Queen’s Speech

Lord Craig of Radley Excerpts

Tuesday 24th May 2016 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I had hoped to have learned from the gracious Speech that the Government will take forward their manifesto undertaking to,

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

If, as I shall argue that they should, the Government legislate to deal with the problems that have arisen because of the incompatibilities between human rights legislation and the Armed Forces Act, it is essential that whatever curtailment of a service man or woman’s human rights may be enacted is clearly and properly offset by the scale of compensation that will be available to the wounded or to the near relatives of any who are killed. It is as well to remember that thanks to the major advances in life-saving medical treatment, many of those who survive, albeit with life-changing disabilities, would not previously have been saved from death.

What is the key issue? It is the increasing vulnerability of the Armed Forces to legal challenge. When human rights legislation was invoked to bring cases against the MoD, the initial defence was that this legislation could not apply in cases of activity outside the United Kingdom, let alone on operations. This was overturned by the courts, which took the view that because the Armed Forces were always under UK authority, the geographic location was immaterial and human rights legislation could apply.

Cases about the impact of human rights legislation were subsequently appealed to the Supreme Court in 2013. By a majority of four to three, the court took the view that the application of the convention rights—in what it called the “middle ground” between actual close combat with an opponent on the one hand and decisions taken about the provision of suitable equipment, training or other preparations at a higher level on the other—should be judged on the evidence of the particular case. The minority’s disagreement with that finding was that military operations were not judiciable; the work of the Armed Forces should not be impeded by the threat of litigation if things should go wrong. Only this month, the Supreme Court dismissed the case against the MoD involving Iraqi citizens because it was time-expired under Iraqi law, even though the case was heard throughout in England. When the recent Armed Forces Bill was in Committee last March, I moved a probing amendment to seek the Government’s thinking on some sort of time limitation so that historic combat cases against members of the Armed Forces could not be pursued years later after reliable evidence from key witnesses was no longer likely to be available. If it is acceptable for our courts to have regard to a foreign rule of limitation, is there not scope for some similar rule when applied to operational matters for the military?

My second point is how best to reinforce the concept of combat immunity. The courts tend to view combat immunity tightly in a restrictive sense. Legislation, currently in abeyance, for Crown immunity already exists. Some amendment to that legislation may provide a way forward. Whatever statutory provision is contemplated, though, I plead that it should form part of—that is, it should be an amendment to—the Armed Forces Act. That should help to avoid the glaring legislative contradictions between human rights and Armed Forces legislation, and indeed should simplify the task for those who have to work and live by the provisions of the Armed Forces Act.

Three years ago I urged Ministers to work to bring forward legislation in time for the recent quinquennial review of the Armed Forces Act. In spite of prodding, that option was resisted. As the Minister has now indicated to us, the Bill of Rights that was shadowed in the gracious Speech is seen as a possible vehicle, but it is a long way from reaching the statute book. I fear that in spite of some recent successes in dismissing jury claims, the work of the Iraq historic allegations team is set to continue with a plethora of claims, with no help from Parliament.

In November 2013, while still a Back-Bencher, the Minister, the noble Lord, Lord Faulks, most cogently opened an excellent debate on military legal vulnerability. In winding up, he remarked:

“The wave of litigation will continue unabated, with all the consequences alluded to in this debate, unless and until Parliament intervenes. I hope and trust that the Minister will take back to the ministry the concerns expressed in the House and I look forward to a positive response”.—[Official Report, 7/11/13; col. 418.]

Let us hope that with his present responsibilities, the noble Lord is taking heed of his own advice.