To ask Her Majesty’s Government what is their reaction to the judgment of the Court of Appeal on 18 May regarding the applicability of the Human Rights Act 1998 to members of the Armed Forces operating in combat zones.

My Lords, first, I am sure that the whole House will wish to join me in offering sincere condolences to the family and friends of Private Robert McLaren from the Black Watch, 3rd Battalion The Royal Regiment of Scotland, and Lieutenant Paul Mervis from the 2nd Battalion The Rifles, who were killed in operations in Afghanistan this past week, and to the families of the RAF reservist and the air cadet who died in the accident at the weekend.

Turning to the Question, as my right honourable friend, the former Secretary of State, said in the other place on 1 June:

“We are strongly committed to protecting the human rights of our armed forces. However, the implications of the recent Court of Appeal judgment in the case arising from the tragic death of Private Jason Smith could open the door to routine legal challenges against the Ministry of Defence to decisions made by service personnel entrusted with the conduct of operations. The Chief of the Defence Staff has made these concerns clear in his own message to the armed forces. I am urgently considering the matter, and will decide shortly whether we need to appeal the decision to the House of Lords”.—[Official Report, Commons, 1/6/09; col. 1.]

My Lords, 10 soldiers have been killed in Afghanistan in less than a month, all but one from explosions, and we on these Benches send our condolences to all their families and to the families of those killed in the jet accident.

I thank the Minister for her Answer. We welcome the fact that the MoD has offered commanding officers indemnity from prosecution under human rights law. Will the Minister put the Chief of the Defence Staff’s letter to commanding officers in the Library?

This judgment results from a conflict between English common law, which recognises that the duties of the Armed Forces include putting one’s own life in peril and ordering others to do so, and European human rights law, which emphasises protection of life as a priority. If the Government do not appeal, or an appeal fails, will the Government undertake to include in primary legislation provisions that human rights cannot prevail in combat zones, as this judgment is causing serious operational problems for the Armed Forces?

My Lords, first, I am very happy to provide a copy of the CDS’s statement to the chain of command. It is an important one, setting out very clearly that he wants to assure commanders at all levels that the judgment does not alter the situation in respect of their authority to make operational decisions. That is extremely important and something that we must ensure continues. This is a very difficult and complex area; we support human rights, both in general and in the case of our armed services. The Ministry of Defence accepted that the Human Rights Act applied in the tragic case of Private Smith, but we also believe that operations must go ahead effectively and that every split-second decision that is taken in the field should not be revisited in a court of law later. We do want clarity and that is what we will seek, but we are still taking advice on the situation and we will make a decision in due course.

My Lords, is the Minister aware that an amendment was tabled to the Human Rights Act to exclude the Armed Forces on grounds of practicability? It was spoken to; it was supported by noble and gallant Lords. Consultation between certain noble and gallant Lords and the Government ensued, and certain assurances were given. The amendment was then withdrawn. The noble Baroness who gave those assurances happens to be present in the House. What were those assurances? Were they that they would not affect operational activity?

My Lords, we do not believe that there has to be a conflict in that way, which is why we are exploring the situation carefully. I am not a lawyer, and I was not in this House at the time of that debate, but it seems to me that we need some clarity to back up the assurances which the CDS has given. It is not a simple question of indemnity, because action would be taken against the Ministry of Defence and not an individual commander. We want a clear legal framework for the avoidance of doubt, because, as I said earlier, operations have to go ahead effectively. The CDS’s statement was aimed at assuring those commanders in the field that that was the case.

My Lords, I join in the expression of condolence towards the loved ones of our great soldiers who have died heroically in combat. I fully agree with the way in which the balance has been expressed by the Minister. Does she know that, during the Court of Appeal hearing, the Government rightly conceded that the Human Rights Act applies to protect soldiers’ human rights at military bases, and that the Court of Appeal said that it did not seem very logical for it not to apply when they were in an ambulance or in the desert? Does the Minister also know that the court made very sensible recommendations as to what the coroner should do? I can find nothing in the judgment which suggests a conflict between the vital need for the military to be under direct control in operational matters and at the same time their having their human rights protected. Is that the view that she provisionally accepts?

My Lords, as I said, I am no lawyer and I would be very cautious about what I said on any matter. We accept that human rights legislation applies on military bases and, as I said, we acknowledged that in the case of Private Jason Smith in terms of the situation that arose. We accept that we should be very cautious about human rights overall and have a big responsibility. We take our duty of care very seriously. We spend a lot of money improving equipment and in training and tactics, all to minimise risk. However, it is impossible in a difficult, operational situation to rule out risk entirely. Our commanders have a difficult responsibility which they exercise with every care. Therefore, we must have clarity so that operations can go ahead effectively and that every decision made on operations is not gone through in great detail by a court at some later stage.