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Armed Forces Bill

moved, as an amendment to Amendment No. 32, Amendment No. 33: Line 2, at end insert- ““( ) The rules of engagement shall have statutory force.”” The noble Lord said: My Lords, on Amendments Nos. 33 and 34, your Lordships will recall that in Committee, a single amendment, Amendment No. 61, dealt with two related but distinct issues: that of an absolute defence and that of the legal status of rules of engagement. Those two issues were conflated in the amendment, which was, by our own admission, probing. What your Lordships have before you tonight is a line of amendments which separates them. My noble friend Lord Campbell has dealt with the question of a defence and we have the text of his amendment, Amendment No. 32. I shall not add anything to what he has said—save only that my amendment to his amendment is not in any way intended to undermine the principle that he seeks to advance in your Lordships' House, but simply to suggest that orders ought to be seen in the context of rules of engagement, rather than vice versa. My noble friend may not be entirely convinced of that; but I do not think that the point is sufficiently important for me to take it beyond stating our difference. Rather, I want to talk about the other aspect, which is the question of the status of rules of engagement. I put on record my gratitude to the Minister, who has helpfully provided me with an extremely perspicacious document produced by his officials in the ministry, who have clearly spent a great deal of time thinking about this matter. I am much obliged to him and to them for what they have done. My amendments seek to meet the two primary criticisms that have been brought to bear on me from on high about enshrining the rules of engagement. The first relates to flexibility and the desirability of commanders being able to refashion and reformulate the rules of engagement, sometimes over a period of hours or within even smaller time limits. The second relates to confidentiality and the importance of the rules of engagement not getting into the hands of the enemy. We have abandoned on Report the very specific drafting that we adopted in Committee, to say simply that, "““the rules of engagement shall have statutory force””." This, I submit, meets both the concerns expressed by the Minister. It does not matter how often the rules of engagement change in the course of an operation; whatever they happen to be at the relevant moment when the soldier’s action is called into question, they will have statutory force. So it is not necessary to enshrine them in any document, although of course they will be in some documentary form in a unit or in some formation above a unit. Nevertheless, because the law requires them to have statutory force, they will, by that very requirement, have the force that I seek. It flows from that that, as there will be no publication of the rules of engagement, they will by their very nature be confidential. I therefore believe that the two objections made by the Minister do not apply. Why is it so important to give rules of engagement statutory force? I need only remind your Lordships of the arguments that I advanced in Committee. There are primarily two such arguments. First, the new role that Article 7 of the European Convention on Human Rights plays in our law requires anyone contemplating an activity to know before he undertakes that activity whether he is likely to commit a crime. That applies precisely to a soldier on the battlefield, who needs to know what legal framework is brought to bear on what he can and cannot do. He needs certainty, or as near certainty as one can give—one cannot give absolute certainty. At the end of the day, even in the context of rules of engagement, he must, of course, exercise only force that is reasonable and apposite in the circumstances; but apart from that necessary common-law qualification, the rules of engagement provide him with a framework in which he can have confidence. The other reason is particularly germane to the kind of operations that we undertake in Iraq and Afghanistan. Under the convention of the International Criminal Court, it is perfectly possible for a soldier to do something in breach of that convention which gives the state in which he is conducting his operations the right to try him for a war crime. As that is so, it is vital that a soldier knows exactly where he stands. I can think of no more serious threat to one of our soldiers abroad than the possibility of being tried for a war crime by a state that does not respect human rights. The rules of engagement give him a degree of certainty that otherwise does not exist. I have no idea how the Minister will respond, but when this point was ventilated in Committee, I had a great deal of support from your Lordships, including the noble and gallant Lords, Lord Vincent of Coleshill, Lord Craig of Radley and Lord Inge, the noble Lords, Lord Ramsbotham and Lord Thomas of Gresford, and the noble and learned Lord, Lord Lyell of Markyate. All of them supported the idea that the rules of engagement should be given statutory form. In these amendments, I have tried to meet some of the criticisms of detail that were made and to provide something that protects flexibility and security but also gives the individual soldier the certainty that he requires. I beg to move.