Armed Services: Claims

Debate between Lord Thomas of Gresford and Lord Brown of Eaton-under-Heywood

Thursday 24th November 2016 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, 60 years ago, as a young national serviceman, I was on active service in Cyprus. I record this not as a declaration of interest but rather as a boast because, together with a great number of other people, I am proud to have served Queen and country and it now distresses me, as it plainly distresses lots of others, to see how today, often years after valiant service in conflicts abroad, our forces are subject to apparently endless claims and allegations of misconduct. Not only is this upsetting, but it affects our nation’s combat capabilities by damaging morale, recruitment and our fighting strength. The problems of these largely now historic allegations are so many and so diverse that I have scarcely time even to outline them, let alone elaborate their possible solutions. There are multiple criminal allegations, multiple civil claims, claims by foreign combatants, claims by foreign civilians caught up the conflicts and claims by our own forces against the MoD. Essentially, as I shall finally come to suggest, the way ahead I would propose is not merely, as recently foreshadowed by government, to derogate from the ECHR in future combat but to reverse the trend of recent years whereby human rights obligations have been extended beyond the domestic sphere even to foreign battlefields.

First, however, I shall briefly chart the way these problems have developed and how we have reached our present sorry situation. The great majority of the criminal allegations and civil claims date from 2003 to 2009 in Iraq. Those years covered three phases: the initial invasion, the occupation and then four years as part of a multinational force assisting the Iraqi Government to maintain law and order. IHAT, the Iraq Historic Allegations Team, was established in 2010 to investigate the alleged ill treatment of Iraqi civilians in British custody. It was later extended to those not in custody. Initially this duty arose under the Armed Forces Act 2006 and previous such Acts, but later it had to be greatly extended to discharge what in 2011 Strasbourg held to be the UK’s investigative obligations under Articles 2 and 3 of the convention. Its initial case load of 165 cases to be completed by 2012 has grown hugely over the years, so that even in April this year there still remained 325 allegations of unlawful killing and over 1,300 cases of alleged ill treatment—hopefully to be completed by December 2019 at the cost of some £57 million.

Over the years, IHAT’s difficulties have increased, largely from the Strasbourg Court’s ruling in Al-Skeini in 2011 that, contrary to all previous understanding, the convention applied to our operations in Iraq. First, IHAT’s investigators were held to be insufficiently independent, and military police had to be replaced by naval and retired civilian police. Then IHAT was found insufficiently independent of the Executive for Article 2 and 3 investigations, for which inquisitorial inquiries on the model of coroners’ inquests were held to be required.

I should add that IHAT’s inquiries were serving also to meet the requirements of the ICC, whose prosecutor in 2014 opened a preliminary examination into war crimes—the alleged systematic abuse of detainees in Iraq. This followed a report by a retired senior judge into the notorious death of Baha Musa in 2003. Later, however, in December 2014, another retired judge reported in the al-Sweady case rejecting most of the Article 2 and 3 allegations arising from a number of detentions in 2004. Later still, in September this year, Sir George Newman published a report into the death of Ahmed Ali, who drowned in a canal as one of a number of looters driven into the water as punishment. The judge found a manifest disregard for the risk to Mr Ali’s life, but his greater criticism was the Army’s failure to train, instruct and guide the men in policing methods and how to deal with lawlessness, not least widespread looting, as in Basra.

Of course it is imperative in any future conflict that our troops should be better prepared for what often become essentially peacekeeping missions. Equally obviously, our troops should be held to the highest standards and any truly credible allegations of criminal wrongdoing should be properly investigated. However, it is fervently to be hoped that never again will it be necessary to embark on another vast IHAT-like process and engage in a series of Article 2 and 3-compliant judicial inquiries, with all the enormous problems that these face. It is unsurprising that in his September 2016 review of IHAT Sir David Calvert-Smith described the interviewing of witnesses as,

“the single most intractable problem”,

that it faces. Indeed, we now find ourselves paying Iraqi witnesses to travel abroad to give evidence against British soldiers.

One should note that despite all this huge effort and expenditure, barely a handful of investigations have led to any further action, and punishment thus far has been limited to a single fine. Meanwhile, alongside these endless criminal investigations—and, no doubt, to a degree prompted by them—a growing number of civil actions have been brought against the MoD, both public law claims for convention-compliant investigations and private law claims for compensation. Mostly these allege ill treatment, unlawful detention and in some cases unlawful killing. In September this year the Court of Appeal in al-Saadoon recorded over 1,200 public law claims and over 600 compensation claims, in addition to some 250 claims already settled. True it is that the UK has indeed paid out some £20 million or £30 million to settle a number of claims, most of which were doubtless well founded, though one suspects that few were of the Baha Musa kind. However, it seems likely that many claims are spurious. As the judge concluded in the al-Sweady inquiry,

“the vast majority of the allegations made against the British military … including all the most serious allegations … were wholly and entirely without merit or justification”.

Those are just the Iraqi claims. A series of cases also had to deal with a number of claims arising from the Afghanistan conflict—largely claims for wrongful detention—the lead case, Serdar Mohammed, being brought by a Taliban commander.

What, then, can be done to stem such a tide of claims following on from any future foreign combat? I am of the clear view that it is international humanitarian law, sometimes called the law of armed conflict, based largely on the Geneva Conventions, which strikes the appropriate balance between military necessity and humanity and which therefore should regulate the conduct of such operations, not the human rights convention, which is, rather, designed to regulate the domestic exercise of state power. Our American allies, for example, are not subject in such conflicts to inappropriately exacting human rights requirements; nor does the Canadian Charter of Rights and Freedoms apply to its forces fighting abroad.

We should therefore, in any future military conflict overseas, derogate, so far as we are able, under Article 15 of the convention, but I cannot pretend that derogation is a simple, straightforward and guaranteed route to immunity from all future human rights claims. Alas, I have no time today to go into the problems and limitations of derogation, but I understand that my noble and learned friend Lord Hope of Craighead will touch on these. So I would not stop with derogation. Rather, I would legislate to overcome the central problem we face following Strasbourg’s 2011 judgment in Al-Skeini holding, contrary to all previous understanding and this House’s earlier decision in the same case, that the convention applies not just within Council of Europe states but anywhere—in broad terms, whenever a state through its agents can be said to exercise control, an approach which itself leads to grave doubts and confusion as to its limits.

I am certainly not advocating that we should withdraw from the convention, so, subject to whatever may be achieved through derogation, we shall remain liable on the international law plane to any future Strasbourg ruling. But we could and, I believe, now should legislate for domestic law purposes to amend the Human Rights Act itself to confine its application to the UK. In 2007, when Al-Skeini was before this House, we had to decide, first, whether the Act applied extraterritorially and, secondly, who is within the UK’s jurisdiction for the purposes of the Convention. The late and great Lord Bingham of Cornhill, the wisest among us, dissented on the first point. He would have held that the Act has no extraterritorial application. The remaining four of us, however—unwisely, as I now think—held the contrary. We thought the Act should track the convention, but we did so explicitly on the basis that the convention itself applied only within the area of the member states with, as I myself put it,

“just a limited extra-territorial reach in certain closely defined circumstances”,

such as in an embassy abroad or, by analogy in Baha Mousa’s case, in a British military detention unit abroad. Naturally, one is reluctant to deny complainants any domestic law remedy, it being implicit in all this that we may choose not to give effect to some adverse international law ruling. For my part, however, I would find this much easier to justify in the present context than with regard to, say, prisoner voting, where it seems to me that the Government are being just plain silly.

Thus far, I have said nothing in respect of claims of deaths and injuries suffered by our own forces in conflicts abroad: claims against the MoD both under the Human Rights Act and in negligence. A number of such claims have been brought and, following a 4:3 majority judgment in the Supreme Court in Smith in 2013 refusing to strike them out, they remain undecided. I say nothing today as to whether the majority judgment may be regarded as right or wrong, but there seems little doubt that it has caused serious concerns in the MoD and the military about what the noble and learned Lord, Lord Mance, called, “the judicialisation of war”, and that it may lead to our Armed Forces becoming dangerously hyper-cautious in conflict.

What, then, should be done about this? Much has been written on this topic, perhaps most helpfully last year in the Policy Exchange paper, Clearing the Fog of Law. With regard to claims in negligence, I would suggest that the time has come, not to expand the rather elusive common law doctrine of combat immunity but rather to make a ministerial order under Section 2(2) of the Crown Proceedings (Armed Forces) Act 1987 to revive, in the case of warlike operations outside the UK, the effect of Section 10 of the old Crown Proceedings Act 1947, which had prevented claims for injury or death on military service. Section 10 was repealed in 1987 really because personal injury damages had by then risen way beyond the benefits payable to those injured on service under the Armed Forces pension scheme.

In fairness, and indeed as a matter of political reality, a ministerial order ending tort claims would now need to be accompanied by a scheme to compensate the injured fully on a no-fault basis. This would avoid all the problems of legal proceedings by way of stress, delay and expense and, of course, end the basic problem presented by Smith that the risk of litigation itself results in a damagingly risk-averse approach to soldiering.

As for human rights claims by our own forces—

[Lord Thomas of Gresford (LD)]

My Lords—

[Lord Brown of Eaton-under-Heywood]

As this is a time-limited debate, I think I should be allowed to finish. As for human rights claims by our own forces, if the HRA is confined territorially, as I suggest it should be, such claims could be brought only in Strasbourg, and as to this, I tend to share the view of the minority in Smith that that court would itself shrink from adverse judgments based necessarily on reviewing the conduct of our military operations abroad.

All I have said is really but a thumbnail sketch of the many difficult questions that arise, and I now look forward to hearing the views of the number of real experts—all noble and several gallant, too—who I am delighted to note are to follow in this debate.

Armed Forces Bill

Debate between Lord Thomas of Gresford and Lord Brown of Eaton-under-Heywood

Thursday 3rd March 2016 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, there is no limitation on serious criminal cases, and that is part of the criminal law. In this area, I think of the war crimes that, until very recently, were still being brought forward relating to the Second World War as a result of investigations into the actions of German soldiers in prison camps and elsewhere. The thought that that type of case would be barred through limitation would have a very unfortunate effect on the victims of the Holocaust, who feel those crimes so strongly, and rightly so.

As a result of the debates we had on Tuesday, and this debate, my view is that the clever and ingenious lawyers in the Ministry of Defence should be thinking about putting the concept of combat immunity into some statutory form, to define the boundaries of it so that commanders who are engaged in warfare know that if they are in a combat situation they do not have to worry about criminal civilian law affecting them personally, and so that the soldiers involved do not subsequently face criminal charges as a result of their conduct in the clash of arms—the warfare itself. But “military operations” as in the amendment can cover such a wide area and I do not think that we should go against the whole thrust of the common law and the whole purpose of the criminal law by an amendment of this sort. There are other ways. What is combat immunity? What are the boundaries? They may be fuzzy at the edges but I am sure they are capable of statutory definition.

[Lord Brown of Eaton-under-Heywood]

I do not want to be tiresome but combat immunity, as I understand it, has never applied in the context of criminal law at all. It is a purely civil law concept.

[Lord Thomas of Gresford]

Perhaps it could be used as a criminal law concept. Perhaps the lawyers would like to think about it. I follow what the noble and learned Lord says on that.

Armed Forces Bill

Debate between Lord Thomas of Gresford and Lord Brown of Eaton-under-Heywood

Tuesday 1st March 2016 Grand Committee

[Lord Thomas of Gresford]

I was going to put this question to the noble and learned Lord, Lord Hope, but does the noble and learned Lord, Lord Brown, consider that a way forward might be to attempt legislatively to put the boundaries of combat immunity forward?

[Lord Brown of Eaton-under-Heywood]

I am glad to have been asked that question because it gives me the opportunity of saying this. Combat immunity is not of relevance here in respect of the convention claims. It is highly relevant, and was the answer sought to be advanced by the ministry, to the negligence claims. What was held, as my noble and learned friend said, by not four but five members of the court was that it did not extend to the peacekeeping mission that was relevant to the negligence claims.

I would not deal with the negligence part of the claims by extending the scope of combat immunity. I would deal with those parts, as I said at Second Reading, by legislating under Section 2(2) of the Crown Proceedings (Armed Forces) Act which enables one, in effect, to disapply tort law in respect of our Armed Forces. However, I would give them the compensation that the noble Lord, Lord Tunnicliffe, is understandably intent that they should have by making sure that they do not lose out by getting less under the pension scheme than they would if there were successful common law claims. I would give them the money on a no-fault liability basis because they have incurred these ghastly injuries serving the national interest in combat abroad.

However, I regard that as having nothing whatever to do with the limited scope of this amendment, which is simply to disapply the relevant part of the convention to that aspect of these claims. It would disapply Articles 2 and 3 so that, if necessary, it could be tested in Strasbourg whether the majority in the court in Smith needed to go as far as they did in saying that Article 2 applied. As the noble and learned Lord, Lord Mackay, said, I believe that the court would say that the margin of appreciation here allows us not to apply Articles 2 and 3 in this sensitive situation where Armed Forces are serving in combat abroad.

Criminal Justice and Courts Bill

Debate between Lord Thomas of Gresford and Lord Brown of Eaton-under-Heywood

Tuesday 9th December 2014 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I am moved to continue with Wales because I acted for my community—the Gresford community—when there was a proposal to opencast mine part of Gresford colliery at a time when there were about 260 bodies still buried in it as a result of the 1934 disaster. Your Lordships will appreciate how people felt about that: they felt that there had been a stitch-up between the National Coal Board and the local authority.

Since the matter had not been properly advertised, we took it to judicial review. We could not, however, expect every member of the community to be involved, so a committee of about eight people was set up to instruct solicitors and counsel to appear on this judicial review. It is those eight people I am thinking about, who might be found liable for costs. I can tell your Lordships that even then—back in the 1970s or maybe the early 1980s—costs were a considerable issue for these people before becoming involved in this matter. The result was that the judicial review was successful. The county council advertised properly and the villagers —the community—then made contributions to the consultation that took place. Although the decision to permit opencast mining went ahead, it was with very stringent conditions. The National Coal Board was very concerned to keep to those conditions, so the work was carried out strictly in accordance with them and the land was replaced to such a degree that it is now the training ground for Wrexham Football Club. Your Lordships will appreciate that in that case a decision was taken that excluded a community which had the highest sensitivities about what had happened. The fear of costs was something that might have deterred that successful action altogether.

[Lord Brown of Eaton-under-Heywood (CB)]

I wish to support the Motion of the noble Lord, Lord Pannick, and resist the Minister’s Motion on rather a broader basis than perhaps has been suggested so far. The problem, or one of the problems, with the Minister’s Motion is that it leaves intact the central thrust of Clauses 65 and 66, which were of course objected to and disagreed with by the Commons on the basis set out in Commons Reason 106A:

“Because it is appropriate to impose duties, rather than confer discretions, on the High Court”,

et cetera. My deep disagreement with that basis of rejection is that I do not believe it is appropriate in this jurisdiction to impose duties and to narrow or eliminate discretions on the part of the judiciary.

In Committee in July, I suggested that it is difficult to think of any area of law less suitable than this one for this sort of legislative interference. We are here concerned with the inherent supervisory jurisdiction of the courts to hold the Government to account; to ensure that the rule of the law is observed when the Executive take action. Yet here is another example of the Government seeking to weaken those powers with the inevitable chilling effect, and in many cases making it practically impossible to bring a challenge. The fresh ministerial amendments still leave intact the provision that you cannot bring judicial review unless you give a whole series of particulars about how the process is to be funded.

In that same debate, the noble and learned Lord, Lord Mackay of Clashfern—my respect and admiration for him is second to none, not least since he had the sagacity 22 years ago to promote me to the Court of Appeal—rightly pointed out that it was the judges themselves who had originally sought to underpin the rule of court under which judges had previously exercised their judicial review jurisdiction by giving it legislative form. Thus was enacted the section of which the noble and learned Lord, Lord Woolf, spoke a little earlier: Section 31 of what used to be called the Supreme Court Act but, since the invention of a Supreme Court, is now called the Senior Courts Act. However, it must be recognised that Section 31 merely facilitated the exercise of the judges’ supervisory jurisdiction; in no way did it seek to constrain, limit or inhibit it. It imposed no duties on the judges and you will search it in vain to find such.

Now, though, in this clause, as in the one that we discussed a little earlier, the Government are intent on seeking to eliminate the judges’ powers and to impose duties upon them. I echo what the noble Lord, Lord Deben, said about the earlier proposal: this is an amendment of constitutional importance. In truth, it is not a party political matter. It is a question of where the boundary should be drawn between the Executive and the judiciary. The judiciary in this country, unlike its American counterpart, has always fully recognised the sovereignty of Parliament. We do not strike down primary legislation. Parliament, in turn, has not hitherto sought to whittle down the judges’ supervisory jurisdiction, and it is really inappropriate that they should now start to do so.

If the Government have their way on this or, on reconsideration later, on the previous or the next amendment, the constitutional balance will have shifted. The fact is that the Motions that the noble Lord, Lord Pannick, is advancing are ones that are truly worth fighting for.