Monthly Archives: September 2020

Civil Liberties, Human Rights, Law, Misc

The Overseas Operations Bill: a license for atrocity

The Overseas Operations (Service Personnel and Veterans) Bill is what happens when the pub bore takes over British defence policy and there is no one left to prevent his cranky anger being turned into law. A rambling hostility to Johnny foreigner combines with a maudlin concern for the stresses faced by British troops on duty abroad to produce a measure which is almost as embarrassing to good governance as it is to those who care about contemporary British values.

The plan outlined in the bill is to compel prosecutors to let soldiers off the hook for crimes committed overseas as long as five years has elapsed since their alleged occurrence. We still say we have independent prosecutors and the rule of law in this country so a sweeping indemnity bill was out of the question. Instead the circumstances have to be “exceptional” for such proceedings to continue, with “particular weight” being given to factors that “reduce… culpability” such as the “adverse effect (or likely adverse effect)” of a suspect soldier’s “experiences and responsibilities (for example, being exposed to unexpected or continuous threats, being in command of others who were so exposed, or being deployed alongside others who were killed or severely wounded in action).” This “adverse effect” might relate to a soldier’s “mental health” or even “their capacity to make sound judgements or exercise self control.” Just in case your accused soldier is left exposed for his or her crimes while more vulnerable criminal colleagues walk free, the prosecutor is also required (emphasis added) to “have regard to the exceptional demands and stresses to which members of Her Majesty’s forces are likely to be subject while deployed on overseas operations, regardless of their length of service, rank or personal resilience.” (Yes, all these quotations are directly from the bill, not a ministerial speech, or a letter to the Telegraph.) And just in case things go wrong, there is a long-stop guarantee against inappropriate prosecutions in the shape of a requirement for the consent of the attorney general. That office is held at the present time by Suella Braverman.

The protections afforded these criminal suspects among the armed forces are explicitly extended to cover those accused of a range of domestic criminal law as well as the great majority of even the most serious international crimes (genocide; crimes against humanity; war crimes). They do not apply if the victim is a Brit rather than a foreigner. Other provisions aim to curb the capacity of human rights law to reach military actions overseas, and then—revealingly—anticipate departures from human rights law? in relation to future “significant … overseas operations,” retaking Calais perhaps, or laying siege to Brussels. The UK the promoters of this bill have in mind is one that has recovered its imperial greatness and the wonderful impunity that comes with being the international hegemon. Oh happy days!

Why has the government done this? Many senior figures in the armed forces are certain to be unhappy at this unravelling of their brand as modern, rule-based, civilised and so on. The International Criminal Court is bound to see it as a direct challenge to its authority.


The bill is part retaliation, part provocation.

So far as the first of these is concerned, since the invasion of Iraq the courts have been robust in their pursuit of the armed forces in relation to a series of alleged violations abroad of ordinary and international criminal law. In a recent article included on this site (TORTURE THEN AND NOW: THE ROLE OF THE JUDGES) I have detailed the extent to which the judges have had to overcome high levels of hostility, obstruction and deliberate obfuscation from the authorities in cases of this nature. Nor has it only been the judges: on one occasion even the government’s lawyers went so far as to consider sending in the Metropolitan Police to try to find relevant materials within the Ministry of Defence. This is all a far cry from the good old days when, in the analogous context of Northern Ireland, judges like Lord Widgery, Lord Denning and Lord Diplock went out of their way to protect the forces of law and order from close scrutiny. The government has not liked the result, and nor have many parliamentarians. A Defence Select Committee report in 2017 attacked the use of the law in this context and then the exposure of one solicitor’s wrongdoings in the field of evidence-gathering gave the antagonists of what they call “lawfare” their chance. This bill is the result.

Then there is the provocation. The government appears desperate to get the leader of the opposition Keir Starmer off Covid-19 and onto “elite metropolitan issues” like the rule of law, human rights and the prosecution of patriotic soldiers for “doing their job.” It was the same in the mid-1990s when a then-rampant shadow home secretary Tony Blair was constantly being forced to defend his party’s hostility to UK anti-terrorism laws—to his intense embarrassment. Starmer has not yet risen to the bait. So far as this bill is concerned that has been hugely disappointing. It can surely not be doubted that the British public know the difference between doing your duty and murdering and torturing innocent people. This was a conversation Starmer could have afforded to have, and where he might well have been persuasive. Next up will be the Human Rights Act. Labour will have a big decision to make then about whether to defend it or let it go. That will tell us a great deal about how they will govern: compromises of this serious a nature may be made in opposition but their moral contamination is hard afterwards to shake off.

With this bill we have further evidence of what the UK does not stand for: human rights, an ethical military and the rule of law. With Brexit we know it rejects regional co-operation too. What’s left? Trade deals with the Old (aka White) Commonwealth? The display of imperial power? You cannot govern a country on the basis of nostalgia however loud you shout.


Misc

The Government defies international law

Before getting to the remarkable turn the UK government is inviting parliament to make with regard to what we can I suppose still call Brexit, it is worth recalling some background.

The European Union (Withdrawal Agreement) Act 2020 declared itself a measure ‘to implement, and make other provision in connection with, the agreement between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU’. It received Royal Assent on 23 January.

The Agreement to which it refers was finalised on 19 October 2019. It contains a Protocol on ‘Ireland/Northern Ireland’. Under the terms of this Protocol (Article 10(1)), a range of EU laws (set out in Annex 5 to the Protocol) ‘shall apply to the United Kingdom, including with regard to measures supporting the production of and trade in agricultural products in Northern Ireland, in respect of measures which affect that trade between Northern Ireland and the Union which is subject to this Protocol.’ There are exceptions to this requirement (Article 10(2)) which are to be determined by the ‘procedures set out in Annex 6’ of the Protocol. These procedures entail the setting of the detailed rules by an EU and UK ‘Joint Committee’ (established under Article 164 of the main treaty) which then has the power to vary them. But if ‘the Joint Committee fails to determine the initial level of support and percentage in accordance with [this Annex], or fails to adjust the level of support and percentage in accordance with [it], by the end of the transition period or within 1 year of the entry into force of a future Multiannual Financial Framework, as the case may be, application of Article 10(2) shall be suspended until the Joint Committee has determined or adjusted the level of support and percentage’: in other words, all favourable treatment will be out the window.  The institutions of the European Union, and in particular the European Court of Justice, are specifically given a role with regard to the interpretation of, among other provisions, Article 10: Article 12(4).

All of this clearly constituted a huge range of concessions by the UK to the ongoing application of EU law within the state. Anything with a whiff of Northern Ireland to it becomes exposed to EU restrictions even if the investment under scrutiny is not based in Northern Ireland or not primarily aimed at that part of the United Kingdom. But the agreement of the 19th October is a Treaty and the Protocol is part of it: no one doubts that.  Nor is there any dispute that the treaty forms part of international law by which the UK has agreed to be bound. Distasteful in retrospect perhaps, not understood at the time by those who signed it, but so what?  Countries often sign treaties they dislike and want to get out of later. But they are generally stuck with them. The example of Germany under Chancellor Hitler did not end well, despite the short term domestic popularity of his rejection of the Treaty of Versailles. And unlike that German leader, the United Kingdom constantly protests its support for international law, calling for its better enforcement and excoriating those countries (like China in relation to Hong Kong) that it says breaches its terms.  Even when the UK has waged controversial wars (such as with regard to Iraq) it has gone to endless trouble to establish an international law explanation, however flimsy others might regard it.

The UK government has now published a bill which promises (or threatens) to depart from this decades-long approach to international law.  If enacted, the United Kingdom Internal Markets Bill as currently drafted purports to authorise domestic public authorities to seize the powers of the Joint Committee unto itself: clause 40. This might be to implement the Protocol (clause 40(2)(a)(i)) but it does not have to be: clause 40(2)(a)(ii).  Clause 42 envisages ministers having the exclusive power to manage the movement of goods between Northern Ireland and Great Britain. A power of unilateral interpretation of Article 10 of the Protocol is likewise asserted: clause 43. And then, just in case all this was thought to be some mistake or administrative aberration, clause 45(1) asserts that both clauses 42 and 43 and their related regulations shall have effect ‘notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent.’  This is specifically said to include the Ireland/Northern Ireland Protocol: clause 45(4)(a).

What is going on?  It is obvious why a senior government lawyer resigned: it was his job to ensure that bills respected the law, and this one manifestly does not. Maybe the government intends to withdraw the clauses but if it does humiliation cannot be avoided: these are such bald claims that they cannot be finessed by a qualifying word here or there. Maybe it hopes that the measure will fail in Parliament and so it will have demonstrated its determination without openly flouting what the country has long claimed to be a central principle. Again it is hard to see this happening without an embarrassing insistence on its own defeat: such is the strength of both its control over the lower house and its capacity to override the Lords. Will the courts strike the clauses down?  Again very unlikely as the Bill is unequivocal and recent case-law (not least the Miller decision on the prerogative) has emphasised parliamentary sovereignty rather than wider ethical claims of human rights and the rule of law (as one or two earlier cases did). Maybe the powers being discretionary there is no intention ever to deploy them, but if this is the plan then why bother going to all this trouble for nothing? Perhaps it is a cunning plan to lure the EU into ending all talks and so guarantee a ‘no-deal’ Brexit for which it hopes the EU will get the blame, but the provocation is so egregious this outcome seems unlikely, and anyway why turn guaranteed national decline into immediate suicide?

Of course there may well be international and European legal proceedings.  In the short term though this deliberate use of Ireland to raise the stakes with regard to the EU puts a hard border in Ireland back on the agenda, and closer now than it has ever been: the EU simply has to have territorial boundaries to maintain the integrity of its single market and this will have to be in Ireland if it is not in the sea between Northern Ireland and Great Britain. Anyone with any knowledge of Britain’s conduct in Ireland should not be in the least surprised by this. A former Secretary of State’s claim that Britain has no ‘selfish, strategic or economic interest’ in Northern Ireland may have been true in 1990 when it was uttered but it is manifestly not the case today.

The greatest damage, though, will be to the United Kingdom’s sense of self. It runs no empire anymore; indeed it can barely hold itself together.  Its government hates human rights and tries to abandon them when it can. Regional co-operation is out.  True the government says it is committed to British values, but that can’t be true any longer as these are said to include ‘the rule of law’. The freedom Brexit seeks to achieve has no content.

10 September 2020