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.

Defence: Military Covenant

Lord Guthrie of Craigiebank Excerpts

Thursday 27th January 2011 Lords Chamber

[Lord Guthrie of Craigiebank]

My Lords, first, I declare two interests. I am president of the Army Benevolent Fund and colonel of a regiment, the Life Guards, which is currently serving in Afghanistan. Secondly, like other noble Lords, I thank the right reverend Prelate the Bishop of Wakefield for introducing this extremely important debate.

I am delighted that the Government are addressing seriously this very important subject, with the Prime Minister inviting Professor Hew Strachan to produce a report. Charities such as the Royal British Legion, Help for Heroes, SSAFA, the Army Benevolent Fund and many others have made very helpful contributions to the debate. By supporting the concept of a military covenant, much has been achieved by both the present and the previous Governments, particularly in the medical field; for example, treatment of the wounded at Selly Oak and Headley Court.

However, the Government need to realise just how difficult it will be to honour the covenant without continuous commitment to it. The need for that commitment is unlikely to go away in any of our lifetimes. The services have suffered for years from financial neglect. Other great departments of state have core budgets which increase greatly—for example, the Department of Health, the Department for Education and DfID—but not the Ministry of Defence, which for long periods has been taken for granted. The quality of life of service men and women has deteriorated. I hope that it is realised that great dangers are being run. Those in the services understand that defence has to accept a share of the pain in order to pay off the debt facing the country. However, the aggregate of what people are facing in terms of allowances, together with decreasing promotion opportunities, is making high-quality service men and women think very hard about their futures.

The last three commanding officers of 22 SAS, a regiment of which I have just ceased being colonel, have either left or are leaving the Army. They are worried about the future and the future of their families. The Army needs to hang on to such quality. I could give your Lordships other examples. Allowances are being changed. Soldiers largely accept this, but what really concerns them is the logic used to justify it. It is couched in terms that do not recognise the demands of military life. Continuity of education allowances is an example. They are not just a perk for officers; they affect all ranks. More stability may be promised, but if people want to be promoted, they will have to move to gain experience. If they do not do that, the services will be worse off.

Many service men and women are now worried about their pensions. They feel that the unique requirements of the Armed Forces are not being recognised in the review of public sector pensions. I suspect that one of the reasons that we are in this predicament is that the Ministry of Defence, although proclaiming the importance of people, does not always reflect that when allocating the defence budget. Accommodation, barracks, married quarters, education, pay and conditions of service have suffered when compared with expensive equipment programmes. When savings have to be made and made too quickly, too often the only way to get the money is to look at the MoD estates, people and conditions. Too often, unlike people, the equipment projects are protected by contracts, and I think that we have the balance rather wrong.

In sum, I hope that the Government realise just how difficult it will be to honour the covenant. Too many service men and women feel that the MoD, the Treasury and other departments of state and political leaders of all parties do not really understand the difference between the military and civilian life and that those who serve the Crown are not foremost in their thinking. The Government must acknowledge how serious the situation is today and must remain committed. If they do not remain committed, the services, which are almost on the point of haemorrhaging, will haemorrhage quickly, and we will damage one of the great departments and institutions of state.

Strategic Defence and Security Review

Lord Guthrie of Craigiebank Excerpts

Friday 12th November 2010 Lords Chamber

[Lord Guthrie of Craigiebank]

My Lords, I shall make three declarations of interest. First, I am a non-executive director of an American defence company. Secondly, I am president of the Army Benevolent Fund, a soldiers’ charity, and three regimental charities that have been formed to look after their casualties from Afghanistan. Also, I am a colonel of the Life Guards.

Perhaps the most difficult and controversial decision taken by the SDSR has been to do with the two carriers. The case for them has been made, but their construction, bringing them into service, operating them and keeping them going over the years are likely to cause huge difficulties to the defence budget. Budgets are likely to be even more under pressure in future than they are today, in what we have estimated. It will be not just the Royal Navy that is affected by this but defence as a whole. I am sure that the carrier group, when it forms, will be much more expensive than it is today.

The Royal Navy’s surface fleet is now smaller than at any time since the reign of Charles II. Our small surface fleet of 19 frigates and destroyers will not be enough to meet the many worldwide tasks and to act as escorts for carriers. As an aside, when I was Chief of the Defence Staff and needed a frigate off the coast of Sierra Leone, the same ship had two commitments at the same time. Unbelievably, it was guarding the Falkland Islands and chasing drug dealers in the West Indies. At that time, we had a surface fleet of more than 30 ships; we are now going to have 19. In reality, having 19 ships means that we will probably have about 13 or 14 available at any time. We certainly need a larger Navy and we need more frigates and smaller ships. We cannot skimp on escorts for the carriers, particularly as every year improved supersonic anti-ship missiles and more sophisticated torpedoes are becoming available.

Secondly, we should welcome the recent agreement with France. It seems sensible; we probably have more in common with the French military than with anyone else in Europe. Sometimes I do not think that we have so much in common with the Quai d’Orsay and the French Government, but as far as their military is concerned we work very well with them. In the Balkans, when necessary, we were perfectly happy to put British soldiers under French command and the French were perfectly happy to put their soldiers under our command. We have also operated in different parts of the world alongside them and that has been perfectly all right. Although savings will be possible from the French agreement, they will not be anything like as much as people think, because it is important that we are able to operate independently from the French, if the need arises, and there will be occasions when we have different goals and aims in international relations.

It is certainly right to increase the effectiveness of our Special Forces, the SAS and SBS. Their successes in Iraq and Afghanistan have been remarked on. Having been to Baghdad when I was colonel commandant of the SAS and seen them working alongside the United States special forces and what benefit there was to both the United States and to our soldiers, I am completely convinced that we need to give more modern technology—particularly, intelligence technology—to our Special Forces. I am a bit nervous of increasing the size of the Special Forces. I know that people suggest that we need more, but to produce an SAS or SBS soldier needs careful selection and arduous training. If we do not maintain those standards, there is a real danger that the two units will be dumbed down in some way. I hope that the Minister can assure me—I know that he wants to assure the noble Lord, Lord Gilbert—that the introduction of the A400M will not affect SAS and SBS operations. The C130 is excellent and the right size, while the A400M is a bigger aircraft and I am not sure that it can do all the things that the SAS will want it to do.

Lastly, I am delighted that there is to be a full and fundamental review of the Ministry of Defence. Nobody could be more suited to lead that review than the noble Lord, Lord Levene, who knows the Ministry of Defence well. The noble Lord, Lord Reid, said, when he was Home Secretary, that he felt that his department was not fit for purpose. I am afraid that many of us feel the same way about the Ministry of Defence. It lacks agility and is too big. Do we really need to have a Permanent Joint Headquarters as well as the Ministry of Defence? There is a certain amount of duplication. As people second-guess, PJHQ has constantly to refer back to the Ministry of Defence when it makes decisions. Why do we need so many people? We have 86,000 civilian staff who are there for only 175,000 service men and women. We then have a Defence Equipment and Support organisation of 26,000, to which others have referred today, and we do not seem to be able to produce all the equipment that we want in time for when we need it. The review will need to take some radical and tough decisions, some of which will be very unpopular. It is always difficult to reduce numbers; it has happened before and I know that there is a plan to do it now, but I do not underestimate the difficulties of that.

We must follow through the review. Since I have been in the Ministry of Defence—and I have spent many years there—there have been any number of reviews, yet I cannot think of one that was really followed through. The noble Lord, Lord Robertson, referred in a previous debate to Mr Bernard Gray, who knows a great deal about procurement and understands the Ministry of Defence as well as anybody. I would like to know why what seemed to most of us to be an excellent report, which may have been critical of the Ministry of Defence, seems to have been shelved. Why has it not gone forward? What is happening? What is going on to put this right?