Armed Forces: Legal Challenge

Lord Thomas of Gresford Excerpts

Thursday 7th November 2013 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I thank the noble Lord, Lord Faulks, for bringing forward this important debate. I declare an interest as the chair of the Association of Military Court Advocates.

The mood of this House in the debate on the prospect of military involvement in Syria demonstrated a response to public opinion which has become less enamoured of military campaigns. The public are hugely supportive of the lower levels of the Armed Forces but less confident of the political and senior military leadership. There remains from the historic concept of Crown immunity a statutory power under Section 2 of the Crown Proceedings (Armed Forces) Act 1987 to prevent any proceedings in tort by servicemen and their families against the Crown altogether. It has never been invoked or brought into effect, no doubt because it would be political death for any Minister or his party to deny relief to the injured and bereaved arising out of the unpopular wars of choice in Iraq and Afghanistan. That power remains, however, as a backstop if this country ever again becomes involved in a general conflict with a large number of casualties.

Since there is currently no general immunity from suit, the Ministry of Defence must deal with actions, based on Article 2 of the European Convention, or on negligence at common law, brought by relatives of those killed, by injured servicemen, and by those who have been detained by British forces.

The Ministry of Defence has fiercely resisted the application of the European Convention on Human Rights in theatres of war. From my participation in the Baha Mousa case, I recall a brave officer in the Army Legal Service being reprimanded by a top civil servant in the MoD for daring to suggest that the treatment he observed in Basra of Iraqi prisoners—being hooded, hands bound, kneeling in the dirt—could amount to inhuman and degrading treatment in breach of Article 3. He was told, dismissively, by the MoD that, if he were right that the European Convention applied in Iraq, the Government should make him Attorney-General in place of the then Attorney-General who had advised otherwise.

It was the unanimous view of the Supreme Court in the Smith case that not only captured prisoners, but service men and women who have relinquished almost total control over their lives to the state, can claim the protection of the convention, even when serving outside the United Kingdom or Europe. The debate was about the scope of Article 2— that everyone’s right to life should be protected by law. In what area is it fair, just and reasonable to extend the protection of that article to service men and women? It used to be common ground that matters of high policy and the exercise of political judgment in the use of resources were not justiciable, but nor were decisions taken by commanders in the heat of battle.

In claims based on negligence, the fallback defence of the MoD has been the ill defined concept of “combat immunity”—an exemption from tortious liability in the context of actual or imminent armed conflict. Its boundaries have not been settled, and it was held that this can only be determined on the facts as found at trial. The majority in Smith were prepared to countenance actions based on inadequacies of procurement, of training, and of material which have led to death and injury.

The purpose of the paper, The Fog of Law, published by Policy Exchange, is to criticise the very limited area of potential liability outlined by the majority in Smith. It seeks, in my view, to undermine the role of the judiciary by complaining of “judicial creep”. The authors argue that the commander in the field will be looking over his shoulder; they say that his ability to act with flexibility and determination will be threatened. I consider that to be nonsense, in the light of the views expressed across the Supreme Court in the case of Smith.

The authors of The Fog of Law reflect the views of the Ministry of Defence as demonstrated in its very interesting study entitled, Risk: The Implications of Current Attitudes to Risk for the Joint Operational Concept, published in the Guardian on 26 September 2013. That MoD paper refers to the benefits which can accrue from a “who dares wins” approach to military action, an approach which will encourage individuals to accept risk. It requires positive action by the MoD to mitigate the effect of risk aversion, to preserve the utility of the Armed Forces,

“by influencing those who might mistakenly place crippling restrictions on our actions”.

The study goes further, suggesting a series of changes in MoD thinking and practices, which include reducing the profile of the repatriation ceremonies. The Royal Borough of Wootton Bassett is clearly not its favourite town. It wishes to,

“reduce public sensitivity to the penalties inherent in military operations”.

“Penalties” is Civil Service speak for death and injury. Its future work, it states, is to collect evidence,

“to demonstrate the latitude offered by existing legal frameworks”.

Wittingly or not, the authors of The Fog of Law paper seek to provide that evidence. I consider The Fog of Law paper to be a wholly unjustified and over-the-top attack on the standards of justice which should protect those who volunteer for the armed services.

Recently, in September, before a judicially led defence department inquiry in Washington DC, I was proud to outline the leadership role the United Kingdom had taken, both in the courts and in the Armed Forces Acts passed by this Parliament, in applying the rule of law to the military sphere, not least in the revolution of its courts martial processes. A series of cases from Findlay onwards in the European Court of Human Rights led to changes that are welcomed not merely in the services but in the services judiciary. It would be sad to see the Ministry of Defence take a backward step.

It is certainly not the role of the judges to run the Army, but the decision in Smith is miles away from that. The days when our Armed Forces were effectively isolated and self-contained, standing slightly apart from public attitudes, as the MoD paper succinctly puts it, are well and truly over. In a competitive market, the services require recruits of sufficient number and quality to operate increasingly sophisticated equipment and to endure the harshest of conditions. They should have all such measures of protection against death or injury and all such guaranteed human rights as is fair, just and reasonable having regard to the inevitable risks they have volunteered to run. A democratic society demands no less.