Armed Forces Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 1st March 2016 Grand Committee

[Baroness Wilcox (Con)]

Surely we must hear another voice.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, the judgment in Smith, although 72 pages long, deals with one aspect only of the several problems that face the military as a result of the application of human rights, as opposed to international humanitarian law, to our Armed Forces serving abroad. It is important to recognise that Smith deals only with claims by our own soldiery regarding deaths and serious injuries against the ministry, not against individual officers. This amendment, and this is important, deals with only one aspect of Smith: the human rights claims brought by our armed services, not negligence claims.

The fact of the matter is that even if this amendment is put in place, it leaves the negligence capability—the ability of the soldiers to claim negligence against the military—still open to them. So questions of compensation and of blame are still open to be litigated. As I made plain on Second Reading, I would deal with the compensation claims as well, but not in such a way as to deprive the injured soldiers or the relatives of the deceased soldiers of any money. Instead, without their needing to establish liability and negligence, I would increase their entitlement beyond that under the pension scheme by giving them the equivalent of common law damages and getting rid of all the litigation. It is the litigation and the risk of litigation arising out of these cases that inhibits our military capabilities, puts people on the defensive and does all the things that worry the senior military personnel.

This is a minor point—and I speak with diffidence—but I would not draft the provision in the way that this particular proposal is drafted. It seems to me that it goes too wide. What is required to deal with the human rights aspect of Smith is to embargo claims under Articles 2 and possibly 3 of the convention on the part of our armed services. We could have some formulation along the lines that members of the armed services engaged in military operations outside the UK should not be entitled to claim by reference to Article 2, or Articles 2 and 3, of the European convention. As presently drafted, it disapplies the entire Act and, as my noble and learned friend Lord Hope rightly says, there are undoubtedly aspects of the Human Rights Act which plainly would apply. For example, take a court martial of one of these personnel serving abroad: one would presumably want to apply Article 6 of the convention to their case. It is not that which we are concerned to deal with; it is only the claims aspect.

Similarly, there is nothing in this amendment or in Smith which deals with the very real problems that have been caused to other aspects of our armed services abroad, such as claims by foreign combatants and civilians, claims that Strasbourg dealt with in cases such as al-Skeini, and cases concerning the detention of foreign suspects, as in the case of al-Jedda.

I believe that it is quite possible to introduce this limited disapplication of a right to rely on Articles 2 and 3 consistently with our human rights obligations. In other words, I think that there is a very powerful argument for saying that the majority in the Supreme Court in Smith did not actually need under the convention to go as far as to accept that Article 2 and Article 3 liability could arise on the part of the UK in respect of any of these claims.

On Second Reading, I mentioned, as did others, the publication Clearing the Fog of Law, which is compulsory reading for anyone who takes a serious interest in the problems caused by applying human rights law to our Armed Forces abroad. It deals with this narrow question raised by Smith at pages 43 to 45. I will not quote from it at length, but it is written by Tom Tugendhat, a retired colonel who is now a Member of Parliament, and two distinguished legal academics, one from Cambridge and one from Oxford. They state:

“It is strongly arguable that the UK Supreme Court misconstrued Article 2 of”,

the convention,

“imposing more extensive obligations than the European Court of Human Rights would mandate. Legislative reversal of Smith … is the only practical way that the outer boundary of Article 2 of”,

the convention,

“can be tested before the ultimate interpreter of the Convention in Strasbourg”.

--- Later in debate ---

[Lord Thomas of Gresford]

I was going to put this question to the noble and learned Lord, Lord Hope, but does the noble and learned Lord, Lord Brown, consider that a way forward might be to attempt legislatively to put the boundaries of combat immunity forward?

[Lord Brown of Eaton-under-Heywood]

I am glad to have been asked that question because it gives me the opportunity of saying this. Combat immunity is not of relevance here in respect of the convention claims. It is highly relevant, and was the answer sought to be advanced by the ministry, to the negligence claims. What was held, as my noble and learned friend said, by not four but five members of the court was that it did not extend to the peacekeeping mission that was relevant to the negligence claims.

I would not deal with the negligence part of the claims by extending the scope of combat immunity. I would deal with those parts, as I said at Second Reading, by legislating under Section 2(2) of the Crown Proceedings (Armed Forces) Act which enables one, in effect, to disapply tort law in respect of our Armed Forces. However, I would give them the compensation that the noble Lord, Lord Tunnicliffe, is understandably intent that they should have by making sure that they do not lose out by getting less under the pension scheme than they would if there were successful common law claims. I would give them the money on a no-fault liability basis because they have incurred these ghastly injuries serving the national interest in combat abroad.

However, I regard that as having nothing whatever to do with the limited scope of this amendment, which is simply to disapply the relevant part of the convention to that aspect of these claims. It would disapply Articles 2 and 3 so that, if necessary, it could be tested in Strasbourg whether the majority in the court in Smith needed to go as far as they did in saying that Article 2 applied. As the noble and learned Lord, Lord Mackay, said, I believe that the court would say that the margin of appreciation here allows us not to apply Articles 2 and 3 in this sensitive situation where Armed Forces are serving in combat abroad.

[Earl Attlee]

My Lords, I strongly support my noble and learned friend and his noble and gallant supporters. I have deployed on two military operations, in addition to aid operations. One was peacekeeping and one was war-fighting but for our purposes there was no difference because a peacekeeping operation can deteriorate into a war-fighting or combat operation.

On both operations I willingly put my life, limb and security at the disposal of Her Majesty. “Her Majesty” might sound an old-fashioned term but to me it is all-encompassing. It means the nation, its citizens, the Government, the CDS—who at the time was the noble and gallant Lord, Lord Boyce—and the chain of command.

In return, the nation regards such service as highly commendable. If I did not come back or I was badly injured, it would be jolly hard luck. Statistically, it was actually unlikely. Whenever you deploy on military operations, it is a sad fact that it is not likely that everyone is going to come back intact, and you have to accept that if you are prepared to authorise military action. Obviously, my family would mourn my demise, but what I would not have wanted is the chain of command and the staff wasting their time on inquiries or litigation about my bad luck when they are trying to prosecute a campaign and to secure the absolute minimum number of casualties overall. I suspect that all of the cause célèbre cases that I have read about have been either misreported or misleadingly reported in order to make a good story. In some cases, I know this to be the case because at the relevant time I was in the headquarters handling the issue. If noble Lords want to be briefed privately on that, I am quite willing to do so.

It seems to me that there are several difficulties with involving the legal system when there appears to be a failure in an operation, the planning of it, the resourcing of it or the training for it. The first issue I am certain about because I have seen it myself. Sadly, in a few cases the deceased or those around him or her are the authors of their own misfortune. Sometimes, there is a failure to adhere to the training. I have read news reports where I have had to conclude that for one reason or another the training was not adhered to. Obviously, the MoD is not going to use any of these defences against a claim or misleading news report. We would be shocked if it did so, and I think that some Members of the Committee are a little bit shocked that I am taking this line.

The second issue is that there may be a very good technical reason why some equipment is not used. There could be intelligence to suggest that it is not a good idea. For instance, the capability could have been compromised in some way or using that equipment might be of benefit to opponents. There might be a military judgment to be made about which technology or capability is the highest priority to deploy to theatre. The Committee needs to recognise that in an operation logistic capacity is neither infinite nor perfect.

In about May or June 2003, I was running around in Basra province in southern Iraq in a soft-skin Land Rover. I was heavily armed with a Browning 9 millimetre pistol. My body armour was somewhere in the back of the Land Rover and I am reasonably confident that my driver had his SA80 rifle. It was a benign environment and I did not need protected mobility. But then the situation changed for reasons that the useless Chilcot inquiry may eventually tell us. Following tours had to adopt a much higher state of readiness and needed better equipment, and this was not anticipatable.

The final difficulty is morale. It does not improve morale anywhere in defence to have to endure all this completely unfair and inaccurate criticism. For instance, imagine that you are an expert in the DSTL and read a report suggesting that the very clever equipment you are developing and deploying is in some way inadequate. I have made this point before and I will make it again. I think that trying to pin responsibility for an individual fatality arising from Operation TELIC 1 against the then Labour defence Ministers is outrageous. There may well be questions about the legality, necessity, grand strategy and post-conflict planning of TELIC 1. However, the operation was militarily brilliant. We are one of the few nations in the world that could have undertaken it at all. Most nations cannot even get close to what we can do. We deployed a division out of theatre. We helped to get a regime to collapse at the cost of a mercifully low number of casualties, tragic though they were. The reality of military operations is that one never has all the training or equipment that one would desire or that could be made available in time. What you need is far better training and equipment than your opponent has, and that is exactly what happened on Operation TELIC 1. Noble Lords should make no mistake: in a deployed headquarters every fatality hurts like hell. I know; I have been there.

My final point is that there is a perverse inverse law that the level of scrutiny attached to each fatality on an operation is inversely proportionate to the number of fatalities taken. Proof of this is that if we had taken 1,000 fatalities on Operation TELIC 1, would anyone be worried about the ones who are currently a cause célèbre? I think that the Committee knows the answer.