Armed Services: Claims

Lord Hope of Craighead Excerpts

Thursday 24th November 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a great pleasure for me to follow the noble and gallant Lord, Lord Craig of Radley, and, like him, I join in congratulating the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on the way that he has introduced this debate. Like him, I speak against the background of national service. I served for two and half years in north Germany, or what was then West Germany, being trained under the eagle eye of people who had served in the closing years of the war in northern Europe and also in Korea. That is the background against which I approach the subject.

The noble and learned Lord has drawn our attention to two issues that certainly require attention if morale is to be sustained and the Armed Forces are to be enabled to do their job in armed combat outside the territory of the United Kingdom. Both of these problems are linked to the extraterritorial effect of the European convention—the ultimate safeguard against the abuse of power—during the invasion of Iraq and the post-conflict situation there. This is as explained in that part of the judgment in Smith on which all the judges were agreed; it was the unanimous part of that judgment. These two problems are: first, claims against the Ministry of Defence arising from the death or injury of service personnel; and, secondly, claims by civilians under Article 3 alleging actions by Armed Forces personnel in breach of that article, which prohibits torture or inhuman and degrading treatment or punishment.

On the first point, there is a question which I hope the Minister can answer—namely, what is the magnitude of the problem? How many cases are there, and what is really going on there? I suggest that anyone who takes the time to read through paragraphs 64 to 66 and 75 to 76 of the majority judgment in Smith will appreciate that it was concerned with procurement and not with actions taken by people on the ground in the face of the enemy. It also sought to strike the right balance very carefully, recognising that the law should exercise great caution in entering this field of activity at all. Therefore, the question arises of how great this problem is.

As for the solution that the noble and learned Lord suggested—an order under Section 22 of the Crown Proceedings Act—as he pointed out, the repeal of Section 10 of that Act was the result of a review which showed that damages which courts awarded in some cases could greatly exceed the benefits that servicemen received under their pension scheme. It is a fact that every statutory scheme which depends on funding by the Government is inherently parsimonious, and that it tends to become more so with time. Therefore, I suggest that we should consider very carefully whether it would be fair to front-line service personnel to confine them to a statutory Armed Forces compensation scheme, even with the adjustment that the noble and learned Lord, Lord Brown, has suggested.

Then there is the question of how to solve the much greater problem of unmeritorious claims against members of the Armed Forces. The magnitude of the problem is beyond question, as the noble and learned Lord explained. The solution is rather difficult. I wish I could be satisfied that there was an easy answer. The room for derogation under Article 15 of the convention is much narrower than some people seem to think. It is qualified by the phrase:

“In time of war or other public emergency threatening the life of the nation”.

That sets a high threshold. Article 2 on the right to life can be derogated from only in the case of deaths resulting from lawful acts of war. Derogation from Article 3—the prohibition of inhuman and degrading treatment and torture—is not permitted at all.

The word “war” speaks for itself, but the other phrase is much more difficult. It suggests, as was explained in Smith in paragraph 59, that the power to derogate,

“is available only in an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community”,

as the European court held that it did during the Troubles in Northern Ireland. Lord Bingham explained that his view was that it was hard for the terms of that article to be met in a case,

“when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw”.

He was speaking about Iraq. He thought that it was very difficult to see how the conditions could ever be met in that situation.

One has to take account of the case of Baha Mousa, which the noble and learned Lord, Lord Brown, mentioned, which shows that, despite the best of intentions and the most careful training—which I am quite sure everyone in the Armed Forces receives—there are cases where abuses occur and where the protection of Article 3 is most needed. Therefore, I suggest that derogation is a very difficult route to go down. We should also bear in mind that, if a derogation is attempted, I think it would have to be made by a statutory instrument, which would be open to challenge by judicial review. The noble and learned Lord, Lord Brown, will recall the cases of control orders where there was a derogation by statutory instrument and, to the great dismay of the Government, the derogation was set aside.

As for the decision in Al-Skeini, I tend to support Lord Rodger’s view that the Human Rights Act applies to a public authority acting outside the United Kingdom. Of course, that can be altered by an Act of Parliament, but one has to bear in mind that claimants could still go to Strasbourg in search of their remedy and that Article 46 of the convention requires contracting states to abide by the judgment of the Strasbourg court in a case to which a contracting party is a party. So it is not easy to escape from the obligations under the convention.