Armed Forces: Legal Challenge

Lord Rosser Excerpts

Thursday 7th November 2013 Lords Chamber

[Lord Rosser (Lab)]

My Lords, this is an important issue, and I, too, express my thanks to the noble Lord, Lord Faulks, for providing the opportunity to discuss the matter in some detail and shortly to hear the Government’s position from the Minister. Virtually all—if not all—of your Lordships who have spoken have been able to call on their direct and practical knowledge of the law or on their direct and practical knowledge of the realities of conflict and the realities of the way in which our Armed Forces operate and work on our behalf. Unfortunately I am not in that position. Like the noble Lord, Lord Ramsbotham, I am extremely appreciative of the Library note.

Although, as has been said, there have been previous decisions by courts that have given rise to the concerns that have been expressed today, it has been the Supreme Court judgment last June, apparently changing a Supreme Court judgment from 2010, which has raised the profile further of the issue of our Armed Forces and their vulnerability to legal challenge. Shortly before the Supreme Court judgment, in May this year the High Court apparently ordered hundreds of inquest-style public hearings to investigate alleged unlawful killings and mistreatment of civilians by British forces in Iraq. Recent legal challenges to the Armed Forces have fallen into two main categories: those relating to the Armed Forces’ treatment of civilians and those which relate to the Armed Forces’ treatment of their own personnel.

Although I am not a lawyer, I would like to talk about the Supreme Court judgment and what, as I perhaps mistakenly understand, it said. The proceedings concerned three sets of claims arising from the deaths of three of our servicemen and serious injuries to two others in Iraq. The first set, brought in negligence, arose from a friendly fire incident involving British tanks and alleged failures by the Ministry of Defence properly to equip the tanks involved and give the soldiers adequate recognition training. The second set arose from the detonation of improvised explosive devices level with the Land Rovers in which the soldiers were travelling and claimed that the Ministry of Defence breached the European Convention on Human Rights by failing to take preventive measures to protect life in the light of the real and immediate risk to life of soldiers who were required to patrol in the Land Rovers. The third set, like the first, was also brought in negligence, by—I believe—the son of one of the soldiers killed in the Land Rover incident, and claimed various alleged failures on the part of the Ministry of Defence.

The Ministry of Defence argued at the Court of Appeal that the Land Rover claims should be struck out because at the time of their deaths the two soldiers were not within the jurisdiction of the UK for the purposes of the European convention and because, on the facts put forward, the MoD did not owe a duty to the soldiers at the time of their deaths under Article 2 of the convention, the right to life. The Ministry of Defence also argued on the Challenger tank claims and the third set, the negligence claim, that they should be struck out on the principle of combat immunity and because it would not be fair, just or reasonable to impose a duty of care on the Ministry of Defence in the circumstances of those cases.

The Court of Appeal decided that the Land Rover claims should be struck out and that the Challenger claims and the negligence claim should proceed to trial. The Supreme Court decided unanimously, as has been said, that in relation to the Land Rover claims the two soldiers were within the UK’s jurisdiction for the purposes of the European convention at the time of their deaths. By a majority, the Supreme Court held that the Land Rover claims should not be struck out on the ground that the claims were not within the scope of Article 2 of the European Convention on Human Rights and, also by a majority, that the Challenger claims and the negligence claim should not be struck out on the ground of combat immunity or on the ground that it would not be fair, just or reasonable to extend the MoD’s duty of care to those cases. The effect of the Supreme Court’s decision was that all three sets of claims could proceed to trial.

The summary provided by the Supreme Court to assist in understanding its decisions states on the Land Rover claims under Article 2 of the European convention:

“In this area, the court must fully recognise the wide margin of appreciation to be given to the state and avoid imposing obligations which are unrealistic or disproportionate”.

It also states:

“The circumstances in which the various decisions were made need to be inquired into before it can be determined with complete confidence whether or not there was a breach of article 2. However, given the Court’s guidance on the margin of appreciation to be given to the state, it is far from clear that the claimants will be able to demonstrate such a breach”.

On the Challenger claims and the further, separate, negligence claim, the summary says that:

“The doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy. The Challenger claims are not within the scope of the doctrine because they relate to decisions which are sufficiently far removed from the pressures and risks of active operations against the enemy. The … negligence claim is less obviously directed to things done away from the theatre of battle so it is arguably within the doctrine”.

The summary then goes on to say:

“The circumstances in which active operations are undertaken by the UK’s armed services today vary greatly and cannot all be grouped under a single umbrella as if they were all open to the same risk of judicialising warfare. However, considerations similar to those affecting the Snatch Land Rover claims under article 2 arise in relation to whether it would be fair, just and reasonable to impose a duty of care on the MoD in this area. The question whether the negligence claims in this case entail subjecting the MoD to duties that are unrealistic or excessively burdensome cannot properly be determined without hearing evidence”.

The Supreme Court has not determined the outcome of the claims it addressed in its judgment. It has made the decision that the claims should proceed to trial. It is not for me to interpret the wording in the Supreme Court summary document, which clearly states that the full judgment of the court is the only authoritative document.

I have, however, noted what the noble and learned Lord, Lord Hope of Craighead, said today. It is clear that there is now a feeling of uncertainty over where our Armed Forces and the actions that they take now stand in relation to the law and the vulnerability to legal challenge. Whether the position will be clearer when the cases that were before the Supreme Court have been to trial remains to be seen.

The Government are clearly concerned about the lack of clarity. Subject to what the Minister has to say, the Government appear to be waiting, not unreasonably, for the outcomes of these cases in the hope that the decisions will provide greater clarity before determining what, if any, action needs to be taken and, accordingly, what advice should be given to Armed Forces personnel.

Cases are, of course, determined on their merits and on the evidence that is placed before the court, but clarity is often dependent on judgments laying down clear principles and guidelines that can be applied and taken into account by those who might be contemplating legal action and by those who feel they might be subject to legal proceedings. Nobody wants to see a situation in which our Armed Forces are less able than they are now to protect, further and act in the national interest on our behalf because of uncertainty over the legal position or because of new or changed legal considerations and the perceived or real prospect of vulnerability to legal challenge that did not exist before.

I am aware that the Ministry of Defence now has to deal with a considerable increase in claims in the light of earlier judicial decisions and no doubt also, in some cases, of a feeling that the exact legal position should now be tested. It is interesting to note that in his dissenting opinion to the Supreme Court decision, the noble and learned Lord, Lord Mance, said that,

“the approach taken by the majority will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army. It is likely to lead to the judicialisation of war”.

Dealing with claims costs time and money and deflects resources, human and financial, from other defence-related work. Apart, however, from the vital need to get uncertainty resolved so that proper consideration can be given as to whether and, if so, what further action needs to be taken by government, the other key issue is whether our Armed Forces, involved in or preparing for operations, are being inhibited in what they do on our behalf in the national interest as a result of uncertainties about exposure to potentially successful legal challenges and claims. I hope the Minister will be able to give assurances that that is not the case because, if it is, we are in a very difficult and serious situation.