Armed Forces: Legal Challenge

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 7th November 2013 Lords Chamber

[Lord Brown of Eaton-under-Heywood (Non-Afl)]

My Lords, I originally put my name down to speak in this debate because I understood that my noble and learned friend Lord Hope of Craighead would be unable to be here. It had been my overriding concern to make plain that Smith is a good deal more nuanced and measured a judgment than generally understood, that the senior judiciary giving the majority judgment in Smith had not lost their marbles, and that the reaction has been something of an overreaction in terms of estimating the damage that it does to our fighting capabilities. The Defence Secretary was quoted as saying,

“We can’t have troop commanders living in fear of how lawyers back in London might interpret their battlefield decisions”,

and somewhat similar concerns were expressed by noble and gallant Members of this House during Questions. Those concerns are substantially misplaced. When my noble and learned friend Lord Hope told me that he could take part in the debate after all, I wondered whether to scrub from the list. However, I decided not to, partly because not having been on the case I am perhaps better able than him to emphasise the comparatively limited effect of the majority judgment. I also want to make plain that I am prepared to acknowledge and recognise the problems that the majority judgment creates for the future, perhaps not merely for the Armed Forces but for the justice system as well.

As to the limited effect of the judgment, three things must be recognised. First, members of the Armed Forces, notwithstanding that they are on active service abroad, come within the UK’s jurisdiction for the purposes of the European Convention on Human Rights. That was the unanimous decision of all seven members of the Supreme Court in Smith, and that conclusion was plainly now dictated by a Grand Chamber decision in Strasbourg—a decision, I may add, that was contrary to what we had previously decided in the Appellate Committee here in the House, to which I was party.

Secondly, however—this is very important—it by no means follows that the fact that a claimant was on active service abroad when killed or injured is irrelevant to a claim under the convention; far from it. As the majority’s judgment makes plain, the convention will not be applied as imposing on states obligations which are unrealistic and disproportionate. Policy decisions made at a high level of command and things done on the battlefield will necessarily fall outside the protection of the right to life under Article 2 of the convention and a wide measure of appreciation is given to member states as to what are the requirements of armed service are.

Thirdly, all the various claims that were considered—claims under the human rights convention and separate claims brought in common law negligence, without reference to the convention—which were grouped together in Smith in the Supreme Court, were being dealt with at a preliminary stage of the litigation, namely as strike-out applications. The question for the court was therefore: should these claims be allowed to proceed, however unpromising they might appear, to see whether once all the facts were established they should succeed, or—this was the minority conclusion—should they receive their immediate quietus on the basis, frankly, that enough was already known to decide that they could never properly succeed? The majority, of course, took the former view, but made it plain that it was far from clear that all, or indeed any, of these claims would in the end actually succeed. So much for the limited effect of the judgment.

I will now turn briefly to the problems which, as I have already said, I nevertheless recognise that the majority judgment poses for the future. This appears clearly from the judgments of the minority, in particular those of the noble and learned Lord, Lord Mance and Lord Carnwath, with whom the noble Lord, Lord Wilson agreed. The problem is this: to say that first, high-level policy decisions, and secondly, battlefield decisions, fall outside convention protection, leaves a wholly undefined area of middle ground between those two extremes; an area within which the majority suggests that, depending on all the detailed facts of the case, liability might arise. That, as the minority judgment suggests, makes extensive litigation almost inevitable in a number of cases, and is likely to lead to the “judicialisation of war”. These passages have already been emphasised by various of your Lordships. It might, therefore, have been preferable to have ruled with the minority that on the known facts, without the need for any more, no positive obligation to protect life could arise under Article 2 of the convention, and Strasbourg would not suggest otherwise and, similarly, that it would not be fair, just and reasonable to impose on the Ministry of Defence any common law duty of care in respect of any of these deaths or injuries; rather they should be regarded as falling within the scope of this somewhat ill defined defence of combat immunity. That is the burden of the argument of the noble Lord, Lord Faulks, and I have to say, one can readily see its attractions.

As to the way ahead, it must now surely be necessary to await the final outcome of these particular actions, hopefully sooner rather than later. One would have thought they should be expedited. Parliament cannot legislate retrospectively in respect of these claims. Depending then on how matters appear, legislation may be thought desirable. I suggest that this would most sensibly and conveniently be done by the Secretary of State making an order—the noble Lord, Lord Thomas of Gresford, has already referred to this path—pursuant to Section 2 of the 1987 Act which would revive the effect of Section 10 of the 1947 Act. Essentially this would exclude tort liability for the injury or death of any member of the armed services in connection with warlike operations or activities abroad.

I will make a brief final point. Legislating to allay the fears of those who may be criticised—soldiers or the Ministry—in these cases is also by definition legislating to end the compensation hopes of a number of brave injured soldiers. It may be the right thing to do, but we should not lose sight of that consideration.