Armed Forces: Legal Challenge

Lord Guthrie of Craigiebank Excerpts

Thursday 7th November 2013 Lords Chamber

[Lord Guthrie of Craigiebank (CB)]

My Lords, I start with a blunt and basic point. For those who have not experienced active military service, it is difficult to understand the pressures and friction of the battlefield. Decisions have to be taken by men who are under stress, often under fire, on the basis of incomplete information. Those decisions have to be taken quickly. Delay could mean death or defeat. In an office it is possible to come to a view, to seek advice, to make a couple of telephone calls and to reconsider. No such indulgences are possible when you and your men are in action. Armed combat is a unique activity. It follows that it must be governed by different rules.

This does not mean that armed combat is lawless activity. On the contrary, for centuries, men who fought were aware of some rules of chivalry, even if they were not always observed in modern times. The Geneva Convention and the law of armed conflict both attempt to restrain the brutalities of war. Service men and women are instructed early in their careers as to their responsibilities. There are limits. Let us not be squeamish: in combat, men are trying to defend their country by killing its enemies. It follows that civilian norms cannot apply. Things which happen on the battlefield are absolutely unthinkable in normal times.

If health and safety at work were to prevail on all occasions the Armed Forces would have to be disbanded. As for human rights, no right is more basic than the right to life. In combat, a soldier might be ordered to advance towards virtually certain death. Then there is a duty of care. All commanders do indeed have a duty to care for their men. They also have a duty to achieve their objectives.

That might all sound like common sense. I hope it does. In previous generations, that is how it would have been regarded. In the early stages of the Falklands War, when we started to suffer casualties, the then Prime Minister, Margaret Thatcher, was upset. It took her husband to comfort her, saying that that was the sort of thing that happened in war. He knew because he had been there and seen it. Denis Thatcher was right. Yet in recent years, common sense has often been brushed aside. Health and safety and the European Convention on Human Rights have both been imported into contexts where neither is really applicable. In effect, members of the judiciary has been brought into the front line of combat, where they really should not be as often as they are.

That is not the fault of the judges. I agree with all that the noble and learned Lord, Lord Hope, said. I blame successive Governments, who did nothing to prevent legal mission creep. They could on occasions have sought derogation, but they did not. Legal mission creep is dangerous. As a young officer about to lead your men into action, you do not know how long the action will take or when and whether you will come under attack. Many things are on your mind. You are already aware of Geneva Convention rules, and it is intolerable that you should also be burdened by the thought that in some months’ time, your every action will be dissected by lawyers. That has happened in the coroners’ courts from time to time.

If noble Lords wish to consider all this in more detail, I, too, recommend the Fog of Law pamphlet produced by Policy Exchange. One of the authors, Colonel Tom Tugendhat, was wounded in Afghanistan and knows what he is talking about. Whether we disagree with it—and I do not—I believe that many hundreds of servicemen and servicewomen support what he says. That is what they feel.

I am anxious, because we need our Armed Forces. I hear no sound of swords being hammered into ploughshares. We live in a dangerous world, in which our survival depends on the dedication of our Armed Forces, who are willing to embrace discipline, to confront danger and to do their duty at whatever cost and sacrifice. We have an exceptional national resource. However, legal mission creep and the fog of law on the battlefield put that in jeopardy. We cannot, and must not, arrive at a situation in which our soldiers are afraid to fight not because of the enemy—that day, I hope, will never come—but because of the lawyers back home, backed by legislation that is inappropriate for the battlefield.

The British public respect the military and are grateful for its efforts, which buoys up the soldiers. The problem arises with the politicians, the public representatives. If they are serious about preserving our military ethos, it is they who must act. I agree with all that the noble Lord, Lord Faulks, said in his introduction to the debate. We should think very hard about what our servicemen and servicewomen think. They are worried.