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Lord Lester of Herne Hill: My Lords, I am pleased to be able to speak immediately after the noble Viscount, Lord Colville. I agree with everything he said. I wish to add only two points. I had the privilege of defending the United Kingdom against Ireland in the inter-state case. It was an unhappy case, with serious allegations of torture and inhuman and degrading treatment at interrogation centres in Northern Ireland. That case went before the European Court and I well remember that in the end every one of us on the government team considered that it had been beneficial for the issues to be aired as they were. Lessons were learnt as a result.

I never discovered any resentment on our side of the scrutiny that was necessary in that case on the part of the Commission and the court. Of course, it would have been very much better had it been possible to achieve speedy and effective remedies in the courts of Northern Ireland that would have made it less necessary for that unhappy matter to have gone to the European Court.

The second example was the McCann case. I fully share the criticism that has been made of the wafer-thin majority of the European Court in that case. What is more, I wrote about it in the Irish press, explaining my dissatisfaction with the judgment of the European Court. But again, I have no doubt that if the McCann case could have been dealt with by our own courts, using the criteria of the convention, it might well have led to a different outcome in Strasbourg. It seems to me that so far from having anything to fear about our own courts, the right and sensible approach by the Armed Forces should be to welcome the fact that those cases will be dealt with in the first instance by our courts and that, if the matter then went to Strasbourg, the European Court would then have the benefit of British judicial scrutiny of those matters.

The last point I make is that I am perfectly sure that the Armed Forces would not wish to be considered other than as a public authority. I cannot think of any greater public authority in this country than the Armed Forces and the police who need to be respectful, as they are, of the basic human rights and freedoms of us all but accountable to the courts, as well as to Parliament and the Executive, if they get it wrong.

Earl Russell: My Lords, my only complaint of the speech of the noble and gallant Lord, Lord Craig of Radley, is that it is made 47 years too late. The convention is already binding on us in its entirety. We cannot pick and choose which parts of it we accept.

The Armed Forces are, in the very nature of the case, a public authority, and thank God they are! The alternative, if they were not, is really too terrible to contemplate. Therefore, the only choice facing us is

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whether those rights are enforceable in Strasbourg or in this country. Having them enforced in this country, as well as its other advantages, is a great deal cheaper.

Lord Kingsland: My Lords, I rise from the Opposition Front Bench to support, in principle, the amendment tabled by my noble friend Lord Campbell of Alloway. In doing so, an important distinction should be made between two situations. The first is the situation in which our Armed Forces are ranged against a particular military target. It is widely accepted that, in those circumstances, the military target, if his human rights are abused, should enjoy the benefits of the Act.

But the situation to which my noble friend Lord Campbell of Alloway refers is in relation to the commander and the man under command. In that situation, in my submission, it would be wrong to give the man under command the benefits of the rights of the European Convention because then complete obedience to orders is required. The European Convention could or might interfere with the success of military operations. Therefore, to that extent the Opposition Front Bench supports the amendment.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. He is a great champion of European Community matters and law. Is he then saying that European Community law is wrong in forbidding sex discrimination in the Armed Forces? That is a prohibition which, as he will know, led to the various cases in which women in the Armed Forces were able to recover effective redress when they had been dismissed, for example, for becoming pregnant.

Lord Kingsland: My Lords, that is an entirely different matter. I said that the Opposition Front Bench supports the principle of my noble friend's amendment. It may need refining to limit it to operational matters. I wholly agree that there may be circumstances in which such discrimination is wrong. I shall not go into the detail of what those circumstances are. I am simply talking about operational situations where it is absolutely essential that the orders given by a commander are obeyed and the commander cannot fear any kind of come-back based on the European Convention.

I add another matter. It has been said that these rights are already given to troops under the European Convention as interpreted by the European Court of Human Rights in Strasbourg. However, that seems to me to be not a final argument; because we now know that the Government do not intend to make the jurisprudence of the European Court of Human Rights binding in this country. The matter will be up to our own judges. The fact that a particular jurisprudence may or may not have developed with respect to the commander and those under command in Strasbourg does not, therefore, answer the question.

The Lord Chancellor: My Lords, this amendment would exempt Her Majesty's Armed Forces, or any person exercising functions under their authority, from being public authorities under Clause 6 of the Bill. The

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noble Lord, Lord Goodhart, is therefore right in his contention that this amendment, if accepted, would exempt them from being challenged under the Bill when it is alleged that their actions are contrary to the convention rights. What we have sought to do in Clause 6 is to set out a principle: first, that the effects of Clauses 6 to 8 should apply in the first place to bodies which are quite plainly public authorities; and, secondly, to other bodies whose functions include functions of a public nature. In the latter case, the provisions of the Bill would not apply to the private acts of the bodies in question.

Her Majesty's Armed Forces would seem to come squarely within the category of an "obvious" public authority and I cannot for one moment see what principal justification there would be or could be for excluding them from being a public authority under the Bill. Whether we have a widely drawn definition of a public authority, as we have in the Bill, or a definition based on a narrower list of specified bodies--which we do not have--the Armed Forces are obviously at the heart of government and ought to be included within any definition. I am not aware that the chiefs of staff have made any representations to government for an exemption along the lines of this amendment. The Government are plainly answerable in Strasbourg for the actions of the Armed Forces which plainly engage the responsibility of the state. Individuals who were aggrieved at the actions of the Armed Forces would, if the Bill were amended in the way proposed, still be required to go to Strasbourg to argue their case because they would be unable to rely on their convention rights before our domestic courts.

One major purpose of this Bill is to allow our citizens to enforce their convention rights in their own courts, and I firmly believe that the overwhelming majority of cases will begin and end here. I therefore oppose the amendment and invite the noble Lord to withdraw it.

Lord Campbell of Alloway: My Lords, I am most grateful to all noble Lords who have spoken both for and against the amendment. At this hour one does not want to go into a detailed analysis, but I just say that of course there is no issue of whether the Armed Forces are a public authority; of course they are. The issue is whether one should exclude them because of operational matters relating to discipline.

It is all very well but there are not many people in the Chamber who served in the previous war. There are not many people in the Chamber who have been on operations. Many of our operations are "near" war, short of war operations. With respect, I think that the House might defer to those noble and gallant Lords who have practical experience of operations, in particular the noble and gallant Lord, Lord Inge, who wrote,

    "I strongly support your amendment to Clause 6 of the Human Rights Bill".

Why should he bother? Why should a man of that calibre bother to write to me along those lines, expressing his sorrow that he could not be here to speak?

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I am not prepared to pack in this amendment, but I would like the opportunity to read with very great care what the noble and learned Lord said and in particular what the noble Lord, Lord Goodhart, said. On that basis and with the leave of the House, I beg leave to withdraw the amendment, but I should like to return to it at a later stage.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 and 27 not moved.]

11.45 p.m.

Clause 7 [Proceedings]:

Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 28:

Page 4, line 28, leave out subsection (3) and insert--
("(3) Nothing in subsection (1) shall prevent an applicant from bringing an application for judicial review provided that the court considers that he has a sufficient interest in the matter to which the application relates.").

The noble Lord said: My Lords, I shall not be moving this amendment. It is of great importance and I know that the noble Lord, Lord Alexander of Weedon, wished to be here, as did the Master of the Rolls and other noble Lords. Therefore, I do not think it appropriate at this hour to move an amendment of this importance. I shall return to it at Third Reading.

[Amendment No. 28 not moved.]

[Amendment No. 29 not moved.]

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