Armed Forces Bill

Debate between Lord Faulks and Lord Coaker

Committee stage
Tuesday 8th September 2026 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I thank noble Baroness, Lady Goldie, for introducing her amendments, and acknowledge the points she has made. I also thank the noble Lord, Lord Faulks, for his contribution to the debate. I say to him that clearly—not only in the context of this Bill but also within a whole range of other Bills, debates and topics—many of the cases that he mentions will be raised. There will be a more extensive debate on a whole range of those issues, and we need them to be discussed.

On the point made by the noble Baroness, Lady Brinton, about the Council of Europe, the debate about the ECHR goes on continuously. Whether anyone has raised the specifics of this amendment with it, I am simply unaware.

The ECHR provides for legally enforceable rights within the jurisdiction of the state. In some circumstances, that jurisdiction can extend beyond the territory of the state—namely, extraterritorial jurisdiction. Extraterritorial jurisdiction does not apply uniformly in relation to the various ECHR obligations, and the position has evolved over time through the case law of the UK courts and the European Court of Human Rights in Strasbourg. I understand the concerns about how extraterritorial jurisdiction of the ECHR has been interpreted, but I want to make this very important point, which gets to the heart of why this amendment should not be made. Amending the Human Rights Act directly does not change the UK’s international law obligations under the ECHR, to which this Government wish to adhere.

For instance, new Section 7A seeks to restrict the territorial extent of the Human Rights Act in relation to overseas operations. However, Article 13 of the ECHR requires the UK to provide an effective domestic remedy for anyone with an arguable claim that their convention rights have been violated. In other words, if the extraterritorial application of the Human Rights Act is removed, the UK will still need to ensure that there is a domestic remedy in respect of arguable ECHR breaches occurring in an overseas operation. Additionally, the existence of a domestic remedy separate from that provided for by the Human Rights Act would not prevent the European Court of Human Rights hearing a case where an applicant had exhausted that domestic remedy.

[Lord Faulks (Non-Afl)]

I thank the noble Lord for allowing me to intervene. He is right up to a point, in the sense that it is true that, provided we remain a member of the European convention, there is potentially a remedy if there is considered to be a breach of the convention right, at Strasbourg. But we chose, in 1996, to incorporate the convention in our domestic law. What this amendment is doing—the noble Baroness, Lady Goldie, may correct me if I am wrong—is amending our domestic law to restrict the remedy. Of course, ultimately, it might be possible to go to Strasbourg to pursue a remedy, but what this is concerned with doing is limiting the possibility of anybody relying on a statute passed by this Government—that is, the Human Rights Act—and seeking a remedy in our courts relying on that.

[Lord Coaker (Lab)]

I understand the point, very well made, by the noble Lord, Lord Faulks—but that is the debate we are having. The argument the Government put forward is that the disapplication of the Human Rights Act does not prevent the application of the ECHR. That is the point that is being made, and that is the point of difference between us.

[Lord Faulks (Non-Afl)]

May I simply say this one thing? Until we had the Human Rights Act, we were a member of the European convention. We did not initially even have the right to go to Strasbourg. We then allowed those who wanted to bring an action to go to the Strasbourg court, but it was completely unnecessary. It was thought by the then Government—the Labour Government in fact—to incorporate the convention. So, this is considerably diluting the right, and it is an important difference. The Government may say that we need this right incorporated into our law in the United Kingdom, and that is a different point. If the Minister is simply saying yes, we are a member of the convention, and there is always a right to go to Strasbourg, then I agree with that. But that is not quite what the amendment is focusing on.

[Lord Coaker (Lab)]

The Government would make both points; I am just speaking to the amendment. If I was not responding to the amendment but putting the whole point around the Human Rights Act and the ECHR, I would say that the Government are proud to have the Human Rights Act, which a Labour Government passed, and the consequent ability to go to the ECHR. However, I am speaking to the amendment that the noble Baroness, Lady Goldie, has moved. In doing so, we see that the disapplication of the Human Rights Act does not work as the noble Baroness wants because you can still go to the ECHR. That is the point that I am making.

For example, before derogating, an assessment must be made of whether the circumstances amount to a

“war or other public emergency threatening the life of the nation”;

whether derogation is necessary; which convention obligations require limitation, noting that some rights are absolute and cannot be departed from; and whether any measures adopted are

“strictly required by the exigencies of the situation”.

These assessments are inherently context specific. By seeking to make derogation mandatory whenever an overseas operation is deemed significant, the amendment risks replacing the individualised assessment that is required by Article 15 with a blanket statutory presumption of derogation. On the basis of this, I ask the noble Baroness to withdraw her amendment.

[Lord Faulks (Non-Afl)]

I promise the Minister that this is the last intervention that I will make. It is to deal with the point made by the noble Baroness, Lady Brinton. Her understanding was that the Government cannot derogate. I understand the Minister’s answer to the noble Baroness, Lady Goldie, that we want to consider the position and whether it is appropriate. However, from what I understand from the Minister, it is accepted that the Government have the right to derogate but they do not want it to be mandatory for it to be exercised in overseas operations because it will be context specific. Is that the position?

[Lord Coaker (Lab)]

In all the time that I have been in this House, that is the first time that I have not understood what the noble Lord means. I have said what I have said and I will leave it there.

[Lord Faulks (Non-Afl)]

I will give it one more go; it is probably my lack of clarity. Do the Government have the right to derogate at all? That was the issue that was being raised; maybe I have misunderstood it. The Minister’s understandable answer is that the Government have the right to derogate but do not feel that this ought to be automatic because they need to consider the circumstances to decide whether it is appropriate to derogate.

[Lord Coaker (Lab)]

The Government can make the laws and derogate should they wish to do so. I have pointed out the inconsistency of the amendment moved by the noble Baroness, Lady Gouldie, which would require us to derogate from the Human Rights Act but would not achieve her objective because it still leaves us liable to the ECHR, which would allow people to pursue it in that way.