Armed Forces Bill

Debate between Earl Howe and Lord Mackay of Clashfern

Tuesday 1st March 2016 Grand Committee

[Earl Howe]

My Lords, I am extremely grateful to my noble and learned friend Lord Mackay for having given the Committee the opportunity to examine the set of issues that are of fundamental importance for our Armed Forces and indeed for the Government. As my noble and learned friend explained, the amendment would end the application of the Human Rights Act 1998 to service personnel engaged in military operations outside the United Kingdom. I have very great sympathy with the intention behind the amendment. Recent legal developments have raised justifiable fears in many quarters that service personnel could be unwilling in future to take the rapid and high-risk decisions essential for operational effectiveness, due to the fear of litigation. The Government fully believe that international humanitarian law, as embodied in the Geneva conventions, should have primacy over human rights law in the field of armed conflict. Addressing that issue was a manifesto commitment for this Government.

None the less, for reasons that I shall explain, I cannot invite the Committee to press this amendment. The Government are concerned about and determined to address the risks arising from developments in international human rights law, which have the potential to impose ever greater constraints on the ability of the Armed Forces and the MoD to operate effectively while defending the UK and its interests. As pledged in my party’s manifesto, the Government are absolutely committed to replacing the Human Rights Act, and will be consulting in due course on our proposals for a Bill of Rights. It is only right that that consultation should include the important question of how the Bill of Rights should apply outside the UK, and will ensure that all aspects of the change are properly and fully considered, not least its implications for the rights of our own Armed Forces, which would be affected by this measure. So I suggest that it is in the broader context of a Bill of Rights that these important issues are best considered. We are working closely with the Ministry of Justice as it develops its proposals.

I was very grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his intervention. When we speak about combat immunity, there are two issues that need to be distinguished, as he made clear. There are negligence claims and common law, where service personnel believe that the MoD or the Government have put them at undue risk—for example, due to decisions on procurements—and then there are human rights claims under the Human Rights Act or the ECHR, which are claims against the MoD brought either by service personnel in respect of injury or death or by civilians.

On the first of those categories, the negligence claims, I was grateful for the comments of the noble Lord, Lord West. We are concerned that the Smith judgment has left the position on liability for events on the battlefield unclear. That is why we are considering legislation to bring about the necessary clarity. The noble Lord, Lord Tunnicliffe, asked me what harm could result from the Smith case. My response is that, as my noble and learned friend explained, in the Smith case—with no disrespect to the noble and learned Lord, Lord Hope—there were such strong differences of opinion between members of the Supreme Court that it is reasonable for thought to be given to legislating.

We recognise that there is a concern about UK court decisions eroding the doctrine of combat immunity, which prevents legal claims being brought against the Government for negligence in the course of duty in armed conflict. However, my noble and learned friend Lord Mackay has indicated that his amendment would make provision only with respect to the second category that I mentioned, injury or death of members of the Armed Forces. It would not deal at all with claims brought against the MoD under human rights law in respect of the actions of members of the Armed Forces—for example, by Iraqi nationals. The Government are concerned about both classes of case, and our ongoing work relates to both.

I should make clear that my noble and learned friend’s amendment relates to human rights claims and those claims brought under the ECHR. We are concerned about both types of case and are examining them in the context of our work on the Bill of Rights.

The noble and gallant Lord, Lord Craig, asked, in effect, why we could not legislate more speedily, perhaps through this Bill. I am as keen to make speed with this as he is but, alas, we are not quite yet ready. There are a number of areas that we are looking into, including examining different areas of legislation where changes could be made and what more we could do to support our Armed Forces personnel and their families. Work is under way, and we will be announcing further detail in due course.

I am most grateful to my noble and learned friend for raising this important issue today. It has been a truly excellent debate. I am confident that when we come to introduce our proposals for the Bill of Rights, we will address effectively the problem that is rightly of concern to him, and we will do so in the context of a much needed and thorough overhaul of our domestic human rights law. On that basis, I hope that my noble and learned friend will agree to withdraw his amendment.

[Lord Mackay of Clashfern]

My Lords, it was never my intention to press this amendment. It was simply intended to raise these issues, which are extremely complicated. For example, in the case of Smith, Lord Mance pointed out that it is alleged that the major under whose command the firing tank was operating was told of the situation, and that there was a question in relation to the Snatch claims about whether the commander on the ground had chosen the particular vehicle that was involved in the incident. Although there is no question of anyone who was serving being involved in the claim against him, there is difficulty in finding out whether or not there has been a breach—for example, in relation to procurement or supply. You have to investigate the facts on the ground and the decisions of the commanders.

Perhaps I may take the example that the noble Lord, Lord West, gave of his own situation in the Falklands. My understanding is that, if there were a claim in relation to that by someone who had been severely injured and if the application of these principles that are being adumbrated came into play, the question of whether, for example, the anti-aircraft provision on the ship was adequate might have depended on where it was thought the ship would have gone. As I understand it, the difficulty was that when the ship got very closely inshore, the anti-aircraft provision was not adequate. If the ministry were being sued for failure to provide better anti-aircraft equipment—I am thinking of this as a possible scenario—there might be a question as to whether, in the circumstances of the engagement, the commander of the ship was required to go to a place where the anti-aircraft guns would not work properly or whether he could have operated effectively somewhere else. I do not imagine for a minute—