Queen’s Speech

Lord Craig of Radley Excerpts

Wednesday 11th June 2014 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, after the noble Lord, Lord Rogers, I return to matters of life and death. Does the Minister share my concern about how interpretation of human rights legislation—I stress the word “interpretation”—has impacted or may impact on the actions or behaviour of the Armed Forces? Does he agree that it threatens, even erodes, the ethos of trust and mutual support that forms the bedrock of discipline and all activity in the three services? The Armed Forces Acts have laid down a litany of what constitutes a service crime or misdemeanour. Behaviour of all in the services are bound by that legislation.

The statutory quinquennial revision and renewal of those Acts are used to ensure that they were relevant to and remained in step with inevitable changes in social and societal behaviour and other perceptions of the day, but they do not directly deal with human rights. The Armed Forces and human rights legislation are potentially incompatible. Only service men and women effectively contract with the state to make the ultimate sacrifice, backed by the Armed Forces Acts to enforce discipline and obedience.

How does that mesh with Article 2, the right to life, under human rights legislation? In 1998, in concert with the noble Lord, Lord Campbell of Alloway, I spoke to amendments to exclude the Armed Forces from the Human Rights Bill, on the grounds that it would be preferable that aspects of human rights conventions be enacted within the Armed Forces Acts. At Third Reading, the noble and learned Lord the Lord Chancellor sought to reassure the House. 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 noble and learned Lord the Lord Chancellor’s reassurances have been frittered away—most spectacularly by the Supreme Court findings last June.

The cardinal point for me in that ruling was that it was far from unanimous; three of the seven judges dissented. In their minority view, they stated that,

“the approach taken by the majority will make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army. It is likely to lead to the judicialisation of war”.

Is that not a wake-up call? A position of absolute legal clarity on the field of battle for forces stationed overseas, or even on home soil, does not exist.

That is the last thing that servicemen and their commanders want to hear. They expect to and should want to deal in absolutes: is it right or wrong; is it legal or is it not; am I covered or am I not? Nuanced findings and the plethora of cases dealt with or being dealt with by the MoD over the past decade or so can but create confusion, muddle and uncertainty.

I will quote verbatim the majority finding of the Supreme Court because it is very important. It stated:

“It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy. So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy. But finding whether there is room for claims to be brought in the middle ground, so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content, is much more difficult. No hard and fast rules can be laid down. It will require the exercise of judgment. This can only be done in the light of the facts of each case”.

So no prior certainty there for the Armed Forces in the wide field that lies in that middle ground.

As is clear from the number of cases faced by the MoD in recent years—some settled out of court; others being challenged by the MoD in the courts—there is a plethora of claims in this middle ground. The Supreme Court finding can only embolden more to be made.

I believe that the time has come for that minority view of the Supreme Court that war cannot be controlled or conducted by judicial tribunals to be reflected in new legislation that will not countenance it for the Armed Forces.