Armed Services: Claims

Lord Stirrup Excerpts

Thursday 24th November 2016 Lords Chamber

[Lord Stirrup (CB)]

My Lords, this is an important debate, and I, too, thank my noble and learned friend Lord Brown of Eaton-under-Heywood for securing it and for the interesting ideas that he advanced, which I support. In considering these and other aspects of the problem, it is important to be clear precisely what we seek to achieve. We are not suggesting that the Armed Forces should somehow be freed from the constraints of the rule of law. The notion that military personnel, if not kept on increasingly tight rein through legal process, would have a tendency to unlawful behaviour is totally unjustified and does great disservice to the men and women who sacrifice so much on behalf of our nation. The need to act lawfully is not a side consideration for the Armed Forces; it is an integral part of the ethos and training.

When I was an operational commander responsible for making decisions about whether or not targets should be attacked, I had a lawyer at my shoulder the entire time. We worked hand in glove to ensure that all decisions conformed with the law of armed conflict and the various other legal constraints placed on us, but I did not need a lawyer to spell out for me the various considerations of the law or the necessity of abiding by them. These had been part of my training for years and were as much a part of my thinking as the military necessity and effectiveness of the decisions I was making. The lawyer was there as a sounding board, as a provider of expert advice and as a check of last resort, should I have some sort of mental aberration, but we were not coming at the process from different angles, one military and one legal; the legal was a fundamental part of the military.

The same is true in all other parts and at all other levels of the Armed Forces. The people we are discussing today are professionals. Wider moral considerations aside, they take pride in doing their job professionally, and that means doing it under and within the law. Can I guarantee that none of them would ever act unlawfully? Of course not. Humans are not perfect and occasionally somebody, knowingly or not, will carry out an illegal act. They must be subject to the full rigour of the law.

The noble Baroness, Lady Kennedy of The Shaws, rightly highlighted the terrible Baha Mousa case, but later suggested that the MoD would generally resist investigation of such cases. I say to the noble Baroness that I was present during discussion of the Baha Mousa case in the MoD. To an individual, we were sickened. We were determined that responsible parties should be brought to justice. It was as far from resistance as can be imagined.

That said, the context of military operations is very different from that which most people experience throughout their lives. It is inherently chaotic. Operations take place in a violent arena where uncertainty abounds and an opponent is trying his utmost to wrong-foot you. In such an environment, the cleverest, most perspicacious and well-trained people will make judgments that turned out to be wrong. It is inevitable. It is inherent in the nature of the beast.

This uncertainty and imprecision extends beyond the boundaries of immediate combat. Some people have claimed that their aim is to ensure that our people go to war only with the best possible equipment. Of course we should all like that, but the effectiveness of equipment will vary according to many different factors; it cannot be perfect in all regards. Ordering an attack today with imperfect equipment may well be less costly in the long run than delaying that attack until the equipment can be improved. These are complex issues with no neat solutions.

It seems to me that that complexity has been extended beyond all reasonable grounds by the involvement of human rights legislation. The protections offered by such legislation are important in the round and are part of the very society and culture that our Armed Forces are there to defend but, ironically, we now run the risk that the way those protections are being interpreted will actually weaken that defence.

I, for one, have always been somewhat bemused by the concept of a right to life. What about the young girl who tragically dies of leukaemia? What happened to her right to life? There is, in my view, no such right—not least because it is inherently unenforceable. What there is, and must be in any civilised society, is an obligation on its members not unnecessarily to hazard the safety of others. Some may argue—rightly, I think—that this is simply another way of making the same point, but how we put things is important. It influences how we think about those things.

No military commander would ever wish unnecessarily to hazard the people under his or her command, but in the Armed Forces it is sometimes necessary to do so. The degree of necessity and level of acceptable risk are often difficult judgments, and sometimes they will turn out in hindsight to have been wrong. If the decisions were made negligently, those responsible for them should be called to account, and legal routes for doing so have long existed, but if every judgment is to be second-guessed in the courts, the result will be caution and even risk aversion. History has amply demonstrated that both tendencies are themselves damaging and dangerous over the long run. The 2013 policy paper The Fog of Law and the subsequent 2015 paper Clearing the Fog of Law provided an excellent overview of the issues involved.

Some argue that the courts can be relied upon to understand the difficult context of operations and to ensure that only egregious cases go forward, but such post-fact filtering, while better than none, will do nothing to diminish the impact on decision-making in the field. Commanders will still face the prospect of their judgments leading to legal challenge, and the assurance that they should eventually be cleared will be of no comfort to them.

In sum, we expect people in our Armed Forces to make difficult judgments in complex and ambiguous situations. With the benefit of hindsight those judgments will inevitably be called into question and, on occasion, even those making them will conclude that they turned out to be wrong. But the alternative is much worse. Hardened veterans of many nations over many centuries have averred that only one thing frightened them more than a commander who made the wrong decision and that was one who made no decision. Unless we restore some balance and provide the military with a degree of protection against the increasing tide of legal challenge it faces, that is the very situation we will be engendering.