Armed Forces Bill

Lord Walker of Gestingthorpe Excerpts

Thursday 11th February 2016 Lords Chamber

[Lord Walker of Gestingthorpe (CB)]

My Lords, I ask the House’s indulgence to say a few words in the gap. As one who has spent all my working life in the law except for two years’ military service in Germany with the Royal Artillery, I share the concern and disgust expressed in many corners of the House at the sort of ambulance-chasing activities which have been referred to—the “lawfare” trouble that affects us all. But as one of the four in the majority in the Supreme Court in the Smith case, which has been mentioned a number of times, I feel bound to say a word or two. It would be quite wrong for me to attempt to debate the whole case at length and at this point in the debate, but I ask the House to bear in mind three quite simple points about the majority decision of the Supreme Court.

First, it was not a claim that sought to establish either criminal or civil liability against any individual, officer or soldier, or group of officers or soldiers; it was, as I shall explain, basically a case about a failure of procurement of equipment. Secondly, the Supreme Court did nothing to say that the claim was likely to succeed or to encourage it; it simply refused to strike out the case as completely hopeless. Thirdly and most importantly, the reason that it was not a case that alleged a breach of a duty of care by any particular officer or soldier or collection of officers or soldiers was that it was basically about two particular failures of procurement of equipment.

One of the claims was based on an attack by a Challenger tank attached to an infantry unit at Basra against another Challenger tank some way away attached to a different infantry unit. The case was that the problem of a tank attacking a friendly tank could have been avoided by equipment which is referred to as, I think, friend or foe equipment and which, we were told, is fitted to American and French tanks but has never been fitted to tanks in the British Army. If it had been, it would have ensured that that incident did not happen.

The other claim was based on the failure over many years to produce a light armoured personnel carrier—it is the sort of thing that seems to happen all the time between the MoD and the suppliers; there is a constant wish to improve the specification and the design but it never gets done—which resulted in the use by the Army in Iraq of Land Rovers, which are very difficult to protect against various forms of attack.

That is what the case was about. The majority may have been right or may have been wrong. I agree that 4-3 is a very unsatisfactory way of deciding such an important case, and it may well be that the Supreme Court will revisit it. Who knows? But it is a very difficult area. The claim was basically that there had been a failure of a duty of care on the part of the MoD in London, not the Army in Iraq. It is a very much more complicated subject, as my noble and learned friend Lord Brown of Eaton-under-Heywood indicated. I very much doubt whether it is right to attempt to deal with it in this Bill rather than elsewhere, but certainly it is a very difficult subject which needs careful thought. If that case is to be examined minutely, I ask noble Lords to read the long and anxious judgments and not to accept a tendentious account from those sections of the popular press that are determined to do down the Human Rights Act.