in mind when it was drafted that it would ever apply to soldiers in a battlefield situation. If I am wrong, and if the House of Lords took a different decision if we appealed, Ministers would have to consider seriously the position that would then arise.

This is a very serious matter, and I urge the Secretary of State to consider wisely and make an appeal as necessary. We are witnessing the possibility of sending serving soldiers into battle with no guns or other weapons, and with their hands tied behind their backs. It is an impossible situation—unless we can enforce human rights codes on the opposition, such as Hezbollah or the Taliban; that would be a step in the right direction. In the meantime we must treat the matter seriously and regard it as a matter of high principle for the Government, and ensure that our soldiers have the proper protection that they need when going to war on our behalf.

I have a lot of sympathy with my hon. Friend’s point. When our troops are committed to battle, the public want and expect only one thing: that they can do everything they need to do to win the battles that they are fighting. Anything that makes it harder to win the fights that they are in must be resisted strongly. Without allowing my hon. Friend to draw me any further, I can say that we are still examining the judgment carefully, and we will decide shortly whether to appeal.

I note from the press that companies such Capita, Manpower and Serco are forming a disorderly queue to get the plum £100 million contract for outsourced recruitment of people into our forces. Will the Secretary of State reassure me that, given their lack of knowledge of service life, that contract will not be extended to promote the ideas of human rights legislation in a battlefield context, about which they know equally little?

I congratulate my hon. Friend on getting that point into this exchange. There is no question of private contractors being employed in a battlefield environment, so I am not sure whether my hon. Friend’s concerns are likely to materialise.

Can the Secretary of State confirm that military lawyers and senior commanders have already started work fully to appreciate the tactical and strategic implications, should the judgment pass into law?

I would like to express the condolences of the Opposition to the family of Private Smith, and also to the families of those who have fallen since we last met. They gave their young lives in the service of our country, and their sacrifice must never be forgotten. The Minister of State has said that the Court of Appeal’s judgment of 19 May has serious implications for our ability to conduct military operations overseas. Given the Secretary of State’s belated fears for operational effectiveness, could he say what representations his predecessors made when his Government were falling over themselves to incorporate the European convention on human rights into the Human Rights Act?

I think that human rights legislation is important. It has helped to embed a human rights culture in the United Kingdom and in our judiciary, which is very important. With great respect to the hon. Gentleman, I do not think that the solution to the problem is to repeal the Human Rights Act. The European convention was always justiciable through the route of the European Court of Human Rights, so that would be a false path to tread. The problem has arisen because of subsequent interpretations of the parameters of the convention, not because of the Human Rights Act. The difficulty for us all in this House is that when we start down a road with a clear understanding of where we think the parameters lie, but then find that someone has moved those parameters, that poses a set of challenges about judgments that we may have to make in the House at some point in the future. None the less, that is the right way to see the problem—not to try, as the hon. Gentleman has, to put the blame on this Government, who rightly took the step of enacting the convention in the Human Rights Act.