Armed Forces Bill

Debate between Lord Hope of Craighead and Lord Tunnicliffe

Wednesday 27th April 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I shall say something about the Scottish system of justice. If one is talking about convergence, which part of the United Kingdom one comes from may be relevant to a consideration of the issues. I did my national service in a Scottish regiment and I live in Scotland. The Scottish system of justice differs from the English in relation to verdicts.

The Scottish system at the moment depends on the simple majority. There is a jury of 15 and someone can be found guilty so long as eight on the jury are in favour of guilty. Verdicts are from time to time returned by a simple majority as narrow as that, although most majority verdicts are much more in the area of 13 to two. The fact is, however, that a simple majority verdict is enough for a conviction to be recorded.

So far as the question of lingering doubt or confidence in these verdicts is concerned, my experience as a prosecutor and a judge in Scotland is that that system is accepted without question. There is, of course, an additional element in the Scottish system in that there are three verdicts, not two, and a jury of 15, not 12. I am not concerned to explore the size of the jury or the use of the not proven verdict. The important point is that a simple majority verdict is good enough.

The system has one feature that I think is absent from the proposal in Amendment 1. There is never a question of a failed trial because no verdict has been reached. A Scottish jury always reaches a verdict. There is no question of a failure to reach the required majority because a simple majority will do. If it is not achieved, there is an acquittal. It may be that an acquittal is good enough. When the jury comes to return its verdict, it is either not guilty or not proven. If it is guilty, the jury is then asked, “Is that unanimous or by a majority?” and the foreman will say whether it is a majority or unanimous verdict. The real point and the value of the system for the Scots is that retrials are not required because there is a failure to reach a verdict. If the required figure is not reached, acquittal follows. There is some value in that.

I do not know how far one takes the principle of convergence, but it might be relevant to consider how it applies to those who come from Scotland to serve in any of the three services, who in their domestic system do not have the system which applies in England and Wales, and in Northern Ireland.

[Lord Tunnicliffe (Lab)]

My Lords, I worked out before this evening that Amendments 1 and 2 were, in fact, Amendment 3 in Grand Committee on 1 March. Mindful of the guidance in the Companion, that arguments fully developed in Committee should not be repeated on Report, I took the trouble to read the report of the Grand Committee. At the time, I indicated that I was to some extent attracted to some of the arguments of the noble Lord, Lord Thomas of Gresford. I said:

“I am putting a burden on the Government, today and perhaps in subsequent meetings and in writing, to argue the case for why we should not move in the general direction of these amendments and make the whole process for the defendant more analogous to that of a civil court”.—[Official Report, 1/3/16; col. GC 48.]

I still cleave to that general direction. The Minister then made a spirited defence, stretching from col. 50 to col. 54, which I read and also found persuasive in the sense that making small changes is likely to have unforeseen consequences which might be difficult. I have heard nothing today to change my general direction of travel. The Government should consider examining in the Ministry of Defence, perhaps in concert with the Ministry of Justice, whether the decision-making process where the citizen is on trial—the member of the Armed Forces becomes a citizen at this point—should not be closer to the civil system.

Moving in that direction would create some significant change and there may well be some significant consequences. I am not convinced that today’s amendments would not have unforeseen deleterious effects. Accordingly, these Benches will not be able to support them. We ask the Government to think seriously about the arguments that have been brought forward in Committee and on Report, and to look at the extent to which there should be some movement towards the citizen when on trial having much closer rights and a similar process to the civilian courts.

Armed Forces Bill

Debate between Lord Hope of Craighead and Lord Tunnicliffe

Tuesday 1st March 2016 Grand Committee

[Lord Hope of Craighead]

My Lords—

[Lord Tunnicliffe]

I wonder if the noble and learned Lord, Lord Hope, would let me speak before him because I intend to quote him at some length and he can correct any mistakes I make. I make it clear that the Opposition would not support this amendment as set out. I am not talking about little technicalities about wording; I am talking about an erosion of the Human Rights Act. We believe that that is a proper and admirable piece of legislation and that its retention is important. No doubt this will be the basis of a major battle between the parties in the weeks to come when the legislation is published.

I turn to the specific area of the judgment. Before Second Reading, I had not heard of Smith and others v Ministry of Defence. I googled it, thinking, “This will give me the information”, only to discover that the judgment was 72 pages and 188 paragraphs long. At the very moment when I had a sense of doom, I noticed that it had been given by the noble and learned Lord, Lord Hope, whose office is some 50 metres from mine, so I tried to save myself some effort by going to see him, and I thank him for the briefing he gave me.

I looked through the 72 pages to get a wider flavour of the judgment. I will concentrate solely on the Challenger 2 event. The Snatch Land Rover issue is complicated by the fact that it was not formally a combat situation but a peacekeeping one, so while it is important to the debate, it is capable of being part a much wider debate. In my view, however, the tone of the judgment on the Challenger 2 event is straightforward. The noble and learned Lord, Lord Mackay, has already quoted paragraph 76 of the judgment, but if the Committee will forgive me I shall quote a few more paragraphs. Paragraph 82 states:

“The Challenger claims proceed on the basis that there is no common law liability for negligence in respect of acts or omissions on the part of those who are actually engaged in armed combat”.

That is a pretty flat statement. It continues:

“So it has not been suggested that Lt Pinkstone or anyone else in the Black Watch battle group was negligent. Nor, as his decision to fire was taken during combat, would it have been appropriate to do so. The Challenger claimants concentrate instead on an alleged failure to ensure that the claimants’ tank and the tanks of the battle group that fired on it were properly equipped with technology and equipment that would have prevented the incident, and an alleged failure to ensure that soldiers were provided with adequate recognition training before they were deployed and also in theatre. Their case is founded entirely on failings in training and procurement”.

Its final sentence says that:

“The Ellis claim at common law also raises issues about procurement”.

If we delve further into the document, we get what is in a sense the substance of the ruling. Paragraph 95 says that:

“The same point can be made about the time when the failures are alleged to have taken place in the Challenger claimants’ case. At the stage when men are being trained, whether pre-deployment or in theatre, or decisions are being made about the fitting of equipment to tanks or other fighting vehicles, there is time to think things through, to plan and to exercise judgment. These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of these activities and to their circumstances. For this reason I would hold that the Challenger claims are not within the scope of the doctrine”—

that is, combat immunity—

“that they should not be struck out on this ground and that the MOD should not be permitted, in the case of these claims, to maintain this argument”.

Its argument was to rule that it should be struck out through the doctrine of combat immunity.

The tone of the whole judgment is summed up in paragraph 100 where the noble and learned Lord, Lord Hope, says:

“The sad fact is that, while members of the armed forces on active service can be given some measure of protection against death and injury, the nature of the job they do means that this can never be complete. They deserve our respect because they are willing to face these risks in the national interest, and the law will always attach importance to the protection of life and physical safety. But it is of paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things … go wrong. The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable”.

In other words, over and over again in the findings as I read them—as an amateur and not as a general, although I was made acting pilot officer, and having never been a lawyer, although I was a great employer of lawyers—the noble and learned Lord seems to go out of his way to express that this is not about combat. It is about when it is reasonable and practical to do so that the MoD has a duty of care.

I come back to my question. Where is the harm in sustaining the Human Rights Act as it has been used in this case, and what are the implications? The implications are that it says that simply because the process eventually leads to combat, the Ministry of Defence cannot use the doctrine of combat immunity to avoid its duty of care. Where it is reasonable to exercise its duty of care, it has a duty to do that.

Also in my career, I worked for the Ministry of Defence as a non-executive director of defence and equipment support. As such, I was asked to look into the safety of equipment in the MoD, and I have to say that it was variable. In some areas it did not meet the highest civil standard. I do not mean silly standards; I mean the general duty that you have in civil law to reduce risk to as low as is reasonably practicable. Civil law does not say that you cannot do dangerous things and no one is suggesting that the military should not, but where you have an opportunity to reduce risk, you have a duty to take it. That cannot be an unreasonable duty. My reading of the judgment is that that is where the duty remains: where it is practicable it should be exercised, but where it is impractical, specifically in combat, then a court should not regard it.

The area of harm that does exist is what in other circumstances people would call the chill factor. The Health and Safety at Work Act has been around for so long now that most industries that are subject to it, whatever you read in the press, are mature enough to live with it. However, there are still things like the presumption of guilt—the chill factor that will stop executives from doing their job. In fact people get over it and get used to it, but if it is influencing in combat the decisions that soldiers, sailors and airmen are making, then that is wrong. That is a challenge for the MoD, not a challenge to change the law but in its training, in its teaching of the doctrine and in ensuring that the people who are making decisions fully understand that this ruling does not relate to combat and that they should continue to make their combat decisions as they have been taught to, within the rules of what I loosely call the Geneva convention, and get on with the job.

We will not support this amendment. If it comes up on Report we will oppose it, or in trying to dilute the Human Rights Act, we will oppose it.

--- Later in debate ---

[Lord Tunnicliffe]

I can see why my noble friend was made an admiral and I only an acting pilot officer.

[Lord Hope of Craighead]

My Lords, I wonder whether I could say a word. First, I apologise for the fact that due to other business I was not able to hear the speech and analysis of the noble and learned Lord, Lord Mackay of Clashfern, although he did show me in advance the paper from which much of his speech was drawn. I also expressed my regret to the Minister, the noble Earl, Lord Howe, that I have other business to attend to and might not be able to be here all the time.

I should like to say a few words because I feel a heavy weight of responsibility on my shoulders; I had the responsibility of writing the judgment. It covered an enormous amount of ground. I was not responsible for all the paragraphs because other people wrote as well. The starting point of the analysis was what to make of developments in the European court in Strasbourg, which has been expanding the jurisdiction in a way that I do not think judges in this country entirely welcome. It has always been understood that the European convention applies to our embassies abroad; that is accepted and has never been in doubt.

Gradually the thinking has developed so that, for example, when in Iraq the military set up a detention centre, bringing local people in to be detained and examined there, they had the protection of the human rights convention—the right not to be tortured, the right to life and so on—because we had control over what happens within the detention centres that we set up. What is different about the law which we were trying to analyse and explain is the extension of that jurisdiction, as I think the noble and learned Lord, Lord Mackay, explained, to members of the Armed Forces serving outside the territory—not just outside the territory of the signatories to the European convention itself but outside the territory over which they have control. We are now contemplating Article 2 applying to areas where the Army are not in control of events but nevertheless have some duty, apparently, or have the protection under Article 2. That applies both ways. The amendment by the noble and learned Lord, Lord Mackay, could in fact be read as applying to the need to be protected under Article 2 as well as the right to immunity from challenge under it for things done to other people.

What I was attempting to do, having secured the agreement of all my colleagues on my analysis, was that we had to recognise that Article 2 applied outside the territory, so we had to explain what that meant. It was not an easy task. One of the problems in trying to get across to people like the noble Lord, Lord West, and others was that we were not dealing with a case that put in front of us the kind of situation that he was faced with. They did not bring a case against the commander in the tank or anyone who was actually on the ground that they were in some way subject to criticism under Article 2 or subject to a claim for negligence at common law. I rather wish they had, because we would certainly have struck it out. We would have made it absolutely plain that people in that position, the heat of battle, are not to be exposed to criticism or to litigation because of things done in those circumstances. Decisions have to be taken for all sorts of reasons and it is quite impossible for a court to analyse them as to whether they were properly taken.

All I could do in my judgment—the noble Lord, Lord Tunnicliffe, has been very generous to me by setting out the various paragraphs in which I tried to do it—was to make it as plain as I could that there is an area that the courts will not go into. I did not secure the agreement of my colleagues on what to do about the cases in front of us. There was a four to three majority in favour of allowing the Challenger cases to go to trial to find out more about the facts before a decision was taken, and there was a five to two majority about the Snatch Land Rover cases that they should go to trial as well. There can be different views about this. The advantage of more facts was in fairness to the families that what was actually going on was absolutely clear before a final decision was taken. However, I made it as clear as I could that those who were taking the cases to trial should not think they were going to succeed. They had to get over the hurdles, which I explained in the various parts of my judgments. What the result of these cases will be, I simply do not know.

I cannot add to my judgment; that is not a position that a judge can ever enjoy. My judgment has to speak for itself. All I can say is that I would not change any of the words that I see when I read it over and over again. It is a difficult problem because one has to balance the need for the military to conduct operations without impediment, whether in wartime or peacetime, with, at the same time, the interests of the servicemen and their families. The noble Lords, Lord Thomas of Gresford and Lord Tunnicliffe, both illustrated the other side of the balance. I am not suggesting that legislation should not be resorted to, if the Government think that they can improve on what I attempted to say in Smith. Lord Bingham of Cornhill, one of the greatest judges that we have had in recent times, used to say that the law is made not by scoring boundaries by sixes but that you develop the law in singles. In a way, Smith was an attempt to face up to a problem and explain under modern circumstances what could be made of it. I do not claim that we achieved perfection by any means. I am deeply sorry that it has caused such alarm among senior members of the military for reasons that I certainly did not intend. I cannot do anything about that, except to apologise to them and hope they understand what I was trying to say.

The task that the Minister faces is the very difficult one of trying to analyse exactly how to express in legislation the need for protection of the individuals serving in our interest and, at the same time, giving freedom to those who have to take the decisions not to be impeded in a way that would defeat our national interest.

There is only one other point I wish to make, which I think the noble and learned Lord, Lord Mackay, hinted at in his speech. Any legislation will have to stand up to scrutiny under the European convention itself. It has to be compatible with the convention rights. However, I think that the noble and learned Lord was pointing out the direction in which the Government could go by saying that there is a margin of appreciation, which gives quite a latitude to the Government in deciding how to frame legislation. In a way, I was trying to explain in paragraph 76 that and how the margin of appreciation might lie. Not everyone agreed with me, and perhaps the Minister can improve on what I was trying to say.

Before I sit down, I repeat my apology to the senior officers in the military who think that that are being in some way targeted by what I said. That was certainly not my intention and I did the very best I could to make it clear that they were not to be open to that kind of criticism.