Armed Services: Claims

Earl Howe Excerpts

Thursday 24th November 2016 Lords Chamber

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, I am very grateful to the noble and learned Lord, Lord Brown, for tabling this Motion. The issues that it covers have been debated on a number of occasions in this House in recent years. I thank the noble and learned Lord for his continued concern about these matters, his masterly résumé of the issues involved and this timely opportunity to take stock of recent developments. The contributions to this debate have shown how much is at stake here, above all the ability and confidence of our Armed Forces to conduct effective operations in our national interest.

Before I outline the measures we are taking to mitigate these issues, I should start by emphasising the point well made by the noble and gallant Lord, Lord Stirrup: that the Armed Forces of the United Kingdom are required, without exception, to comply with all applicable domestic and international law. That said, a series of court judgments have created uncertainties about some aspects of the law relating to the conduct of armed conflict, or unintended consequences that could well impact on our Armed Forces’ ability to train and operate. The Government have expressed their concerns about this in recent years, and the manifesto commitment last year, which was to,

“ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job”,

was a clear signal of their intent to tackle the effects of legal claims and legal developments.

The strength of interest and the quality of debate we have heard here today demonstrate the breadth and complexity of the challenges we face. Military operations in Iraq and Afghanistan have led to an unprecedented volume of litigation about, for example, ECHR jurisdiction, detention, and how international humanitarian law and the European Convention on Human Rights interact in armed conflict, and which include thousands of private law claims for compensation. The personal impact on service personnel has been brought to light in the context of IHAT—the Iraq Historic Allegations Team. We have also seen what I will simply call questionable conduct on the part of some law firms, as well as escalating costs for defending claims or conducting investigations where the evidence or allegations are, at best, unsubstantiated or, at worst, based on lies, as witnessed in the Al-Sweady public inquiry.

All these problems require a broad-based response; there is no simple remedy. The Government have accordingly been giving careful consideration to how to manage the adverse effects of these legal challenges and avoid similar difficulties in the wake of future conflicts. We have already taken a number of steps to help this mitigation. First, as a number of noble Lords have mentioned, the Prime Minister and the Defence Secretary have already set out the Government’s intention to derogate from the European Convention on Human Rights, where appropriate. I was grateful for the comments of the noble and gallant Lord, Lord Richards, on this issue. Let me be clear here: there is no question of a blanket opt-out from the ECHR. If and when a derogation is made, it could be made only from certain Articles of the convention and would have to be fully justified by the circumstances pertaining at the time. Where justified in the light of circumstances, it could serve to limit some of the opportunistic ECHR-based claims we have seen, and would reflect what we consider to be the right balance between these rights and the law of armed conflict.

I am afraid I must take issue with the noble Baroness, Lady Kennedy, who criticised the idea that we might derogate from the ECHR. This would not, as she certainly implied, put British troops above the law. She stated that international humanitarian law would not be enough to ensure that justice would be done. Our Armed Forces are, at all times, subject to UK service law, which includes the criminal law of England and Wales. International humanitarian law, based on the Geneva Conventions, will still apply in situations of armed conflict and there are some rights that cannot be derogated, such as protection from torture and slavery. The noble Lord, Lord Thomas of Gresford, asked whether any cases involving Iraqi prisoners had been brought by combatants. The answer is no—these cases do not involve the principle of combat immunity. The vast majority result from the ECHR decisions that UK forces did not have the right to detain people suspected of insurgency.

On another point made by the noble Baroness, Lady Kennedy, to deduce from the many millions paid out in compensation that there has been extensive wrongdoing would be wrong. The vast majority of the sums paid out were paid because the European Court of Human Rights decided that the UK had no right to detain dangerous insurgents in Iraq. The court has since significantly altered its position on that point, but we will not be able to recover the money. It is worth adding that Article 4 of the International Covenant on Civil and Political Rights also permits states to derogate from certain rights, providing the conditions as set out are met. I emphasise that, if and when the UK does derogate, care will be taken to ensure that it is wholly consistent with our other international legal obligations, as required by Article 15 of the ECHR.

It is important that I should make one other thing clear, especially in response to the noble Lord, Lord Dannatt. We take seriously our legal and moral duty to investigate credible allegations of criminal offences and to prosecute, where appropriate. I agree with the noble Baroness, Lady Kennedy, that the case of Baha Mousa serves as a reminder that a small number of serious offences were undoubtedly committed. I stress that the overwhelming majority of service personnel deployed on operations conduct themselves to the highest standards and in accordance with the law. The Al-Sweady inquiry, which I mentioned, has demonstrated that some allegations will be exaggerated or even false—the noble Lord, Lord Thomas of Gresford, referred to others in that category.

The noble and learned Lord, Lord Hope, suggested that any derogation should be subject to parliamentary approval. Let me make clear what the process would be. A designation order can be made by the Defence Secretary, which would come into force from the date made. However, under the existing law, a designation order under the Human Rights Act must be subsequently approved by each House of Parliament within 40 days from that date in order to amend the terms of the Human Rights Act. In this context, perhaps I could address a point made by the noble Lord, Lord Bilimoria. It is important to note that, to date, derogations from the ECHR by other states, including the United Kingdom, have been in respect of activities on their own territories. The announcement by the UK to derogate, where appropriate, for armed conflict overseas is, I hope, a clear statement of intent.

The noble and gallant Lord, Lord Craig, and the noble Lord, Lord Dannatt, suggested that we should remove ourselves from the jurisdiction of the International Criminal Court, as the United States has done. I would just point out that the obligation to investigate serious allegations against our Armed Forces is based squarely on UK domestic law. As long as that is done, we have nothing to fear from the International Criminal Court. We should remember that, in the context of the Baha Mousa case, it is not true to say, as the noble Lord, Lord Thomas, did, that the family could not have brought proceedings had it not been for the ECHR. The Baha Mousa family was in fact able to sue the Ministry of Defence under common law. A settlement was eventually reached as a result of mediation.

[Lord Thomas of Gresford]

I did not suggest that. They succeeded in the Supreme Court.

[Earl Howe]

I am grateful to the noble Lord for his comments if I misunderstood him.

The noble and gallant Lord, Lord Richards, asked whether the Government would retrospectively end prosecutions. The Government are extremely reluctant to propose retrospective legislation because it compromises the principle of legal certainty. However, we will seek to ensure that investigations are brought to a close as quickly as possible.

[Baroness Kennedy of The Shaws]

Does the noble Earl accept that in the Baha Mousa case there would have been no inquiry but for the European Convention on Human Rights? It was used to force the Government to have an inquiry, which in turn led to investigation and so on. That was the tool in the hands of the family of Baha Mousa, which enabled us to know fully what had taken place, and for us all to express the horror we are expressing today. Otherwise, could we be sure that something would have happened?

[Earl Howe]

My Lords, I will look into the sequence of events that led up to that inquiry because I am not in a position to gainsay what the noble Baroness has just pointed out. I agree that it is important that we tease out these issues.

Moving to a slightly different issue, we have taken steps to tackle improper conduct by those in the legal profession, as mentioned by the noble Lord, Lord Ramsbotham. It is only right that law firms should not be incentivised or encouraged to represent or put forward unfounded or speculative claims, and where a solicitor’s conduct falls short of expected professional standards, action should be taken to address this. Noble Lords will recall the grave concerns expressed following the publication of the al-Sweady public inquiry report. The Ministry of Defence took the unprecedented step of referring these matters to the Solicitors Regulation Authority, which investigated them thoroughly. As a result, the solicitors concerned will face disciplinary tribunal hearings in 2017.

I reassure the noble and gallant Lords, Lord Craig and Lord Richards, that we are seeking to clarify the issue commonly referred to as combat immunity—the common law doctrine that excludes civil liability for injury caused by the negligence of those engaged in the course of hostilities. The doctrine also means that members of the UK Armed Forces are under no duty of care in tort to avoid causing loss or damage to another member of the UK Armed Forces, or anyone else. It is essential, as a number of noble Lords have made clear, to ensure that this doctrine should be applied in full, and that the courts should not be called upon to adjudicate matters which should be the subject of military decision-making. It goes without saying that those who have been injured or suffered bereavement in the course of combat or hostilities have our deepest sympathies, but the uncertainty that has resulted about the circumstances in which the doctrine should be applied is a cause for concern and leaves the Ministry of Defence and the Armed Forces open to a raft of claims. More importantly, as pointed out very cogently by the noble and gallant Lord, Lord Stirrup, it potentially calls into question the professional judgment of military commanders, giving rise to the prospect of what has been called the “judicialisation” of war. We take this matter very seriously. We are considering it closely, and we expect to be in a position to announce our proposals very shortly.

The noble Lord, Lord Thomas, suggested that the combat immunity cases are essentially about procurement rather than battlefield decisions. With respect, I do not think that is quite right. I apologise again if I have misunderstood him but I believe that he suggested—

[Lord Thomas of Gresford]

I certainly did not say that. I said that I could not imagine any case arising that the Ministry of Defence would settle where combat immunity was a defence.

[Earl Howe]

I am grateful. However, to clarify this point, the Challenger case mentioned by the noble Lord turns on training rather than procurement, but the important point here is that no one now knows the extent to which military decisions may be questioned in court. That is the problem the Government must, and will, address. I also suggest that combat immunity is a real problem. We have three major cases progressing through the courts at the moment, and many others are stayed behind them. Therefore, to suggest that this is only a minor issue involving one or two people is incorrect.

The noble and learned Lord, Lord Hope, suggested that the Armed Forces compensation scheme should be made subject to statute. In fact, the scheme covers any claims made since 6 April 2005. It was made part of the Armed Forces Act of that year.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that one solution would be to reinstate Section 10 of the Crown Proceedings Act. I am hesitant about that solution. It is one of the options we have been looking at but it would be possible only under certain specific circumstances, and careful consideration would need to be given to the impact on service personnel. Certainly, I agree with the noble and learned Lord that such a step would not be sufficient on its own.

I also want to make it clear that we remain unequivocal in our commitment and duty to look after our Armed Forces and veterans, particularly those who are subject to investigation. What is more, we remain steadfast in our commitment to support those who face legal proceedings. In respect of the Iraq conflict, the IHAT is now making rapid progress towards its expected completion by the end of 2019—a point which Sir David Calvert-Smith affirmed in his recent review of the IHAT. Some 70% of the more than 3,000 allegations received have already been disposed of, the vast majority without the need to interview service personnel or veterans. I say to the noble Lord, Lord Touhig, that we are confident, based in part on Sir David Calvert-Smith’s report, that the IHAT will be able to meet the progress targets it has set. The IHAT’s workforce is comprised of Royal Navy Police and experienced former civilian police officers who are dedicated to conducting their investigations as sensitively and effectively as possible. The noble Lord, Lord Touhig, questioned whether three days was enough training on the conditions in Iraq, and said that perhaps Ministers were not briefed about the proceedings often enough. There is a balance to be struck here. Ministers absolutely respect the IHAT’s independence, but I am sure they will take full account of any recommendations the Commons Defence Committee makes on this matter.

I think the noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that we are actively paying Iraqi witnesses to travel to interviews. I make it clear that the IHAT pays only travel and subsistence expenses and loss of earnings. That is essential if the necessary investigations are to proceed.

My noble friend Lord Robathan turned our attention to issues in Northern Ireland, and said very powerfully that something has to be done about prosecutions of veterans in Northern Ireland 30 or 40 years after the event. I very much share my noble friend’s concern that these legacy investigations must recognise that the vast majority of deaths in the Troubles were the direct responsibility of the terrorists. Northern Ireland would not be the peaceful place it is today without the tireless work and many sacrifices made by the Armed Forces.

The noble Lord, Lord Bew, also referred to issues in Northern Ireland, and in particular the soldiers from Bloody Sunday who face prosecutions, whereas the terrorists do not. The noble Lord will recognise that, as a Ministry of Defence Minister, I cannot comment on or influence possible prosecution decisions. I am sure that those who make such decisions will take due note of his words.

I shall of course write to noble Lords whose questions I have not had time to answer today. At the end of a debate of this kind it is right for me to conclude by reiterating my unwavering admiration for our Armed Forces. The job they do, protecting and defending our freedom, security and prosperity in often difficult and challenging circumstances, is second to none. In this spirit the Government are seeking to move forward and deliver their manifesto commitment to ensure that our Armed Forces are able to do their job effectively, safe in the knowledge that they have our full and unstinting support, and confident in our ability and intent to protect their freedoms when they return home.

[Lord Craig of Radley]

My Lords, the Minister mentioned bringing forward some further information about combat immunity shortly. Can he define “shortly”?

[Earl Howe]

I believe that I said “very shortly”, and I say that advisedly—it will be within the next month.