Armed Forces: Legal Challenge

Lord Faulks Excerpts

Thursday 7th November 2013 Lords Chamber

Moved by

[Lord Faulks]

To move that this House takes note of the case for protecting the armed forces from vulnerability to legal challenge.

[Lord Faulks (Con)]

My Lords, it is entirely appropriate that today, as we approach Remembrance Sunday, we should be discussing the Armed Forces. The subject of the debate is their vulnerability to legal challenge or what is sometimes described as the increased juridification of military conflict.

It is an enormous privilege to bring the debate to your Lordships’ House. I am conscious of the fact that included in the list of those to speak in the debate are noble and learned Lords, noble and gallant Lords, and others with real experience of the issues which this debate involves and who can enlighten your Lordships’ House. I, on the other hand, am a mere lawyer. To be more specific, I am a barrister who has spent a considerable amount of the past 20 years of my professional life patrolling the borders of the law of negligence, acting for public authorities, the emergency services and professionals—but not the Ministry of Defence. I was also special adviser to the Department of Constitutional Affairs on the compensation culture.

The law of armed conflict is well established. It is no part of my argument today that we should be resiling from the Geneva convention or any other of our humanitarian international obligations or that war should in any way be a law-free zone. However, what concerns me and many others is the encroachment of our national law into the way our Armed Forces conduct themselves. The law of negligence in particular is far better suited to civilian life, such as accidents at work, or events that take place in a controlled environment, or at least one capable of being controlled.

The recent publication by Policy Exchange of The Fog of War provides a penetrating analysis of the way in which the law has developed and reaches the conclusion that,

“recent legal developments have undermined the Armed Forces’ ability to operate effectively on the battlefield”.

If this is correct, we must question whether it is time for a change in the law.

Many noble Lords will be aware of the Supreme Court’s decision this year in the case of Smith v Ministry of Defence, in which, by a majority of four to three, the court concluded that the claim should go to trial so that a judge could decide on the evidence whether the claims were covered by the doctrine of combat immunity, or could give rise to a claim based on the Human Rights Act. There are a number of reasons why I will not go into the detail of the facts of the case. First, it is not concluded. Secondly, it used to be a convention, not sufficiently honoured, that Parliament did not criticise judges. Thirdly, whatever the law should be, those who brought these claims have suffered bereavement or serious injuries and can only have our profound sympathy. Finally, even those like me who are alarmed by the implications of this judgment could not but admire the detailed and thorough analysis of the issues contained in the speech of the noble and learned Lord, Lord Hope, who spoke for the majority in the case.

However, the issues of principle which arise from that case are important and should be debated. Are judges to blame for the current situation? It is undoubtedly the case that the approach of the courts to difficult questions of immunity from claims has changed. For example, in Hughes v National Union of Mineworkers in 1991, the Court of Appeal decided that police officers who were quelling serious public disorder should not be liable for negligence on public policy grounds. The decision stemmed in part from the case of Hill v the Chief Constable of West Yorkshire in 1988, in which the House of Lords Appellate Committee decided that the police were immune from claims in negligence for failing to catch the Yorkshire Ripper, albeit that they may well have made mistakes which, if avoided, could have saved the life of the last victim or victims of Peter Sutcliffe.

The law in relation to combat immunity is judge-made. It was explained most recently in the cases of Mulcahy in 1996 and in Multiple Claimants v Ministry of Defence in 2003. It is not a neat and tidy area of the law. Its scope seems likely to be very closely confined in the future. It must be acknowledged that rather few of our judges have served in the military, whereas in the post-war period almost all would have done so. But this does not explain entirely the opening up of the law. Sir Alan Moses, in his thoughtful preface to The Fog of Law, suggested that the expectations of the public in terms of the care which should be taken in ensuring the safety of the military was a significant factor in judges’ thinking and that they probably reflected what much of the general public might think about the issue.

Another explanation is provided by Professor Anthony Forster, who points to the fact that recent developments have been,

“wars of choice rather than wars of national survival”.

One of the difficulties in the Smith case and its predecessors was the question of where so-called battlefield immunity begins and ends. There is no obvious reason why a common or garden accident which takes place at a training establishment should be any different from one that happens in an ordinary factory environment, although this may not apply to some of the more extreme forms of training which are necessary to be ready to fight in theatre. But if the doctrine of combat immunity is insufficiently precise for judges’ tastes, the effect of the Supreme Court finding is that a court will then have to examine in detail whether there was fault and, if so, whether that fault fell one side or another of the rather uncertain line which defines combat immunity or, as the Supreme Court preferred, whether it would be fair, just, and reasonable to conclude that no duty of care was owed.

In practice, this means a trial with witnesses having to justify their decisions and actions. I have recently been acting for the fire brigade in a case in which it was alleged that the incident commander was negligent in fighting a major fire in which firefighters died. It was suggested to him that the fire should not have been fought at all or that he should have ensured the evacuation of firefighters much earlier. Watching him being told that he was responsible for the death of his comrades who were close friends was an unedifying experience. That is what will happen with the military even if the case ultimately results in the exculpation of those concerned. I am driven to agree with the noble and learned Lord, Lord Mance, who gave a minority judgment in Smith. He said that the approach taken by the majority,

“will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British Army. It is likely to lead to the judicialisation of war, in sharp contrast with Stark J’s dictum in Shaw Savill (1940) that ‘war cannot be controlled or conducted by judicial tribunals’”.

One of the lawyers who is acting for a number of claimants in this rapidly growing field—and it is growing fast—was quoted as saying this in the Times on 19 October of this year:

“The court is the best place to decide these very difficult issues”.

I could not agree less. The studied calm of the Royal Courts of Justice, with vast numbers of documents and the luxury of time in which to consider issues, not to mention the benefit of hindsight, is a world away from the field of military activities. No fog, my Lords, in Court 12. Barristers like me, whose experience of military matters is restricted to an undistinguished period in the combined cadet force at school, will be seeking to second-guess military commanders facing life-or-death decisions based inevitably on less-than-perfect intelligence and almost certainly on less-than-ideal equipment at any one time. I am afraid that it is simply not enough to suggest that the courts can, in each individual case, sort out what is a purely policy matter, and therefore not capable of review by the courts, from a matter that crosses the boundary into combat immunity. The very process of deciding those issues will involve challenging military decisions on procurement, tactics and deployment, whether on a macro or micro scale. The noble and learned Lord, Lord Mance, is surely right.

We are thus entering a period where there is a risk that military decisions will be questioned and thus potentially affected by the decisions of judges. Civil servants are told to consider, when doing their work, to have regard to the hypothetical judge on their shoulder. Our Armed Forces will have such a judge with them, to paraphrase Winston Churchill, on the sea and in the oceans, in the air, on the beaches, on the landing grounds, in the streets and in the hills.

How does the Human Rights Act help? Clearly, the Strasbourg Court is not the appropriate venue in which to decide matters of fact and judgment. However, it is possible that the European Court of Human Rights may decide that any restriction on the liability of the Ministry of Defence potentially or actually violates Article 2 of the convention—or some other article, possibly Articles 3 or 8. I have real difficulty in understanding what Article 2, the “Right to Life”, really means in the context of armed conflict. There is something strangely poignant when the mother of a soldier says to the press, after the decision in Smith, “Now all those soldiers have the right to life”. Perhaps that is the effect on the public’s mind of the decision.

So what can the Government do about this? They can legislate to define combat immunity. They can consider reviving Crown immunity, something that is open to them under Section 10 of the Crown Proceedings Act 1947. They can legislate fully to exempt the MoD from corporate manslaughter and corporate homicide. They can derogate from the European Convention on Human Rights during deployed operations, as other countries have done. These are just some of a number of recommendations that Policy Exchange has put forward.

In answer to the noble and gallant Lord Craig of Radley, on 23 October, the Minister said that the Government were hoping,

“that the Court will provide clarification of combat immunity”.—[Official Report, 23/10/13; col. 1003.]

Whatever clarification is forthcoming, it will not be a solution to the problem that I have attempted to identify.

Nothing that I suggest should in any way derogate from the military covenant or diminish the Armed Forces Compensation Scheme, which provides compensation on a no-fault basis. However, to treat our brave men and women as subject to the assessment of the courts in the same way as a factory owner who has failed to fence his machinery is in my view highly inappropriate. The courts have given their response. It is not, in my judgment, the right one, and it is time for the Government and Parliament to respond.

--- Later in debate ---

[Lord Faulks]

My Lords, I am very grateful to all noble and gallant Lords, noble and learned Lords and other noble Lords. This has been a remarkable debate, reflecting the experience and knowledge of military affairs and the law which are found in your Lordships’ House.

My noble friend the Minister has been very helpful in responding to a number of points made in the debate. He, the noble Lord, Lord Rosser, and many other noble Lords pointed to what may or may not eventuate from the decision in Smith and in other cases. The burden of expectation on the judge or judges who decide this case is considerable. The suggestion that clarity will emerge from one case is an expectation too much. Each case is decided on its individual facts and one cannot get away from the point of principle which is at stake here. In every case where there is a claim for negligence it will be said that, although something is possibly within the scope of battlefield immunity, it can be attributed to failures of training or inadequate equipment. So the line has to be drawn.

The noble and learned Lord said that the judge at first instance would have to take great account of the judgment of the majority in Smith and I am sure that he or she will do so. However, to take great care is not going to provide an adequate solution. To quote the noble and learned Lord, Lord Mance:

“To offer as a panacea … that courts should be very cautious about accepting such claims is to acknowledge the problem, but to offer no real solution”.

The wave of litigation will continue unabated, with all the consequences alluded to in this debate, unless and until Parliament intervenes. I hope and trust that the Minister will take back to the ministry the concerns expressed in the House and I look forward to a positive response.

Motion agreed.