Overseas Operations (Service Personnel and Veterans) Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB) [V]]

My Lords, I believe the Bill has its heart in the right place, and much of it I support, particularly Part 1. However, occasionally it loses its bearings and it is certainly open to misunderstanding.

I start with two brief matters. First is a declaration of interest, although really it is a proud boast: over 60 years ago, as a national serviceman, I was on active—but happily not too active—service abroad. Secondly, in preparing for today, I have been helped by the Policy Exchange paper by Professor Ekins and the former Attorney-General for Northern Ireland, John Larkin, Queen’s Counsel.

Some appear to regard Part 1 as giving immunity or impunity to our forces after five years. In truth, it does no such thing. That point has been made several times but cannot be overemphasised. What it is designed to achieve is the clear recognition by those responsible for deciding, as the years pass, whether it is in the public interest to prosecute that, generally speaking, the more time that has passed, the less likely it is that prosecution will be appropriate. This is so for obvious good reasons. First, the longer that has passed, the less likely it is that prosecution will produce a true and fair outcome. Recollections fade, witnesses disappear, and the singular challenges faced in battlefield conflict come to be overlooked. Second is the important principle of finality, which becomes particularly compelling when the question arises after earlier investigations—often, as we have heard, a whole series of these—and especially when the person has been told that he is not to be prosecuted. Our brave forces, as the right reverend Prelate said, should not be hung out to dry.

But the five-year provision is subject always to exceptions, and the Bill expressly provides for some in the case of sexual offences: they are excluded from the Bill by Schedule 1. The noble Lord, Lord King, wondered why, and I suggest it is for good reason. First, such offences often do take longer to come to light, and they are altogether less likely to arise in the context of battlefield conflict. Secondly, late prosecutions may well be appropriate where, despite previous investigations, “compelling new evidence” comes to light. This is a concept well known to the law in particular; it allows, as an exception to the double jeopardy rule, the possibility of a second prosecution even where the accused has already been acquitted by a jury.

I acknowledge that late prosecution may well also be appropriate, and this is not currently dealt with in the case of allegations of torture. But even then, the passage of time may well be of relevance, as the whole series of post-Iraqi judicial inquiries established. The noble Baroness, Lady Buscombe, referred to one of these. It is all too possible to fabricate these claims and for false allegations of this sort to be made.

In short, therefore, there is no impunity—if public interest remains in prosecution, the Bill does not preclude it. What it does, importantly, is to dictate the basic policy to be followed: to highlight the particular considerations which the prosecution should have in mind when deciding not only if there is sufficient evidence but whether it is in the public interest to prosecute. Of course, that explains the requirement in Clause 5 for the consent of the Attorney-General in England and a law officer in Northern Ireland. Indeed, one may suggest that provision should be made for a law officer in Scotland too and, perhaps, for law officers’ consent before the five years are even up.

I turn very briefly to Part 2 of the Bill, which is much more problematic. I recognise that there are difficulties arising from the 4/3 majority decision of the Supreme Court in Smith in 2013. I rather share the view of the noble Baroness, Lady Deech, that, instead of time limiting these claims, one should introduce a generous no-fault compensation scheme.

Finally, on the human rights aspect, again in common with the noble Baroness, Lady Deech, I share the doubts of the noble and learned Lord, Lord Hope, on the value of Clause 8. I would prefer to limit the extraterritorial application of the Human Rights Act itself, as Lord Bingham would have done in the Al-Skeini case in the House of Lords in 2007.

Armed Services: Claims

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 24th November 2016 Lords Chamber

Moved by

[Lord Brown of Eaton-under-Heywood]

To move that this House takes note of the case for limiting the number and nature of claims against the Ministry of Defence and United Kingdom armed services personnel arising out of future armed conflict abroad.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, 60 years ago, as a young national serviceman, I was on active service in Cyprus. I record this not as a declaration of interest but rather as a boast because, together with a great number of other people, I am proud to have served Queen and country and it now distresses me, as it plainly distresses lots of others, to see how today, often years after valiant service in conflicts abroad, our forces are subject to apparently endless claims and allegations of misconduct. Not only is this upsetting, but it affects our nation’s combat capabilities by damaging morale, recruitment and our fighting strength. The problems of these largely now historic allegations are so many and so diverse that I have scarcely time even to outline them, let alone elaborate their possible solutions. There are multiple criminal allegations, multiple civil claims, claims by foreign combatants, claims by foreign civilians caught up the conflicts and claims by our own forces against the MoD. Essentially, as I shall finally come to suggest, the way ahead I would propose is not merely, as recently foreshadowed by government, to derogate from the ECHR in future combat but to reverse the trend of recent years whereby human rights obligations have been extended beyond the domestic sphere even to foreign battlefields.

First, however, I shall briefly chart the way these problems have developed and how we have reached our present sorry situation. The great majority of the criminal allegations and civil claims date from 2003 to 2009 in Iraq. Those years covered three phases: the initial invasion, the occupation and then four years as part of a multinational force assisting the Iraqi Government to maintain law and order. IHAT, the Iraq Historic Allegations Team, was established in 2010 to investigate the alleged ill treatment of Iraqi civilians in British custody. It was later extended to those not in custody. Initially this duty arose under the Armed Forces Act 2006 and previous such Acts, but later it had to be greatly extended to discharge what in 2011 Strasbourg held to be the UK’s investigative obligations under Articles 2 and 3 of the convention. Its initial case load of 165 cases to be completed by 2012 has grown hugely over the years, so that even in April this year there still remained 325 allegations of unlawful killing and over 1,300 cases of alleged ill treatment—hopefully to be completed by December 2019 at the cost of some £57 million.

Over the years, IHAT’s difficulties have increased, largely from the Strasbourg Court’s ruling in Al-Skeini in 2011 that, contrary to all previous understanding, the convention applied to our operations in Iraq. First, IHAT’s investigators were held to be insufficiently independent, and military police had to be replaced by naval and retired civilian police. Then IHAT was found insufficiently independent of the Executive for Article 2 and 3 investigations, for which inquisitorial inquiries on the model of coroners’ inquests were held to be required.

I should add that IHAT’s inquiries were serving also to meet the requirements of the ICC, whose prosecutor in 2014 opened a preliminary examination into war crimes—the alleged systematic abuse of detainees in Iraq. This followed a report by a retired senior judge into the notorious death of Baha Musa in 2003. Later, however, in December 2014, another retired judge reported in the al-Sweady case rejecting most of the Article 2 and 3 allegations arising from a number of detentions in 2004. Later still, in September this year, Sir George Newman published a report into the death of Ahmed Ali, who drowned in a canal as one of a number of looters driven into the water as punishment. The judge found a manifest disregard for the risk to Mr Ali’s life, but his greater criticism was the Army’s failure to train, instruct and guide the men in policing methods and how to deal with lawlessness, not least widespread looting, as in Basra.

Of course it is imperative in any future conflict that our troops should be better prepared for what often become essentially peacekeeping missions. Equally obviously, our troops should be held to the highest standards and any truly credible allegations of criminal wrongdoing should be properly investigated. However, it is fervently to be hoped that never again will it be necessary to embark on another vast IHAT-like process and engage in a series of Article 2 and 3-compliant judicial inquiries, with all the enormous problems that these face. It is unsurprising that in his September 2016 review of IHAT Sir David Calvert-Smith described the interviewing of witnesses as,

“the single most intractable problem”,

that it faces. Indeed, we now find ourselves paying Iraqi witnesses to travel abroad to give evidence against British soldiers.

One should note that despite all this huge effort and expenditure, barely a handful of investigations have led to any further action, and punishment thus far has been limited to a single fine. Meanwhile, alongside these endless criminal investigations—and, no doubt, to a degree prompted by them—a growing number of civil actions have been brought against the MoD, both public law claims for convention-compliant investigations and private law claims for compensation. Mostly these allege ill treatment, unlawful detention and in some cases unlawful killing. In September this year the Court of Appeal in al-Saadoon recorded over 1,200 public law claims and over 600 compensation claims, in addition to some 250 claims already settled. True it is that the UK has indeed paid out some £20 million or £30 million to settle a number of claims, most of which were doubtless well founded, though one suspects that few were of the Baha Musa kind. However, it seems likely that many claims are spurious. As the judge concluded in the al-Sweady inquiry,

“the vast majority of the allegations made against the British military … including all the most serious allegations … were wholly and entirely without merit or justification”.

Those are just the Iraqi claims. A series of cases also had to deal with a number of claims arising from the Afghanistan conflict—largely claims for wrongful detention—the lead case, Serdar Mohammed, being brought by a Taliban commander.

What, then, can be done to stem such a tide of claims following on from any future foreign combat? I am of the clear view that it is international humanitarian law, sometimes called the law of armed conflict, based largely on the Geneva Conventions, which strikes the appropriate balance between military necessity and humanity and which therefore should regulate the conduct of such operations, not the human rights convention, which is, rather, designed to regulate the domestic exercise of state power. Our American allies, for example, are not subject in such conflicts to inappropriately exacting human rights requirements; nor does the Canadian Charter of Rights and Freedoms apply to its forces fighting abroad.

We should therefore, in any future military conflict overseas, derogate, so far as we are able, under Article 15 of the convention, but I cannot pretend that derogation is a simple, straightforward and guaranteed route to immunity from all future human rights claims. Alas, I have no time today to go into the problems and limitations of derogation, but I understand that my noble and learned friend Lord Hope of Craighead will touch on these. So I would not stop with derogation. Rather, I would legislate to overcome the central problem we face following Strasbourg’s 2011 judgment in Al-Skeini holding, contrary to all previous understanding and this House’s earlier decision in the same case, that the convention applies not just within Council of Europe states but anywhere—in broad terms, whenever a state through its agents can be said to exercise control, an approach which itself leads to grave doubts and confusion as to its limits.

I am certainly not advocating that we should withdraw from the convention, so, subject to whatever may be achieved through derogation, we shall remain liable on the international law plane to any future Strasbourg ruling. But we could and, I believe, now should legislate for domestic law purposes to amend the Human Rights Act itself to confine its application to the UK. In 2007, when Al-Skeini was before this House, we had to decide, first, whether the Act applied extraterritorially and, secondly, who is within the UK’s jurisdiction for the purposes of the Convention. The late and great Lord Bingham of Cornhill, the wisest among us, dissented on the first point. He would have held that the Act has no extraterritorial application. The remaining four of us, however—unwisely, as I now think—held the contrary. We thought the Act should track the convention, but we did so explicitly on the basis that the convention itself applied only within the area of the member states with, as I myself put it,

“just a limited extra-territorial reach in certain closely defined circumstances”,

such as in an embassy abroad or, by analogy in Baha Mousa’s case, in a British military detention unit abroad. Naturally, one is reluctant to deny complainants any domestic law remedy, it being implicit in all this that we may choose not to give effect to some adverse international law ruling. For my part, however, I would find this much easier to justify in the present context than with regard to, say, prisoner voting, where it seems to me that the Government are being just plain silly.

Thus far, I have said nothing in respect of claims of deaths and injuries suffered by our own forces in conflicts abroad: claims against the MoD both under the Human Rights Act and in negligence. A number of such claims have been brought and, following a 4:3 majority judgment in the Supreme Court in Smith in 2013 refusing to strike them out, they remain undecided. I say nothing today as to whether the majority judgment may be regarded as right or wrong, but there seems little doubt that it has caused serious concerns in the MoD and the military about what the noble and learned Lord, Lord Mance, called, “the judicialisation of war”, and that it may lead to our Armed Forces becoming dangerously hyper-cautious in conflict.

What, then, should be done about this? Much has been written on this topic, perhaps most helpfully last year in the Policy Exchange paper, Clearing the Fog of Law. With regard to claims in negligence, I would suggest that the time has come, not to expand the rather elusive common law doctrine of combat immunity but rather to make a ministerial order under Section 2(2) of the Crown Proceedings (Armed Forces) Act 1987 to revive, in the case of warlike operations outside the UK, the effect of Section 10 of the old Crown Proceedings Act 1947, which had prevented claims for injury or death on military service. Section 10 was repealed in 1987 really because personal injury damages had by then risen way beyond the benefits payable to those injured on service under the Armed Forces pension scheme.

In fairness, and indeed as a matter of political reality, a ministerial order ending tort claims would now need to be accompanied by a scheme to compensate the injured fully on a no-fault basis. This would avoid all the problems of legal proceedings by way of stress, delay and expense and, of course, end the basic problem presented by Smith that the risk of litigation itself results in a damagingly risk-averse approach to soldiering.

As for human rights claims by our own forces—

[Lord Thomas of Gresford (LD)]

My Lords—

[Lord Brown of Eaton-under-Heywood]

As this is a time-limited debate, I think I should be allowed to finish. As for human rights claims by our own forces, if the HRA is confined territorially, as I suggest it should be, such claims could be brought only in Strasbourg, and as to this, I tend to share the view of the minority in Smith that that court would itself shrink from adverse judgments based necessarily on reviewing the conduct of our military operations abroad.

All I have said is really but a thumbnail sketch of the many difficult questions that arise, and I now look forward to hearing the views of the number of real experts—all noble and several gallant, too—who I am delighted to note are to follow in this debate.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

My Lords, essentially, I confine myself to thanking all noble Lords who have taken part in this debate—those who are neither gallant nor learned no less than those who are. I am most grateful, too, to the Minister for his full and sympathetic response. There is not of course absolute consensus among us as to the way ahead, but I think most of us are agreed that there is a problem here. It is to be hoped that some of the ideas put forward by speakers in this debate will contribute to its solution.

I will respond to only one point, which arose from the speech given by the noble Lord, Lord Thomas of Gresford. I confess surprise that he quarrels with my suggested scheme for dealing with any future claims by our own injured servicemen. Surely they would be immeasurably better off with full—I repeat, full—tort-based compensation on a no-fault basis than with the highly speculative claims they now have following Smith. However, I leave it at that, thank all those who have contributed and beg to move.

Motion agreed.

Investigatory Powers Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Lord Paddick]

My Lords, at the moment we have an Independent Reviewer of Terrorism Legislation, whose job it is to look at the operation of the current legislation, as far as I understand it. This is a wider panel, whose emphasis is on looking at the civil liberties and privacy aspects. There is a subtle difference in where the independent reviewer and the panel are coming from, providing a better balance between the arguments put forward by the security agencies and an advocate for those who argue to protect civil liberties and privacy.

[Lord Brown of Eaton-under-Heywood (CB)]

Will the civil liberties to which this proposed board is to have regard and consider include—as one would hope—the civil liberties of those who are at risk if there is a terrorist outrage, or will it look at only one side of the civil liberties picture?

Investigatory Powers Bill

Lord Brown of Eaton-under-Heywood Excerpts

Monday 12th September 2016 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the questions that have been asked are interesting. Times are changing, as is the nature of the threats. Who would have thought 30 years ago that we would be sitting here worrying about online grooming, ISIS terrorism and kidnapping or sophisticated cybercrime and money laundering? Who would have known that they were the challenges that would face us? Who would have talked 30 years ago about apps, internal emails—which we can get on our phones, according to some of my friends—and similar matters?

We will come back to issues of encryption. Technology is changing all the time, as is the modus operandi of those who wish us harm. Added to that, as I think my noble friend was alluding to, are the new powers in the Bill and the very welcome safeguards—the privacy measures and the double lock. These are new measures and we will want to see whether they achieve what the Government hope for them.

There are therefore two issues: first, how are the Government themselves going to monitor whether the Bill is achieving what they want; and, secondly, as alluded to by my noble friend, how will we then have formal post-legislative scrutiny to see whether they are what Parliament wants, and what is the correct time for that? The issues raised about reviewing these important powers and about the rapid change both in the technology and in the threats are ones that we want to be assured will be monitored and reported back on.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I am not sure how useful this intervention will be, but it occurs to me that when the Government consider the amendment and the proposed reduction of the period allowed for a review, they should also bear in mind the sole recommendation made by David Anderson in his review published in August, which we were all discussing last week, the Report of the Bulk Powers Review. I know that his amendment was not accepted then, but consideration will be given to it and I would expect amendment to the Bill along the lines that David Anderson recommended:

“The Bill should be amended to provide for a Technology Advisory Panel, appointed by and reporting to the IPC”—

that is, the commissioner,

“to advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability and development of techniques to use those powers while minimising interference with privacy”.

Assuming that some effect is given to that and some such advisory panel—an altogether more elaborate advisory panel was canvassed during the debate last week by the noble Lord, Lord Carlile—that will surely bear on the appropriate period within which an overall review should take place.

[Lord Strasburger (LD)]

My Lords, I had the privilege of sitting on the Joint Committee on the Bill and on the Joint Committee on its precursor, the Communications Data Bill, three years earlier. That puts me in a position to inform the House about one example of how technology has come to this area of law and the Government’s attitude to it. In the earlier Committee three years ago, the subject of the problems that encryption presented to the security services and law enforcement was raised several times with senior Home Office officials, the police and security agency officers. They dismissed it at the time. “It is not a problem”, they said—they were not concerned about it. In the proceedings of the Joint Committee and in this House on this Bill, the Government have repeatedly expressed their concern about the effect of encryption on their ability to protect us. That is a 180 degree change in the space of less than three years. I draw that to the House’s attention in support of the notion of substantially accelerating the review of the Bill.

--- Later in debate ---

[Lord Lester of Herne Hill (LD)]

My Lords, without boring the Committee with too much about human rights, I will explain my problem with the amendment, or anything like it. The noble Earl has rightly said on the face of the Bill that he considers it to be compatible with the European Convention on Human Rights, under Section 19 of the Human Rights Act. The problem is that the Human Rights Act says—I am glad to say—that this statute, like any other, must be read and given effect, where possible, in accordance with the convention rights. Article 8 of the convention refers to national security as one of the matters to be weighed in the balance where privacy is being threatened. It is therefore very hard for Parliament to seek to give a definition that puts a gloss upon Article 8 unless it is fairly sure that it would not be struck down as being incompatible with the convention itself. As my noble friend has said, this amendment is too narrow and it would actually be better to leave the matter to be decided under the Human Rights Act—provided that the Government retreat from their foolish position of tearing up that Act and putting something else in its place. Provided they abandon that march of folly, we should leave well alone.

[Lord Brown of Eaton-under-Heywood]

My Lords, I very strongly support what has just been said by the noble Lord, Lord Lester. I respectfully suggest that this is not, as the noble Baroness suggested when she moved the amendment, a government oversight. This is a well-recognised term which, as the noble Lord has pointed out, is enshrined in the European convention. It was the term used, undefined and unrestricted by definition, in RIPA, which this law will effectively replace. It has a necessarily somewhat flexible meaning to cater for a great many situations. The proposal embodied within the amendment as to how it should be defined took me straight back to the celebrated case of A v the Secretary of State 10 years ago. That spelled the end of the Belmarsh internment system, which was then replaced by the control order regime. There were nine judges sitting in the appeal committee of this House. The noble and learned Lord, Lord Hoffmann, was the only one who questioned whether it was permissible, under the convention, to do what was done there. The internment was actually struck down by the great majority of the court—eight members—on grounds of irrationality and discrimination. However, the noble and learned Lord pointed out that what was under consideration was a really draconian power to detain people indefinitely without charge or trial. The great question, as he saw it, was whether, within Article 15 of the European convention, there existed a war or other public emergency threatening the life of the nation. He asked what was meant by threatening the life of the nation, and he suggested it was things like the Armada or, indeed, Nazi Germany in the Second World War; but the existence even of a threat of serious terrorist outrages did not, in his view, constitute such a threat.

The very narrow and restricted definition proposed in this amendment is reminiscent of that. As I say, only the noble and learned Lord, Lord Hoffmann, went down that road to say that the life of the nation was not in fact put at peril even by terrorism. However, that was a draconian power. Of course, I do not seek to devalue the right to privacy, but a right to privacy is not, I respectfully suggest, equivalent to a right not to be, as there, detained indefinitely without charge. An altogether wider view of national security is, I suggest, not merely permissible but imperative within this area of legislation. I oppose this amendment.

[Lord Swinfen (Con)]

My Lords, what if we were to leave out the last part of the amendment,

“against force or the threat of force”?

I wonder about cybersecurity—which is new to most of us. You do not need weapons to threaten a nation today: it can all be done in the ether. I think that this amendment might be a lot better if those last few words were deleted.

Investigatory Powers Bill

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 13th July 2016 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I will confine myself to Amendments 39 to 42. I have a great deal of sympathy for the thinking that lies behind these amendments. To my mind, this is one of the most important parts of this part of the Bill, because judicial oversight seems to me to be absolutely essential if there is to be public confidence in the working of the Act, should this Bill be enacted.

My own feeling is that the provisions do not go far enough. It is a long time since I have had to study or discuss judicial review and I am cautious about doing so in the presence of many lawyers more distinguished than me, but my recollection, broadly speaking, is that the judicial commissioner will examine whether the powers have been exercised intra vires and not unreasonably. I am bound to say that I want to go beyond that. I should like to see some review of the merits—more particularly, addressing whether the issue of the warrant is properly supported by the material advanced in support of its issue and whether it is truly within the scope of the statutory criteria. I do not think this is provided for by the Bill as presently drafted. I am not saying that the amendments put forward solve the problem, but they are heading in the right direction. I would welcome any movement from my own Front Bench which may address this point.

I want to make one other small point about judicial review. I have already owned up that my recollection of judicial review is pretty faint, but I know that it develops a lot. There is not always a unanimity of view as to what the principles are because they develop and you get divided judgments, even from the Supreme Court. The principles of judicial review change as time goes on. It makes it very difficult to know whether the statutory requirement, as provided in this Bill, is satisfied.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I confess to taking a rather different view of this. This is a question of judicial oversight; it is not in principle judicial initial decision-making. I am perhaps a little out of date, although I have been at pains to keep up to date with developments, and as the noble Baroness and the noble Viscount have already recognised, there have been significant developments. This is not just about process; it is not what used to be called Wednesbury review, or perversity or irrationality. Nowadays it has developed into an appropriately flexible standard of oversight. Even without the explicit requirements to look at the necessity, the proportionality and the requirements of the human right to privacy, as there are here, there is in the modern concept of judicial review an ample opportunity.

In recent cases—I am looking at the Judicial Review publication of March of this year, so it is fairly up to date—the noble and learned Lord, Lord Mance, in one of these recent cases such as Kennedy, Pham, and so forth, said that it was,

“improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or”,

the EU law principle of proportionality. Therefore, even without the explicit requirement to look at proportionality, as there is in respect of all these oversight obligations, there is here an appropriate degree of flexibility.

You want an element of flexibility—you want the judge plainly to be able to take account of the nature of the underlying decision he is reviewing and of the extent to which there has been an invasion of privacy, against which this judicial oversight is designed to protect the citizen. This matter has been thrashed out; if you read the two days of debate in the other place, you see that there was some appropriate degree of give. However, I respectfully suggest that the oversight as now provided for is, if not more than adequate, certainly adequate.

[Lord Carlile of Berriew (LD)]

My Lords, we first have to decide what we want. Do we want judicial decision-making on these warrants and similar provisions, or the judges to review the legality of ministerial decisions? In my view, as a matter of constitutional principle, we do not want the judges to make the primary decisions but to review the legality of those decisions. I agree entirely with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in this regard.

For the nerds among us, there is a regular publication called the Administrative Court Digest—the AC digest—which I read with enthusiasm every time I receive it. It is extremely interesting, because it demonstrates that judicial review is not some kind of dry, legalistic test of precise processes followed by government and government officials but a wide-ranging test of legality. If the factual decisions that have been reached are so wrong that they should properly be regarded as unlawful, they are judicially reviewed as unlawful.

--- Later in debate ---

[Lord Beecham (Lab)]

My Lords, a range of subjects appears to be covered both by the amendments and by today’s debate. I think we are all looking forward to the noble and learned Lord’s response to the issues of principle, which it is clear are very much in your Lordships’ minds. I draw particular attention to the report of the Joint Committee on Human Rights, which went so far as to say that,

“we do not see the need for a power to target lawyer-client communications”,

and that the amendment it sought would remove that provision from the Bill because it was deemed unnecessary in view of the iniquity exception. It would be interesting to hear the Minister’s reaction to that, but much of what we have heard today has been about the detailed workings of the Bill.

One of the main substantive issues is the position of the judicial commissioner in whatever processes ultimately result—that seems to me the critical aspect on which we would welcome some guidance from the Minister on the Government’s intentions. If it is still deemed necessary in some form or other to deal with the problem, as the Government see it, of legal privilege, there must surely be at least the safeguard that the decision should be made by a judicial commissioner rather than by a civil servant or Minister of the Crown. That measure of independence and of judicial experience seems fundamental to any acceptable proposal to move along the lines that the Government seek to pursue. Again, it would be helpful if the Minister were in a position today to clarify whether, whatever other details might be subject to debate, that important principle is one that the Government accept.

[Lord Brown of Eaton-under-Heywood]

I was not intending to say anything this afternoon, let alone on this amendment, but following what the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Beecham, have said, it occurs to me that if one widens out the provision that is the subject of Amendment 48 to introduce some essentially non-legal consideration, one would have to make it subject also, as routinely across this legislation, to ministerial approval. They must be answerable for that non-legal aspect. I therefore suggest that this might be a situation in which one should have two primary decision-makers, not therefore judicial oversight but judicial primary decision-making on the legal aspect—such as whether it is in truth a legal professional privileges situation and whether, in so far as criminal purpose is relied on, that is satisfied. However, in so far as the wider terrorism situation is being addressed, the justification for all that should initially be put at the ministerial door as well.

[Lord Keen of Elie]

My Lords, the Government recognise the importance of legal professional privilege—the client’s privilege—in the context of the rule of law. This is perhaps one of the most important issues that we will consider in the context of the Bill.

The noble Lord, Lord Pannick, outlined the operation of legal professional privilege and explained what is sometimes termed the iniquity exception. He went on to identify what he considered to be the issue of principle that we are concerned with in the context of the amendment and invited me to indicate whether I agreed with his outline of privilege—the iniquity exception—and the principle with which we are concerned. I am happy to concur and accept his clear exposition of the position in that regard. So I shall not elaborate on what is legal professional privilege or the iniquity exception, except to this extent. What is termed the iniquity exception arises where the client is using the conversation with the lawyer in furtherance of a criminal purpose, whether or not the lawyer is a witting party to that. If the lawyer is unwittingly used as a tool or a conduit, the iniquity exception would apply in those circumstances as well; with that, we have no difficulty.

However, there are further circumstances in which the iniquity exception would not necessarily obtain, and when a very important piece of intelligence might become available if the communication was considered by the relevant authorities. I go back to a scenario that I shared with number of noble Lords when we discussed this in recent days. An agency may have intelligence to suggest that an individual is about to carry out a terrorist attack. It knows that he is in contact or about to be in contact with a legal adviser, and it has reason to believe that that contact with the legal adviser might reveal information that could assist in averting the terrorist attack. The example is where the client might refer to his whereabouts. He might say, “I’m in Paris”, or “I’m going to be in Paris tomorrow”, or “I’m in London”, or “I’m going to be in London tomorrow”. It is that piece of intelligence in the course of the privileged communication that is critical. I know that some commentators—and, indeed, the Bar Council—have suggested that that would fall within the iniquity exception; it does not. Indeed, if we try to stretch the iniquity exception, we damage the concept of legal professional privilege, so we must be very careful about how we approach this.

So there is that exceptional situation—and it must be exceptional before any warrant could be contemplated—in which intelligence gleaned from such a conversation would be of critical importance. I stress the word “intelligence” because on occasion it is very easy to refer to this as evidence. Such intelligence would never be admissible in a court of law, so let us be careful about that. We are talking about intelligence as such, not evidence.

The noble Lord, Lord Pannick, suggested that this would be such an unusual event that to approve the power would be to approve a power of purely theoretical value. With great respect to the noble Lord, the fact that something is highly unusual or highly exceptional does not render the power theoretical. The power may not have been employed in the past and it may not be employed in the foreseeable future; that does not render the power theoretical. The occasion may arise, in the face of a terrible terrorist threat, in which such intelligence can be made available to the appropriate agencies. If we bring down a guillotine, LPP will be denied to them. So the power is not theoretical.

The noble Lord, Lord Carlile, made the very good point: we are really dealing here with the question of balance. Should we intrude upon what we see as legal professional privilege—that fundamentally important concept—for the sake of a highly exceptional case in which such intelligence could be critical? There is an element of balance there.

Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 26th April 2016 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I will speak only to Motion C, which I support, along with Amendment 85A. On Report, when I abstained on the vote, I suggested that there was a problem with the existing scheme in that detainees have to take the initiative and prove their case for release. I suggested that it would be more proper that,

“the burden should shift to the Home Secretary to prove good reason to extend a period”.—[Official Report, 15/3/16; col. 1792.]

However, I could not support 28 days and suggested an initial period of nine months.

I am satisfied, for my part, that that problem is now properly addressed. As the Minister has explained, the proposed automatic referral at six months operates as a safeguard, because the detainee can of course himself apply for bail at any point. I recognise the point made by the noble Lord, Lord Ramsbotham, that some detainees, because of their mental condition, may well not be in a position to do so, but this safeguard has now been introduced. I further recognise that the tribunals to which application for bail is made apply a presumption in favour of liberty, and that of course the well-known common law principles initially established in the Hardial Singh case continue to apply.

Apropos of that, I will just refer to the decision of the Supreme Court as recently as last week, 20 April, in a case called Nouazli v Secretary of State. The court, giving a single judgment, says at paragraph 67:

“The courts have recognised that there are sound policy reasons for a flexible and fact-sensitive approach. I find nothing in the judgments of the ECtHR which undermines the Hardial Singh approach to the duration of detention”.

It then points that out an earlier Supreme Court decision, in another case referred to the court, observed that the Hardial Singh principles are,

“more favourable to detainees than Strasbourg requires”.

With those various safeguards in place, I support this Motion. I could not support the original amendment, Amendment 84, and I cannot, with respect, support the 56 days now proposed by the noble Baroness, Lady Hamwee. As I said, I initially suggested nine months. The Government have done better at six months, and even that will now be the subject of further review in case it can in future be shortened.

[Lord Alton of Liverpool]

My Lords, although I support my noble friend’s amendment, others have spoken to it and I do not wish to be repetitious. I supported the noble Baroness, Lady Lister, on Report: I was a signatory to her amendment then and I am very happy to support her again today, as I hope the House will.

I simply ask whether the noble and learned Lord, when he replies to the points the noble Baroness has set out, will say what his response is to the call by the Royal College of Midwives today for a review of the whole process, as the noble Baroness said. I remind the House of what Stephen Shaw found in his Review into the Welfare in Detention of Vulnerable Persons. He said that,

“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.

The Royal College of Midwives states:

“Even if a pregnancy is completely healthy and uncomplicated; the dignity and care that should be afforded all pregnant women is compromised by detention”.

I agree with what the noble Baroness, Lady Hamwee, said. My noble friend Lord Hylton and I visited Yarl’s Wood during the Bill’s passage. We raised the question of pregnant women and, although I personally believe that conditions at Yarl’s Wood have been very significantly improved, it cannot be right to keep pregnant women in any detention centre, and there must be alternatives to that. That is why it is so important to support the noble Baroness’s amendment today.

Armed Forces Bill

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 3rd March 2016 Grand Committee

[Lord Hope of Craighead (CB)]

I just want to make one or two short points. It is interesting that although the noble and gallant Lord is perfectly correct that it is not the practice in the United Kingdom for there to be any statutory limitation on prosecution for crimes other than summary crimes, it is quite commonplace in the civil law countries for there to be limitations. So our allies in France or Germany, for example, would, I suspect, be protected by a limitation of the kind proposed. I am not suggesting that we should adopt that philosophy, which is quite contrary to our practice, as we can see in cases of historical child abuse. I wonder, however, whether the wiser course, rather than going into the area of limitation, which is so difficult and would be seen as an invitation to start doing this for other crimes, would be simply to have a blanket immunity for our servicemen when engaged in military operations, of the kind that I think used to be the case—I stand to be corrected—before the law was changed some years ago by the previous Armed Forces Act. This is certainly an important point to consider, but I favour doing so not by way of limitation but by way of exclusion entirely for acts of that kind while engaged on military operations, while making it quite clear that we are not dealing with cases of one serviceman on another—let us say of one serviceman assaulting another, stealing from him or things like that.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, as I indicated at Second Reading, I, too, am entirely sympathetic to the general feeling underlying this amendment. As the noble and gallant Lord has said, he is not wedded to this language. I am not clear, for example, whether,

“engaged in military operations outside the United Kingdom”,

would include peacekeeping operations in Northern Ireland, or matters of that character. However, I also see the basic difficulty, as my noble and learned friend Lord Hope indicates. This is certainly contrary and alien to English law down the years. We recognise the problems of delay, and if you can show plain and incurable prejudice through delay, you might well get the cases struck out. One would hope for a measure of fastidious thought before anybody launches prosecutions in these cases. It is deeply offensive to people that, in relation to the problems in Northern Ireland, amnesty was given to a whole lot of terrorists, but there is still a risk, apparently, on the part of the soldiers who were acting on our behalf.

I am a bit troubled by my noble and learned friend Lord Hope’s suggestion of a blanket immunity. What happens if there is a clear case of murder on the face of it? Should we really, with ample evidence and so forth, say that there can be no prosecution? I do not know: would Sergeant Blackman have taken the benefit of that? One must have regard to where these things go, but I certainly hope that the Government will give very sympathetic thought to this. A clever and ingenious lawyer might be able to find some formula whereby what I suspect all of us here feel could be reflected in some form of protection for those on active service abroad.

[Baroness Smith of Newnham (LD)]

My Lords, I was not able to speak at Second Reading, and I would like to briefly reassure the noble and gallant Lord, Lord Craig, that the Liberal Democrats have no intention whatever of trying to sabotage this Bill in any vainglorious or other way. We are committed to the Bill, and, like other Members of your Lordships’ Committee, to ensuring that the Bill becomes as good as it can be.

We do not wish to civilianise the Armed Forces, as the noble Viscount, Lord Slim, said on Tuesday: we certainly have no intention of doing that. However, there are some concerns about this amendment. Although I accept that it is a probing amendment, we share the concerns of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that there is a danger in either a blanket limitation or looking at things that are any sort of military operation. There may be cases that clearly should not be dealt with after 20 years; there may be other cases that need to be looked at. In cases of murder, rape or the sort of crimes that we were talking about in previous amendments, it would seem extremely strange to service men and women and their families if we somehow said, “If this happened in civilian life, you might get closure, but if it happens while your son or daughter is overseas engaged in military operations, there is a 20-year cut-off, and the rule of law no longer holds”. I ask the Minister whether it would be possible to find a way of dealing with the genuine concerns that have been put forward in the amendment that would ensure that service men and women and their families felt reassured that they were not going to lose the rule of law as would normally be expected.

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

My Lords, there is no limitation on serious criminal cases, and that is part of the criminal law. In this area, I think of the war crimes that, until very recently, were still being brought forward relating to the Second World War as a result of investigations into the actions of German soldiers in prison camps and elsewhere. The thought that that type of case would be barred through limitation would have a very unfortunate effect on the victims of the Holocaust, who feel those crimes so strongly, and rightly so.

As a result of the debates we had on Tuesday, and this debate, my view is that the clever and ingenious lawyers in the Ministry of Defence should be thinking about putting the concept of combat immunity into some statutory form, to define the boundaries of it so that commanders who are engaged in warfare know that if they are in a combat situation they do not have to worry about criminal civilian law affecting them personally, and so that the soldiers involved do not subsequently face criminal charges as a result of their conduct in the clash of arms—the warfare itself. But “military operations” as in the amendment can cover such a wide area and I do not think that we should go against the whole thrust of the common law and the whole purpose of the criminal law by an amendment of this sort. There are other ways. What is combat immunity? What are the boundaries? They may be fuzzy at the edges but I am sure they are capable of statutory definition.

[Lord Brown of Eaton-under-Heywood]

I do not want to be tiresome but combat immunity, as I understand it, has never applied in the context of criminal law at all. It is a purely civil law concept.

[Lord Thomas of Gresford]

Perhaps it could be used as a criminal law concept. Perhaps the lawyers would like to think about it. I follow what the noble and learned Lord says on that.

--- Later in debate ---

There is a counterargument that it is impossible to prevent families misunderstanding and believing that there is some conspiracy at the MoD. That is certainly possible, but it is not a very good reason for not trying. I believe that knowledge counters fear and misunderstanding. It would enable the next of kin to explain to families and friends what actually happened from a position of strength and perhaps pride, rather than anguish.

[Lord Brown of Eaton-under-Heywood]

My Lords, I had not intended to speak to this amendment; I ought to be better prepared. Down the years, I have often been involved with coronial law. Indeed, I was Treasury Counsel in the early 1980s when for the first time it was decided, contrary to my argument, that there could be an inquest in this country in respect of a death abroad. It was the Helen Smith case. She was the nurse who fell from a balcony in Jeddah on to some railings and impaled herself. There was long, fraught litigation in the early 1980s. Since then, this area has developed hugely and has been complicated and clouded by the impact, reverting to where we were earlier in the week, of Article 2 of the European Convention on Human Rights and the need, in certain circumstances, for an Article 2-compliant investigation into a death.

I confess that when I first read the proposed new clause, I rather thought that that essentially is the present law. I shall listen, fascinated, when the Minister tells us exactly what the present position is in terms of inquests in respect of such deaths as are encompassed here. Certainly, I understand that the coroner will be informed in every case. There will always be an inquest, and he will always determine by what means the death occurred. The phrase “and in what circumstances” may be more contentious because this is a very technical area and I seem to recall that that phrase has been the subject of a good deal of specific litigation about exactly what it encompasses.

There is routinely an inquest in these cases. As I understand it—but this is very much anecdotal—the result of our now having and retaining a chief coroner is that these inquests are now heard by a comparatively limited number of coroners and essentially they deal with these matters in a way which is regarded as essentially satisfactory on all sides. That may be a misunderstanding of the position, and I know there was a problem some years ago when coroners were thought to be seeking to investigate way beyond the scope of what ordinarily would be permitted in terms of inquiring into military supply and matters of that sort, but I thought it was now under control. However, I shall say no more. I do not think this is a very useful contribution. I shall listen to what the Minister says.

[Lord Hope of Craighead]

My Lords, there is one aspect of this amendment to which I think I should draw attention. It arises because of its scope. The amendment applies to every violent or unnatural death of every person subject to service law within the United Kingdom. The coronial system does not apply in Scotland. I do not know whether it is the intention that we should extend the coronial system to Scotland in the case of every violent or unnatural death, but the system which applies in Scotland is very simply this: every death of that kind is reported to the procurator fiscal of the area in which the event occurred. There is then an exercise of discretion because it does not follow that every death is subject to an inquiry. It is a matter for the procurator fiscal, possibly with the advice of a law officer or his counsel, to decide whether it is in the public interest that there should be an inquiry. If there is such an inquiry, it goes not to a coroner but to a sheriff, who does indeed determine by what means and in what circumstances the death occurred. It is there that the public interest is served because if there is something to learn from the event, the opportunity is taken through the accident inquiry to determine the circumstances and in some way to improve practice or inform the public about how events of that kind could be avoided in future.

As I listened to the debate I wondered whether that system applied in the case of persons subject to service law. I think I am right in saying that when one reflects on the tragic events on the Mull of Kintyre, when a Chinook helicopter flying from Northern Ireland to Scotland with a number of very senior people on board crashed and everybody was killed, that event was dealt with under the Scottish procedure. I would have thought that that procedure is perfectly adequate to cope with all that one would expect from events of this kind and the need for the circumstances to be inquired into.

There are two features that need to be stressed. First, not every death of this kind is the subject of an inquiry because it is only if the public interest requires it. On the other hand, where the inquiry is resorted to, it is a full inquiry, with the results that I think the noble Lord, Lord Thomas of Gresford, is looking for; that is, the lessons to be learned from the evidence that is laid. I wonder whether he really does intend that every death—even a road accident, for example—occurring north of the border should be subject to this system; or, to take another example, whether training exercises in the Highlands, where unfortunately deaths do occur due to the very severe weather on mountains, should be subject to the coronial system. I think the Scottish prosecutors—the procurators fiscal, I should say—would rather that they retained control of these events and dealt with them under the Scottish procedure, which they would believe is perfectly adequate to provide the lessons that people need to avoid these events occurring again.

--- Later in debate ---

I hope that the Minister’s statement covers everybody because the thing that struck a number of us when the discussion took place on the Bill was that, yet again, we were going to leave a small number of people out. In the overall cost, moral obligation and everything else, the one thing we must not do with this is leave somebody out. I hope that the department will pursue the matter and contact those it believes may be affected or hold a campaign to raise awareness so that every possible attempt is made to find and monitor. I strongly support the view of the noble Lord, Lord Alton, that we have to have some statistics on this. How else are we to measure what progress is being made? I strongly support the amendments and welcome the Minister’s statement. I hope that every single person will be covered and that we will not be coming back to find another anomaly within an anomaly within an anomaly.

[Lord Brown of Eaton-under-Heywood]

My Lords, I, too, welcome the Government’s announcement proposing compensation for service personnel who have contracted mesothelioma. It perhaps does not matter, but I am rather concerned about the wording of Amendment 21, particularly proposed new subsection (2). In the second line of that proposed new subsection, the requirement on the scheme is to compensate those who,

“have been diagnosed with diffuse mesothelioma as a result of”,

working for the Armed Forces. The words “result of” create all sorts of problems because, as has already been explained—it is well known to all of us who have had to deal with this ghastly disease down the years—it is very difficult to know how one came by what may have been just a single brief exposure and thus how one came to suffer the disease.

I ask for some clarification: what is to be the scope of this proposed new scheme for compensation? Plainly, it will not be necessary to establish ordinary liability in the way of negligence or breach of some statutory duty. Will it be necessary to prove even that one has been exposed to asbestos in the course of one’s service? I did national service more than 60 years ago. If, say, after the 40-year period in which this can develop—it can actually probably be even longer than that, so say after 40, 50 or 60 years—suddenly one receives this terrible diagnosis, does the mere fact of having done national service or whatever 40 years or more earlier entitle one at that point, without more, to compensation? Will it be necessary to prove even exposure to asbestos?

I point out that in the non-military context the courts have been grappling with this problem for years. There was a case called Fairchild, then one called Barker, and then in 2011 I was in the Supreme Court for the last case on it: Sienkiewicz v Greif. We have pretty much arrived at the situation now where anybody can get compensation where they have this diagnosis and can show that they were exposed to asbestos during any earlier period—wherever it may have been, in schooling or employment—and assuming that there is money there, the employers were insured and all the rest of it. True, the claimant must establish liability, but that is not generally much of a problem. If they were exposed to asbestos the likelihood is that they will be able to show negligence or breach of some protective duty under some statute.

All I ask is that there be clarification: is this intended to apply—one hopes that it is—to literally anybody who served in the Armed Forces and later contracted mesothelioma, or will it be necessary to prove at any rate some exposure to asbestos? That may create difficulties if service was 30 or 40 years ago.

[Baroness Jolly]

My Lords, I add my congratulation to those of other noble Lords to everyone who campaigned for this so hard and for so long. It seems that these last few sufferers were almost proving elusive. I am delighted that the Government announced that they will bring them into the scheme. The British Legion has also been hugely active in this regard and deserves congratulation, too.

The noble Lord, Lord Alton of Liverpool, showed remarkable tenacity in all this, particularly today, and in his quest for research funding. As noble Lords said, research is critical. On that point, it is worth mentioning for the Committee—and the noble Lord, Lord Alton—that the NHS does not record employment. A veteran goes to sign up the day after he or she leaves the services and the NHS takes their name, address, number and whatever. That is something else he might need to think about. It is not just in this area that the NHS recording employment would be really useful. It would help with research, treatment and, in some cases, diagnosis. There is work still to be done there.

Although I welcome this amendment, the devil is of course in the detail. Tough decisions always have to be made about the lump sum balanced against the annual income from war pensions and anything supplementary, multiplied by the life expectancy of a partner. I would like to quiz the Minister slightly on how this will be managed. Will people be given advice and support? If that comes from within the Veterans Welfare Service, which is part of MoD, how can that advice and support be seen to be independent?

Armed Forces Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 1st March 2016 Grand Committee

[Baroness Wilcox (Con)]

Surely we must hear another voice.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, the judgment in Smith, although 72 pages long, deals with one aspect only of the several problems that face the military as a result of the application of human rights, as opposed to international humanitarian law, to our Armed Forces serving abroad. It is important to recognise that Smith deals only with claims by our own soldiery regarding deaths and serious injuries against the ministry, not against individual officers. This amendment, and this is important, deals with only one aspect of Smith: the human rights claims brought by our armed services, not negligence claims.

The fact of the matter is that even if this amendment is put in place, it leaves the negligence capability—the ability of the soldiers to claim negligence against the military—still open to them. So questions of compensation and of blame are still open to be litigated. As I made plain on Second Reading, I would deal with the compensation claims as well, but not in such a way as to deprive the injured soldiers or the relatives of the deceased soldiers of any money. Instead, without their needing to establish liability and negligence, I would increase their entitlement beyond that under the pension scheme by giving them the equivalent of common law damages and getting rid of all the litigation. It is the litigation and the risk of litigation arising out of these cases that inhibits our military capabilities, puts people on the defensive and does all the things that worry the senior military personnel.

This is a minor point—and I speak with diffidence—but I would not draft the provision in the way that this particular proposal is drafted. It seems to me that it goes too wide. What is required to deal with the human rights aspect of Smith is to embargo claims under Articles 2 and possibly 3 of the convention on the part of our armed services. We could have some formulation along the lines that members of the armed services engaged in military operations outside the UK should not be entitled to claim by reference to Article 2, or Articles 2 and 3, of the European convention. As presently drafted, it disapplies the entire Act and, as my noble and learned friend Lord Hope rightly says, there are undoubtedly aspects of the Human Rights Act which plainly would apply. For example, take a court martial of one of these personnel serving abroad: one would presumably want to apply Article 6 of the convention to their case. It is not that which we are concerned to deal with; it is only the claims aspect.

Similarly, there is nothing in this amendment or in Smith which deals with the very real problems that have been caused to other aspects of our armed services abroad, such as claims by foreign combatants and civilians, claims that Strasbourg dealt with in cases such as al-Skeini, and cases concerning the detention of foreign suspects, as in the case of al-Jedda.

I believe that it is quite possible to introduce this limited disapplication of a right to rely on Articles 2 and 3 consistently with our human rights obligations. In other words, I think that there is a very powerful argument for saying that the majority in the Supreme Court in Smith did not actually need under the convention to go as far as to accept that Article 2 and Article 3 liability could arise on the part of the UK in respect of any of these claims.

On Second Reading, I mentioned, as did others, the publication Clearing the Fog of Law, which is compulsory reading for anyone who takes a serious interest in the problems caused by applying human rights law to our Armed Forces abroad. It deals with this narrow question raised by Smith at pages 43 to 45. I will not quote from it at length, but it is written by Tom Tugendhat, a retired colonel who is now a Member of Parliament, and two distinguished legal academics, one from Cambridge and one from Oxford. They state:

“It is strongly arguable that the UK Supreme Court misconstrued Article 2 of”,

the convention,

“imposing more extensive obligations than the European Court of Human Rights would mandate. Legislative reversal of Smith … is the only practical way that the outer boundary of Article 2 of”,

the convention,

“can be tested before the ultimate interpreter of the Convention in Strasbourg”.

--- Later in debate ---

[Lord Thomas of Gresford]

I was going to put this question to the noble and learned Lord, Lord Hope, but does the noble and learned Lord, Lord Brown, consider that a way forward might be to attempt legislatively to put the boundaries of combat immunity forward?

[Lord Brown of Eaton-under-Heywood]

I am glad to have been asked that question because it gives me the opportunity of saying this. Combat immunity is not of relevance here in respect of the convention claims. It is highly relevant, and was the answer sought to be advanced by the ministry, to the negligence claims. What was held, as my noble and learned friend said, by not four but five members of the court was that it did not extend to the peacekeeping mission that was relevant to the negligence claims.

I would not deal with the negligence part of the claims by extending the scope of combat immunity. I would deal with those parts, as I said at Second Reading, by legislating under Section 2(2) of the Crown Proceedings (Armed Forces) Act which enables one, in effect, to disapply tort law in respect of our Armed Forces. However, I would give them the compensation that the noble Lord, Lord Tunnicliffe, is understandably intent that they should have by making sure that they do not lose out by getting less under the pension scheme than they would if there were successful common law claims. I would give them the money on a no-fault liability basis because they have incurred these ghastly injuries serving the national interest in combat abroad.

However, I regard that as having nothing whatever to do with the limited scope of this amendment, which is simply to disapply the relevant part of the convention to that aspect of these claims. It would disapply Articles 2 and 3 so that, if necessary, it could be tested in Strasbourg whether the majority in the court in Smith needed to go as far as they did in saying that Article 2 applied. As the noble and learned Lord, Lord Mackay, said, I believe that the court would say that the margin of appreciation here allows us not to apply Articles 2 and 3 in this sensitive situation where Armed Forces are serving in combat abroad.

[Earl Attlee]

My Lords, I strongly support my noble and learned friend and his noble and gallant supporters. I have deployed on two military operations, in addition to aid operations. One was peacekeeping and one was war-fighting but for our purposes there was no difference because a peacekeeping operation can deteriorate into a war-fighting or combat operation.

On both operations I willingly put my life, limb and security at the disposal of Her Majesty. “Her Majesty” might sound an old-fashioned term but to me it is all-encompassing. It means the nation, its citizens, the Government, the CDS—who at the time was the noble and gallant Lord, Lord Boyce—and the chain of command.

In return, the nation regards such service as highly commendable. If I did not come back or I was badly injured, it would be jolly hard luck. Statistically, it was actually unlikely. Whenever you deploy on military operations, it is a sad fact that it is not likely that everyone is going to come back intact, and you have to accept that if you are prepared to authorise military action. Obviously, my family would mourn my demise, but what I would not have wanted is the chain of command and the staff wasting their time on inquiries or litigation about my bad luck when they are trying to prosecute a campaign and to secure the absolute minimum number of casualties overall. I suspect that all of the cause célèbre cases that I have read about have been either misreported or misleadingly reported in order to make a good story. In some cases, I know this to be the case because at the relevant time I was in the headquarters handling the issue. If noble Lords want to be briefed privately on that, I am quite willing to do so.

It seems to me that there are several difficulties with involving the legal system when there appears to be a failure in an operation, the planning of it, the resourcing of it or the training for it. The first issue I am certain about because I have seen it myself. Sadly, in a few cases the deceased or those around him or her are the authors of their own misfortune. Sometimes, there is a failure to adhere to the training. I have read news reports where I have had to conclude that for one reason or another the training was not adhered to. Obviously, the MoD is not going to use any of these defences against a claim or misleading news report. We would be shocked if it did so, and I think that some Members of the Committee are a little bit shocked that I am taking this line.

The second issue is that there may be a very good technical reason why some equipment is not used. There could be intelligence to suggest that it is not a good idea. For instance, the capability could have been compromised in some way or using that equipment might be of benefit to opponents. There might be a military judgment to be made about which technology or capability is the highest priority to deploy to theatre. The Committee needs to recognise that in an operation logistic capacity is neither infinite nor perfect.

In about May or June 2003, I was running around in Basra province in southern Iraq in a soft-skin Land Rover. I was heavily armed with a Browning 9 millimetre pistol. My body armour was somewhere in the back of the Land Rover and I am reasonably confident that my driver had his SA80 rifle. It was a benign environment and I did not need protected mobility. But then the situation changed for reasons that the useless Chilcot inquiry may eventually tell us. Following tours had to adopt a much higher state of readiness and needed better equipment, and this was not anticipatable.

The final difficulty is morale. It does not improve morale anywhere in defence to have to endure all this completely unfair and inaccurate criticism. For instance, imagine that you are an expert in the DSTL and read a report suggesting that the very clever equipment you are developing and deploying is in some way inadequate. I have made this point before and I will make it again. I think that trying to pin responsibility for an individual fatality arising from Operation TELIC 1 against the then Labour defence Ministers is outrageous. There may well be questions about the legality, necessity, grand strategy and post-conflict planning of TELIC 1. However, the operation was militarily brilliant. We are one of the few nations in the world that could have undertaken it at all. Most nations cannot even get close to what we can do. We deployed a division out of theatre. We helped to get a regime to collapse at the cost of a mercifully low number of casualties, tragic though they were. The reality of military operations is that one never has all the training or equipment that one would desire or that could be made available in time. What you need is far better training and equipment than your opponent has, and that is exactly what happened on Operation TELIC 1. Noble Lords should make no mistake: in a deployed headquarters every fatality hurts like hell. I know; I have been there.

My final point is that there is a perverse inverse law that the level of scrutiny attached to each fatality on an operation is inversely proportionate to the number of fatalities taken. Proof of this is that if we had taken 1,000 fatalities on Operation TELIC 1, would anyone be worried about the ones who are currently a cause célèbre? I think that the Committee knows the answer.

Armed Forces Bill

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 11th February 2016 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I want to touch today on two matters: first, briefly, Clause 14, a provision which I particularly applaud, while adding, “High time”. I recognise that in practical terms it changes nothing; it merely tidies up the position with regard to homosexuals as it has stood for the past 16 years. It finally crystallises in legislation the change of policy which was forced on the Government by the decision of the European Court of Human Rights in 1999 in Smith and Grady v the United Kingdom: that no longer are members of the Armed Forces engaged in homosexual activity to be administratively discharged from the Armed Forces.

For me, this has involved something of a nostalgic wander down memory lane. In 1995, I presided, at first instance, in the Divisional Court in the case of Smith, widely known as the “gays in the military” case. Of course, that was before the Human Rights Act and before, therefore, the United Kingdom was entitled to have regard to our convention obligations. Reluctantly, therefore, I was bound to reject the complainant’s case, compellingly though it had been argued by Mr David Pannick, Queen’s Counsel, as he then was. So, too, on appeal, presided over by the late and much missed Lord Bingham of Cornhill, the Court of Appeal similarly had to dismiss the claim.

I hope that it is not unforgivably vain to note in passing the opening line of my judgment:

“Lawrence of Arabia would not be welcome in today’s Armed Forces”,

and to record my statement in the judgment that:

“I for my part strongly suspect that so far as this country's international obligations are concerned, the days of this policy are numbered”—

and so it proved to be. Strasbourg’s judgment, correcting what had plainly been the United Kingdom’s stupidly mistaken earlier approach, should not be forgotten by those who seek any wholesale rejection of the convention.

The other matter that I want to touch on today arises not from what appears in the Bill but rather, as many others have noted, what is strikingly absent: anything directed towards solving the real problems resulting from the application of the convention to the operations of our armed services abroad. In this part of my speech—not, I hope, inconsistently—I shall perhaps be a little less respectful towards some of Strasbourg’s jurisprudence.

There are a number of aspects of the problems arising from the convention as applied to our forces abroad, and I cannot pretend that, to some extent at least, they have not been compounded by what many think to be the unfortunate decision of the majority of the Supreme Court in 2013, in another case called Smith, in which, as has already been made plain, by a majority of four to three, the court refused to strike out claims by our service personnel in Iraq under both Article 2 of the convention and in common law negligence. The noble Lord, Lord West, and the noble and gallant Lords, Lord Craig and Lord Boyce, have already touched on that. The actual legal effect of the majority decision in that case has perhaps been a little misunderstood and exaggerated, but certainly the minority would have struck out those claims as unsustainable and objectionable in principle whatever their detailed facts. I have said before that, personally, I rather incline to that view myself.

I accept, too, that that decision and two other particular decisions of the Grand Chamber in Strasbourg, those in Al-Skeini and Al-Jeddah, in each of which the European Court reached a diametrically opposite conclusion from that earlier reached by us in the Appeal Committee of this House—I should perhaps declare that I was party to each of those—have all tended rather to undermine our military capability and to lead to our Armed Forces becoming hypercautious and risk-averse. The particular consequence of the Al-Jeddah decision in Strasbourg is that they have become unable to detain suspect foreign fighters whom we capture, however dangerous we judge them to be if left at large.

Those are the problems, and there is, alas, no single solution available to solve all of them. As for claims by foreign combatants and civilians, both personal injury claims and death claims, as well as—there are very many of these, too—claims for wrongful detention, the best solution now seems to me to be that in any future conflicts such as those in the past in Iraq and Afghanistan we should exercise our Article 15 power of derogation from the convention, leaving those operations abroad to be judged in accordance with international humanitarian law—that is, the Geneva Conventions—rather than the inappropriately restrictive constraints of the human rights convention which, as others have said, is designed essentially for peacetime conditions. Derogation makes it sound awfully simple. In fact, it is not—but now is not the time to explore all the difficulties.

As for claims against the Crown for death or injury suffered by our own Armed Forces, which is the particular problem confronting the Supreme Court in the Smith case, the solution has to be very different. Derogation simply does not have any application. In so far as such claims are brought in negligence in tort, I think that the only sensible way ahead is for a ministerial order now to be made under Section 2(2) of Crown Proceedings (Armed Forces) Act 1987—in effect reviving, in the case of,

“warlike operations … outside the United Kingdom”,

the effect of Section 10 of the Crown Proceedings Act 1947, which had prevented claims for injury or death on military service, notwithstanding that the 1947 Act generally opened the way to tort actions against the Crown. Section 10 was repealed in 1987 really because personal injury damages by then had risen way beyond the level of benefits payable to those injured or killed in service. Although under the current Armed Forces pension scheme, which was revised in 2011 following the review by the noble and gallant Lord, Lord Boyce, the benefits now payable are improved, they still fall well short of tort compensation.

The noble Lord, Lord West, has already mentioned the excellent Policy Exchange publication, The Fog of Law—and Tom Tugendhat, just mentioned by the noble Lord, Lord Burnett, is one of the three authors of that publication. Later there was an equally powerful publication called Clearing the Fog of Law, which recognises—in my view, rightly—that as a matter of political reality, not to say fairness, it would be necessary as a condition of ending the right to sue for combat injuries, to award instead, in all such cases, without the need to prove fault, compensation representing the difference between the AFPS benefits and what would be awarded by way of tort damages. Obviously, this would result in more and larger payments than at present, but it would avoid all the problems of legal proceedings in the way of stress, delay and expense. Of course, it would also at a stroke eliminate the problem, presented by Smith—namely, that the risk of litigation itself causes a dangerously defensive approach to soldiering.

As to the other aspect of Smith, the possibility of claims under Article 2 of the convention, to reverse this it would be necessary to legislate, unless perhaps, as the noble Lord, Lord Campbell, tentatively suggested, a differently constituted Supreme Court could now be persuaded to depart from the majority view in Smith, which I believe could be done without any offence to our convention obligations. But if legislation is necessary, for want of any further such decision of the courts, it would have to prevent such claims for death or injury on active service. However, I repeat that I personally believe that such limited legislation would be consistent with our convention obligations and, indeed, even if challenged in Strasbourg, would be so found by the Strasbourg court.

As for the concerns expressed by the noble and gallant Lord, Lord Craig, about the ongoing inquiries into historic allegations of criminality on the part of our forces overseas, these are concerns that I share—and I would be entirely happy to engage with him or others in discussing the possibility of introducing some provision on time limitations or some other possible way of addressing those concerns.

Whether all the various problems raised around the House today should be addressed in this Bill or in another, I leave to others. Assuredly, however, they should not be left unaddressed for much longer.

Armed Forces (Service Complaints and Financial Assistance) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Monday 16th March 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I rise to speak with some diffidence, it being nearly 60 years since I completed my own national service—and I now speak as a superannuated judge. But this new power in the first amendment strikes me as a very remarkable and extreme power. It confers on the complainant an unlimited appeal right and on the ombudsman an unlimited power to hear an open appeal on the substance and merits of the complaint on a de novo basis. By definition, by this stage, the aggrieved complainant will have failed to establish and failed to persuade the various levels in the chain of command of the merits of his complaint on a number of occasions.

This new provision is strikingly different from the well known formula that appears in the TPIM Act 2011, which I take as an illustration, where review and appeal rights are thus constrained:

“the court must apply the principles applicable on an application for judicial review”.

I repeat: here there is an unlimited appeal. When promoting the Bill at Third Reading last October, the Government originally objected to any such provision on the basis that it undermined the military chain of command. It is true, as the Minister said today, that at the end of the process the ombudsman’s findings—and, if they are favourable to the complainant, recommended redress—go to the Defence Council. Frankly, the Defence Council will effectively be obliged to give effect to them, unless it chooses, as would be its right, to judicially review the ombudsman’s conclusions. If the Defence Council does not do that and does not give effect to them, it is highly likely that the complainant will judicially review the Defence Council.

For my part, I can do no more at this stage than offer such support as I can to the urging on the Government from the noble and gallant Lord, Lord Stirrup, to make sure that those who will exercise this radical new power in the ombudsman and entertain a service complaint not against the background of their own service experience, and despite its failure before the various levels of the military, will at the very least be trained so that they fully understand the exigencies of service life.

[Lord Dannatt (CB)]

My Lords, I support the observations made by the noble and gallant Lord, Lord Stirrup. It is somewhat disappointing that there is this residual difficulty in the main thrust of the Bill, which one very much supports—it is perhaps a regret that we have to have an ombudsman at all, but that is where we are.

I simply make two points. The first is in support of what the noble and gallant Lord, Lord Stirrup, said: if this goes through, those who take part in this process must be properly trained so that they understand the circumstances and context in which the cases come. Secondly, I simply observe that the cause of a large number of the cases in the pipeline is excessive delay, often occasioned by complaints not being investigated at a low enough level in the chain of command process. In reading noble Lords’ comments in this short debate, I hope that every effort will continue to be made to streamline the process such that complaints can be dealt with speedily at a low level, so that we do not get the backlog of the size that we currently have. This will lead to much greater efficiency in the system, which will bring satisfaction and resolution through speedy agreement.