Armed Forces: Legal Challenge

Lord Ramsbotham Excerpts

Thursday 7th November 2013 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I, too, congratulate and thank the noble Lord, Lord Faulks, for obtaining this important debate, and in doing so say that I suspect that I speak for many members of all three Armed Forces. I also thank Nicola Newson for her quite excellent Library note, which sets out the arguments for and against legal challenge so clearly and fairly.

During my own Army service, I watched the advance of what the Policy Exchange calls “legal mission creep”. I will begin my contribution by venturing that not enough note has been taken of one very good explanation for this—namely, that the nature of the active operations in which our Armed Forces have been involved has changed since the end of World War 2.

General Sir Rupert Smith, in his important book, The Utility of Force, refers to them as “wars amongst the people”, because no longer are they between uniformed armed bodies of people fighting within geographically defined areas, but between a uniformed armed body of people and a number of un-uniformed, sometimes armed, people, who mingle with other un-uniformed, usually unarmed, people in the places where they live. Therefore the law of armed conflict and the Geneva conventions are not always applicable. During confrontation with Indonesia, my riflemen had to understand both what was allowed in combat with the Indonesian army when we were in Indonesia, and how to behave towards the inhabitants of that part of Sarawak in which we were based when looking for possible infiltrators.

Northern Ireland was different again. Traditionally, in what were called internal security operations, the police handed a situation over to the Army, who took the necessary military action, possibly including opening fire, after which they handed it back to the police as quickly as possible. Unfortunately, when the Army was introduced into the Province in August 1969 it was as policemen, the Royal Ulster Constabulary being exhausted. I have always regretted this, because of the problem it posed for our soldiers. They were expected to be firm, fair and friendly—like armed policemen—most of the time, but when military action was required they had to act within the law, and were told that if they did so in good faith, they had nothing to worry about. To guide us we all had to carry a yellow card on which the appropriate circumstances were printed. We also used what were known as “flying lawyers”, who interviewed those involved in any incident, at the scene, before memories clouded over. But all that was before the European Convention on Human Rights.

However, it is my experience of European legislation that seems to me most relevant to this debate. When I was Adjutant General, or personnel director, I and my Navy and Air Force opposite numbers were told that we had to introduce industrial tribunals into our service judicial systems. When I asked whether they came before or after the Queen, I was told that that was irrelevant, because the Bill bringing this European legislation into United Kingdom law had already had its First Reading. Having asked to see it, I passed the Bill to the Director General of the Army Legal Services, who within five minutes told me that it was totally unacceptable, because it allowed an employee to take his employer to an industrial tribunal if ordered into a place of danger. In Army terms this meant that OC B Company could take his commanding officer to an industrial tribunal if ordered to attack an enemy position.

I asked what the French, German and Italian armed forces had done about this, to be told that their Governments had sought, and been granted, dispensation for them. I asked why ours had not done so, and was pleased that, later, dispensation was sought and agreed. I mention this because I have the distinct impression that, while full of gratitude for the work of Ministry of Defence legal staff and civil servants, who understand the difficulties of the transposition of human rights legislation to the battlefield, ancient or modern, members of the Armed Forces do not feel the same about those in other parts of the Government, who are in a position to seek dispensation for them. Currently they agree with my noble and learned friend Lord Hope that they should await a ruling of the European Court of Human Rights before they know whether the Supreme Court judgment in the Smith case will affect operations and their commanders.

I suspect that, had the need for dispensation been considered years ago, my noble and learned friend Lord Hope might not have been required to deliver his leading judgment, from which I will quote the following words. He stated that,

“it is of paramount importance that the work that the armed forces do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong”.

I do so because my noble and learned friend clearly understands the demands of both command and active operations, and appreciates the importance of the former not being saddled with inappropriate limitations when planning or conducting the latter.

I note that Policy Exchange recommends consideration of derogation from the European Court of Human Rights during deployed operations. I prefer to seek appropriate dispensation for our Armed Forces as a matter of course as early as possible in a legislative process. However, whichever route is chosen, I hope that those responsible for the consideration of how our Armed Forces may be protected from vulnerability to legal challenge will have the words of my noble and learned friend ringing in their ears.