Armed Forces: Legal Challenge

Lord Craig of Radley Excerpts

Thursday 7th November 2013 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I very much welcome the opportunity that the noble Lord, Lord Faulks, has given the House to debate this topic, and I commend strongly his excellent speech.

For all my 40 years of service, service discipline, enforcement and review were the responsibility of the chain of command. Since then, service legal arrangements have changed to accord more closely with human rights legislation and the view that misbehaviour and crimes in the services should largely be judged independently of that chain of command. The services have adapted, but what concerns me more is that the Armed Forces Act and human rights legislation are potentially incompatible.

Only service men and women effectively contract with the state to make the ultimate sacrifice if required, backed by the Armed Forces Act to enforce discipline and obedience. No other public servant is placed in this position. To disobey a lawful command, even one that for operational reasons may place an individual at serious risk of injury or even death, is a criminal offence under Armed Forces law. But today or in the future will the commander be at risk of a charge under human rights legislation? I acknowledge that this has not yet happened and that today’s commanders have been given assurances that the MoD would give them full support if ever it did. As has been mentioned, the Minister sought to reassure me, in answer to my topical Question following the Supreme Court judgment last June. He said:

“I do not expect it to be open to a soldier facing a charge of failing to follow orders to argue that his human rights trumped those orders”.—[Official Report, 25/6/13; col. 657.]

However, could it not go the other way, when protracted legal hindsight is brought to bear on the heat and urgency of operational decisions?

In 1998, in concert with Lord Campbell of Alloway, I tabled amendments on Report and at Third Reading to exclude the Armed Forces from the Human Rights Bill. While acknowledging that the Armed Forces were a public body as defined in the Bill—now the Human Rights Act 1998—we argued that special considerations applied to Armed Forces personnel, who may be, and often are, treated differently by legislation. As I said:

“There are offences of conduct prejudicial to good order and discipline, of disobeying a lawful command, and so on, which have no direct parallel in civilian life. These are enacted because they underpin and are vital to the operational effectiveness and discipline of the Armed Forces. Without further elaboration, the conclusion is self evident. The Armed Forces may be, and often are, treated differently by legislation”.—[Official Report, 19/1/98; col. 1354.]

The fashion of the time—remember we were not then engaged in major expeditionary operations overseas and the services were almost sidelined in the public mind—was to believe that civilian-style management rather than military-style leadership was what the services should adopt, particularly in peacetime. At Third Reading of the Human Rights Bill, the Lord Chancellor sought to assure the House. He said that,

“the Secretary of State for Defence takes the view that the Bill raises no issues which are special to the Armed Forces”.

Later in his speech he said:

“I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces”.—[Official Report, 5/2/98; col. 768.]

Since then numerous cases against the MoD have been brought under that Human Rights Act. The Lord Chancellor’s reassurances have been frittered away, most spectacularly by the way that the Supreme Court findings last June were publicised. The court’s view—albeit a minority one—that such cases were not suitable for resolution by a court seemed to be a ray of hope that could help inch the problem back to greater realism. The noble Lord, Lord Faulks, quoted the wording of the minority view, and it is worth repeating. It stated that,

“the approach taken by the majority will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army … ‘war cannot be controlled or conducted by judicial tribunals’”.

Should that realism be translated into new legislation? There is a proper reluctance in some quarters not to try to make changes because of the variety of cases that are sub judice and because today’s service men and women might be encouraged to believe that their rights were being eroded. Nevertheless, I remain concerned that there is a need to be proactive, not to await events only to find that the problem has become far more difficult and disruptive to the effective command and control of forces and personnel in operational situations.

The changes since the Human Rights Act 1998 and the assurances given then and the recent Supreme Court ruling show that this issue still has legs and will run and run unless remedies are devised and provided. This said, what proactive approach might be taken? The Policy Exchange think tank, which has been mentioned several times, argued in its study entitled The Fog of Law that such legal mission creep could paralyse the effectiveness of the military. It came up with seven options for tackling this problem. I floated two, Crown immunity and combat immunity, in my topical Question last month:

“Will Her Majesty’s Government consider new legislation to define combat immunity? ... Could this be incorporated in the Defence Reform Bill now in passage through Parliament?”.—[Official Report, 23/10/2013; col. 1003.]

Following further discussion, I now accept that this is not the right moment for primary or secondary legislation, although we should not ignore the public’s present strong support for the Armed Forces. After withdrawal from Afghanistan, and in the absence of other major overseas adventures, that support will surely fade.

The quinquennial Armed Forces Bill, due in 2016, would, however, provide a vehicle for further legislation, giving time for preparation and avoiding prejudice to current sub judice cases. A proactive game plan must be the Government’s approach. There needs to be a well resourced team charged with instigating study in academia and elsewhere to prepare the way. Waiting until something worse turns up before moving would be wrong and a deplorable failure of political and military leadership. I hope that the Minister will be robustly proactive tonight.