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Armed Forces: Legal Challenge

Volume 749: debated on Thursday 7 November 2013

Motion to Take Note

Moved by

To move that this House takes note of the case for protecting the armed forces from vulnerability to legal challenge.

My Lords, it is entirely appropriate that today, as we approach Remembrance Sunday, we should be discussing the Armed Forces. The subject of the debate is their vulnerability to legal challenge or what is sometimes described as the increased juridification of military conflict.

It is an enormous privilege to bring the debate to your Lordships’ House. I am conscious of the fact that included in the list of those to speak in the debate are noble and learned Lords, noble and gallant Lords, and others with real experience of the issues which this debate involves and who can enlighten your Lordships’ House. I, on the other hand, am a mere lawyer. To be more specific, I am a barrister who has spent a considerable amount of the past 20 years of my professional life patrolling the borders of the law of negligence, acting for public authorities, the emergency services and professionals—but not the Ministry of Defence. I was also special adviser to the Department of Constitutional Affairs on the compensation culture.

The law of armed conflict is well established. It is no part of my argument today that we should be resiling from the Geneva convention or any other of our humanitarian international obligations or that war should in any way be a law-free zone. However, what concerns me and many others is the encroachment of our national law into the way our Armed Forces conduct themselves. The law of negligence in particular is far better suited to civilian life, such as accidents at work, or events that take place in a controlled environment, or at least one capable of being controlled.

The recent publication by Policy Exchange of The Fog of War provides a penetrating analysis of the way in which the law has developed and reaches the conclusion that,

“recent legal developments have undermined the Armed Forces’ ability to operate effectively on the battlefield”.

If this is correct, we must question whether it is time for a change in the law.

Many noble Lords will be aware of the Supreme Court’s decision this year in the case of Smith v Ministry of Defence, in which, by a majority of four to three, the court concluded that the claim should go to trial so that a judge could decide on the evidence whether the claims were covered by the doctrine of combat immunity, or could give rise to a claim based on the Human Rights Act. There are a number of reasons why I will not go into the detail of the facts of the case. First, it is not concluded. Secondly, it used to be a convention, not sufficiently honoured, that Parliament did not criticise judges. Thirdly, whatever the law should be, those who brought these claims have suffered bereavement or serious injuries and can only have our profound sympathy. Finally, even those like me who are alarmed by the implications of this judgment could not but admire the detailed and thorough analysis of the issues contained in the speech of the noble and learned Lord, Lord Hope, who spoke for the majority in the case.

However, the issues of principle which arise from that case are important and should be debated. Are judges to blame for the current situation? It is undoubtedly the case that the approach of the courts to difficult questions of immunity from claims has changed. For example, in Hughes v National Union of Mineworkers in 1991, the Court of Appeal decided that police officers who were quelling serious public disorder should not be liable for negligence on public policy grounds. The decision stemmed in part from the case of Hill v the Chief Constable of West Yorkshire in 1988, in which the House of Lords Appellate Committee decided that the police were immune from claims in negligence for failing to catch the Yorkshire Ripper, albeit that they may well have made mistakes which, if avoided, could have saved the life of the last victim or victims of Peter Sutcliffe.

The law in relation to combat immunity is judge-made. It was explained most recently in the cases of Mulcahy in 1996 and in Multiple Claimants v Ministry of Defence in 2003. It is not a neat and tidy area of the law. Its scope seems likely to be very closely confined in the future. It must be acknowledged that rather few of our judges have served in the military, whereas in the post-war period almost all would have done so. But this does not explain entirely the opening up of the law. Sir Alan Moses, in his thoughtful preface to The Fog of Law, suggested that the expectations of the public in terms of the care which should be taken in ensuring the safety of the military was a significant factor in judges’ thinking and that they probably reflected what much of the general public might think about the issue.

Another explanation is provided by Professor Anthony Forster, who points to the fact that recent developments have been,

“wars of choice rather than wars of national survival”.

One of the difficulties in the Smith case and its predecessors was the question of where so-called battlefield immunity begins and ends. There is no obvious reason why a common or garden accident which takes place at a training establishment should be any different from one that happens in an ordinary factory environment, although this may not apply to some of the more extreme forms of training which are necessary to be ready to fight in theatre. But if the doctrine of combat immunity is insufficiently precise for judges’ tastes, the effect of the Supreme Court finding is that a court will then have to examine in detail whether there was fault and, if so, whether that fault fell one side or another of the rather uncertain line which defines combat immunity or, as the Supreme Court preferred, whether it would be fair, just, and reasonable to conclude that no duty of care was owed.

In practice, this means a trial with witnesses having to justify their decisions and actions. I have recently been acting for the fire brigade in a case in which it was alleged that the incident commander was negligent in fighting a major fire in which firefighters died. It was suggested to him that the fire should not have been fought at all or that he should have ensured the evacuation of firefighters much earlier. Watching him being told that he was responsible for the death of his comrades who were close friends was an unedifying experience. That is what will happen with the military even if the case ultimately results in the exculpation of those concerned. I am driven to agree with the noble and learned Lord, Lord Mance, who gave a minority judgment in Smith. He said that the approach taken by the majority,

“will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British Army. It is likely to lead to the judicialisation of war, in sharp contrast with Stark J’s dictum in Shaw Savill (1940) that ‘war cannot be controlled or conducted by judicial tribunals’”.

One of the lawyers who is acting for a number of claimants in this rapidly growing field—and it is growing fast—was quoted as saying this in the Times on 19 October of this year:

“The court is the best place to decide these very difficult issues”.

I could not agree less. The studied calm of the Royal Courts of Justice, with vast numbers of documents and the luxury of time in which to consider issues, not to mention the benefit of hindsight, is a world away from the field of military activities. No fog, my Lords, in Court 12. Barristers like me, whose experience of military matters is restricted to an undistinguished period in the combined cadet force at school, will be seeking to second-guess military commanders facing life-or-death decisions based inevitably on less-than-perfect intelligence and almost certainly on less-than-ideal equipment at any one time. I am afraid that it is simply not enough to suggest that the courts can, in each individual case, sort out what is a purely policy matter, and therefore not capable of review by the courts, from a matter that crosses the boundary into combat immunity. The very process of deciding those issues will involve challenging military decisions on procurement, tactics and deployment, whether on a macro or micro scale. The noble and learned Lord, Lord Mance, is surely right.

We are thus entering a period where there is a risk that military decisions will be questioned and thus potentially affected by the decisions of judges. Civil servants are told to consider, when doing their work, to have regard to the hypothetical judge on their shoulder. Our Armed Forces will have such a judge with them, to paraphrase Winston Churchill, on the sea and in the oceans, in the air, on the beaches, on the landing grounds, in the streets and in the hills.

How does the Human Rights Act help? Clearly, the Strasbourg Court is not the appropriate venue in which to decide matters of fact and judgment. However, it is possible that the European Court of Human Rights may decide that any restriction on the liability of the Ministry of Defence potentially or actually violates Article 2 of the convention—or some other article, possibly Articles 3 or 8. I have real difficulty in understanding what Article 2, the “Right to Life”, really means in the context of armed conflict. There is something strangely poignant when the mother of a soldier says to the press, after the decision in Smith, “Now all those soldiers have the right to life”. Perhaps that is the effect on the public’s mind of the decision.

So what can the Government do about this? They can legislate to define combat immunity. They can consider reviving Crown immunity, something that is open to them under Section 10 of the Crown Proceedings Act 1947. They can legislate fully to exempt the MoD from corporate manslaughter and corporate homicide. They can derogate from the European Convention on Human Rights during deployed operations, as other countries have done. These are just some of a number of recommendations that Policy Exchange has put forward.

In answer to the noble and gallant Lord Craig of Radley, on 23 October, the Minister said that the Government were hoping,

“that the Court will provide clarification of combat immunity”.—[Official Report, 23/10/13; col. 1003.]

Whatever clarification is forthcoming, it will not be a solution to the problem that I have attempted to identify.

Nothing that I suggest should in any way derogate from the military covenant or diminish the Armed Forces Compensation Scheme, which provides compensation on a no-fault basis. However, to treat our brave men and women as subject to the assessment of the courts in the same way as a factory owner who has failed to fence his machinery is in my view highly inappropriate. The courts have given their response. It is not, in my judgment, the right one, and it is time for the Government and Parliament to respond.

My Lords, I thank the noble Lord, Lord Faulks, for bringing forward this important debate. I declare an interest as the chair of the Association of Military Court Advocates.

The mood of this House in the debate on the prospect of military involvement in Syria demonstrated a response to public opinion which has become less enamoured of military campaigns. The public are hugely supportive of the lower levels of the Armed Forces but less confident of the political and senior military leadership. There remains from the historic concept of Crown immunity a statutory power under Section 2 of the Crown Proceedings (Armed Forces) Act 1987 to prevent any proceedings in tort by servicemen and their families against the Crown altogether. It has never been invoked or brought into effect, no doubt because it would be political death for any Minister or his party to deny relief to the injured and bereaved arising out of the unpopular wars of choice in Iraq and Afghanistan. That power remains, however, as a backstop if this country ever again becomes involved in a general conflict with a large number of casualties.

Since there is currently no general immunity from suit, the Ministry of Defence must deal with actions, based on Article 2 of the European Convention, or on negligence at common law, brought by relatives of those killed, by injured servicemen, and by those who have been detained by British forces.

The Ministry of Defence has fiercely resisted the application of the European Convention on Human Rights in theatres of war. From my participation in the Baha Mousa case, I recall a brave officer in the Army Legal Service being reprimanded by a top civil servant in the MoD for daring to suggest that the treatment he observed in Basra of Iraqi prisoners—being hooded, hands bound, kneeling in the dirt—could amount to inhuman and degrading treatment in breach of Article 3. He was told, dismissively, by the MoD that, if he were right that the European Convention applied in Iraq, the Government should make him Attorney-General in place of the then Attorney-General who had advised otherwise.

It was the unanimous view of the Supreme Court in the Smith case that not only captured prisoners, but service men and women who have relinquished almost total control over their lives to the state, can claim the protection of the convention, even when serving outside the United Kingdom or Europe. The debate was about the scope of Article 2— that everyone’s right to life should be protected by law. In what area is it fair, just and reasonable to extend the protection of that article to service men and women? It used to be common ground that matters of high policy and the exercise of political judgment in the use of resources were not justiciable, but nor were decisions taken by commanders in the heat of battle.

In claims based on negligence, the fallback defence of the MoD has been the ill defined concept of “combat immunity”—an exemption from tortious liability in the context of actual or imminent armed conflict. Its boundaries have not been settled, and it was held that this can only be determined on the facts as found at trial. The majority in Smith were prepared to countenance actions based on inadequacies of procurement, of training, and of material which have led to death and injury.

The purpose of the paper, The Fog of Law, published by Policy Exchange, is to criticise the very limited area of potential liability outlined by the majority in Smith. It seeks, in my view, to undermine the role of the judiciary by complaining of “judicial creep”. The authors argue that the commander in the field will be looking over his shoulder; they say that his ability to act with flexibility and determination will be threatened. I consider that to be nonsense, in the light of the views expressed across the Supreme Court in the case of Smith.

The authors of The Fog of Law reflect the views of the Ministry of Defence as demonstrated in its very interesting study entitled, Risk: The Implications of Current Attitudes to Risk for the Joint Operational Concept, published in the Guardian on 26 September 2013. That MoD paper refers to the benefits which can accrue from a “who dares wins” approach to military action, an approach which will encourage individuals to accept risk. It requires positive action by the MoD to mitigate the effect of risk aversion, to preserve the utility of the Armed Forces,

“by influencing those who might mistakenly place crippling restrictions on our actions”.

The study goes further, suggesting a series of changes in MoD thinking and practices, which include reducing the profile of the repatriation ceremonies. The Royal Borough of Wootton Bassett is clearly not its favourite town. It wishes to,

“reduce public sensitivity to the penalties inherent in military operations”.

“Penalties” is Civil Service speak for death and injury. Its future work, it states, is to collect evidence,

“to demonstrate the latitude offered by existing legal frameworks”.

Wittingly or not, the authors of The Fog of Law paper seek to provide that evidence. I consider The Fog of Law paper to be a wholly unjustified and over-the-top attack on the standards of justice which should protect those who volunteer for the armed services.

Recently, in September, before a judicially led defence department inquiry in Washington DC, I was proud to outline the leadership role the United Kingdom had taken, both in the courts and in the Armed Forces Acts passed by this Parliament, in applying the rule of law to the military sphere, not least in the revolution of its courts martial processes. A series of cases from Findlay onwards in the European Court of Human Rights led to changes that are welcomed not merely in the services but in the services judiciary. It would be sad to see the Ministry of Defence take a backward step.

It is certainly not the role of the judges to run the Army, but the decision in Smith is miles away from that. The days when our Armed Forces were effectively isolated and self-contained, standing slightly apart from public attitudes, as the MoD paper succinctly puts it, are well and truly over. In a competitive market, the services require recruits of sufficient number and quality to operate increasingly sophisticated equipment and to endure the harshest of conditions. They should have all such measures of protection against death or injury and all such guaranteed human rights as is fair, just and reasonable having regard to the inevitable risks they have volunteered to run. A democratic society demands no less.

My Lords, I must, of course, declare an interest as I was, indeed, the author of the decision in Smith v Ministry of Defence which has given rise to this debate. I appreciate very much that our decision has given rise to concern, so I very much welcome the opportunity that the noble Lord, Lord Faulks, has given us to examine some of the issues that the case has raised.

When a judge writes a judgment, one of the rules that he has to work with is that the judgment must speak for itself. It is not open to him to add anything to it or to subtract anything from it once it has been issued, and it is not my intention to do that, nor would I wish to do so. However, I thought that it might help if I were to say a little about how the leading judgment which I wrote is designed and about what it says, as it is vital to any decisions about where we go from here that it should not be misunderstood.

As the noble Lord, Lord Thomas of Gresford, indicated in what he has just said, under our system it is open to anybody who believes that he or she has a claim of damages against a public authority to bring that claim to court. When that claim is brought before the court, the judge has to deal with it. There are two sides to every argument and the issues cannot be ducked, however difficult or uncomfortable they may be.

The claims with which we were dealing arose out of casualties sustained in two distinct phases of the United Kingdom’s engagement in Iraq. The first was a friendly fire incident involving two Challenger tanks during combat operations on the fourth day of the offensive. The second involved the use of Snatch Land Rovers on two occasions during a period when our forces were exercising the powers of government for the provisional Administration in Iraq—assisting the civil power, in other words. These claims were brought under two distinct branches of our law. The claims in the two Snatch Land Rover cases are brought under the Human Rights Act for breach of a convention right. The Challenger friendly fire claims dealing with combat do not raise a human rights issue at all. They are brought under the common law only. The second of the two Snatch Land Rover cases has an additional case under the common law, too.

As for the human rights claims, we held that a decision of the Strasbourg court left us with no alternative but to hold that the protection of the right to life under Article 2 of the convention applies to members of the Armed Forces when they are serving anywhere outside the territory of the United Kingdom, as well as inside its territory. Of course, as has been pointed out, that raises the question of how that article was to be applied in the situations that were described to us in these cases. The majority held that the court did not have sufficient facts to decide the issue for itself, so the Snatch Land Rover cases would have to go to trial. However, we gave as much guidance as it was open to us to give in paragraph 76 of the judgment. I said that the court must avoid imposing unrealistic or disproportionate obligations on the state in connection with the planning for, and conduct of, military operations in situations of armed conflict. It would be easy to find that the claims are beyond the reach of Article 2 when those thought to be responsible were actively engaged in contact with the enemy. In the Snatch Land Rover cases, it was not open to us to declare that the state had absolute immunity in these matters. The law with which we are dealing—human rights law, convention law—does not work that way, but we expected the trial judge to pay very close attention to the guidance which we were giving.

Under the common law claims, we first had to examine the doctrine of combat immunity, which has been referred to, because the MOD argued that all the common law claims should be struck out on this ground. As noble Lords have heard, the majority rejected that argument. But it is very important to note that the claims in the Challenger friendly fire incident—when it was plain that our forces were, indeed, engaged in combat—were not directed at those who were conducting the operations on the ground. Those who formulated the claims were very careful to direct their claims in a different direction. The complaints were of failures in training and the provision of equipment, which occurred long before the tanks crossed the start line. So the issue which has caused concern was not directly raised at all in the Challenger tank claims. The majority view was that combat immunity did not apply to things done or admitted to be done at that preliminary stage. However, it is crucially important to note—and I cannot stress this point too strongly—that we did not say that the doctrine of combat immunity no longer exists: it remains part of our law. The noble Lord, Lord Faulks, gave us a description of people engaged with the enemy on the beaches, in the air and in other situations. That is not what our judgment was dealing with, and there is nothing here which deprives commanders, and those serving under them in that situation, of that protection while they are engaged in combat.

The difficult question we were left with arose in the Snatch Land Rover cases and it was a different one. It was whether the immunity applies to what was going on in Iraq after the combat phase was over, when our troops were, as I have said, assisting the civil power, no doubt in situations of considerable danger. Here too, the majority held that the court did not have the information to decide for itself whether the claims should succeed. We did not rule out the possibility of applying the immunity, but the issue had to go to trial because we needed to know more—as will the judge—about the precise situation with which our forces were dealing at the time. In paragraph 99 of the judgment, I repeated the guidance given in paragraph 76 that, when considering the issue of what is just and reasonable, great care must be taken not to subject those responsible for decisions at any level who are engaged in operations of the kind that were being conducted in Iraq after the end of hostilities to duties that are unrealistic or excessively burdensome.

As the Minister has made clear on several occasions, the case is now in the hands of the trial judge. I suggest that it would be premature to draw any further conclusions until his decision is known. However, I hope very much that it will be appreciated that those serving in our Armed Forces, to whom we owe so much, are not as vulnerable to legal challenge as some people have been suggesting. As the author of the judgment, and as a former national service officer, I am greatly encouraged by the perception that the noble Lord, Lord Thomas of Gresford, has taken from it and the way in which he has appreciated the guidance we were trying to give.

My Lords, I very much welcome the opportunity that the noble Lord, Lord Faulks, has given the House to debate this topic, and I commend strongly his excellent speech.

For all my 40 years of service, service discipline, enforcement and review were the responsibility of the chain of command. Since then, service legal arrangements have changed to accord more closely with human rights legislation and the view that misbehaviour and crimes in the services should largely be judged independently of that chain of command. The services have adapted, but what concerns me more is that the Armed Forces Act and human rights legislation are potentially incompatible.

Only service men and women effectively contract with the state to make the ultimate sacrifice if required, backed by the Armed Forces Act to enforce discipline and obedience. No other public servant is placed in this position. To disobey a lawful command, even one that for operational reasons may place an individual at serious risk of injury or even death, is a criminal offence under Armed Forces law. But today or in the future will the commander be at risk of a charge under human rights legislation? I acknowledge that this has not yet happened and that today’s commanders have been given assurances that the MoD would give them full support if ever it did. As has been mentioned, the Minister sought to reassure me, in answer to my topical Question following the Supreme Court judgment last June. He said:

“I do not expect it to be open to a soldier facing a charge of failing to follow orders to argue that his human rights trumped those orders”.—[Official Report, 25/6/13; col. 657.]

However, could it not go the other way, when protracted legal hindsight is brought to bear on the heat and urgency of operational decisions?

In 1998, in concert with Lord Campbell of Alloway, I tabled amendments on Report and at Third Reading to exclude the Armed Forces from the Human Rights Bill. While acknowledging that the Armed Forces were a public body as defined in the Bill—now the Human Rights Act 1998—we argued that special considerations applied to Armed Forces personnel, who may be, and often are, treated differently by legislation. As I said:

“There are offences of conduct prejudicial to good order and discipline, of disobeying a lawful command, and so on, which have no direct parallel in civilian life. These are enacted because they underpin and are vital to the operational effectiveness and discipline of the Armed Forces. Without further elaboration, the conclusion is self evident. The Armed Forces may be, and often are, treated differently by legislation”.—[Official Report, 19/1/98; col. 1354.]

The fashion of the time—remember we were not then engaged in major expeditionary operations overseas and the services were almost sidelined in the public mind—was to believe that civilian-style management rather than military-style leadership was what the services should adopt, particularly in peacetime. At Third Reading of the Human Rights Bill, the Lord Chancellor sought to assure the House. He said that,

“the Secretary of State for Defence takes the view that the Bill raises no issues which are special to the Armed Forces”.

Later in his speech he said:

“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.]

Since then numerous cases against the MoD have been brought under that Human Rights Act. The Lord Chancellor’s reassurances have been frittered away, most spectacularly by the way that the Supreme Court findings last June were publicised. The court’s view—albeit a minority one—that such cases were not suitable for resolution by a court seemed to be a ray of hope that could help inch the problem back to greater realism. The noble Lord, Lord Faulks, quoted the wording of the minority view, and it is worth repeating. It stated that,

“the approach taken by the majority will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army … ‘war cannot be controlled or conducted by judicial tribunals’”.

Should that realism be translated into new legislation? There is a proper reluctance in some quarters not to try to make changes because of the variety of cases that are sub judice and because today’s service men and women might be encouraged to believe that their rights were being eroded. Nevertheless, I remain concerned that there is a need to be proactive, not to await events only to find that the problem has become far more difficult and disruptive to the effective command and control of forces and personnel in operational situations.

The changes since the Human Rights Act 1998 and the assurances given then and the recent Supreme Court ruling show that this issue still has legs and will run and run unless remedies are devised and provided. This said, what proactive approach might be taken? The Policy Exchange think tank, which has been mentioned several times, argued in its study entitled The Fog of Law that such legal mission creep could paralyse the effectiveness of the military. It came up with seven options for tackling this problem. I floated two, Crown immunity and combat immunity, in my topical Question last month:

“Will Her Majesty’s Government consider new legislation to define combat immunity? ... Could this be incorporated in the Defence Reform Bill now in passage through Parliament?”.—[Official Report, 23/10/2013; col. 1003.]

Following further discussion, I now accept that this is not the right moment for primary or secondary legislation, although we should not ignore the public’s present strong support for the Armed Forces. After withdrawal from Afghanistan, and in the absence of other major overseas adventures, that support will surely fade.

The quinquennial Armed Forces Bill, due in 2016, would, however, provide a vehicle for further legislation, giving time for preparation and avoiding prejudice to current sub judice cases. A proactive game plan must be the Government’s approach. There needs to be a well resourced team charged with instigating study in academia and elsewhere to prepare the way. Waiting until something worse turns up before moving would be wrong and a deplorable failure of political and military leadership. I hope that the Minister will be robustly proactive tonight.

My Lords, I congratulate my noble friend Lord Faulks, who described himself as “a mere lawyer”. I know him to be more than a mere lawyer; he is an extremely good one, and therefore he must be well aware that, with this debate, he is stepping into a serious legal minefield.

The report by Tugendhat and Croft, to which reference has already been made, has made it quite clear that they do not consider that the military should be in any way above the law. It does present us, however, with enormous problems. I am not a lawyer, but I would like to divide the two activities of the military into two separate categories. One I would describe as the heat of battle and the other is cold blood.

I will deal with cold blood first. I do not think there is any excuse for an armed serviceman to murder a helpless prisoner. I do not think that the brutal treatment of detainees who are completely helpless victims in the hands of those who are supposed to be looking after them can be defended in any way. I remain to be convinced that any serious intelligence got through torturing detainees has actually saved British lives. On top of that, we leave the moral high ground when we descend into this sort of behaviour, and, inevitably, it gets out. What is almost beyond doubt is that when this stuff does get out, the effect it has justifies the actions of terrorists to carry out even more atrocious acts which put British lives at risk. So, in the category of cold blood, I do not think that anything other than the ruthless application of the law should be applied.

The heat of battle, though, is very much more difficult. The problem is that the law deals in facts; it does not deal in context. Let us face it, the military are the only people who are in the business of actually having to kill people. That puts them in a unique position in our society. If a soldier shoots a civilian, and that civilian is subsequently found to be unarmed and going about his lawful business, it sounds as though he has committed an unforgivable act, but if the context is one of ambushes, sniper fire and suicide bombings, the whole context changes that act. We have to accept that the pressures our military have been under in Helmand province, for instance, where they are dealing with a population some of whom are more than happy to kill them while others are not, completely changes the context in which acts like that are carried out.

I remember reading in the paper about the US Marine Corps in Helmand a few years ago. Some US marines were watching a rather distinguished looking Afghan man standing some way away in a field. They had him in their binoculars and they were wondering what on earth he was doing. This went on for some time, but eventually, they gave up, saying, “We won’t bother”. One marine turned around to walk away, whereupon the man picked up a rifle and shot him in the back. If you are dealing with that sort of environment, it is extremely difficult to bring the courtroom into the actions that soldiers take in such circumstances. If you are on live round training in the military, where you walk down a theoretical alley and targets pop out all around, I have to tell noble Lords that it is very difficult not to shoot the nun straight through the head because your reactions have to be very quick, and sometimes people get it wrong.

With the wisdom of hindsight, the military could have avoided practically every disaster that has ever happened, but the problem is that good armies are trained to take the fight to the enemy. The British Army in particular specialises in the friendly approach of winning hearts and minds, but that does not come without risk, and it is certainly very difficult when you are dealing with people such as Afghans.

On a totally separate issue, I turn to the question of civil liability. I have to say that during my military career, comprising a rather undistinguished three years, I never heard a shot fired in anger. However, I was nearly killed twice while training in Thetford in Norfolk. The first time was when my platoon was acting as the enemy at night. I was running ahead, because the platoon was behind the rest of the battalion that we were supposed to be attacking, when I fell into a bomb crater. Very luckily, I turned completely head over heels and landed on my back at the bottom of what was really quite a deep crater. If I had not done so, I might have broken my neck and died. Later on in our training we were training with live rounds. I inspected the Bren gun of the guardsman who had been firing and it was clear. I walked forward. He put the magazine back on to the gun and pulled the trigger. Those who know about Bren guns will know that that means that the thing goes off. The butt of the gun was on the ground and the bullet went straight over my head.

Are we saying that, if I had been killed in either of those circumstances, it would have been right for my family to have sued the Army because of something it had done wrong? Come on, let us live in the serious world. My noble friend Lord Faulks compared training in the Army to the Factories Acts and so on, but I do not believe that life is like that. You have to train in reasonably extreme circumstances in the military, and you run risks when you do that. Regrettably, people die quite regularly when training with the British military. If they all sue because someone did something wrong and someone died, where on earth will we end up? It strikes me that we are moving into very difficult territory if we do that.

The noble and learned Lord, Lord Hope, referred to Snatch Land Rovers. We deployed Snatch Land Rovers not because we had much more sophisticated vehicles that we could have used instead, but because we had nothing else at the time. The military has a great habit of being equipped to fight the previous war, never the current one. Eventually Snatch Land Rovers were replaced, but the fact is that we did not have the option to use anything better. This is another thing that is almost inevitably going to happen with the military. On day one of any conflict, it is never going to have the right equipment to fight that particular war.

We have to be very careful that we do not go down the same road as the National Health Service, where everyone now sues if something goes wrong with the result that it costs the taxpayer hundreds of millions of pounds a year. It would be regrettable if the military suffered the same fate.

My Lords, I start with a blunt and basic point. For those who have not experienced active military service, it is difficult to understand the pressures and friction of the battlefield. Decisions have to be taken by men who are under stress, often under fire, on the basis of incomplete information. Those decisions have to be taken quickly. Delay could mean death or defeat. In an office it is possible to come to a view, to seek advice, to make a couple of telephone calls and to reconsider. No such indulgences are possible when you and your men are in action. Armed combat is a unique activity. It follows that it must be governed by different rules.

This does not mean that armed combat is lawless activity. On the contrary, for centuries, men who fought were aware of some rules of chivalry, even if they were not always observed in modern times. The Geneva Convention and the law of armed conflict both attempt to restrain the brutalities of war. Service men and women are instructed early in their careers as to their responsibilities. There are limits. Let us not be squeamish: in combat, men are trying to defend their country by killing its enemies. It follows that civilian norms cannot apply. Things which happen on the battlefield are absolutely unthinkable in normal times.

If health and safety at work were to prevail on all occasions the Armed Forces would have to be disbanded. As for human rights, no right is more basic than the right to life. In combat, a soldier might be ordered to advance towards virtually certain death. Then there is a duty of care. All commanders do indeed have a duty to care for their men. They also have a duty to achieve their objectives.

That might all sound like common sense. I hope it does. In previous generations, that is how it would have been regarded. In the early stages of the Falklands War, when we started to suffer casualties, the then Prime Minister, Margaret Thatcher, was upset. It took her husband to comfort her, saying that that was the sort of thing that happened in war. He knew because he had been there and seen it. Denis Thatcher was right. Yet in recent years, common sense has often been brushed aside. Health and safety and the European Convention on Human Rights have both been imported into contexts where neither is really applicable. In effect, members of the judiciary has been brought into the front line of combat, where they really should not be as often as they are.

That is not the fault of the judges. I agree with all that the noble and learned Lord, Lord Hope, said. I blame successive Governments, who did nothing to prevent legal mission creep. They could on occasions have sought derogation, but they did not. Legal mission creep is dangerous. As a young officer about to lead your men into action, you do not know how long the action will take or when and whether you will come under attack. Many things are on your mind. You are already aware of Geneva Convention rules, and it is intolerable that you should also be burdened by the thought that in some months’ time, your every action will be dissected by lawyers. That has happened in the coroners’ courts from time to time.

If noble Lords wish to consider all this in more detail, I, too, recommend the Fog of Law pamphlet produced by Policy Exchange. One of the authors, Colonel Tom Tugendhat, was wounded in Afghanistan and knows what he is talking about. Whether we disagree with it—and I do not—I believe that many hundreds of servicemen and servicewomen support what he says. That is what they feel.

I am anxious, because we need our Armed Forces. I hear no sound of swords being hammered into ploughshares. We live in a dangerous world, in which our survival depends on the dedication of our Armed Forces, who are willing to embrace discipline, to confront danger and to do their duty at whatever cost and sacrifice. We have an exceptional national resource. However, legal mission creep and the fog of law on the battlefield put that in jeopardy. We cannot, and must not, arrive at a situation in which our soldiers are afraid to fight not because of the enemy—that day, I hope, will never come—but because of the lawyers back home, backed by legislation that is inappropriate for the battlefield.

The British public respect the military and are grateful for its efforts, which buoys up the soldiers. The problem arises with the politicians, the public representatives. If they are serious about preserving our military ethos, it is they who must act. I agree with all that the noble Lord, Lord Faulks, said in his introduction to the debate. We should think very hard about what our servicemen and servicewomen think. They are worried.

My Lords, I thank the noble Lord, Lord Faulks, for securing this debate and for his excellent speech. I speak with some trepidation, not being a noble and learned Lord or a noble and gallant Lord. I am not even, as the noble Lord, Lord Faulks, put it, slightly whimsically, a mere lawyer. I speak as an academic, but as one who discovered, on reading the important and commanding academic article by Professor Anthony Forster in International Affairs, Vol. 88, on the process of juridification of armed conflict, that I had played a somewhat unwitting role in this process, as historical adviser to the Bloody Sunday tribunal.

Professor Forster lists a number of key moments in the period since I became an adult, over the last generation, in which one can see this process of the juridification of armed conflict. Some have already been referred to in our discussions, such as the Supreme Court ruling in Smith this summer, and the Baha Mousa case. However, he also mentions the Bloody Sunday inquiry, and what it tells us about changing attitudes, a number of times. He makes a very serious point: it is an obvious example not just of the way that the judiciary has become engaged in the process of the use of force by our soldiers but of how the concept of national interest has changed, in the sense that it was inconceivable for British Governments to formally challenge, in that way, the past use of our soldiers in conflict at a later date. The decision of the Blair Government in 1998 to reopen the issues dealt with by the Widgery inquiry in the early 1970s is an example of the way in which the traditional concept of national interest has changed, for good or ill.

Professor Forster’s point in his article is that, emotionally and in a number of ways, our society’s view of these questions is in the process of flux and change; I think this is indisputable. I remember being a student in Cambridge in 1972, when Bloody Sunday occurred, and there is no question that that day, when 14 innocent civilians were killed, is one of the least happy days in the history of the British Army. I remember watching the demonstration of students in Cambridge. I can see in my mind’s eye the people in that demonstration, one of whom, for example, came to hold one of the highest offices of state. There is no question that, in this respect, our attitude as a society and the attitude of leaders, public opinion and so on has evolved.

In some respects, the Widgery tribunal is often discussed a little unfairly. Lord Widgery actually said that a majority of those who died on the day were innocent—that has been forgotten—and the Army’s response to discovering his view was one of being disturbed. However, it is hard to avoid the sense that the structure of feeling surrounding the tribunal was very different from the structure of feeling that we have today. It has already been referred to by noble Lords that, in the post-war period, judges themselves had often served in the military, as had Lord Widgery. A key issue in the Bloody Sunday tribunal was the role of the general in Northern Ireland, General Ford, who had been a very brave soldier at the D-day landings. It is almost inconceivable that these recollections and emotional associations were not in Lord Widgery’s mind when he considered the issues posed by Bloody Sunday; it is humanly inconceivable.

We have now moved into a very different world. Lord Justice Moses refers to this in the introduction to the Policy Exchange pamphlet that has been referred to a number of times during this debate. He talks about remembering, as a boy, cases coming up before a judge where a burglar comes into the court, puts on his regimental tie and medals and the judge regretfully looks at him and returns half the merited sentence for the crime. This world has gone completely; it is not to return. I know that and Professor Forster knows it. We know that the Widgery tribunal inquiry was inappropriate and inadequate. He states clearly that he has no regrets about being an historical adviser to the new tribunal. It is not a question of trying to create a context in which the Armed Forces operated outside civilised standards. Politically we have to be aware of the fact that, in the wars of choice that have been referred to in recent times, as the fundamental ideological justification of these wars has been the defence of human rights, it is all the more important that our Armed Forces are perceived to behave properly in context, as far as possible, with obligations to human rights.

However, we have reached a fundamentally unstable point. I listened with great interest today to the words of the noble and learned Lord, Lord Hope. I do not want to be misunderstood. There is an argument about whether the four were right in the Supreme Court, whether the three were right in the Supreme Court, and whether there were exaggerated fears out of the ruling that came from the majority on the Supreme Court. I understand that argument and I am extremely grateful to the noble and learned Lord for the way in which he explained the position with great clarity today. However, the real problem is that we are on a slippery slope once we move to a rights-based jurisdiction, away from the unproblematic concepts of national interest and the relationship between the state, the judiciary and the Armed Forces that existed a generation ago when I was a young man. We are now in a new place. Indeed, Professor Forster says at the end of his piece that once you move away from those concepts to rights-based arguments, because of the difficulty of reconciling and aligning competing rights, the context is always unstable.

That is why, despite the hints that come from on high, there will be no end to litigation on this subject; the floodgates are absolutely open, despite the hints that people perhaps misunderstand the full implications of the ruling of the majority in the Supreme Court. That is why, like the noble and gallant Lord, Lord Craig, I was attracted to the argument on the question of Parliament looking again at combat immunity. Perhaps the noble and gallant Lord is right to believe that this is not the right step at this moment, although there are other steps that Parliament might consider taking. However, what is certain is that there is no stability in the place that we have currently reached, and we owe our Armed Forces that stability.

My Lords, I join colleagues in congratulating the noble Lord, Lord Faulks, on an excellent speech. I find myself in complete agreement with his contribution to this important debate, and my remarks would march very much in time and in tune with what he said.

I want to make what some noble Lords might feel is a rather narrow point, but for me it is very important: the impact of the uncertainty that has been created on the major challenge that we face in increasing our Reserve Forces, particularly the Army reservists. Twenty years ago we had something like—my noble friend Lord Trefgarne will confirm this—50,000 reservists. That fell to 15,000 only quite recently.

I defer to my noble friend on the statistics. Now, however, we are looking to increase the numbers to something like 35,000. The uncertainty that has been created by this discussion, however erudite and legal, is causing problems already. I say this as president for the past 10 years of the Reserve Forces Association, and the questions that I get—few at the moment, but they will gather speed and pace—about the liability of reservists who are serving abroad alarms me, and gives me concerns about our ability to reach our target of recruitment over the coming years. It is rather poignant that today the MoD has sent out a call for 1,500 extra reservists for service abroad, principally in Afghanistan.

I make a plea to the Minister and, through him, to his Secretary of State to come to a conclusion fairly quickly. I appreciate that the advice Ministers are receiving is, “Let’s wait and see what the results are of the lower court’s consideration of the issue”—the noble and learned Lord, Lord Hope, referred to two present cases. We cannot wait too long; we need clarification on this issue. I for one, and I dare say a number of noble Lords on this side of the House, would probably favour taking clear action on the Convention on Human Rights and disallowing it in relation to the activities of the Armed Forces, not just on the battlefield but in planning and preparation for conflict.

I look forward to the Minister’s response and hope that we can clarify the situation so that this major task of increasing our reservists can be done in a slightly calmer fashion and we can allay their fears that they might be subject to litigation in the courts of the United Kingdom.

My Lords, I, too, congratulate and thank the noble Lord, Lord Faulks, for obtaining this important debate, and in doing so say that I suspect that I speak for many members of all three Armed Forces. I also thank Nicola Newson for her quite excellent Library note, which sets out the arguments for and against legal challenge so clearly and fairly.

During my own Army service, I watched the advance of what the Policy Exchange calls “legal mission creep”. I will begin my contribution by venturing that not enough note has been taken of one very good explanation for this—namely, that the nature of the active operations in which our Armed Forces have been involved has changed since the end of World War 2.

General Sir Rupert Smith, in his important book, The Utility of Force, refers to them as “wars amongst the people”, because no longer are they between uniformed armed bodies of people fighting within geographically defined areas, but between a uniformed armed body of people and a number of un-uniformed, sometimes armed, people, who mingle with other un-uniformed, usually unarmed, people in the places where they live. Therefore the law of armed conflict and the Geneva conventions are not always applicable. During confrontation with Indonesia, my riflemen had to understand both what was allowed in combat with the Indonesian army when we were in Indonesia, and how to behave towards the inhabitants of that part of Sarawak in which we were based when looking for possible infiltrators.

Northern Ireland was different again. Traditionally, in what were called internal security operations, the police handed a situation over to the Army, who took the necessary military action, possibly including opening fire, after which they handed it back to the police as quickly as possible. Unfortunately, when the Army was introduced into the Province in August 1969 it was as policemen, the Royal Ulster Constabulary being exhausted. I have always regretted this, because of the problem it posed for our soldiers. They were expected to be firm, fair and friendly—like armed policemen—most of the time, but when military action was required they had to act within the law, and were told that if they did so in good faith, they had nothing to worry about. To guide us we all had to carry a yellow card on which the appropriate circumstances were printed. We also used what were known as “flying lawyers”, who interviewed those involved in any incident, at the scene, before memories clouded over. But all that was before the European Convention on Human Rights.

However, it is my experience of European legislation that seems to me most relevant to this debate. When I was Adjutant General, or personnel director, I and my Navy and Air Force opposite numbers were told that we had to introduce industrial tribunals into our service judicial systems. When I asked whether they came before or after the Queen, I was told that that was irrelevant, because the Bill bringing this European legislation into United Kingdom law had already had its First Reading. Having asked to see it, I passed the Bill to the Director General of the Army Legal Services, who within five minutes told me that it was totally unacceptable, because it allowed an employee to take his employer to an industrial tribunal if ordered into a place of danger. In Army terms this meant that OC B Company could take his commanding officer to an industrial tribunal if ordered to attack an enemy position.

I asked what the French, German and Italian armed forces had done about this, to be told that their Governments had sought, and been granted, dispensation for them. I asked why ours had not done so, and was pleased that, later, dispensation was sought and agreed. I mention this because I have the distinct impression that, while full of gratitude for the work of Ministry of Defence legal staff and civil servants, who understand the difficulties of the transposition of human rights legislation to the battlefield, ancient or modern, members of the Armed Forces do not feel the same about those in other parts of the Government, who are in a position to seek dispensation for them. Currently they agree with my noble and learned friend Lord Hope that they should await a ruling of the European Court of Human Rights before they know whether the Supreme Court judgment in the Smith case will affect operations and their commanders.

I suspect that, had the need for dispensation been considered years ago, my noble and learned friend Lord Hope might not have been required to deliver his leading judgment, from which I will quote the following words. He stated that,

“it is of paramount importance that the work that the armed forces do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong”.

I do so because my noble and learned friend clearly understands the demands of both command and active operations, and appreciates the importance of the former not being saddled with inappropriate limitations when planning or conducting the latter.

I note that Policy Exchange recommends consideration of derogation from the European Court of Human Rights during deployed operations. I prefer to seek appropriate dispensation for our Armed Forces as a matter of course as early as possible in a legislative process. However, whichever route is chosen, I hope that those responsible for the consideration of how our Armed Forces may be protected from vulnerability to legal challenge will have the words of my noble and learned friend ringing in their ears.

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.

My Lords, this is an important issue, and I, too, express my thanks to the noble Lord, Lord Faulks, for providing the opportunity to discuss the matter in some detail and shortly to hear the Government’s position from the Minister. Virtually all—if not all—of your Lordships who have spoken have been able to call on their direct and practical knowledge of the law or on their direct and practical knowledge of the realities of conflict and the realities of the way in which our Armed Forces operate and work on our behalf. Unfortunately I am not in that position. Like the noble Lord, Lord Ramsbotham, I am extremely appreciative of the Library note.

Although, as has been said, there have been previous decisions by courts that have given rise to the concerns that have been expressed today, it has been the Supreme Court judgment last June, apparently changing a Supreme Court judgment from 2010, which has raised the profile further of the issue of our Armed Forces and their vulnerability to legal challenge. Shortly before the Supreme Court judgment, in May this year the High Court apparently ordered hundreds of inquest-style public hearings to investigate alleged unlawful killings and mistreatment of civilians by British forces in Iraq. Recent legal challenges to the Armed Forces have fallen into two main categories: those relating to the Armed Forces’ treatment of civilians and those which relate to the Armed Forces’ treatment of their own personnel.

Although I am not a lawyer, I would like to talk about the Supreme Court judgment and what, as I perhaps mistakenly understand, it said. The proceedings concerned three sets of claims arising from the deaths of three of our servicemen and serious injuries to two others in Iraq. The first set, brought in negligence, arose from a friendly fire incident involving British tanks and alleged failures by the Ministry of Defence properly to equip the tanks involved and give the soldiers adequate recognition training. The second set arose from the detonation of improvised explosive devices level with the Land Rovers in which the soldiers were travelling and claimed that the Ministry of Defence breached the European Convention on Human Rights by failing to take preventive measures to protect life in the light of the real and immediate risk to life of soldiers who were required to patrol in the Land Rovers. The third set, like the first, was also brought in negligence, by—I believe—the son of one of the soldiers killed in the Land Rover incident, and claimed various alleged failures on the part of the Ministry of Defence.

The Ministry of Defence argued at the Court of Appeal that the Land Rover claims should be struck out because at the time of their deaths the two soldiers were not within the jurisdiction of the UK for the purposes of the European convention and because, on the facts put forward, the MoD did not owe a duty to the soldiers at the time of their deaths under Article 2 of the convention, the right to life. The Ministry of Defence also argued on the Challenger tank claims and the third set, the negligence claim, that they should be struck out on the principle of combat immunity and because it would not be fair, just or reasonable to impose a duty of care on the Ministry of Defence in the circumstances of those cases.

The Court of Appeal decided that the Land Rover claims should be struck out and that the Challenger claims and the negligence claim should proceed to trial. The Supreme Court decided unanimously, as has been said, that in relation to the Land Rover claims the two soldiers were within the UK’s jurisdiction for the purposes of the European convention at the time of their deaths. By a majority, the Supreme Court held that the Land Rover claims should not be struck out on the ground that the claims were not within the scope of Article 2 of the European Convention on Human Rights and, also by a majority, that the Challenger claims and the negligence claim should not be struck out on the ground of combat immunity or on the ground that it would not be fair, just or reasonable to extend the MoD’s duty of care to those cases. The effect of the Supreme Court’s decision was that all three sets of claims could proceed to trial.

The summary provided by the Supreme Court to assist in understanding its decisions states on the Land Rover claims under Article 2 of the European convention:

“In this area, the court must fully recognise the wide margin of appreciation to be given to the state and avoid imposing obligations which are unrealistic or disproportionate”.

It also states:

“The circumstances in which the various decisions were made need to be inquired into before it can be determined with complete confidence whether or not there was a breach of article 2. However, given the Court’s guidance on the margin of appreciation to be given to the state, it is far from clear that the claimants will be able to demonstrate such a breach”.

On the Challenger claims and the further, separate, negligence claim, the summary says that:

“The doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy. The Challenger claims are not within the scope of the doctrine because they relate to decisions which are sufficiently far removed from the pressures and risks of active operations against the enemy. The … negligence claim is less obviously directed to things done away from the theatre of battle so it is arguably within the doctrine”.

The summary then goes on to say:

“The circumstances in which active operations are undertaken by the UK’s armed services today vary greatly and cannot all be grouped under a single umbrella as if they were all open to the same risk of judicialising warfare. However, considerations similar to those affecting the Snatch Land Rover claims under article 2 arise in relation to whether it would be fair, just and reasonable to impose a duty of care on the MoD in this area. The question whether the negligence claims in this case entail subjecting the MoD to duties that are unrealistic or excessively burdensome cannot properly be determined without hearing evidence”.

The Supreme Court has not determined the outcome of the claims it addressed in its judgment. It has made the decision that the claims should proceed to trial. It is not for me to interpret the wording in the Supreme Court summary document, which clearly states that the full judgment of the court is the only authoritative document.

I have, however, noted what the noble and learned Lord, Lord Hope of Craighead, said today. It is clear that there is now a feeling of uncertainty over where our Armed Forces and the actions that they take now stand in relation to the law and the vulnerability to legal challenge. Whether the position will be clearer when the cases that were before the Supreme Court have been to trial remains to be seen.

The Government are clearly concerned about the lack of clarity. Subject to what the Minister has to say, the Government appear to be waiting, not unreasonably, for the outcomes of these cases in the hope that the decisions will provide greater clarity before determining what, if any, action needs to be taken and, accordingly, what advice should be given to Armed Forces personnel.

Cases are, of course, determined on their merits and on the evidence that is placed before the court, but clarity is often dependent on judgments laying down clear principles and guidelines that can be applied and taken into account by those who might be contemplating legal action and by those who feel they might be subject to legal proceedings. Nobody wants to see a situation in which our Armed Forces are less able than they are now to protect, further and act in the national interest on our behalf because of uncertainty over the legal position or because of new or changed legal considerations and the perceived or real prospect of vulnerability to legal challenge that did not exist before.

I am aware that the Ministry of Defence now has to deal with a considerable increase in claims in the light of earlier judicial decisions and no doubt also, in some cases, of a feeling that the exact legal position should now be tested. It is interesting to note that in his dissenting opinion to the Supreme Court decision, the noble and learned Lord, Lord Mance, said that,

“the approach taken by the majority will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army. It is likely to lead to the judicialisation of war”.

Dealing with claims costs time and money and deflects resources, human and financial, from other defence-related work. Apart, however, from the vital need to get uncertainty resolved so that proper consideration can be given as to whether and, if so, what further action needs to be taken by government, the other key issue is whether our Armed Forces, involved in or preparing for operations, are being inhibited in what they do on our behalf in the national interest as a result of uncertainties about exposure to potentially successful legal challenges and claims. I hope the Minister will be able to give assurances that that is not the case because, if it is, we are in a very difficult and serious situation.

My Lords, I, too, am grateful to my noble friend Lord Faulks for tabling this Motion. It is timely for this House to take stock of recent legal developments which could, in different ways, have important consequences for the ability of our Armed Forces to conduct operations and, therefore, for our national interest.

All military operations carry a degree of risk. As the noble and gallant Lord, Lord Guthrie, said, armed combat is a unique activity. Good commanders are adept at forecasting, assessing, and carefully managing risks in the preparation and execution phases of operations. The Armed Forces of the United Kingdom must at all times seek to operate within the rule of law and to take account of how the law changes. There is nothing new about that. But what does cause the Government concern is the extent to which legal developments are creating uncertainty and imposing costs which may have an impact on how our Armed Forces are able to train and operate.

One direct consequence is that the Ministry of Defence has been grappling with rapidly increasing numbers of legal claims arising from operations, together with escalating costs, largely as a result of these legal developments and the increasing willingness of individuals to litigate. I welcome the fact that these issues are of increasing interest and concern to others. The House of Commons Defence Committee recently announced an inquiry into the legal framework for UK military operations in future, including the protections and obligations for operational and deployed UK Armed Forces personnel. The Ministry of Defence has submitted its observations to the Committee, and we look forward to learning of its conclusions.

The recent report by the Policy Exchange called The Fog of Law, to which a number of noble and noble and gallant Lords have referred, was therefore a timely contribution to the discussion and raised a number of very important questions. It was written by authors with a great deal of hands-on experience of military planning and operations, so its conclusion,

“recent legal developments have undermined the armed forces’ ability to operate effectively on the battlefield”,

deserves respect and careful consideration. None the less, I would not go quite that far, or not yet. I do not believe we have reached the stage where the ability or operational flexibility of our Armed Forces has been significantly impaired or that military decision-making has been hamstrung. I think that that answers the question asked by the noble Lord, Lord Rosser. Crucially, I cannot point to any specific incident in which it appears that concerns about legal liability have been responsible for failure to take operationally necessary measures in the course of combat.

Ministers and the military chain of command have been clear that commanders and other military personnel, at whatever level, who make reasonable decisions in good faith in the course of operations will receive the full backing of the services and the Government. I hope that this reassurance will have put any doubts to rest. I am also reassured that there has been no decision by the courts that would suggest that they would impose liability in such circumstances. Nevertheless, the Government are certainly concerned about the long-term trends which the report analyses. The law remains uncertain on some key matters—unhelpfully so, from the Government’s point of view—and this situation will continue until some of the key cases now before the courts have been ruled upon authoritatively.

The Government are very concerned in particular about the potential effects of the Supreme Court’s majority judgment in the cases of Smith and others, Ellis, and Allbutt and others versus the Ministry of Defence, which were handed down together on 19 June. As the noble and learned Lord, Lord Hope, pointed out, these cases relate to a number of extremely tragic incidents in Iraq arising out of lethal attacks on soldiers patrolling in Snatch Land Rovers and out of a so-called “friendly fire” accident involving Challenger 2 tanks. The noble Lord, Lord Rosser, set that out very clearly. It gives us no satisfaction at all to have to defend cases brought by the families of the brave men who died or were injured in these events, but the principles involved are extremely important, and the Government’s case needs to be put robustly.

Briefly, and at the risk of oversimplification, these cases turn on the extent to which the European Convention on Human Rights applies to military personnel on overseas military operations, and the precise scope of the legal doctrine known as combat immunity. In this litigation, the Ministry of Defence contended that it was not reasonable or appropriate for the courts to take the role of final arbiters of military decisions, including, as in these cases, decisions about the provision of equipment to our forces. Our case failed in a split judgment in the Supreme Court. I think it reasonable to point out the minority speech by the noble and learned Lord, Lord Mance, which offers an admirable and compelling analysis of the dangers of opening up the conduct of military operations to litigation.

The noble and learned Lord, Lord Hope, who delivered the judgment, has spoken with his accustomed clarity about the issues at stake in this case. The Government took comfort from the clear warnings in the majority judgment that the scope for such litigation must inevitably be limited. While the effect of the judgment is that the cases considered by the Supreme Court must now be heard on their individual merits by the High Court, their Lordships were very clear that, to quote the judgment:

“The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to”.

I listened carefully also to the advice of the noble and learned Lord, Lord Brown.

To reassure the noble and gallant Lord, Lord Craig, we will therefore be defending vigorously any legal cases which turn on the issue of combat immunity. For that reason, although we have considered the option of legislating for a statutory definition of combat immunity, and we have not ruled out any legislative possibilities, we have made no decision as yet to bring forward any such proposals. We will study very carefully the judgments in the cases to which I have referred when they appear. It is our hope that the case law will develop in a way which recognises that there must be limits to the extent to which military decisions should be replayed and contested in the courts. I must make it clear that our position is underpinned by the provisions of the Armed Forces Compensation Scheme, which assigns compensation on a no-fault basis for injuries sustained by members of the Armed Forces in the course of their service.

So far, I have been speaking mainly of legal actions brought against the Government by current or former military personnel or their families. There has also been a good deal of concern about the volume of cases against the MoD brought by UK firms of solicitors on behalf of Iraqi and Afghan nationals who were detained by UK Armed Forces. The claims typically allege that individuals were abused on arrest and unlawfully detained, which amounted to a violation of their Article 3 and Article 5 European convention rights. These are the right not to be subjected to torture or inhuman or degrading treatment, and the right to liberty. They seek damages, sometimes for very substantial amounts, as well as declarations that their human rights have been breached, and in some cases they argue that a full investigation is required into their alleged ill-treatment. In a smaller number of cases, unlawful killings and breaches of Article 2—the right to life—are alleged.

A key issue in these judicial review challenges and personal injury claims has been whether people detained or allegedly killed, injured, or mistreated by UK Armed Forces come within the jurisdiction of the convention. On 7 July 2011, the Grand Chamber of the Strasbourg court handed down judgments in the two important cases of Al-Skeini and Al-Jedda. These judgments resulted in a substantial extension of the extraterritorial application of the convention to Iraq. In addition, the Al-Jedda judgment had what I can only regard as the deeply unfortunate consequence that compensation has had to be paid to a large number of people who were detained solely because there was good reason to think that they posed a threat to security in Iraq and to the safety of members of our Armed Forces.

I need hardly say that the Government in no way dispute the need for the legal accountability of our Armed Forces. Nor do they suggest that the Armed Forces are at all times without fault, as we know from the tragic death of Baha Mousa, the Iraqi hotel owner mentioned by my noble friend Lord Thomas. He was beaten to death by soldiers guarding him in 2003. There is no question that his killing was a tragedy and a shameful incident in the history of the Iraq conflict and of the British Army. Those soldiers who knew the truth refused to come clean and no one was convicted of Baha Mousa’s murder, although one soldier was convicted of a lesser offence.

Noble Lords will, I think, be pleased to learn that there remains the possibility that those responsible for the death of Baha Mousa will be brought to justice. As suggested by the previous Defence Secretary, a new investigation of the case is under way, conducted by the Iraq Historic Allegations Team, which was set up as a mark of the Government’s serious commitment to get to the bottom of the allegations of abuse and unlawful killings in Iraq. Despite repeated legal challenges, the competence and integrity of the Iraq Historic Allegations Team has been vindicated by the High Court and it is getting on with its important work, carried out under difficult conditions.

These investigations are important because we need to ensure, as I have said, that the Armed Forces of the United Kingdom will be held to the highest standards of conduct. They are also important because, by establishing how abuses were allowed to happen, remedial action can be taken. The Baha Mousa public inquiry, chaired by Lord Justice Gage, provided a cogent analysis of the conditions which led to the killing and made 72 recommendations to prevent any recurrence, all but one of which were accepted by the Government. We intend to make an announcement shortly on progress on implementation of the Baha Mousa inquiry recommendations. The department will also shortly be publishing the first annual report on systemic issues identified from the investigations of the Iraq Historic Allegations Team.

I mentioned earlier the judgment of the European Court of Human Rights in the case of Al-Skeini and Al Jedda, which had important implications for the application of the human rights convention to our operations in Iraq. It is important to be clear that in our view the situation in Afghanistan is different. This is in part because the UK operates in Afghanistan through ISAF, a multinational force under the ultimate authority and control of the United Nations Security Council. Consequently, we contend that the UK’s acts and omissions are, for convention purposes, attributable to ISAF and hence to the United Nations, not to the United Kingdom. But even where the convention does not apply, there are legal challenges that need to be grappled with. The English courts are all too aware of the serious and difficult outcomes that can arise. Through a combination of recent legal challenges seeking to put a stop to UK detention and transfer operations in Afghanistan, the Defence Secretary came close to being put in a position where he could neither lawfully detain captured persons nor transfer them into Afghan custody. The problem was eventually solved, thanks in part to co-operation between the British and Afghan Governments, but this illustrates the way in which judicial action in the domestic courts can potentially have the most serious effects on operations which the Government consider vital for national security.

Given the centrality of the European Convention on Human Rights to many of these issues, some have suggested that derogation from the convention for military operations should be considered. Article 15 of the convention allows for parties to derogate from the convention’s obligations, but only from certain articles and then only in time of war or other public emergency threatening the life of the nation. There are different views as to the circumstances which would satisfy this condition. The legal and political questions which derogation would raise would be difficult ones, and we would need to be very clear that the benefits outweighed the disadvantages before proceeding with that option. The coalition agreement is also clear that no such changes would be contemplated at present.

I should like to say a word about the costs of litigation arising out of military operations. The Ministry of Defence is required to spend millions of pounds of taxpayers’ money each year to defend claims. These are resources which have been voted by Parliament for defence purposes and which would be much better employed in support of the front line. I wish to place on record my appreciation of the work of the Secretary of State for Justice in seeking to ensure that public resources are allocated as far as possible only to the most meritorious cases.

My noble friend Lord Thomas referred to a paper produced by Army personnel on the problem of risk aversion, which was subsequently leaked to the press. I can confirm that this was what is known as a “think piece” and in no way reflects the policy of the Government. My noble friend Lord Freeman was absolutely right to remind us that these matters are potentially of vital concern to reservists as well as to the Regular Forces. His call for an early resolution of these uncertainties is very pertinent. The noble Lord, Lord Ramsbotham, mentioned Northern Ireland. I was also there in August 1969 and well remember the yellow cards that we were all given and the extreme care that we had to take. There are some misconceptions about derogations from the European Convention on Human Rights by some of our key allies. Their obligations are, in all key respects, the same as ours.

In closing my remarks, I should like to emphasise once again that the Armed Forces are thoroughly committed to the rule of law. We mount a strong defence in litigation wherever justified, but we will also call members of the Armed Forces to account where it is right and proper to do so. The vast majority of our service men and women have served, and continue to serve, the country with integrity and courage, many of them in situations of danger and stress which we civilians can only try to imagine. I pay tribute to them today.

My Lords, I am very grateful to all noble and gallant Lords, noble and learned Lords and other noble Lords. This has been a remarkable debate, reflecting the experience and knowledge of military affairs and the law which are found in your Lordships’ House.

My noble friend the Minister has been very helpful in responding to a number of points made in the debate. He, the noble Lord, Lord Rosser, and many other noble Lords pointed to what may or may not eventuate from the decision in Smith and in other cases. The burden of expectation on the judge or judges who decide this case is considerable. The suggestion that clarity will emerge from one case is an expectation too much. Each case is decided on its individual facts and one cannot get away from the point of principle which is at stake here. In every case where there is a claim for negligence it will be said that, although something is possibly within the scope of battlefield immunity, it can be attributed to failures of training or inadequate equipment. So the line has to be drawn.

The noble and learned Lord said that the judge at first instance would have to take great account of the judgment of the majority in Smith and I am sure that he or she will do so. However, to take great care is not going to provide an adequate solution. To quote the noble and learned Lord, Lord Mance:

“To offer as a panacea … that courts should be very cautious about accepting such claims is to acknowledge the problem, but to offer no real solution”.

The wave of litigation will continue unabated, with all the consequences alluded to in this debate, unless and until Parliament intervenes. I hope and trust that the Minister will take back to the ministry the concerns expressed in the House and I look forward to a positive response.

Motion agreed.