CONTENTS

politics first | Corridors
September / October 2016 | www.politicsfirst.org.uk
Is the British military still
able to punch above its weight?
Human Rights: an inconvenient truth
for Westminster
Clive Lewis, Shadow Secretary of State for Defence and Labour MP
for Norwich South
The phrase “punching above their weight”, to describe
the UK’s armed forces, was first used by Douglas Hurd,
in 1993, and has been regularly re-used since by British
politicians and journalists, alike. It obviously catches
something about our national relationship with our
armed forces – a genuine pride and admiration for their
professionalism and skill.
Dr Paul Monaghan, Scottish National Party MP for Caithness,
Sutherland and Easter Ross
The European Convention on Human Rights was signed
in Rome in 1950. The Convention was agreed in the dark
shadow of Nazism and as part of the post-war efforts by
the Allies to ensure that the horrors of the 1940s would
never be repeated. Some consider the Convention to
represent the most successful of the European Union’s
endeavours.
But, as others have pointed out, it also hints
at a certain insecurity about the UK’s role in the
world. On the one hand, the UK enjoys many of
the privileges of a global power – a permanent
seat on the Security Council, major influence
in the world’s most powerful military alliance,
NATO, and an extremely close military alliance
with the only true global superpower, the USA.
In addition to that, it is, of course, still one of the
world’s largest military powers in its own right.
And yet it is clear that the UK is not a global
power any more and, as such, it sometimes
feels as if we do not quite belong at the top
table - that we are somehow bluffing.
So what does it mean when we say that
we punch above our weight? It is worth
remembering that when Douglas Hurd said the
phrase, he was talking about how it was the UK’s
key role within wider international alliances
(specifically NATO) that gave its armed forces
the ability to project power beyond the narrow
military definition.
I would argue that that is still the best way
to understand Britain’s ability to have influence
beyond its apparent means. The UK is at the very
centre of a web of international organisations
which allow for the projection of soft power.
Those range from the Commonwealth to the
G8, from the Council of Europe to the OSCE,
and they include institutions like the BBC and
the UN. So long as we remember that it is those
institutions and organisations that allow us a
unique ability to set the global agenda, and to
participate in future-shaping events, then we
genuinely can have disproportionate influence.
However, we must always be extremely
cautious about simplifying the phrase into
believing that somehow our armed forces, on
their own, punch above their weight.
At the risk of getting into semantics, it is
almost a definitional problem; if military assets
are capable of achieving a given outcome, then
they must have possessed the power to do this.
Apart from the occasional fluke, armed forces
will punch at exactly the weight they carry.
And no sensible commander bases a military
strategy on crossing their fingers and hoping for
a fluke.
And that is not just a technical argument. If
we start to believe that, for some reason, our
armed forces are able to magically perform
beyond the material reality of their numbers, the
quality of their equipment and their training, for
instance, then we have taken the first step on the
path to hubris and military failure.
The resulting damage will not just be to
intangibles like our national reputation. The
men and women at the sharp end will pay a
direct price for delusions of grandeur. Sir John
Chilcott’s report laid out the reality that when
Tony Blair ordered the British Army into Iraq,
it was simply not equipped for the job. Land
Rovers designed to withstand bricks and bottles
thrown during riots in Northern Ireland did not
punch above their weight when they drove over
massive IEDs - they disintegrated, along with
the soldiers inside of them.
Moreover, when the Army found itself
fighting in Afghanistan, too, it simply did not
have the numbers to achieve this without
imposing extra costs on its ordinary fighting
men and women. We know that levels of posttraumatic
stress in combat veterans is linked
to the ratio between time spent in the combat
zone and time spent out of it, and when an army
is asked to do a job that it does not have the
numbers to carry out, one of the first things that
happens is that this ratio narrows.
When we claim that our armed forces can
punch above their weight, we must be very
careful that we are not casually tossing that
extra weight onto the shoulders of the people
at the bottom of the hierarchy. Those soldiers
deserve our fullest support, not to be stressed to
breaking point in order to preserve our national
illusions.
The rights afforded through the
Convention have, in law, the same meaning
as the Human Rights Act 1998, and viceversa.
In very crude terms, you cannot have
one without the other. Nevertheless, the UK
Government has developed aspirations which
seek to repeal the Human Rights Act 1998
and replace it with a “Bill of Rights”. The
aspiration, however, appears to have stalled,
perhaps because it has become increasingly
clear that the UK Supreme Court cannot
exercise supremacy over the European Court
of Human Rights, nor can the Supreme Court
act as final arbiter in regard to human rights.
Unhelpfully for the UK Government,
further substantive challenges to the plan
to roll back human rights protection are
glaringly obvious in The Government of
Wales Act 2006, The Scotland Act 1998 and
The Northern Ireland Act 1998 because the
European Convention on Human Rights is
incorporated into these devolution statues.
That means that application of the Human
Rights Act 1998 is devolved and the
devolution Acts therefore provide the people
of Northern Ireland, Scotland and Wales with
an additional layer of protection through the
rights found in the European Convention on
Human Rights.
The Northern Ireland Act 1998 is
particularly interesting because the human
rights protections, which it enshrines, enact
the Good Friday Agreement. Indeed, the
Northern Ireland Act explicitly states that “no
Minister holds power to perform any act that
is incompatible with human rights delivered
through the Convention.” The words “no
Minister” are instructive!
It has been argued that any attempt to
repeal or reform the Human Rights Act
would place the UK Government in breach
of its obligations under the Good Friday
Agreement as a matter of international law.
The agreement is, after all, a settlement struck
between the UK and the Republic of Ireland.
In fact, and let us be very clear, the Good
Friday Agreement is more properly termed
the Northern Ireland Peace Agreement, an
international peace treaty registered with the
United Nations on 10th April 1998.
In addition to legal questions, there are,
of course, political sensitivities surrounding
the role of human rights in the Irish peace
process, which the Convention has gone so
far to enable. Indeed, the role of human rights
in the peace process was reemphasised
most recently in the 2015 Stormont House
Agreement.
Setting aside the significant hurdles
of peace treaties and international law
for just a moment, it is almost certain
that the UK Government’s aspiration
of repealing the Human Rights Act will
encounter challenges from the Scottish
Government as a consequence of the Sewell
Convention. That convention states that the
UK Parliament may not legislate on areas of
devolved responsibility without the consent
of the respective devolved legislature.
In practice, any attempt by the UK
Government to initiate legislative change in
respect of human rights (a devolved matter)
in Scotland, would require the agreement of
the Scottish Parliament through a Legislative
Consent Motion.
That dual system of human rights
protection means that while the UK
Government is technically able to repeal the
Human Rights Act 1998, it is something of an
inconvenient truth that the Act’s repeal would
not, by itself, end the domestic incorporation
of the European Convention on Human Rights
in Northern Ireland, Scotland and Wales.
I would dare to suggest that the prospect
of the Scottish Parliament agreeing a
Legislative Consent Motion to repeal human
rights legislation, which has done so much
to promote the wellbeing and safety of the
people of Scotland, is slim.
If the UK Government wishes to go further
and withdraw from the European Convention
on Human Rights altogether, it must also
start to develop policy aspirations to amend
the devolution settlements. That aspiration,
too, would require legislative consent and
create a constitutional quagmire.
This June, the people of Scotland and
Northern Ireland voted to remain within the
EU. The Scots and the Irish are progressive
peoples and place great value both on their
EU citizenship and the European Convention
on Human Rights.
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