Armed Forces Bill

Lord Mackay of Clashfern Excerpts

Tuesday 1st March 2016 Grand Committee

Moved by

[Lord Mackay of Clashfern]

9: After Clause 14, insert the following new Clause—
“Limited disapplication of the Human Rights Act 1998
The provisions of the Human Rights Act 1998 shall not apply to any member of the armed forces engaged in military operations outside the United Kingdom, with the exception of those rights protected by the Geneva Conventions of 1949.”

[Lord Mackay of Clashfern (Con)]

My Lords, this amendment seeks to explore the result of a case known as Smith and others v Ministry of Defence, which has provoked a good deal of concern among those experienced in the military and in service. I feel that it is right to try to deal with it in the course of this Bill. It is therefore necessary for me to explain as quickly as I can what the judgment entails. There was a fairly sharp difference of opinion within the Supreme Court about the rule that should apply.

It was a case before seven judges concerning claims arising out of the deaths of three young men and the suffering by two other young men of serious injuries while serving in the British Army in Iraq. The claims related to the training given to the soldiers before their engagement with the enemy, the provision of suitable equipment and the selection made of available equipment for a particular operation. They fell into two groups. The first, the Challenger claim, was the result of a “friendly fire” incident that occurred during combat when Iraq was being invaded by the coalition forces in 2003. The second was the result of a series of attacks using roadside bombs on personnel travelling in Snatch Land Rovers in 2005 and 2006 when combat was over and had been replaced by a period of military occupation. The British forces were assisting the civil power in Iraq, which at the time had an interim Government.

It is very important to understand that, at least in substance, the claims were not against those involved in the operations. The report of the Supreme Court concerns a stage in the proceedings when the question was whether the pleadings disclosed a case that should proceed to a full trial of the facts. The claims concerned the European Convention on Human Rights and the common law of England. Article 1 provides that:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”.

All the judges of the court agreed unanimously that the jurisdiction of the United Kingdom extends to securing the protection of Article 2 of the convention to members of the Armed Forces when they are serving outside the territory of the United Kingdom. That was an important point because, until then, there had been a general feeling that jurisdiction depended on the territorial extent of the state in question.

Article 2.1 was brought into play by that unanimous decision. It provides that:

“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”.

After detailed consideration of the relevant decisions of the European Court of Human Rights, the noble and learned Lord, Lord Hope of Craighead, summed up the position in this way:

“The guidance which I would draw from the Court’s jurisprudence in this area is that the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article. It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy”.

That is a reflection of a line of authority that indicates that, for example, the chief constable of a police force does not have a specific duty enforceable in the law of negligence in respect of individual members of the public in his area. The noble and learned Lord went on:

“So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy”.

That is the important point to think about in relation to the decision—that it did not impute any liability to those who were directly or actively engaged in direct contact with the enemy. He continued:

“But finding whether there is room for claims to be brought in the middle ground”—

that is, between the two—

“so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content, is much more difficult. No hard and fast rules can be laid down. It will require the exercise of judgment. This can only be done in the light of the facts of each case”.

That is one result of the analysis in the case of Smith.

I should mention that the convention is modified by a protocol which provides for a modification of convention obligations where a member of the convention is threatened by war. However, this was deemed by the noble and learned Lord, Lord Hope, to have no application to the circumstances that he was considering, as the operations in Iraq were not the result of a threat of war against the United Kingdom. It is interesting to consider whether the United Kingdom can engage in war against Iraq when Iraq is not at war with the United Kingdom.

The other basis of the claim was a duty of care laid upon the body responsible for the safety of the soldiers by the common law of England. This is a consideration completely separate from the Human Rights Act. As an exception to the general application of that duty, the courts have developed the concept of “combat immunity”. The noble and learned Lord, Lord Hope, used as a formulation of this concept a statement by Mr Justice Dixon in an Australian case. He said:

“To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy”.

In discussing this subsequent development, the noble and learned Lord, Lord Hope, pointed out that, being an immunity, it has to be strictly construed. He concluded on both grounds that an application of these views to the case before the court required a close consideration of the facts and that it should proceed to a full trial. With that conclusion, three of his colleagues agreed, but Lord Carnwath, who was in the minority on the claims in the first group, agreed with the other four that the claims in the second group should go to trial—that is, where it was no longer a combat situation but a peacekeeping situation.

The minority judgment was first given by Lord Mance. He disagreed for a reason which he stated thus as far as the common law basis of the claim was concerned:

“I consider that the Challenger claims, which are only in common law negligence, should be struck out in their entirety on the basis that the state owes no such duty of care as alleged with regard to the provision of technology, equipment or training to avoid death or injury in the course of an active military operation”.

Again, that is a reflection of the principle that I mentioned in relation to, for example, the police. On the human rights basis, Lord Mance said:

“In my opinion therefore this Court should proceed on the basis that the policy considerations which guide its domestic law in the present area of national interest will find an echo in Strasbourg, and not invade a field which would involve, in the context of claims for civil compensation, extensive and highly sensitive review with the benefit of hindsight the United Kingdom’s country’s policies, strategy and tactics relating to the deployment and use of its armed forces in combat. The United Kingdom’s performance of its investigatory and procedural duties under article 2 is not in doubt”—

and he mentions a few inquiries, including the Chilcot inquiry, lamenting that it was rather late, although that was in 2013. He concludes:

“The issue with which this judgment is concerned is whether deaths and (at common law) injuries in combat fall to be investigated in the civil courts, at whatever level in the armed forces, Whitehall or the government responsibility for them is suggested to arise. The answer I would give is, no”.

Lord Carnwath agreed to a large extent with Lord Mance, but he took the view that as some of the claims related to what amounted to peacekeeping operations, a joint approach did not apply.

That is a short analysis of the judgment and the issues involved. As I said, my amendment is simply phrased to allow this matter to be considered. I suggest that it is for your Lordships to consider what should be done in the light of this judgment, which is an important one with strong differences of opinion echoed at the highest level in our legal system.

One possibility is to do nothing and just leave the issue as unresolved. It has been resolved by a majority of the Supreme Court and that would stand, but due to the fact that there is such a sharp difference of opinion I thought that it was worth finding out whether your Lordships would consider legislation on this point. I suggest that the first option for legislation is to provide that no action for negligence will be available when injury or death occurs in combat or in military peacekeeping operations to the personnel involved in those operations. That is the minority judgment—that if the injury occurs in the course of a military operation, combat or peacekeeping, there should be no claim in negligence. The second is that it would apply only in combat operations and that, if it were a peacekeeping operation, a claim would arise.

The major option, if one goes along with the judgment of the noble and learned Lord, Lord Hope, and those who agreed with him, would be that no action for negligence will be available when injury or death occurs in combat or military peacekeeping operations against anyone involved in these operations but it will be available against others if that is realistic and proportionate. That seems to me to be what is said about the Human Rights Act. Again, the question would be whether that applies only in combat operations or whether peacekeeping operations are also included.

--- Later in debate ---

[Lord Thomas of Gresford]

Before he finishes, may I ask the noble Lord about claims against the Armed Forces? For example, Iraqi claims have been brought forward that rely, to some extent, on the Human Rights Act. What is the impact of his amendment on that?

[Lord Mackay of Clashfern]

This applies only to the injury or death of those serving in the military on behalf of the British Crown. As the noble Lord, Lord Campbell, pointed out to me just before we came in, operations nowadays may not be on behalf of only the British Crown. They may be carried out, for example, in combination with the Americans, the French or some other nation. That is a further complication which did not arise in the case of Smith. The same principles could possibly apply in that situation. However, it does not deal at all with actions against, for example, Iraqis or any other people among whom our Armed Forces might be serving. The jurisdiction applies, in this particular case, to the injury or death of those serving. There would be implications of other kinds, not dealt with in Smith, so far as people who are not members of the Armed Forces are affected by actions of the Armed Forces.

[Lord Craig of Radley]

My Lords, it was a privilege to put my name to the amendment of the noble and learned Lord, Lord Mackay. I have looked upon it very much as a probing amendment to give the Government an opportunity to indicate how their thinking is going. We have a problem with the Human Rights Act and Armed Forces legislation. Indeed, when the Human Rights Act was debated here in 1998 I drew attention to the potential problems that might arise. My concerns were dismissed then by the noble and learned Lord, the Lord Chancellor. I quote what he said then:

“I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces”.—[Official Report, 5/2/98; col. 768.]

Whatever flexibilities the noble and learned Lord had in mind, they have I fear proved to be valueless and ephemeral. Cases against the MoD and individual service personnel affecting our forces on operations overseas have proliferated. Some were settled out of court. Others made the prolonged and tortuous passage up through the courts, with the MoD appealing a couple to the Supreme Court in 2013. The Committee has had a good exposition of what happened in the Supreme Court. It was a thorough and nuanced finding but there was a 4/3 split and they did not really resolve the issue.

Later that year, in a debate led very admirably by the noble Lord, Lord Faulks, I suggested that the Armed Forces Bill before the Committee today would be a suitable vehicle for legislating to ease the problems faced by the MoD and the Armed Forces on operational activity overseas. So, as I made quite clear at Second Reading, I was dismayed to find that no attempt has been made to tackle the problem in this Bill. The Government have had the better part of three years since the Supreme Court judgment to consider what form legislation should take. I have pointed out in debates on this issue that it was not going to go away —it had legs—and that it would be a failure of political leadership not to tackle it.

In recent weeks, the much-heralded Bill of Rights has been mentioned as shortly to be published. Indeed the noble Lord, Lord Faulks, indicated as much in his response to the second Oral Question this afternoon. I thought that the noble Lord also confirmed that it will incorporate legislation to help to resolve the problems created for the Armed Forces by the incompatible legislation that affects them. If so, I very much hope that whatever detailed form the legislation takes, it will introduce further amendment to this Armed Forces Bill when it is enacted. It would be preferable to contain any new legislation within the principal Armed Forces Act, rather than once again having two separate pieces of legislation about the behavioural discipline of the Armed Forces. Indeed, in the debates on the then Human Rights Bill in 1998, I suggested that while the Armed Forces were of course a public body, it was acceptable that they were, and indeed should be, treated separately in legislation. I suggested that any aspects of human rights that were to apply to the Armed Forces should be incorporated into that Armed Forces legislation. If this approach had been adopted then, we might not be facing the present difficulties.

The comments of the noble Lord, Lord Faulks, on the second Oral Question this afternoon seemed to imply that the clauses affecting the Armed Forces were already drafted. If so, surely the Bill before the Committee this afternoon could be an appropriate vehicle for getting this legislation enacted, particularly if the Bill of Rights is to be delayed, and may, as a whole, have some considerable difficulty in reaching the statute book. Has this been considered? If so, can we expect government amendments to this Bill on Report?

--- Later in debate ---

[Earl Howe]

My Lords, I am extremely grateful to my noble and learned friend Lord Mackay for having given the Committee the opportunity to examine the set of issues that are of fundamental importance for our Armed Forces and indeed for the Government. As my noble and learned friend explained, the amendment would end the application of the Human Rights Act 1998 to service personnel engaged in military operations outside the United Kingdom. I have very great sympathy with the intention behind the amendment. Recent legal developments have raised justifiable fears in many quarters that service personnel could be unwilling in future to take the rapid and high-risk decisions essential for operational effectiveness, due to the fear of litigation. The Government fully believe that international humanitarian law, as embodied in the Geneva conventions, should have primacy over human rights law in the field of armed conflict. Addressing that issue was a manifesto commitment for this Government.

None the less, for reasons that I shall explain, I cannot invite the Committee to press this amendment. The Government are concerned about and determined to address the risks arising from developments in international human rights law, which have the potential to impose ever greater constraints on the ability of the Armed Forces and the MoD to operate effectively while defending the UK and its interests. As pledged in my party’s manifesto, the Government are absolutely committed to replacing the Human Rights Act, and will be consulting in due course on our proposals for a Bill of Rights. It is only right that that consultation should include the important question of how the Bill of Rights should apply outside the UK, and will ensure that all aspects of the change are properly and fully considered, not least its implications for the rights of our own Armed Forces, which would be affected by this measure. So I suggest that it is in the broader context of a Bill of Rights that these important issues are best considered. We are working closely with the Ministry of Justice as it develops its proposals.

I was very grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his intervention. When we speak about combat immunity, there are two issues that need to be distinguished, as he made clear. There are negligence claims and common law, where service personnel believe that the MoD or the Government have put them at undue risk—for example, due to decisions on procurements—and then there are human rights claims under the Human Rights Act or the ECHR, which are claims against the MoD brought either by service personnel in respect of injury or death or by civilians.

On the first of those categories, the negligence claims, I was grateful for the comments of the noble Lord, Lord West. We are concerned that the Smith judgment has left the position on liability for events on the battlefield unclear. That is why we are considering legislation to bring about the necessary clarity. The noble Lord, Lord Tunnicliffe, asked me what harm could result from the Smith case. My response is that, as my noble and learned friend explained, in the Smith case—with no disrespect to the noble and learned Lord, Lord Hope—there were such strong differences of opinion between members of the Supreme Court that it is reasonable for thought to be given to legislating.

We recognise that there is a concern about UK court decisions eroding the doctrine of combat immunity, which prevents legal claims being brought against the Government for negligence in the course of duty in armed conflict. However, my noble and learned friend Lord Mackay has indicated that his amendment would make provision only with respect to the second category that I mentioned, injury or death of members of the Armed Forces. It would not deal at all with claims brought against the MoD under human rights law in respect of the actions of members of the Armed Forces—for example, by Iraqi nationals. The Government are concerned about both classes of case, and our ongoing work relates to both.

I should make clear that my noble and learned friend’s amendment relates to human rights claims and those claims brought under the ECHR. We are concerned about both types of case and are examining them in the context of our work on the Bill of Rights.

The noble and gallant Lord, Lord Craig, asked, in effect, why we could not legislate more speedily, perhaps through this Bill. I am as keen to make speed with this as he is but, alas, we are not quite yet ready. There are a number of areas that we are looking into, including examining different areas of legislation where changes could be made and what more we could do to support our Armed Forces personnel and their families. Work is under way, and we will be announcing further detail in due course.

I am most grateful to my noble and learned friend for raising this important issue today. It has been a truly excellent debate. I am confident that when we come to introduce our proposals for the Bill of Rights, we will address effectively the problem that is rightly of concern to him, and we will do so in the context of a much needed and thorough overhaul of our domestic human rights law. On that basis, I hope that my noble and learned friend will agree to withdraw his amendment.

[Lord Mackay of Clashfern]

My Lords, it was never my intention to press this amendment. It was simply intended to raise these issues, which are extremely complicated. For example, in the case of Smith, Lord Mance pointed out that it is alleged that the major under whose command the firing tank was operating was told of the situation, and that there was a question in relation to the Snatch claims about whether the commander on the ground had chosen the particular vehicle that was involved in the incident. Although there is no question of anyone who was serving being involved in the claim against him, there is difficulty in finding out whether or not there has been a breach—for example, in relation to procurement or supply. You have to investigate the facts on the ground and the decisions of the commanders.

Perhaps I may take the example that the noble Lord, Lord West, gave of his own situation in the Falklands. My understanding is that, if there were a claim in relation to that by someone who had been severely injured and if the application of these principles that are being adumbrated came into play, the question of whether, for example, the anti-aircraft provision on the ship was adequate might have depended on where it was thought the ship would have gone. As I understand it, the difficulty was that when the ship got very closely inshore, the anti-aircraft provision was not adequate. If the ministry were being sued for failure to provide better anti-aircraft equipment—I am thinking of this as a possible scenario—there might be a question as to whether, in the circumstances of the engagement, the commander of the ship was required to go to a place where the anti-aircraft guns would not work properly or whether he could have operated effectively somewhere else. I do not imagine for a minute—

[Lord West of Spithead]

Perhaps I may interject for a moment. I could not possibly have gone anywhere else. I just want to make that clear.

[Lord Mackay of Clashfern]

That is the question.

[Lord Tunnicliffe]

Surely the judgment given by the noble and learned Lord, Lord Hope, makes that absolutely clear. The issue of the operational decisions in combat could not, in the view of the Supreme Court, be prayed in aid of negligence. The issue is those decisions not taken in a combat environment.

[Lord Mackay of Clashfern]

I entirely agree. The noble and learned Lord, Lord Hope, made that as clear as he could. However, as Lord Mance pointed out, the problem is that, while that is the principle, it is quite difficult to apply in practice. If you are trying to sue the ministry, the question may be whether what happened on the ground followed what from the ministry had done. The Snatch case is the easiest one, in a way. I used the case of the noble Lord, Lord West, only because he mentioned it himself, but the Snatch case is perhaps the best example of where it is possible to say that the ministry provided the right equipment but the right vehicle was not picked. There are three vehicles waiting and you pick one. It is not the right one; the other two are somewhat different. I am not suggesting for a minute that the people who made the choice could be sued for negligence, but the question of whether or not the claim against the higher authority is made out may depend on the investigation of these things. That is what the noble and learned Lord, Lord Mance, was talking about.

As I said, I never intended to press this amendment at a later stage; I simply tabled it to raise the issues and to see what can be done. My approach would be that we should see what we want the final situation to be. We should forget what the human rights convention has to say. We should look at what we want and consider legislation. We should believe that if it is suitable legislation it will be covered by the margin of appreciation and that the human rights convention, which of course we cannot alter ourselves, will not be affected in any way. With great respect, as a result of all this debate, that is the approach that I would commend.

I am sorry that we have gone beyond the time when we were supposed to finish, but I regard myself as not completely responsible for that because things depend on what went before. I beg leave to withdraw my amendment and I do not propose to raise it on Report.

Amendment 9 withdrawn.