UK Armed Forces Personnel and the Legal Framework For Future Operations

Written evidence from the Rt Hon Jack Straw MP

This letter is to respond briefly to your invitation to submit evidence to your inquiry on "UK Armed Forces Personnel and the Legal Framework for Future Operations".

1. I welcome this inquiry.

2. As Shadow Home Secretary (1994-1997) I led the very careful consideration which we gave in opposition to the development of human rights law, and specifically as to whether, and if so how, we could incorporate the European Convention on Human Rights into UK law, without this undermining the sovereignty of the British Parliament.

3. As Home Secretary (1997-2001) I was the Minister responsible for the introduction of the Human Rights Bill, its passage into law, and for the detailed preparations which were made before it was brought into force two years later, on 2nd October 2013.

4. As Lord Chancellor and Justice Secretary (2007-2010) I resumed responsibility for the Human Rights Act.

5. The short point I make, which I suggest should be one focus of your inquiry, is 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 in theatre abroad. I shall in slower time check this against all the records I have, and against the documents which were issued (Including "Bringing Rights Home", the opposition policy paper), the White Paper in 1997, and what I and other Ministers said about the Bill during its passage through Parliament.

6. I am however pretty certain that my recollection is correct. That is supported in my mind by the progress which was made on the Bill. Some parts of it were controversial, not least in relation to its potential impact on the churches, and on the press. The Conservative Opposition voted against it at Second Reading in the

Commons. Substantial amendments were then made (e.g. section 12 and 13) to accommodate much of the concern about the Bill. At Third Reading the Conservative spokesman said "We now wish [the bill] well" [1] , and allowed it to pass.

7. Had there been any concern that the Act would over time lead to situation where military decisions in theatre were to be subject to it, there would have been a very high level of opposition to its passage, on both sides, and in both Houses.

8. This means that the law has developed in a way which was not within the imagination of Parliament when the Act was passed.

9. There is nothing unusual about this. One of the great strengths of our common law system is that it allows our senior judiciary to develop our law to take account of new circumstances, including new norms of expected behaviour.

10. Such developments are always subject to the over-riding ability of our sovereign Parliament to correct – or reject – such developments.

11. I think that your Committee, and subject to its recommendations, Parliament in due course, will need to give consideration as to whether in this area to make such corrections.

12. In principle I believe that it will have to do this.

13. There is no argument that our military, especially on active service, have to be subject to both domestic and international law. That has long been the case. Intense obligations are imposed by, inter alia, the laws of war, on military personnel.

14. However, I believe that the current responsibilities imposed by the courts upon military commanders, and all other personnel in the field, go too far. It cannot be acceptable for commanders to have as it were to look over their shoulders in real time to lawyers when making both tactical and strategic decisions in the field, to the extent that now appears by current law to be required of them.

15. I hope this is helpful.

16. I should be happy to supplement this written submission, and to give oral evidence.

18 October 2013

[1] Hansard, 21 October 1998, col. 1362.

Prepared 20th November 2013