Armed Forces: Legal Challenge

Lord Hope of Craighead Excerpts

Thursday 7th November 2013 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I must, of course, declare an interest as I was, indeed, the author of the decision in Smith v Ministry of Defence which has given rise to this debate. I appreciate very much that our decision has given rise to concern, so I very much welcome the opportunity that the noble Lord, Lord Faulks, has given us to examine some of the issues that the case has raised.

When a judge writes a judgment, one of the rules that he has to work with is that the judgment must speak for itself. It is not open to him to add anything to it or to subtract anything from it once it has been issued, and it is not my intention to do that, nor would I wish to do so. However, I thought that it might help if I were to say a little about how the leading judgment which I wrote is designed and about what it says, as it is vital to any decisions about where we go from here that it should not be misunderstood.

As the noble Lord, Lord Thomas of Gresford, indicated in what he has just said, under our system it is open to anybody who believes that he or she has a claim of damages against a public authority to bring that claim to court. When that claim is brought before the court, the judge has to deal with it. There are two sides to every argument and the issues cannot be ducked, however difficult or uncomfortable they may be.

The claims with which we were dealing arose out of casualties sustained in two distinct phases of the United Kingdom’s engagement in Iraq. The first was a friendly fire incident involving two Challenger tanks during combat operations on the fourth day of the offensive. The second involved the use of Snatch Land Rovers on two occasions during a period when our forces were exercising the powers of government for the provisional Administration in Iraq—assisting the civil power, in other words. These claims were brought under two distinct branches of our law. The claims in the two Snatch Land Rover cases are brought under the Human Rights Act for breach of a convention right. The Challenger friendly fire claims dealing with combat do not raise a human rights issue at all. They are brought under the common law only. The second of the two Snatch Land Rover cases has an additional case under the common law, too.

As for the human rights claims, we held that a decision of the Strasbourg court left us with no alternative but to hold that the protection of the right to life under Article 2 of the convention applies to members of the Armed Forces when they are serving anywhere outside the territory of the United Kingdom, as well as inside its territory. Of course, as has been pointed out, that raises the question of how that article was to be applied in the situations that were described to us in these cases. The majority held that the court did not have sufficient facts to decide the issue for itself, so the Snatch Land Rover cases would have to go to trial. However, we gave as much guidance as it was open to us to give in paragraph 76 of the judgment. I said that the court must avoid imposing unrealistic or disproportionate obligations on the state in connection with the planning for, and conduct of, military operations in situations of armed conflict. It would be easy to find that the claims are beyond the reach of Article 2 when those thought to be responsible were actively engaged in contact with the enemy. In the Snatch Land Rover cases, it was not open to us to declare that the state had absolute immunity in these matters. The law with which we are dealing—human rights law, convention law—does not work that way, but we expected the trial judge to pay very close attention to the guidance which we were giving.

Under the common law claims, we first had to examine the doctrine of combat immunity, which has been referred to, because the MOD argued that all the common law claims should be struck out on this ground. As noble Lords have heard, the majority rejected that argument. But it is very important to note that the claims in the Challenger friendly fire incident—when it was plain that our forces were, indeed, engaged in combat—were not directed at those who were conducting the operations on the ground. Those who formulated the claims were very careful to direct their claims in a different direction. The complaints were of failures in training and the provision of equipment, which occurred long before the tanks crossed the start line. So the issue which has caused concern was not directly raised at all in the Challenger tank claims. The majority view was that combat immunity did not apply to things done or admitted to be done at that preliminary stage. However, it is crucially important to note—and I cannot stress this point too strongly—that we did not say that the doctrine of combat immunity no longer exists: it remains part of our law. The noble Lord, Lord Faulks, gave us a description of people engaged with the enemy on the beaches, in the air and in other situations. That is not what our judgment was dealing with, and there is nothing here which deprives commanders, and those serving under them in that situation, of that protection while they are engaged in combat.

The difficult question we were left with arose in the Snatch Land Rover cases and it was a different one. It was whether the immunity applies to what was going on in Iraq after the combat phase was over, when our troops were, as I have said, assisting the civil power, no doubt in situations of considerable danger. Here too, the majority held that the court did not have the information to decide for itself whether the claims should succeed. We did not rule out the possibility of applying the immunity, but the issue had to go to trial because we needed to know more—as will the judge—about the precise situation with which our forces were dealing at the time. In paragraph 99 of the judgment, I repeated the guidance given in paragraph 76 that, when considering the issue of what is just and reasonable, great care must be taken not to subject those responsible for decisions at any level who are engaged in operations of the kind that were being conducted in Iraq after the end of hostilities to duties that are unrealistic or excessively burdensome.

As the Minister has made clear on several occasions, the case is now in the hands of the trial judge. I suggest that it would be premature to draw any further conclusions until his decision is known. However, I hope very much that it will be appreciated that those serving in our Armed Forces, to whom we owe so much, are not as vulnerable to legal challenge as some people have been suggesting. As the author of the judgment, and as a former national service officer, I am greatly encouraged by the perception that the noble Lord, Lord Thomas of Gresford, has taken from it and the way in which he has appreciated the guidance we were trying to give.