Armed Forces Act (Continuation) Order 2017

Lord Craig of Radley Excerpts

Tuesday 21st March 2017 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I should like for a moment to narrow the wide focus of this very welcome debate and turn to an issue that I have repeatedly raised in debates in your Lordships’ House: combat immunity and the legislative fog that surrounds it. I have long argued that it is essential to tackle incompatibilities between the Armed Forces, human rights and international humanitarian legislation—that is, incompatibilities between international humanitarian law and the European Convention on Human Rights as interpreted by the European court in Strasbourg, and incompatibilities between the current Armed Forces Act and the Human Rights Act. I first raised this matter in 1998 when the House was considering the Human Rights Act. Since then, and particularly in the past decade, I have pressed and encouraged the Government of the day to come forward with new proposals, particularly to provide a clearer definition, understanding and reach of combat immunity.

A series of judgments handed down by the Strasbourg court about the geographic areas and the exercise, even for a limited time, of effective mandate of the European Convention on Human Rights, have overridden some of the judgments of our national courts and blurred the primacy that is due to the lex specialis of international humanitarian law in combat situations. The Supreme Court judgment in Smith and others in 2013 upheld the defence of combat immunity, narrowly defined, but invented an area of middle ground edging the land of combat immunity, where the writ of Article 2 and other articles of the European convention were deemed not automatically excluded. The judgment was not unanimous; three of the seven judges did not support the finding. They were concerned that the courts would be drawn into the judicialisation of combat and potentially inhibit the actions of commanders and others in operations.

However, the majority finding of the Supreme Court, in the absence of any clear guidance from Strasbourg, was that the boundary between combat immunity, narrowly defined, and that putative middle ground had to be determined on a case-by-case basis. For the service man or woman, however, that is not a clearly described or marked boundary. To them, the meaning of the phrases “narrowly defined” and “the middle ground” are unclear. It does not help them to appreciate in advance, or at the time, whether their operational activity in the course of hostilities or a threat of hostilities is or is not combat-immune. The services operate to, and respond to, executive direction. They need to be clear what their mission is, what the constraints on the exercise of force are and whether their actions can be deemed combat-immune. Faced with conflicting interpretations of legislation, and the practical experience in the past decade or so of the complexities and protracted nature of claims and counterclaims arising out of injury or death to their fellow service men and women, this situation cries out to be clarified.

Indeed, as far back as October 2013, I asked,

“will Her Majesty’s Government consider new legislation to define combat immunity, in order to clarify the current position”?—[Official Report, 23/10/13; col. 1003.]

Happily, after a number of false starts and some indecision, the Government have set about doing just that. The MoD’s consultation paper, circulated earlier this year, briefly set out their case and sought views on a variety of issues relating to the scope and definition of combat immunity. The nub of their proposals is that the Government will legislate to enshrine the position that combat immunity should apply to deaths or injuries that occur in the course of combat. This will be combined with awards of compensation for the death or injury of entitled individuals equal to that which a court would have awarded as if the Government and their servants had been negligent, even when no negligence arises. This will remove a requirement to take legal action against the Government to gain the fullest compensation for a death or injury in combat.

I do not underrate the challenge of a statutory description and definition of combat immunity. The Government have put their mind to it and I welcome that. This time they must see it through—no ifs, no buts. Clearly, new legislation will be required. In so far as the enlarged compensation package is concerned, this can be achieved by secondary legislation to the Armed Forces (Pensions and Compensation) Act 2004. This Act allows for the Secretary of State to make orders about pensions and compensation schemes. With an affirmative order, it would seem straightforward.

Combat immunity, however, will call for primary legislation, presumably led by the MoD, rather than by the Ministry of Justice, which had been involved previously in the legislative considerations. The Bill of Rights—of forgotten memory—was trailed for some considerable time as a possible statutory vehicle for combat immunity. Now that the MoD has the lead, it should consider whether new legislation should be by amendment to the Armed Forces Act, rather than by a new, free-standing Bill.

The Armed Forces have been disadvantaged in the past by serious incompatibilities in primary legislation to which I have already referred. The existence of combat immunity, as defined by statute, would directly relate to many of the disciplinary provisions in the Armed Forces Act. It would be helpful if those who have responsibility for and oversight of service behaviour —when deployed on operations—had all the statutory provisions, including for combat immunity, within one service statute. I urge the Government to give this suggestion serious consideration.

A further suggestion for legislation is to enact a time limit to forestall historic investigations and the charging of individual service personnel many years after they have been actively involved in a combat scenario. Recent experience of historical allegations relating to Iraq—and their inept handling—shows the obvious problem of finding witnesses and reliable evidence 10 years after the event being examined, let alone 20 or even 40. This points to having some time limit, as the noble Lord, Lord Astor of Hever, suggested a few moments ago. Combat immunity compensation claims will surely have to be time-limited. Why not also have a similar time limit for allegations made about behaviour when combat immunity obtains? These two proposals clearly do not refer directly to the continuation order that is the subject of this debate and to which I give my full support.