Armed Forces: Human Rights

Lord Astor of Hever Excerpts

Tuesday 25th June 2013 Lords Chamber

[Lord Craig of Radley]

To ask Her Majesty’s Government what advice and directions are being given to Armed Forces personnel following the Supreme Court judgment on 19 June that human rights legislation, and in particular the right to life, may apply to Armed Forces personnel engaged in operations abroad.

[The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)]

My Lords, urgent cross-government discussions are taking place to consider our options. We will provide advice to members of the Armed Forces as soon as possible. The Government are concerned that the ruling creates uncertainty and will continue to defend their position against ill-founded legal claims, while continuing to provide our forces with the equipment they need, and ensuring that, where casualties occur, generous provision is made for troops and their families through the Armed Forces compensation scheme.

[Lord Craig of Radley]

I thank the noble Lord for that not very reassuring Answer. Can he advise on this situation? A commanding officer orders a soldier to take part in operations overseas against an armed enemy, so clearly there is a risk of injury or loss of life. Is that officer’s order lawful? If the soldier disobeys the order, is he liable to a charge and court martial under Section 12, possibly, of the Armed Forces Act because he did not go into the operation? Is the officer liable to be charged or found disciplined under the human rights legislation because the soldier followed his instructions but was killed in battle?

--- Later in debate ---

[Lord Astor of Hever]

My Lords, I hope that I can give the noble and gallant Lord some reassurance on his questions. While the judgment will create uncertainties, we are determined that it will not undermine the authority of commanders in the field to give orders required in often fast-moving circumstances. I do not expect it to be open to a soldier facing a charge of failing to follow orders to argue that his human rights trumped those orders, nor do I believe that officers acting in good faith would ever face disciplinary action in the circumstances that the noble and gallant Lord has described.

[Lord Rosser]

My Lords, the ruling is that the families of the Armed Forces personnel concerned can take action against the Ministry of Defence, since the court ruled that the doctrine of combat immunity should be interpreted narrowly. The individual claims concerned will now return to the High Court and it remains to be seen what the exact outcome will be. While it is essential that the MoD and the Armed Forces have a duty of care to service personnel, the concerns that have been expressed by the Defence Secretary and senior military figures on the potential military implications of the ruling should give pause for thought. Can the Minister say whether any consideration is likely to be given by the Government to the legislative position in the light of the court ruling, and is he aware of any of our allies who are in a similar position to the one in which we now find ourselves?

[Lord Astor of Hever]

My Lords, as I said in my initial response, urgent discussions are taking place in the Ministry of Defence. We are meeting lawyers and trying to work out the best way forward for members of the Armed Forces. As regards our allies, we know that they are very interested in this issue and we will share the conclusions of our discussions with them as soon as possible.

[Lord Palmer of Childs Hill]

My Lords, lawyers representing relatives said that the ruling meant that the Ministry of Defence owed a duty of care properly to equip service men and women as they went to war. Will the Minister comment on whether this interim judgment creates a risk of making the MoD more cautious with its engagements and less effective in peacekeeping? Will the Minister also confirm that the MoD is aware of its responsibilities towards our service men and women to provide them with vehicles and equipment suitable to the areas of conflict?

[Lord Astor of Hever]

My Lords, with regard to making the MoD more cautious, looking around the House I can see noble Lords and noble and gallant Lords who, in their time, had to take very difficult operational decisions on land, at sea and in the air. I am sure that they would agree that we must ensure that commanders have the confidence to take decisions that often must be made in the heat of combat to obtain their objective with the least possible loss of life.

As for the equipment, the most important priority is the protection of our troops. Since this litigation started, the wide range of protective vehicles, including Mastiff, Ridgeback, Husky, Wolfhound, Jackal and Foxhound, have been available to commanders to match the most appropriate available vehicle to a specific task, based on the assessment of operational risk. Every effort is made to bring troops’ kit up to spec for the job they do and continuously to update it as technology advances.

[Lord West of Spithead]

My Lords, 31 years ago my ship was bombed and sunk close inshore in the Falkland Islands during the amphibious landings, and its AA weapons systems were totally inadequate in the position in which it was placed. I knew that, as the commanding officer, and my task group commander knew that, but it is the duty of military men to fight the war they are in with the equipment they have. It is clearly a total nonsense that one can use human rights legislation to go against that. Indeed, if we had not done that, we would not have won that war. Will the Minister not agree that it is totally bonkers to apply this sort of legislation to war?

[Lord Astor of Hever]

My Lords, the noble Lord rightly raises the issue that we are grappling with at the moment.