Armed Services: Claims - Motion to Take Note

– in the House of Lords at 11:37 am on 24th November 2016.

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Moved by Lord Brown of Eaton-under-Heywood

To move that this House takes note of the case for limiting the number and nature of claims against the Ministry of Defence and United Kingdom armed services personnel arising out of future armed conflict abroad.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct

My Lords, 60 years ago, as a young national serviceman, I was on active service in Cyprus. I record this not as a declaration of interest but rather as a boast because, together with a great number of other people, I am proud to have served Queen and country and it now distresses me, as it plainly distresses lots of others, to see how today, often years after valiant service in conflicts abroad, our forces are subject to apparently endless claims and allegations of misconduct. Not only is this upsetting, but it affects our nation’s combat capabilities by damaging morale, recruitment and our fighting strength. The problems of these largely now historic allegations are so many and so diverse that I have scarcely time even to outline them, let alone elaborate their possible solutions. There are multiple criminal allegations, multiple civil claims, claims by foreign combatants, claims by foreign civilians caught up the conflicts and claims by our own forces against the MoD. Essentially, as I shall finally come to suggest, the way ahead I would propose is not merely, as recently foreshadowed by government, to derogate from the ECHR in future combat but to reverse the trend of recent years whereby human rights obligations have been extended beyond the domestic sphere even to foreign battlefields.

First, however, I shall briefly chart the way these problems have developed and how we have reached our present sorry situation. The great majority of the criminal allegations and civil claims date from 2003 to 2009 in Iraq. Those years covered three phases: the initial invasion, the occupation and then four years as part of a multinational force assisting the Iraqi Government to maintain law and order. IHAT, the Iraq Historic Allegations Team, was established in 2010 to investigate the alleged ill treatment of Iraqi civilians in British custody. It was later extended to those not in custody. Initially this duty arose under the Armed Forces Act 2006 and previous such Acts, but later it had to be greatly extended to discharge what in 2011 Strasbourg held to be the UK’s investigative obligations under Articles 2 and 3 of the convention. Its initial case load of 165 cases to be completed by 2012 has grown hugely over the years, so that even in April this year there still remained 325 allegations of unlawful killing and over 1,300 cases of alleged ill treatment—hopefully to be completed by December 2019 at the cost of some £57 million.

Over the years, IHAT’s difficulties have increased, largely from the Strasbourg Court’s ruling in Al-Skeini in 2011 that, contrary to all previous understanding, the convention applied to our operations in Iraq. First, IHAT’s investigators were held to be insufficiently independent, and military police had to be replaced by naval and retired civilian police. Then IHAT was found insufficiently independent of the Executive for Article 2 and 3 investigations, for which inquisitorial inquiries on the model of coroners’ inquests were held to be required.

I should add that IHAT’s inquiries were serving also to meet the requirements of the ICC, whose prosecutor in 2014 opened a preliminary examination into war crimes—the alleged systematic abuse of detainees in Iraq. This followed a report by a retired senior judge into the notorious death of Baha Musa in 2003. Later, however, in December 2014, another retired judge reported in the al-Sweady case rejecting most of the Article 2 and 3 allegations arising from a number of detentions in 2004. Later still, in September this year, Sir George Newman published a report into the death of Ahmed Ali, who drowned in a canal as one of a number of looters driven into the water as punishment. The judge found a manifest disregard for the risk to Mr Ali’s life, but his greater criticism was the Army’s failure to train, instruct and guide the men in policing methods and how to deal with lawlessness, not least widespread looting, as in Basra.

Of course it is imperative in any future conflict that our troops should be better prepared for what often become essentially peacekeeping missions. Equally obviously, our troops should be held to the highest standards and any truly credible allegations of criminal wrongdoing should be properly investigated. However, it is fervently to be hoped that never again will it be necessary to embark on another vast IHAT-like process and engage in a series of Article 2 and 3-compliant judicial inquiries, with all the enormous problems that these face. It is unsurprising that in his September 2016 review of IHAT Sir David Calvert-Smith described the interviewing of witnesses as,

“the single most intractable problem”, that it faces. Indeed, we now find ourselves paying Iraqi witnesses to travel abroad to give evidence against British soldiers.

One should note that despite all this huge effort and expenditure, barely a handful of investigations have led to any further action, and punishment thus far has been limited to a single fine. Meanwhile, alongside these endless criminal investigations—and, no doubt, to a degree prompted by them—a growing number of civil actions have been brought against the MoD, both public law claims for convention-compliant investigations and private law claims for compensation. Mostly these allege ill treatment, unlawful detention and in some cases unlawful killing. In September this year the Court of Appeal in al-Saadoon recorded over 1,200 public law claims and over 600 compensation claims, in addition to some 250 claims already settled. True it is that the UK has indeed paid out some £20 million or £30 million to settle a number of claims, most of which were doubtless well founded, though one suspects that few were of the Baha Musa kind. However, it seems likely that many claims are spurious. As the judge concluded in the al-Sweady inquiry,

“the vast majority of the allegations made against the British military … including all the most serious allegations … were wholly and entirely without merit or justification”.

Those are just the Iraqi claims. A series of cases also had to deal with a number of claims arising from the Afghanistan conflict—largely claims for wrongful detention—the lead case, Serdar Mohammed, being brought by a Taliban commander.

What, then, can be done to stem such a tide of claims following on from any future foreign combat? I am of the clear view that it is international humanitarian law, sometimes called the law of armed conflict, based largely on the Geneva Conventions, which strikes the appropriate balance between military necessity and humanity and which therefore should regulate the conduct of such operations, not the human rights convention, which is, rather, designed to regulate the domestic exercise of state power. Our American allies, for example, are not subject in such conflicts to inappropriately exacting human rights requirements; nor does the Canadian Charter of Rights and Freedoms apply to its forces fighting abroad.

We should therefore, in any future military conflict overseas, derogate, so far as we are able, under Article 15 of the convention, but I cannot pretend that derogation is a simple, straightforward and guaranteed route to immunity from all future human rights claims. Alas, I have no time today to go into the problems and limitations of derogation, but I understand that my noble and learned friend Lord Hope of Craighead will touch on these. So I would not stop with derogation. Rather, I would legislate to overcome the central problem we face following Strasbourg’s 2011 judgment in Al-Skeini holding, contrary to all previous understanding and this House’s earlier decision in the same case, that the convention applies not just within Council of Europe states but anywhere—in broad terms, whenever a state through its agents can be said to exercise control, an approach which itself leads to grave doubts and confusion as to its limits.

I am certainly not advocating that we should withdraw from the convention, so, subject to whatever may be achieved through derogation, we shall remain liable on the international law plane to any future Strasbourg ruling. But we could and, I believe, now should legislate for domestic law purposes to amend the Human Rights Act itself to confine its application to the UK. In 2007, when Al-Skeini was before this House, we had to decide, first, whether the Act applied extraterritorially and, secondly, who is within the UK’s jurisdiction for the purposes of the Convention. The late and great Lord Bingham of Cornhill, the wisest among us, dissented on the first point. He would have held that the Act has no extraterritorial application. The remaining four of us, however—unwisely, as I now think—held the contrary. We thought the Act should track the convention, but we did so explicitly on the basis that the convention itself applied only within the area of the member states with, as I myself put it,

“just a limited extra-territorial reach in certain closely defined circumstances”, such as in an embassy abroad or, by analogy in Baha Mousa’s case, in a British military detention unit abroad. Naturally, one is reluctant to deny complainants any domestic law remedy, it being implicit in all this that we may choose not to give effect to some adverse international law ruling. For my part, however, I would find this much easier to justify in the present context than with regard to, say, prisoner voting, where it seems to me that the Government are being just plain silly.

Thus far, I have said nothing in respect of claims of deaths and injuries suffered by our own forces in conflicts abroad: claims against the MoD both under the Human Rights Act and in negligence. A number of such claims have been brought and, following a 4:3 majority judgment in the Supreme Court in Smith in 2013 refusing to strike them out, they remain undecided. I say nothing today as to whether the majority judgment may be regarded as right or wrong, but there seems little doubt that it has caused serious concerns in the MoD and the military about what the noble and learned Lord, Lord, Mance called, “the judicialisation of war”, and that it may lead to our Armed Forces becoming dangerously hyper-cautious in conflict.

What, then, should be done about this? Much has been written on this topic, perhaps most helpfully last year in the Policy Exchange paper, Clearing the Fog of Law. With regard to claims in negligence, I would suggest that the time has come, not to expand the rather elusive common law doctrine of combat immunity but rather to make a ministerial order under Section 2(2) of the Crown Proceedings (Armed Forces) Act 1987 to revive, in the case of warlike operations outside the UK, the effect of Section 10 of the old Crown Proceedings Act 1947, which had prevented claims for injury or death on military service. Section 10 was repealed in 1987 really because personal injury damages had by then risen way beyond the benefits payable to those injured on service under the Armed Forces pension scheme.

In fairness, and indeed as a matter of political reality, a ministerial order ending tort claims would now need to be accompanied by a scheme to compensate the injured fully on a no-fault basis. This would avoid all the problems of legal proceedings by way of stress, delay and expense and, of course, end the basic problem presented by Smith that the risk of litigation itself results in a damagingly risk-averse approach to soldiering.

As for human rights claims by our own forces—

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct

As this is a time-limited debate, I think I should be allowed to finish. As for human rights claims by our own forces, if the HRA is confined territorially, as I suggest it should be, such claims could be brought only in Strasbourg, and as to this, I tend to share the view of the minority in Smith that that court would itself shrink from adverse judgments based necessarily on reviewing the conduct of our military operations abroad.

All I have said is really but a thumbnail sketch of the many difficult questions that arise, and I now look forward to hearing the views of the number of real experts—all noble and several gallant, too—who I am delighted to note are to follow in this debate.

Photo of Earl Attlee Earl Attlee Conservative 11:52 am, 24th November 2016

My Lords, I am grateful to the noble and learned Lord for introducing this exceptionally important debate today. I have to say that I did not expect to be number two in the speakers list, and I will have to disappoint the noble and learned Lord a little bit because I do not claim to be an expert on legal matters.

If I were asked what advice I would give to a young person considering joining the Armed Forces, I would be tempted—tempted—to say, “Don’t”. The first reason is that we are woefully ill prepared to deter conflict, a subject I will cover in greater detail in another debate in the near future. Secondly, if he or she has to take vigorous action in dealing with opposing forces while acting entirely within the intent of commanders on the ground, the chain of command seems to be completely powerless to protect them from extremely unpleasant legal claims and investigations, as outlined by the noble and learned Lord.

Not only do service people have to accept the obvious difficulties of military service and training, they now have to accept the interference of lawyers in questionable circumstances. Therefore my admiration of those who do step up to the plate is even more enhanced, if that is possible. I can assure the House that this situation is having an adverse effect on morale, and I have to say that the reputation of the legal profession and the legal system within the Armed Forces is not very good, although many who will no doubt read Hansard and the speech of the noble and learned Lord will perhaps be a little more reassured.

If we are to have young men and women live and work closely together, operate lethal equipment and, when required, engage the enemy, obviously we need to have a very effective system of military discipline. My noble friend the Minister has never hesitated to stress this to your Lordships. If noble Lords cannot stomach that, then do not have Armed Forces at all and rely on someone else to keep us safe. Unfortunately, it seems to me that we have moved away from having a system of military discipline with appropriate checks and balances to a vain attempt to have a perfect system of military justice. The former ensures that the needs of the majority are not sacrificed to meet the needs of a small and often undeserving minority, while the latter does the opposite, is extremely slow and therefore unfair.

Some of the changes that we have introduced in recent years have had an odd effect. In the past, we were engaged in very few hot operations and we legislated accordingly, whereas nowadays it is not unusual to have troops in contact. I recall in the late 1990s when my noble friend the Minister and I were opposition Front Bench spokesmen for defence and the noble Lord took a Statement in the House because our forces had taken out a warlord in the Balkans—a Statement on something like that; something that now our forces are doing practically every week. How times have changed.

But the odd effect is this: in the past, a commanding officer acting on legal advice could legally condone an action on the part of his subordinate or dismiss charges. For the service person, that was the end of the matter, with a few exceptions. Now, to meet the obligations arising from earlier cases, we have a system independent of the chain of command for determining whether a service person is to be prosecuted. That means that no one in the chain of command, not even Ministers, can halt an investigation or even interfere with it. I suspect that they cannot even ask for a proper briefing on it. I believe that the turmoil for the service person under investigation can continue for as long as the system wants. We must change this. That does not mean that I will tolerate misconduct on operations—far from it. The House will recall my very strong support for the Minister regarding a case involving a Royal Marines NCO who was convicted of murder. It was an extremely unpleasant task for me, but it had to be done. So I agree with everything that the noble and learned Lord has said, and look forward to the Minister’s response.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench 11:57 am, 24th November 2016

My Lords, I am delighted to be able to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and commend his absolutely brilliant analysis. The Minister stated only last month, on 19 October, that there are no current plans to amend the Human Rights Act; that the Government might derogate from the ECHR in some undefined circumstances; that they do not rule out legislating about combat immunity but there are no plans in train for any major change; and that they will “announce further measures shortly”. It is a quiver full of the vaguest of promises but no action. Lack of action has been going on for far, far too long.

More than three years ago, I pointed out that this year’s Armed Forces Bill would be a very appropriate and timely vehicle for introducing in statute combat immunity and other legal protection for the Armed Forces on operations. The Government resisted. Every service man and woman of whatever rank should not be exposed in operations to fear of, let alone belated mental trauma from, contemporary legislation, even that which has brought strength and validity to human rights protections. In a non-violent, peacetime scenario, there must be few who do not accept and support these rights, but they were surely cast and designed for use in non-operational settings. Some may still have a place whatever the scenario, but others, such as the right to life, or to family life, are so clearly at odds with the stark realities of conflict.

Nearly 20 years ago, when the Human Rights Bill was being debated, I pointed out the incompatibilities between the Armed Forces Acts—in those days each service had its own Act—covering the behaviour and discipline of the Armed Forces, and the human rights legislation. While the Armed Forces were obviously a public body, the requirements of discipline underwritten in the forces’ Acts could not be dovetailed into the intentions of the human rights legislation. My pleas and those of others were not accepted. The services have therefore had to live with the incompatibilities between these Acts—incompatibilities that have now morphed into the many cases of alleged criminal behaviour being followed up by the Iraq Historic Allegations Team, or IHAT.

IHAT’s existence and behaviour is, in part, also due to other legislation—the International Criminal Court Act 2001—which was much trumpeted and most earnestly endorsed by the then Government. I can remember well the concerns expressed not only by the then Chiefs of Staff and other serving officers but by many of us in your Lordships’ House. The then Government’s stance was to insist that arraignment before the International Criminal Court could never happen. Our courts and the International Criminal Court would abide by complementarity; that is, that the International Criminal Court could only be brought in if the national court and authorities were unwilling to deal with a case or negligent in doing so. No British justice would fall foul of such a charge, it was asserted. So the services had nothing to fear. But the obverse is now the case. Serious criticism and faults have been found by the UK courts in IHAT methods. Indeed, the Government seem to fear that one or more IHAT cases might be at risk of being brought before the International Criminal Court. The Minister admitted as much when responding to a Question on 19 October. If this is true, what should the Government now do about their involvement in and commitment to the ICC?

The USA and the French have not ratified, and there is a fine legalistic distinction between declarations and statements in any ratification. But, given the difficulties—the unintended consequences, if you will—surely thought and action must be given to adjusting the UK position with the ICC. Media comment recently suggested that other countries are indeed withdrawing from it. The Government are to pull away from the European Court of Human Rights and repatriate all aspects of legal procedures into our own sovereign authority. Should they not also apply the same philosophy to our relationship with the ICC? The USA is said to be helpful and supportive of the ICC without ever having ratified the treaty. Why cannot we have a similar approach and understanding?

Some will no doubt argue that any derogation or change would be quite impossible, or at least that the services’ concerns are not reason enough to be seen to be trying to push a few tender fruit off the ICC apple cart. But we are not talking about just anyone—service men and women and veterans have surely earned special consideration, as the Armed Forces covenant’s statutory approval indicates. We have had words of determination from government sources at the highest levels, we have had manifesto commitments, and we have had a quiver full of promises, but we seem to be no nearer to resolution. Service men and women are in conflict situations today. They have no immunity. Action, not fine words, is needed, and needed now.

Photo of Lord Hope of Craighead Lord Hope of Craighead Convenor of the Crossbench Peers 12:03 pm, 24th November 2016

My Lords, it is a great pleasure for me to follow the noble and gallant Lord, Lord Craig of Radley, and, like him, I join in congratulating the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on the way that he has introduced this debate. Like him, I speak against the background of national service. I served for two and half years in north Germany, or what was then West Germany, being trained under the eagle eye of people who had served in the closing years of the war in northern Europe and also in Korea. That is the background against which I approach the subject.

The noble and learned Lord has drawn our attention to two issues that certainly require attention if morale is to be sustained and the Armed Forces are to be enabled to do their job in armed combat outside the territory of the United Kingdom. Both of these problems are linked to the extraterritorial effect of the European convention—the ultimate safeguard against the abuse of power—during the invasion of Iraq and the post-conflict situation there. This is as explained in that part of the judgment in Smith on which all the judges were agreed; it was the unanimous part of that judgment. These two problems are: first, claims against the Ministry of Defence arising from the death or injury of service personnel; and, secondly, claims by civilians under Article 3 alleging actions by Armed Forces personnel in breach of that article, which prohibits torture or inhuman and degrading treatment or punishment.

On the first point, there is a question which I hope the Minister can answer—namely, what is the magnitude of the problem? How many cases are there, and what is really going on there? I suggest that anyone who takes the time to read through paragraphs 64 to 66 and 75 to 76 of the majority judgment in Smith will appreciate that it was concerned with procurement and not with actions taken by people on the ground in the face of the enemy. It also sought to strike the right balance very carefully, recognising that the law should exercise great caution in entering this field of activity at all. Therefore, the question arises of how great this problem is.

As for the solution that the noble and learned Lord suggested—an order under Section 22 of the Crown Proceedings Act—as he pointed out, the repeal of Section 10 of that Act was the result of a review which showed that damages which courts awarded in some cases could greatly exceed the benefits that servicemen received under their pension scheme. It is a fact that every statutory scheme which depends on funding by the Government is inherently parsimonious, and that it tends to become more so with time. Therefore, I suggest that we should consider very carefully whether it would be fair to front-line service personnel to confine them to a statutory Armed Forces compensation scheme, even with the adjustment that the noble and learned Lord, Lord Brown, has suggested.

Then there is the question of how to solve the much greater problem of unmeritorious claims against members of the Armed Forces. The magnitude of the problem is beyond question, as the noble and learned Lord explained. The solution is rather difficult. I wish I could be satisfied that there was an easy answer. The room for derogation under Article 15 of the convention is much narrower than some people seem to think. It is qualified by the phrase:

“In time of war or other public emergency threatening the life of the nation”.

That sets a high threshold. Article 2 on the right to life can be derogated from only in the case of deaths resulting from lawful acts of war. Derogation from Article 3—the prohibition of inhuman and degrading treatment and torture—is not permitted at all.

The word “war” speaks for itself, but the other phrase is much more difficult. It suggests, as was explained in Smith in paragraph 59, that the power to derogate,

“is available only in an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community”, as the European court held that it did during the Troubles in Northern Ireland. Lord Bingham explained that his view was that it was hard for the terms of that article to be met in a case,

“when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw”.

He was speaking about Iraq. He thought that it was very difficult to see how the conditions could ever be met in that situation.

One has to take account of the case of Baha Mousa, which the noble and learned Lord, Lord Brown, mentioned, which shows that, despite the best of intentions and the most careful training—which I am quite sure everyone in the Armed Forces receives—there are cases where abuses occur and where the protection of Article 3 is most needed. Therefore, I suggest that derogation is a very difficult route to go down. We should also bear in mind that, if a derogation is attempted, I think it would have to be made by a statutory instrument, which would be open to challenge by judicial review. The noble and learned Lord, Lord Brown, will recall the cases of control orders where there was a derogation by statutory instrument and, to the great dismay of the Government, the derogation was set aside.

As for the decision in Al-Skeini, I tend to support Lord Rodger’s view that the Human Rights Act applies to a public authority acting outside the United Kingdom. Of course, that can be altered by an Act of Parliament, but one has to bear in mind that claimants could still go to Strasbourg in search of their remedy and that Article 46 of the convention requires contracting states to abide by the judgment of the Strasbourg court in a case to which a contracting party is a party. So it is not easy to escape from the obligations under the convention.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Chair, EU Justice Sub-Committee 12:10 pm, 24th November 2016

My Lords, first, I thank the noble and learned Lord, Lord Hope, for encouraging caution in following the suggestion that we should withdraw from our legal obligations.

Mention has been made of the case of Baha Mousa. I know that many noble Lords in this House will have heard the name but will not be sure to whom it refers. The killing of Baha Mousa was a terrible blot on our reputation. Here was a man with a young family, found in the wrong place at the wrong time—he was a receptionist in a hotel—who was beaten to death, unfortunately, by British forces. Without the Human Rights Act, which forced the Government to hold an inquiry, there would have been no investigation, no accountability and no justice. We should remember that. The Human Rights Act places in the hands of individuals the right to petition and the power to seek justice.

I remind your Lordships that an inquiry, chaired by William Gage, found that Baha Mousa had been killed after sustaining more than 93 identifiable injuries to his body—this makes uncomfortable listening but we have to hear it so that we remember. He found that several other Iraqi men were placed in a circle and beaten sequentially, creating what the soldiers involved called a “choir”. They were hooded, forced into stress positions, made to dance and doused with toilet water—that is, water from a toilet bowl. One detainee had liquid poured over him while a soldier, pretending that it was petrol, appeared to use a lighter. These terrible abuses resulted in broken bones, damage, swelling to internal organs and post-traumatic stress disorder.

As a nation, we seek to uphold our values against those intent on destroying them. If we compromise, we lose our moral standing and betray the trust of those we seek to protect. Hypocrisy does not win wars, and neither does it win hearts and minds. Only three or four years ago I went to Iraq as an independent assessor of human rights programmes that had been established there after the withdrawal of troops. One of the things that stood us in good stead was that we, with our great respect for the rule of law, had investigated, proceeded appropriately and paid compensation appropriately in cases where we felt our Armed Forces had misbehaved. That we take those stands was a lesson to those who sought to advance the cause of human rights in Iraq.

I am currently involved in a similar sort of activity with regard to the rape of women in refugee camps, where often the rapes are conducted by peacekeeping forces, whose nations do not prosecute them. We had the moral standing in the world to be able to say, “We do prosecute”. There are independent law firms—we have an independent legal profession and judiciary, and we bring cases appropriately. Sometimes they will not be well founded, but even if that happens in a small number of cases, it is important that we are seen by the world to do this.

This whole campaign to retreat from legal obligations and our moral responsibility for wrongs committed by our military is built on a false narrative. The claim that there is an industry of vexatious claims and spurious allegations is not supported by evidence. First, I concede immediately that in all law, claims will be brought that do not withstand careful examination, and they will collapse. I accept that such claims cause horrible distress to those against whom allegations are made. We have discussed it in this House with regard to sexual allegations and other areas of crime where people face allegations, and we know about the horrible experience of the innocent who are put through that. At the same time, we know that the right route is through the law.

The military and some right-leaning think tanks have been pushing for this withdrawal from our human rights obligations, and I urge caution on this House. I quote from a letter written to the press by Reverend Nicholas Mercer, a former lieutenant-colonel in the British forces who had been a senior legal military adviser to the 1st Armoured Division during the Iraq war. He attacked the Government for inventing this orchestrated narrative account, saying that,

“the idea that the claims are largely spurious is nonsense. The Ministry of Defence has already paid out £20m in compensation to victims of abuse in Iraq. This is for a total of 326 cases, which by anyone’s reckoning is a lot of money and a shocking amount of abuse. Anyone who has been involved in litigation with the MoD knows that it will pay up only if a case is overwhelming or the ministry wants to cover something up”.

That was written by someone who was a senior person in the military but is also someone who, I suggest, is unlikely to make easy accusations about wrongdoing.

I urge this House to recognise that, as the noble and learned Lord, Lord Hope, has just said, even derogation carries with it its problems, as we saw in Northern Ireland. When some of the techniques used against Baha Mousa were tested, not only were they found to cause needless suffering but it was felt that they turned the troops into the enemies of ordinary citizens. That is what terrorists want, and it is what human rights law helps to stop.

It was suggested by the mover of this Motion, the noble and learned Lord, Lord Brown, that we should simply rely on international humanitarian law, but I am afraid that, on its own, it just does not cover the waterfront. It would not give people the access to the courts and inquiries that was possible under the Human Rights Act.

On the subject of derogation, I remind everybody that we have signed up to international conventions against torture and cruel and inhumane treatment. Certainly the majority of the cases that I know of were about the abusive treatment of people taken into custody. I quote the director of Liberty, Martha Spurrier:

“There is a dark irony in our government proposing derogation in wars of its choosing, even though many of those conflicts, like in Iraq and Afghanistan, are fought ostensibly in the name of human rights … If ministers held our troops in the high regard they claim, they would not do them the disrespect of implying they can’t abide by human rights standards. For a supposedly civilised nation, this is a pernicious and retrograde step”.

I agree with that. I want your Lordships to know that my father and grandfather—

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Chair, EU Justice Sub-Committee

I am coming to a conclusion now. I want your Lordships to know that my father and grandfather were in the military, and my male cousins recently fought in Northern Ireland and Iraq, so I will not be told that I am not being loyal to this country or to the military when I say that respect for human rights is one of the things that makes me feel proud of our military. I want it to be held up as a banner which we abide by and which is our beacon to the world.

Photo of Viscount Younger of Leckie Viscount Younger of Leckie Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Department for Education) (Higher Education)

My Lords, it would be an appropriate moment to remind the House that this is a time-limited debate. For Back-Bench speeches, Peers are reminded to conclude their remarks when the Clock reaches six minutes.

Photo of Lord Dannatt Lord Dannatt Crossbench 12:18 pm, 24th November 2016

My Lords, I add my thanks to that of other noble Lords to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for proposing this important debate and to the other Cross-Bench Peers who voted that we should discuss these matters today.

However, we should not be having to spend valuable parliamentary time on this subject in the first place. The fact that we are having this discussion today is not as a result of a plethora of cases of abuse and wrongdoing by British troops in Iraq and Afghanistan but as a result of an abject failure by Her Majesty’s Government to back members of Her Majesty’s Armed Forces in their carrying out of difficult and dangerous duties on behalf of the people of this country.

Rather than hundreds of soldiers, sailors, airmen and marines facing indictment for a range of alleged offences, it is the Ministry of Defence and the Ministry of Justice that should be facing popular indictment for an abject failure to stand up to the threats from the International Criminal Court to take over the investigation of British service personnel. The lack of faith in the good conduct of the vast majority of British service personnel is lamentable—little short of shameful. The only exonerating mitigation available is that the Prime Minister had the moral courage to cross Whitehall and meet with the service chiefs on this issue. However, it should never have come to this. As my noble and learned friend Lord Brown of Eaton-under-Heywood’s Motion states, it should not do so in the future.

At the heart of the issue is the willingness of government Ministers and officials to believe the fallacious allegations of Iraqis and Afghans, themselves manipulated by unscrupulous and commercially driven lawyers, rather than to have confidence in the Armed Forces’ chain of command and the tried and tested processes of investigation and judicial disposal.

Like other Members of your Lordships’ House who have spent time on operations around the world, I am fully aware that there are incidents of abuse and wrongdoing by members of the Armed Forces when deployed. Such incidents are, of course, deeply regrettable and where credible allegations are made, investigations follow and, if appropriate, due process of law is applied. One such example is the action taken in the genuinely outrageous Baha Mousa case, which resulted in a court martial and a conviction. But this stands in shameful contrast to the treatment of Sergeant Rachel Webster of the Royal Military Police. She was arrested in the early hours of the morning in her home by members of the Iraq Historic Allegations Team, an experience she described as,

“tantamount to being kidnapped by the state”.

The fact that Rachel Webster, who served for 24 years in the Army, was subsequently paid a four-figure compensation sum illustrates the degree to which this whole matter has got out of hand.

In conclusion, I want to ask the Minister a number of questions. How many cases of abuse and wrongdoing have been alleged to the Iraq and Afghanistan historic allegations teams? How many of those cases have led to formal criminal justice proceedings? How many convictions have there been? It is my understanding that the answers to my own questions are: thousands in Iraq and hundreds in Afghanistan, with no more than a handful of cases going to court at most, and there have been no significant convictions to date. Furthermore, will the Minister tell the House what the financial cost of these inquiries has been to date?

Finally, does the Minister agree with me that the financial cost is nothing whatever when compared to the loss of morale and operational effectiveness by members of the Armed Forces and loss of confidence in the Government, in whose name, on behalf of the people of this country, they have been operating? We must never put our soldiers, sailors, airmen or marines in this position again.

Photo of Lord Carswell Lord Carswell Crossbench 12:22 pm, 24th November 2016

My Lords, I congratulate my noble and learned friend Lord Brown of Eaton-under-Heywood on bringing this topic before the House in today’s debate. It is one well worthy of your Lordships’ consideration. I must say to the House at the outset that I, too, was a member of the panel of the Appellate Committee of your Lordships’ House which heard the Al-Skeini appeal—the case of Baha Mousa. I say at once that I do not seek in any respect whatever to minimise the iniquity of the treatment that he received, which was perfectly correctly described by the noble Baroness, Lady Kennedy of The Shaws. Indeed, we all expressed our horror at that iniquity in the opinions that we delivered.

I was in agreement with my noble and learned friend Lord Brown then on the grounds on which we decided the legal issue arising in the appeal. But, like him, I have reconsidered the wider ground on which Lord Bingham based his very carefully argued and perceptive opinion. I now see more virtue in that wider ground and in Lord Bingham’s view of the limits on the reach of the Human Rights Act 1998. As my noble and learned friend Lord Brown went into that, I am not going to take time to go into the question further.

In some countries where they are serving, members of Her Majesty’s forces are confronted constantly by dangerous situations requiring instant decisions and reactions. The people who are in the best position to comment authoritatively on the difficulties, dangers and stresses facing such service personnel are those who have themselves served in such places. It has not been my lot in life—nor, I suppose, has it been that of the large majority of your Lordships. For that reason that I am particularly glad that some Members of the House who have served in high command in Her Majesty’s forces will speak in this debate. Two of whom we have had the privilege of hearing already, and there are more to whose contributions I actively look forward.

The reason why I presume to speak on this topic today, apart from my judicial experience in the Al-Skeini case, is because, in Northern Ireland, as counsel and as judge, I heard detailed evidence on a number of occasions in court of those very situations and how service personnel dealt with them. The legal position was, of course, very different. Most obviously, we were dealing with events within the United Kingdom, so questions of extraterritoriality could not arise. Secondly, the Army was acting in support of the civil power and its rules of engagement were prescribed by the yellow card. The ordinary common law applied to claims brought against it and the Ministry of Defence. All the cases in which I was concerned, in either capacity, arose before the Human Rights Act was enacted, so the Convention on Human Rights did not come directly into consideration. I appeared for the Government in a number of cases as counsel and subsequently had occasion to hear and decide others as a judge of the High Court.

I shall confine myself to recounting one instance which illustrates vividly the type of situation which can arise. A person wanted for various serious terrorist crimes was known to be living in the Republic, out of reach of arrest by the security forces. It was also known that his girlfriend lived in a house very close to the border but just inside the territory of Northern Ireland. The Army received intelligence that this man would slip across the border to visit her in the near future. A small party of soldiers lay concealed within sight of the house and kept up observation for several days and nights.

One night the wanted man was seen to appear at or near the house and within the territory of Northern Ireland. The soldiers swooped on him and were able to arrest him without a struggle. They escorted him to a nearby field and summoned a helicopter to take the party and their prisoner to their base. The prisoner was in the centre of the field, guarded by the officer in charge, while the other soldiers secured the perimeter. Fairly soon the helicopter appeared and commenced its descent to the field, shining a bright light downwards—I believe it was called a Nightsun light. At that point the prisoner, hoping that the officer might be distracted or blinded by the light, made a lunge to grab his weapon. The officer reacted instinctively, discharged his weapon at the prisoner and wounded him fatally.

His representatives subsequently brought a civil action against the Ministry of Defence, claiming damages for the death of the man concerned. I appeared as counsel for the Ministry at the hearing of the action. The law was quite clear. It was not suggested that the man had been shot by an accidental discharge of the officer’s weapon. It was acknowledged that he had been shot deliberately—on the spur of the moment, of course—and the burden was then on the defence to justify the shooting as necessary in self-defence of the officer or defence of the other soldiers. In the result, the judge found in favour of the defence.

My point in describing this case as a sort of cameo is to illustrate the type of crisis which service personnel can encounter and the difficulties which they may meet in making proper decisions in situations requiring instant reaction. That is just one incident played out against a relatively calm background. How much more difficult could it be for soldiers in the circumstances which they faced in Iraq and other theatres abroad? I put this before your Lordships as a solid, practical reason to reinforce the reasons of principle which Lord Bingham adduced. I support the conclusions and suggestions which the noble and learned Lord, Lord Brown, has put before the House.

Photo of Lord Richards of Herstmonceux Lord Richards of Herstmonceux Crossbench 12:30 pm, 24th November 2016

My Lords, I too am most grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood—and, I should say, fellow gunner officer, of which I am very proud—for giving the House this opportunity to debate a subject that is so important, perhaps deceptively so, to our nation’s ability to pursue its national interests in adversity. I also pay tribute to Policy Exchange, the London-based think tank, for putting so much wisdom and energy into this issue, and to my good friend the late Duke of Westminster in particular for backing the “Fog of War” project that resulted.

My ex-military assistant Tom Tugendhat and his colleague Johnny Mercer, both of whom sit in the other place, early on recognised the flaws in our nation’s stance and have done much to draw attention to them. For this is a much more important subject than, understandably, many outside the House might expect or wish it to be. If the defence of the realm is any Government’s most burdensome and important role—indeed, their first and primary duty—not understanding the constraints the law might apply on the execution of that role would be a grievous omission on Parliament’s part.

Today’s Armed Forces have never been smaller. The Royal Navy has fewer vessels than at virtually any time in its history. The Army last had so few people in its ranks in 1790. The RAF has never been smaller or possessed fewer combat aircraft. The wisdom of this situation in what is such a troubled and unstable world is a debate for another day, but limited numbers of people and platforms mean that the individuals on whom we depend in war must be particularly clear-eyed about their mission and fully committed to the often dangerous tasks with which they are charged. They must know that their country values them and, if things go wrong, that they and their families will be looked after. They must be confident in their superiors, right up the chain of command, including their political masters, and in their comrades. Erode this and at the very moment we most need them to act decisively and unselfishly, they will pause, with potentially deadly effect on them and those around them, and on the successful completion of their mission. Every single person, particularly in today’s very small Armed Forces, counts.

That is why I was so pleased that Prime Minister Cameron adopted the Armed Forces covenant. While many of the bureaucratic constraints on delivering the intent behind it need freeing up, much of real value has come from his initiative. I argue that a vital part of the covenant that reflects the moral contract between our country and its Armed Forces should be the issue under discussion in this House today. Our Armed Forces need to know that the Government will look after them should things go wrong in the heat of battle. The covenant is about more than ensuring the NHS gives due priority to our veterans or that councils provide housing for them when they return to their home towns. The certainty that government will protect them from being sued in the courts under inappropriate law is even more important, I promise noble Lords, than the morale of our fighting men and women.

What needs to be done? First, we must be prepared to derogate from the European Convention on Human Rights. I applaud the Government’s stated intention to do this, but I am keen to see the details of their strategy. Like other noble Lords, I wish to know when and in what circumstances it will apply. Is it automatic or dependent on a parliamentary consensus that may not be forthcoming on the day? Clarity on this issue is vital.

Secondly, as the noble and learned Lord, Lord Brown, proposes, the Government should reassert the primacy of the Geneva Convention in regulating and guiding the actions of our Armed Forces in conflict. This is also the view of the International Red Cross, which we should note. Have the Government any plans, where appropriate—I accept that there will be nuances—to adopt IHL over the ECHR?

Thirdly, notwithstanding the difficulties which I accept are involved in so doing, there is a crying need for retrospective action to lift the burden imposed on many hundreds of disciplined and loyal service men and women through flawed legal action taken against them under the ECHR for alleged crimes committed in Iraq and Afghanistan. This issue is critical to Armed Forces morale now and into the future. Beyond the injustice perpetrated on hundreds and probably thousands of fine people, action today as a sign of good intent is vital. Promises of jam tomorrow will not do. A failure to act retrospectively will lead to distrust and cynicism about how much confidence can be placed in future derogation plans. Do the Government intend to develop retrospective legislation to resolve this crucial issue? I would be most grateful if the Minister answered these questions.

Photo of Lord Robathan Lord Robathan Conservative 12:36 pm, 24th November 2016

My Lords, it is a delight to follow the noble and gallant Lord, with whom I studied at staff college—your Lordships will note that he had a rather more successful career than I did. I also defer to the high-price legal opinion that we have on both sides of the House and want to address this issue from the position of a practitioner, albeit a long-retired soldier, and of a politician with an interest in defence who spent three-and-a-half years in the last Parliament as a Minister in the MoD responsible for personnel.

I want first to look at the workings of military discipline in the chain of command and then briefly at the legacy in Northern Ireland, where soldiers have been pursued for political reasons. Finally, I want to see how we might improve the situation.

When I was a soldier some 30 years ago, military discipline was a great deal fiercer, but it was largely accepted by troops—everybody knew where they were, and they were all volunteers. It was not perfect; it was sometimes harsh and by 21st-century standards unjust, but it worked.

In today’s debate, I want briefly to cover the cases of Trooper Williams and Baha Mousa in Iraq. In 2004, a young man called Williams, 18 years old, found an Iraqi pushing a barrel-load of mortar bombs. He and a corporal pursued the man into a compound—they did not shoot him in the back, which they could have done—and Williams said that in a struggle, the corporal was having his pistol taken away from him by the Iraqi so he shot him. Who are we in this Chamber to dispute that story? He was charged under military law in front of his commanding officer and, with legal advice, the commanding officer dismissed the case.

However, the Adjutant-General at the time, conscious of feelings, wrote quite unacceptably in a letter—I quote it from memory—that Williams had to be charged again or it might become “a cause celebre for pressure groups”. I was quite unhappy with that when I discovered it. Kevin Williams, 18 years old, was kept in open arrest for a year and charged with murder in the civil jurisdiction—because he could not be charged a second time. When he went to the Old Bailey, the judge dismissed the case on day one.

Baha Mousa’s case was one of a disgraceful, appalling failure of discipline, but seven soldiers were charged. One was jailed for inhumane treatment and, quite rightly, the careers of several officers were ended without the need for subsequent inquiry.

In both cases, one of appalling misbehaviour, the military system had worked, however imperfectly. I put it to some of the noble and learned Lords in this Chamber that sometimes the civil jurisdiction does not work that well either. We did not need the ECHR to tell soldiers what was right and wrong, because they know—they are taught the Geneva Conventions, international humanitarian law and the law of armed conflict. The case of Sergeant Blackman is relevant, because in Afghanistan he knew exactly what he was doing and he actually said, “This is against the Geneva Convention”—although the eight years he received remains too long a sentence. However, he was tried by court martial, by military jurisdiction.

The Northern Ireland conflict ended in 1998. Many of the deaths and incidents there took place more than 40 years ago. There were 3,500 deaths, of which approximately 90% were caused by terrorist action. The other 10% were the result of police and military action in protecting the people of Northern Ireland, be they Catholic or Protestant, against terrorists—however imperfectly on occasion. One example where civil law was involved is the pitchfork murders in Fermanagh in 1972 which, as noble and learned Lords may remember, were covered up by a patrol. When that was discovered, the retired soldiers were brought to justice—quite rightly—and sent to jail. Where soldiers have been proved to have broken the law, they have been punished. I saw that myself in Northern Ireland.

However, the situation we now face in 2016 is disgraceful. For political reasons and under pressure from Sinn Fein, we now have the Legacy Investigation Branch of the PSNI, which is 70 officers strong and investigating 300 cases involving the military—which of course kept records—as its priority. Yet tenfold died because of terrorist activity. The Attorney-General for Northern Ireland ordered 56 coronal inquests and I am told that all bar one involve police or military actions. The Police Ombudsman for Northern Ireland is looking at historic complaints of police misconduct back in the Troubles. So the police and military are under the cosh yet they have always been judged by the law—often at the behest of former terrorists.

The last Secretary of State spoke in February of a “pernicious counternarrative” of the Troubles: opponents of the United Kingdom trying to rewrite them. The Stormont House talks of 2014 wanted to set up a proportionate inquiry unit, the Historical Investigations Unit, which would look at cases only where there was compelling new evidence and would have a five-year time limit to finish its work, starting with cases from the very beginning of 1969. Let me illustrate the current situation, briefly, with the case of Dennis Hutchings who, 42 years ago, shot a man dead. The Army and the public prosecutor investigated and the case was closed. The Legacy Investigations Branch of the PSNI undertook a cold case review and in 2013 decided to take no further action. The then Minister for the Armed Forces apologised to the dead man’s family—I was slightly surprised to discover that that Minister was me. Hutchings has now been charged with murder but his two comrades—his defence witnesses in the case—are dead. Is that justice? In all these theatres, we are often allowing our enemies and opponents to use our liberal values, which they oppose, against us.

The Government should fulfil their manifesto commitment, repeal the HRA and have a UK Bill of Rights—not to withdraw, as the noble Baroness said, from our moral obligations but to make things more fitting. I also back the noble and learned Lord, Lord Brown. We should reinstate something like prior immunity so that soldiers cannot sue the Crown for inadequate equipment because that is an entirely subjective judgment. Imagine the consequences of that 100 years ago with the Somme: it would have been a complete lawyer-fest. I am out of time, but I congratulate the noble and learned Lord on his excellent speech and for having this debate. I encourage Her Majesty’s Government to listen to the feelings expressed here and to take action so that our Armed Forces are effective in battle, able to act in the heat, dust and nightmare of it without worrying that lawyers in comfortable offices, be they in Strasbourg or the Strand, will later judge them to be criminals.

Photo of The Earl of Stair The Earl of Stair Crossbench 12:43 pm, 24th November 2016

My Lords, I join many other noble Lords in thanking my noble and learned friend Lord Brown of Eaton-under-Heywood for bringing forward this debate on this extremely important subject. I am pleased that the Government appear at least to be starting to acknowledge it as such.

It seems that, starting with the Iraq war, confusion has developed between the international humanitarian laws covering conflict and the European Convention on Human Rights designed to protect the individual. I do not believe that human rights legislation was ever designed to be used in conflict or even outside the normal territory of participating Armed Forces. Yet this has become a precedent and, as we heard, will end up opening many other historic investigations into every operation undertaken by our Armed Forces outside normal territorial boundaries. It is interesting that international humanitarian law is deemed to have adequately protected all in conflict situations to date. However, human rights law has brought a challenge in the form of protection including for suspected enemy forces who may be trying to kill our forces but are deemed to have a greater right to life. We have been well served by international humanitarian law, including the Geneva Conventions, and the Armed Forces Acts in protecting and guiding our Armed Forces in the work they undertake either overseas or when they have had to operate at home—for example, in Northern Ireland.

It is wrong that members of the Armed Forces can be prosecuted long after an event, following an investigation undertaken perhaps using witnesses with ulterior motives. This has now also started, I believe, with some historic cases from Northern Ireland. Like some other Members of this House, I was involved in the Falklands campaign nearly 35 years ago and I know that should someone raise questions with me about actions that were taken at that time, much of the detail has been forgotten and could easily be open to incorrect assumptions.

It is easy to forget from the warmth and comfort of an office that in many incidents involving troops in contact with opposition forces, they often operate under stress and fuelled by adrenaline, and judgments are based on the situation as it appears at the moment and within the guidelines of their training. To follow up at a later time in court cannot allow the full circumstances to be considered and, indeed, could be open to confused assessment if left for a long period of time.

The European Convention on Human Rights has a very important role in the protection of people in the normal course of life. However, I cannot believe that it was ever conceived to be used in a conflict situation, irrespective of whether the conflict is at home or abroad, and certainly not as a means for financial gain, for either legal advisers or victims. Although the Government are correct in applying the derogation to Article 15—taking into account the warnings of my noble and learned friend Lord Hope—prior to the proposed alteration of our status in Europe, the final intention must be for sound legal guidance that supports the actions taken by our Armed Forces when working in conflict situations but, equally, under no circumstances tolerates abuse or misuse.

There are few careers I can think of where as an employee you are expected to place yourself in mortal danger. As such, this needs to be respected and every effort made to support and protect those who are prepared to undertake such jobs, both through support after conflict and by the unrestricted provision of protection either through equipment or by legal cover. The Ministry of Defence must assume ultimate and total responsibility for what is undertaken in the name of the Government by the Armed Forces, and ensure that there is a robust control to ensure that there can be no comeback after the event on those who were implementing the directions they received. This, I am sure, can be achieved by an immediate summary and report and a detailed record of activities that have taken place soon after the event, and perhaps independent monitoring of those being held under detention prior to further investigation or prosecution.

I welcome the Government’s proposals and look forward to the protection that the Armed Forces working on our behalf will gain—and deserve—whether working at home or abroad. I look forward to hearing from the Minister about whether he can give some indication of the timescale and the importance with which the Government intend to treat this matter.

Photo of Lord Bew Lord Bew Crossbench 12:48 pm, 24th November 2016

My Lords, like other noble Lords, I express my thanks to my noble and learned friend Lord Brown of Eaton-under-Heywood for securing this debate. I fundamentally support the underlying thrust of his speech but I confess that I do not have an answer to some of the key questions that have been discussed already. What about derogation of the ECHR? Should the Human Rights Act 1998 be amended, as my noble and learned friend argued? Should there even be retrospective amendments to the Human Rights Act 1998? All these courses of action have their supporters and all of them have their very intelligent and able opponents.

There is no case for allowing the status quo to remain unaltered. UK forces should rightly remain subject to international humanitarian law—the Geneva Conventions—as well as, of course, UK military and civil law; for example, the Armed Forces Act 2006. It is perfectly obvious that it is not just the Geneva Conventions or our domestic law that are important in this respect; it is actually the moral culture of this country, its polity and its military. I will come back to that in a minute.

While the thrust of today’s debate deals with extraterritorial matters such as Iraq and Afghanistan, there is no question that the key moment in what has been called the juridification of armed conflict came in Northern Ireland with, for example, the Bloody Sunday tribunal. There is no question that that is where the great impetus originates from in our modern culture. I was the historical adviser to that tribunal and I do not regret doing that work. Earlier in this debate the noble Baroness, Lady Kennedy of The Shaws, talked about the Baha Mousa case; I think that she used the phrase “A very serious blot on the reputation of the British Army”. I think there is no question that Bloody Sunday was also a very serious blot on its reputation but I would add one thing, which I can say as the historical adviser.

Even before the great tribunal of the noble and learned Lord, Lord Saville, there was the Widgery tribunal, which was so widely dismissed as a whitewash. Lord Widgery referred to reckless firing and said that eight of those who died were innocent. By the way, the only reason that Lord Widgery did not say that the whole 13 were innocent was the duff forensics he had to work with, which were quite rightly later modernised in the work of the noble and learned Lord, Lord Saville. I have seen the response by senior Army commanders to that first report and they did not say, “That’s wonderful—it’s a whitewash and everything is fine on the day”. They said, “This is shocking. We, the British Army are responsible for the death of eight innocent civilians”. This happened before we had a £200 million inquiry and there never was anything like Bloody Sunday again, despite many difficult and dangerous circumstances during the life of the Troubles. That is why I said earlier that we should not just be able to rely on the Geneva Conventions and our own domestic law; we also have some reason to think that we can rely on the culture and reflections on tragic events of our own senior Army officers, and indeed of our own political community in the United Kingdom. It is perhaps worth saying that.

The current run of legacy cases in Northern Ireland have already been referred to in this debate. They are very expensive and, in the end, are always paid for by the long-suffering hero of the Troubles, the unknown British taxpayer. Among the cases running at the moment I am predictably thinking most recently of the inquiry, which some of your Lordships will know of, into the activities of a famous army agent called Stakeknife. They seem to involve at some level the application of humanitarian law and the intrusion of these concepts of human rights into the theatre of war. Let us remember that the IRA always claimed to be waging a just war, from its point of view. We need to think just how wise that actually is as a project.

I return to my argument that the status quo is not sustainable. We have reached a point where, through a number of steps—the Bloody Sunday inquiry was part of this as well as the legal cases that have been referred to—all of this is understandable. At every point the decisions made by judges, whether in this country or elsewhere, and by politicians at various points in this process are all understandable. Yet in the case of Northern Ireland, we have stumbled to this end result: if you were responsible for bombing people in London, you will now have received a letter of comfort. I understand why that decision was made, ambiguous though it was. If you were an IRA person and have that letter of comfort, you will not be prosecuted yet according to the press, the soldiers of Bloody Sunday may in fact face prosecution. As I said, in the chain of decisions not one of them is irrational or not open to a certain type of defence. However, this suggests that the stumbling empiricism that we are engaged in in this field has to come to an end. There is a case for the Government to take some decisive action.

Photo of Lord Bilimoria Lord Bilimoria Crossbench 12:55 pm, 24th November 2016

My Lords, I remember as a teenager going to visit my late father, Lieutenant-General Bilimoria, when he was a brigadier commanding a desert brigade in Rajasthan. He said, “Come on. I want to show a military court martial”. I remember going and sitting right at the back. Talking to your Lordships now, I can picture watching the Judge Advocate-General in action. I realised then and there that if something happened, the military conducted the business in its own way through a court martial.

The Conservative Party’s 2015 general election manifesto made a commitment to,

“ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job”.

Last December, Michael Fallon, the Secretary of State for Defence, was reported as saying,

“that there was ‘a strong case’ for suspending the European human rights law when sending forces into action overseas”.

He told the Daily Telegraph that ambulance-chasing British law firms were inhibiting the operational effectiveness of British troops abroad and,

“argued that the European convention—which applies in the UK through the Human Rights Act—was ‘not needed’ in the field of military conflict overseas”.

Does the Minister agree?

In January, the then Prime Minister David Cameron set out his plans to reform the situation. He said:

“It is clear that there is now an industry trying to profit from spurious claims lodged against our brave servicemen and women who fought in Iraq. This is unacceptable and no way to treat the people who risk their lives to keep our country safe. It has got to end.”

We talk about derogation. In October the Government announced that they will introduce a presumption to derogate from the ECHR in conflicts to protect Armed Forces from persistent legal claims. Can the Minister confirm that this will be the case in future because he wrote:

“While the Courts have been seeking to reconcile the Convention with the long established Law of Armed Conflict (or International Humanitarian Law), our military personnel have been engaged in operations overseas in support of the international community”?

The Attorney-General gave evidence to the House of Commons Defence Sub-Committee. He highlighted that the decision to derogate would not be “immune from challenge”, and therefore there would need to be a,

“logical and defensible thought process applied to the decision to derogate”.

Will the Minister explain that?

Policy Exchange published a well-known document which stated:

“The application of laws originally designed for domestic civilian cases to military operations overseas has changed the way the armed forces can act”.

It argued in favour of applying IHL not human rights law to military operations. Toby Perkins, then shadow Minister for the Armed Forces, commented that IHAT,

“is being abused by irresponsible law firms or malicious complainants”.—[Official Report, Commons, 27/1/16; col. 201WH.]

We had a debate on this matter in February. I remember that I had just returned from the Indian Defence Services Staff College in Wellington. The Guards officer, Lieutenant-General Gadeock, the commandant, reminded me of the motto of the staff college: “To war with wisdom”. The mascot of the staff college—its emblem—is the owl, which of course stands for wisdom. Are we being wise in this country when it comes to the law and the Armed Forces? Ithank the noble and learned Lord, Lord Brown, for initiating this important debate and for speaking about the fog of war and the fog of law.

Everyone has been consistent. The former Armed Forces Minister Penny Mordaunt has spoken openly about spurious cases being the,

“enemy of justice and humanity”.—[Official Report, Commons, 27/1/16; col. 203WH.]

After all, France has opted out of certain elements of the ECHR to protect its military from the threat of litigation as have Portugal, the Czech Republic and Spain. Why can we not? Why will we not definitively say that we are going to do this? The Geneva protocols should be applied in conflicts and war. Surely the Minister agrees.

In the Defence Services Staff College, I remember referring to 10 Things Entrepreneurs and Military Pilots Have in Common by Ron Yekutiel. Two of those 10 things are “Be Bold” and:

“Just get the Job Done”.

Can you be bold and just get the job done when you have the ECHR hanging over you?

The noble Lord, Lord Richard, spoke about the military covenant. The first duty of government is the defence of the realm. The covenant is at the heart of everything.

A letter was written by our former senior generals, many of them now noble Lords. They said very clearly:

“The increased risk of prosecution constrains the ability of commanders to respond to fast-moving situations on the battlefield”.

As the noble Lord, Lord Dannatt, said, this could lead to a generation of risk-averse military leaders, which undermines the world-class status of our Armed Forces and their morale.

I conclude by talking about General Ian Cardozo, who wrote the book on my father, Lieutenant-General Faridoon Bilimoria: His Life & Times. I asked his opinion on all this. He said very clearly:

“A soldier by the very nature of his profession is required to put ‘Country First and Self Last’”.

In his own words, he spoke about the covenant:

“Considering the above, and the fact that personnel of the armed forces carry out their duties cheerfully and courageously, in the face of death, it would be incumbent on the country that he serves, that he is treated with honour and respect and that this translates into a system that cares for him should he be killed or disabled during the execution of his duty … the soldier needs to know that he and his family will be dealt with fairly should the occasion demand. A country that does not look at the needs of the soldier in a fair and just manner dishonours itself”.

If I may, I will conclude by reading a poem that I came across that sums it all up, written by an unknown soldier:

“I am that which others did not want to be,

I did what others did not want to do, and went where others feared to go,

I have felt the blistering cold, stared death in the face, and enjoyed only a moment’s love.

Even though no one cares who I am or what I’ve done,

I can honestly say

I am proud of what I am!

A SOLDIER”.

We cannot let them down.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 1:01 pm, 24th November 2016

My Lords, I join noble Lords in thanking my noble and learned friend Lord Brown of Eaton-under-Heywood for obtaining this debate, and congratulate him on the masterly way in which he introduced it.

I note that my noble friend’s Motion uses the words “armed conflict”, not “war”. I must say that after 41 years in the Army I was horrified by the loose use of the word “war” by Messrs Brown, Blair and Bush when declaring “war on terror” and “war on drugs”. I was pleased when Professor Sir Michael Howard reminded us that the Romans had two words for war: “bellum”, which was the lawful use of force between states, and “guerra”, which was the unlawful use of force within a state. What we are faced with in armed conflict at present is often described as “asymmetric warfare” but I prefer a phrase that was used by General Sir Rupert Smith, who commanded our division in the first Gulf War, of “war amongst the people” because it expresses most vividly the problems that our current commanders in armed conflict face, particularly overseas. I want to limit my contribution to making a plea on behalf of all commanders who are likely to face that sort of situation.

Like my noble friends in this House, the armed conflict that I was involved in, including in Northern Ireland, was more certain than it is now. The laws of war, as they are often referred to, were drawn up for conflict between clearly identifiable armed forces fighting on a clearly defined battlefield. They do not apply, though, because there is no such thing as a battlefield in wars among the people. I found when commanding troops in Northern Ireland that it was essential that all ranks were quite clear on where they stood in regard to the law if they were to act within the law. The yellow card regarding opening fire that was issued at the time gave a clear description of that.

At present, though, the fact that such a number of claims are being made against armed services personnel shows that not only have the Armed Forces not been completely clear on where they stood in regard to the law, particularly human rights law, neither have the lawyers understood the conditions in which the armed services have to act. There is no doubt that the conditions and circumstances of armed conflict differ from times of peace. The application of human rights law in particular, which has been very ably covered by my noble and learned friend Lord Hope, especially the definitions in Article 15, emphasises that difficulty.

Commanders must be completely clear about the legal position regarding operational decisions that they are going to take. I very much took the reference made by my noble and learned friend Lord Brown and my noble friend Lord Dannatt to the danger of becoming risk-averse. You cannot have commanders made risk-averse by something that is not in their control. My noble and gallant friend Lord Boyce recognised this at the start of the second Gulf War when he sought a decision on whether the invasion of Iraq was legal and therefore whether those taking part were likely to be arraigned as war criminals.

I ask the Minister to note the importance of any Government who are committing UK armed services personnel to armed conflict abroad ensuring that the legal position is made abundantly clear to all ranks involved. To my mind, that is the best way of preventing the shameful example we have had of the performance of some unscrupulous lawyers in pursuing them, particularly in Iraq.

Photo of Lord Trevethin and Oaksey Lord Trevethin and Oaksey Crossbench 1:07 pm, 24th November 2016

My Lords, I declare an interest of sorts in that I am a practising barrister and I work in the field of claims against professionals, and I suppose that is a field into which at least some of the cases that your Lordships are discussing would fall. Unlike many of the noble, and sometimes noble and gallant, Lords who have spoken in this debate, I am completely unqualified to comment on the effect of the law’s incursion into military matters on operational efficiency because I have never seen action or done military service. In that, I would think I resemble over 99% of the judges who now serve. We now do not even have judges on the Bench who will have done national service. The disconnection between the legal system and its practitioners on the one hand and military people on the other is part of the problem that lies behind this important debate.

I have asked myself how things might go on the side of the fence that I know a bit about: namely, litigation involving professionals. At the moment, if you leaf through the increasingly bulky textbook on professional negligence, you travel through the bit about insurance brokers and then there is a bulky section on lawyers, but you do not have a chapter on military negligence. Within five or 10 years’ time, though, unless the developments we have been discussing today are arrested and reversed, we will find a chapter on military negligence and it will make uncomfortable reading. I shall give the House in advance one or two highlights of what it might say. There will be a section on breach of duty that will say something like this: “It is a defence for the defendant to show that the Ministry of Defence has been following a procedure that is established and recognised as acceptable by a substantial body of opinion within the military”. In professional negligence law that is known as the Bolam defence, and I see no reason why it would not apply to the claims against soldiers that we are currently considering.

When the military sets about drafting its manuals to fend off the risk of liability in future litigation, it will find itself having to set out procedures designed for that very purpose. Those procedures will ossify in the manual in a way that is completely inappropriate when one considers the need for operational efficiency in the face of ever-changing threats. The result will be that the military will be constrained to make the well-known mistake of fighting the last war by the incursion of the fog of law, if you like, into military activities. That is one problem.

When one moves on from breach of duty, one passes over issues about evidence and comes to the section on causation and loss, which for lawyers in the field is often the most difficult and legally interesting part of the case. As the noble and learned Lord, Lord Hope of Craighead, said, the Smith decision in the Supreme Court was concerned with issues of procurement and equipment. Nevertheless, one of the cases before the Supreme Court involved injuries and deaths caused by friendly fire in relation to the use of Challenger tanks. It seems to me inevitable that, if that case were to go to trial, issues would arise about exactly what happened in the heat and dust of the battleground.

The judge hearing that case and similar cases might well have to answer issues about causation. It would be said on the part of the defendant—it is a standard defence in this type of litigation—“Even if we had done what we should have in relation to equipment and so forth, the result would have been the same, because things would have played out in the same way on the battleground”. The judge would have to ask himself whether there was a possibility of a more favourable outcome. That would involve hypothetical inquiries about the actions of combatants on the battleground, and he might end up saying something like: “There is a 30% chance that the hostile combatants would have behaved in a different way if the equipment issues had been properly addressed by the Ministry. I am therefore constrained by the law to award discounted damages on that basis”. That sort of inquiry into events on the battleground seems to me, and, I should have thought, most of your Lordships, unimaginable and something that cannot be allowed.

What is to be done? I have about 30 seconds left and there are obviously no easy answers. I entirely understand what the noble and learned Lord, Lord Hope, said, about the difficulty of derogating from the convention. It seems to me that primary legislation is required. One function of that legislation might be to define combat immunity. That doctrine was explored by the Supreme Court in the recent case of Smith. This cannot be left to the judges alone because they cannot cope with the thickets of law emerging from Strasbourg. Strasbourg jurisprudence is a living tree and, every now and then, the tree surgeons in Strasbourg lop off one branch and replace it with another, which makes judicial control of this area impossible. Legislation is required and, for all the reasons developed in this debate, it is required urgently.

Photo of Lord Stirrup Lord Stirrup Crossbench 1:13 pm, 24th November 2016

My Lords, this is an important debate, and I, too, thank my noble and learned friend Lord Brown of Eaton-under-Heywood for securing it and for the interesting ideas that he advanced, which I support. In considering these and other aspects of the problem, it is important to be clear precisely what we seek to achieve. We are not suggesting that the Armed Forces should somehow be freed from the constraints of the rule of law. The notion that military personnel, if not kept on increasingly tight rein through legal process, would have a tendency to unlawful behaviour is totally unjustified and does great disservice to the men and women who sacrifice so much on behalf of our nation. The need to act lawfully is not a side consideration for the Armed Forces; it is an integral part of the ethos and training.

When I was an operational commander responsible for making decisions about whether or not targets should be attacked, I had a lawyer at my shoulder the entire time. We worked hand in glove to ensure that all decisions conformed with the law of armed conflict and the various other legal constraints placed on us, but I did not need a lawyer to spell out for me the various considerations of the law or the necessity of abiding by them. These had been part of my training for years and were as much a part of my thinking as the military necessity and effectiveness of the decisions I was making. The lawyer was there as a sounding board, as a provider of expert advice and as a check of last resort, should I have some sort of mental aberration, but we were not coming at the process from different angles, one military and one legal; the legal was a fundamental part of the military.

The same is true in all other parts and at all other levels of the Armed Forces. The people we are discussing today are professionals. Wider moral considerations aside, they take pride in doing their job professionally, and that means doing it under and within the law. Can I guarantee that none of them would ever act unlawfully? Of course not. Humans are not perfect and occasionally somebody, knowingly or not, will carry out an illegal act. They must be subject to the full rigour of the law.

The noble Baroness, Lady Kennedy of The Shaws, rightly highlighted the terrible Baha Mousa case, but later suggested that the MoD would generally resist investigation of such cases. I say to the noble Baroness that I was present during discussion of the Baha Mousa case in the MoD. To an individual, we were sickened. We were determined that responsible parties should be brought to justice. It was as far from resistance as can be imagined.

That said, the context of military operations is very different from that which most people experience throughout their lives. It is inherently chaotic. Operations take place in a violent arena where uncertainty abounds and an opponent is trying his utmost to wrong-foot you. In such an environment, the cleverest, most perspicacious and well-trained people will make judgments that turned out to be wrong. It is inevitable. It is inherent in the nature of the beast.

This uncertainty and imprecision extends beyond the boundaries of immediate combat. Some people have claimed that their aim is to ensure that our people go to war only with the best possible equipment. Of course we should all like that, but the effectiveness of equipment will vary according to many different factors; it cannot be perfect in all regards. Ordering an attack today with imperfect equipment may well be less costly in the long run than delaying that attack until the equipment can be improved. These are complex issues with no neat solutions.

It seems to me that that complexity has been extended beyond all reasonable grounds by the involvement of human rights legislation. The protections offered by such legislation are important in the round and are part of the very society and culture that our Armed Forces are there to defend but, ironically, we now run the risk that the way those protections are being interpreted will actually weaken that defence.

I, for one, have always been somewhat bemused by the concept of a right to life. What about the young girl who tragically dies of leukaemia? What happened to her right to life? There is, in my view, no such right—not least because it is inherently unenforceable. What there is, and must be in any civilised society, is an obligation on its members not unnecessarily to hazard the safety of others. Some may argue—rightly, I think—that this is simply another way of making the same point, but how we put things is important. It influences how we think about those things.

No military commander would ever wish unnecessarily to hazard the people under his or her command, but in the Armed Forces it is sometimes necessary to do so. The degree of necessity and level of acceptable risk are often difficult judgments, and sometimes they will turn out in hindsight to have been wrong. If the decisions were made negligently, those responsible for them should be called to account, and legal routes for doing so have long existed, but if every judgment is to be second-guessed in the courts, the result will be caution and even risk aversion. History has amply demonstrated that both tendencies are themselves damaging and dangerous over the long run. The 2013 policy paper The Fog of Law and the subsequent 2015 paper Clearing the Fog of Law provided an excellent overview of the issues involved.

Some argue that the courts can be relied upon to understand the difficult context of operations and to ensure that only egregious cases go forward, but such post-fact filtering, while better than none, will do nothing to diminish the impact on decision-making in the field. Commanders will still face the prospect of their judgments leading to legal challenge, and the assurance that they should eventually be cleared will be of no comfort to them.

In sum, we expect people in our Armed Forces to make difficult judgments in complex and ambiguous situations. With the benefit of hindsight those judgments will inevitably be called into question and, on occasion, even those making them will conclude that they turned out to be wrong. But the alternative is much worse. Hardened veterans of many nations over many centuries have averred that only one thing frightened them more than a commander who made the wrong decision and that was one who made no decision. Unless we restore some balance and provide the military with a degree of protection against the increasing tide of legal challenge it faces, that is the very situation we will be engendering.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 1:21 pm, 24th November 2016

My Lords, first I declare an interest as chairman of the Association of Military Court Advocates, with experience of courts martial and military matters over a period of some 20 years.

Regarding claims against the Ministry of Defence, I am with the noble and learned Lord, Lord Hope, in pointing out that these claims have been essentially on procurement issues. Even the case to which the noble and gallant Lord, Lord Stirrup, referred—regarding friendly fire—was as a result of inadequate communications equipment between the tanks that fired and the troops who received that fire. It was essentially an equipment problem. These claims against the Ministry of Defence are not on the basis of wrong orders, or no orders, being given in the field of battle but merely the putting of our troops into that battle without the necessary and proper protections that they should have. What has followed from that, and I know that noble and gallant Lords will appreciate this, is that the equipment has been improved in every case. They have been given better equipment; their service has been made that much safer as a result of the claims that have been brought.

I do not believe in a scheme of statutory compensation, as the noble and learned Lord, Lord Brown, suggested—though I congratulate him on bringing this debate forward, because it is very important—for the reason given by the noble and learned Lord, Lord Hope: that such statutory schemes tend to get more and more parsimonious. I was once a member of the criminal injuries compensation board when compensation was paid on the basis of civil damages, and kept in step. I resigned from that board when, back in 1992, the scheme was altered so that a tariff scheme, without regard to the particular circumstances of the individual, was introduced. Statutory schemes are not the answer.

I turn now to the claims for torture and inhuman and degrading treatment brought by people as a result of their alleged treatment by members of our Armed Forces. I ask the Minister: has a single one of the 326 cases, for which £19.6 million has been paid by way of settlement, been brought by a combatant as a result of injuries that he received in actual warfare—in combat? I should have thought that combat immunity, although it may shade a little at the edges, is a sufficient defence to any such claim. I think that we are dealing simply with prisoners of war and civilians and the treatment that has been meted out to them. If combat immunity is at all vague, it is because it is generally a question of fact, not of law.

I was in the Baha Mousa case—I represented one of the officers who was charged with neglect of duty—and I very much recall what it was about. It was an absolute disgrace. Do your Lordships appreciate that the case against the corporal who pleaded guilty to a war crime and received 12 months’ imprisonment for it was standing at the door of the stinking prison in which these prisoners were kept, inviting passers-by—military personnel—to come in and take a shot at hitting or kicking the Iraqis who were hooded and tied in that compound? That was the sort of circumstance that led to Baha Mousa receiving 93 separate injuries, as the evidence said.

In the al-Skeini case, it was decided that the civil claim could go forward on the basis that the prison could be regarded as an equivalent to an embassy. Certainly there were no Ferrero Rocher things being handed out there. It was the most dreadful place, and for it to be compared with an embassy to give jurisdiction was completely wrong.

Reference has been made to Lieutenant-Colonel Mercer, who served some 20 years as a lawyer in the Army. He served in Northern Ireland and also in Bosnia. He volunteered his expertise to the defence team of which I was one—in fact, specifically to me—when we were defending seven paratroopers from the 3rd Battalion of the Parachute Regiment in a court martial in Colchester in 2005. They were all acquitted. I remember that case for one very good reason.

An Iraqi lady had been brought over from a village in Iraq because she had complained that a paratrooper had ripped off the front of her dress and exposed her to the villagers, and to be exposed in that way was the worst thing that could happen to a woman in Iraq. She came to the witness box and took the oath on the Koran. Then, to the surprise of everybody, she announced, “I have now taken an oath on the Koran, and I have to tell you that everything I’ve said so far has been a lie”. That was the quality of the evidence in that case. Judge Blackett, the Judge Advocate-General, when dismissing the case said that,

“most of the Iraqi witnesses have exaggerated their evidence”.

Three women, one of whom was pregnant at the time of the incident,

“have admitted telling lies that they were seriously assaulted when they were not … Others have been shown to tell lies”.

He added:

“In their own admission these Iraqis saw an opportunity to seek financial advantage from the British Army. They frequently spoke of fasil, or blood money, and compensation in relation to what were patently exaggerated claims”.

I certainly had my eyes opened by that case; falsified claims could very easily be brought, and discovered.

Article 1 of the European convention requires states to uphold the rights guaranteed by the convention within its jurisdiction—not its territory, its jurisdiction. The noble and learned Lord, Lord Brown, suggested that the extent of the European covenant should be confined to the United Kingdom. That, of course, would have meant that the Baha Mousa family could not have brought any proceedings. But the al-Skeini judgment was considered by the European Court of Human Rights, and it said that,

“if universality truly is the foundation of human rights, why should it matter for the purpose of its extraterritorial application that the ECHR is a regional treaty? Jurisdiction either means control of a territory or it does not, and people either are within the state’s jurisdiction or they are not”.

It held that,

“following the removal from power of the Ba’ath regime … the United Kingdom … assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government”.

In other words, it was within the United Kingdom jurisdiction. So we ought not to confine the convention territorially to the United Kingdom.

As for derogation, I follow the noble and learned Lord, Lord Hope, again in saying that it is very difficult to derogate from the convention. The phrase,

“in time of war or other public emergency threatening the life of the nation”, could not possibly be applied to our invasion of Iraq or Afghanistan.

I was brought up in a world in which barratry still existed—that is the stirring up of litigation. It was abolished only in 1967. Ambulance chasing was against the law but, since that time, it has started again. I was against the legal profession advertising its services, but that stopped in 1986. That has led to the sorts of abuses that we have seen by certain very limited firms of lawyers who are facing professional obloquy. I do not believe that commanders in the field are afraid of firms of lawyers of that calibre, and I am quite sure that they follow far more readily the legal advice that is always at their hand.

Photo of Lord Touhig Lord Touhig Shadow Spokesperson (Defence) 1:32 pm, 24th November 2016

My Lords, the House is in debt to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for securing this debate. We have seen throughout the wide range of experiences and backgrounds that have contributed to this most important discussion.

On the eve of the battle for Iraq in March 2003, Colonel Tim Collins said:

“We go to liberate, not to conquer. We will not fly our flags in their country. We are entering Iraq to free a people and the only flag which will be flown in that ancient land is their own ... As for ourselves, let’s bring everyone home and leave Iraq a better place for us having been there”.

Sadly, not everyone came home, and the debate over the consequences of the outcome of the Iraq war rages on today. But for me those words express the very best of the tradition of the British Armed Forces when going into conflict. Those who join our Armed Forces become part of an organisation with a proud record, and they know at some time they may asked to put their lives on the line. So we must ask why some are seemingly obsessed about finding fault, seeking out allegedly guilty servicemen and ex-servicemen and branding them with allegations of terrible actions in Iraq and elsewhere. It is, of course, completely right that, when there is credible evidence of a wrongdoing, this must be investigated. However, in recent years, a whole industry has emerged which is fuelled by vexatious claims against the men and women of our Armed Forces. It is has become far too easy for large law firms to lodge a claim against our servicemen and women. Most notable was Public Interest Lawyers, which took 2,470 cases to the Iraq Historic Allegations Team; 70% of all the cases came from that one firm. This large number of referrals led the Ministry of Defence to complain to the Solicitors Regulation Authority. The Legal Aid Agency ruled in favour of the MoD and Public Interest Lawyers was stripped of its legal aid funding and ceased to operate in August this year.

Britain’s Armed Forces are subject to UK service law and the Geneva Convention, and allegations of criminal activity are rightly and properly investigated. If I reflect on my time as a Defence Minister, I recall speaking to many soldiers who talked about the split-second nature of decision-making on a battlefield, adding that there was not time for debate in the heat of war. I can completely empathise and understand their point, and I am sure that it is shared across the House.

Like many others, I am concerned about the increasing number of vexatious claims being put to the Iraq Historic Allegations Team, claims that are putting servicemen and women through endless scrutiny and questioning only for many allegations to be thrown out due to insufficient evidence. Jeremy Wright MP, the Attorney-General, recently told a parliamentary inquiry:

“I am convinced that at the end of this process the vast, vast majority of allegations will be found to be baseless”.

As I have stated, it is right that any cases of wrongdoing are investigated and acted upon. However, cases that are considered baseless should be disregarded so IHAT can devote greater time to those that deserve attention. Some 1,500 of over 3,367 cases were disposed of by IHAT straightaway. The IHAT deputy director, Commander Jack Hawkins, in evidence to the Defence Sub-committee in the other place last week said that he was in the process of disposing of 700 more cases. That leaves a total of 1,167 cases still open to investigate. Commander Hawkins added:

“The number we are trying to get to and hope to get to by the middle of summer is 60”.

So between now and the middle of next summer, there have to be 166 case reductions per month to reach that target, which appears somewhat unlikely. Do the Government have a view on that? Commander Hawkins said:

“A lot of these allegations did not outline any criminal offence—they did not even mention a criminal offence—but they came to us for assessment”.

During that hearing, IHAT director Mark Warwick and Commander Hawkins were asked if they had ever been involved in the conflict in Iraq. They stated that no one working on the team had been involved in the conflict. To ensure its independence, IHAT cannot employ anyone who served in Iraq or has any direct relationship with Iraq. However, to make up for the lack of direct conflict experience, all new IHAT employees undergo a three-day induction process. Mr Warwick told the sub-committee:

“Part of that is about understanding the complexities and the unique situation and environment that we are now being asked to investigate”.

I would question whether three days is sufficient time to enable the team members to understand and appreciate the complexity of a conflict that lasted six years. Perhaps the Minister may have something to say about this when he replies.

When asked how often IHAT briefs Ministers, Mr Warwick answered:

“Rarely, in terms of our personal interaction with the Minister”.

I doubt whether this is adequate. Surely Ministers need regular briefings. Again, perhaps the Minister has a view on this that he will share with the House.

The 2015 Conservative manifesto promised that our Armed Forces would not be subject to persistent legal claims that,

“undermine their ability to do their job”.

The Prime Minister in her conference speech said,

“we will never again in any future conflict”, allow Britain’s Armed Forces to be harassed. I support that objective, and I am sure that all of us would. But the Defence Secretary seemed to contradict her, saying that we will act to stop such claims only where this is appropriate. He said the Government intended to derogate from relevant articles of the ECHR in future conflicts. I believe that that is now the Government’s stated position. Article 15 of the ECHR allows derogation in times of emergency.

Serving soldiers and veterans have been under pressure when they have faced these investigations—often under terrible financial pressures. They, I am sure, welcomed the Defence Secretary’s announcement on 23 September that those who were facing criminal charges in IHAT investigations would have their legal fees paid by the Government. Again, perhaps the Minister might want to say something about that. According to the Guardian, the Ministry of Defence has already paid out £20 million in compensation. Are the Government paying out this money because it is justified or because it is easier than going to court? We need some understanding and clarification on that. Former soldiers have claimed that they have been hounded through the courts because of unfounded claims. Can the Minister say what the Government are doing to help these ex-servicemen, who are often separated from the forces and are not sure where they might turn for help and advice?

Now and in the future, our Armed Forces will not be able to operate to the best of their ability if there is a possibility of claims being brought against them years after operational duties have been completed. I echo the hope around the House that the Government will come forward with proposals to tackle this. While service personnel must always act within the law, we cannot allow members of the Armed Forces to feel that they cannot act in ways they deem necessary to meet operational objectives. The Opposition would work with the Government to bring vexatious claims to an end and show that we value the service, commitment and sacrifices that the men and women of our Armed Forces show every day.

Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords 1:41 pm, 24th November 2016

My Lords, I am very grateful to the noble and learned Lord, Lord Brown, for tabling this motion. The issues that it covers have been debated on a number of occasions in this House in recent years. I thank the noble and learned Lord for his continued concern about these matters, his masterly résumé of the issues involved and this timely opportunity to take stock of recent developments. The contributions to this debate have shown how much is at stake here, above all the ability and confidence of our Armed Forces to conduct effective operations in our national interest.

Before I outline the measures we are taking to mitigate these issues, I should start by emphasising the point well made by the noble and gallant Lord, Lord Stirrup: that the Armed Forces of the United Kingdom are required, without exception, to comply with all applicable domestic and international law. That said, a series of court judgments have created uncertainties about some aspects of the law relating to the conduct of armed conflict, or unintended consequences that could well impact on our Armed Forces’ ability to train and operate. The Government have expressed their concerns about this in recent years, and the manifesto commitment last year, which was to,

“ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job”, was a clear signal of their intent to tackle the effects of legal claims and legal developments.

The strength of interest and the quality of debate we have heard here today demonstrate the breadth and complexity of the challenges we face. Military operations in Iraq and Afghanistan have led to an unprecedented volume of litigation about, for example, ECHR jurisdiction, detention, and how international humanitarian law and the European Convention on Human Rights interact in armed conflict, and which include thousands of private law claims for compensation. The personal impact on service personnel has been brought to light in the context of IHAT—the Iraq Historic Allegations Team. We have also seen what I will simply call questionable conduct on the part of some law firms, as well as escalating costs for defending claims or conducting investigations where the evidence or allegations are, at best, unsubstantiated or, at worst, based on lies, as witnessed in the Al-Sweady public inquiry.

All these problems require a broad-based response; there is no simple remedy. The Government have accordingly been giving careful consideration to how to manage the adverse effects of these legal challenges and avoid similar difficulties in the wake of future conflicts. We have already taken a number of steps to help this mitigation. First, as a number of noble Lords have mentioned, the Prime Minister and the Defence Secretary have already set out the Government’s intention to derogate from the European Convention on Human Rights, where appropriate. I was grateful for the comments of the noble and gallant Lord, Lord Richards, on this issue. Let me be clear here: there is no question of a blanket opt-out from the ECHR. If and when a derogation is made, it could be made only from certain Articles of the convention and would have to be fully justified by the circumstances pertaining at the time. Where justified in the light of circumstances, it could serve to limit some of the opportunistic ECHR-based claims we have seen, and would reflect what we consider to be the right balance between these rights and the law of armed conflict.

I am afraid I must take issue with the noble Baroness, Lady Kennedy, who criticised the idea that we might derogate from the ECHR. This would not, as she certainly implied, put British troops above the law. She stated that international humanitarian law would not be enough to ensure that justice would be done. Our Armed Forces are, at all times, subject to UK service law, which includes the criminal law of England and Wales. International humanitarian law, based on the Geneva Conventions, will still apply in situations of armed conflict and there are some rights that cannot be derogated, such as protection from torture and slavery. The noble Lord, Lord Thomas of Gresford, asked whether any cases involving Iraqi prisoners had been brought by combatants. The answer is no—these cases do not involve the principle of combat immunity. The vast majority result from the ECHR decisions that UK forces did not have the right to detain people suspected of insurgency.

On another point made by the noble Baroness, Lady Kennedy, to deduce from the many millions paid out in compensation that there has been extensive wrongdoing would be wrong. The vast majority of the sums paid out were paid because the European Court of Human Rights decided that the UK had no right to detain dangerous insurgents in Iraq. The court has since significantly altered its position on that point, but we will not be able to recover the money. It is worth adding that Article 4 of the International Covenant on Civil and Political Rights also permits states to derogate from certain rights, providing the conditions as set out are met. I emphasise that, if and when the UK does derogate, care will be taken to ensure that it is wholly consistent with our other international legal obligations, as required by Article 15 of the ECHR.

It is important that I should make one other thing clear, especially in response to the noble Lord, Lord Dannatt. We take seriously our legal and moral duty to investigate credible allegations of criminal offences and to prosecute, where appropriate. I agree with the noble Baroness, Lady Kennedy, that the case of Baha Mousa serves as a reminder that a small number of serious offences were undoubtedly committed. I stress that the overwhelming majority of service personnel deployed on operations conduct themselves to the highest standards and in accordance with the law. The Al-Sweady inquiry, which I mentioned, has demonstrated that some allegations will be exaggerated or even false—the noble Lord, Lord Thomas of Gresford, referred to others in that category.

The noble and learned Lord, Lord Hope, suggested that any derogation should be subject to parliamentary approval. Let me make clear what the process would be. A designation order can be made by the Defence Secretary, which would come into force from the date made. However, under the existing law, a designation order under the Human Rights Act must be subsequently approved by each House of Parliament within 40 days from that date in order to amend the terms of the Human Rights Act. In this context, perhaps I could address a point made by the noble Lord, Lord Bilimoria. It is important to note that, to date, derogations from the ECHR by other states, including the United Kingdom, have been in respect of activities on their own territories. The announcement by the UK to derogate, where appropriate, for armed conflict overseas is, I hope, a clear statement of intent.

The noble and gallant Lord, Lord Craig, and the noble Lord, Lord Dannatt, suggested that we should remove ourselves from the jurisdiction of the International Criminal Court, as the United States has done. I would just point out that the obligation to investigate serious allegations against our Armed Forces is based squarely on UK domestic law. As long as that is done, we have nothing to fear from the International Criminal Court. We should remember that, in the context of the Baha Mousa case, it is not true to say, as the noble Lord, Lord Thomas, did, that the family could not have brought proceedings had it not been for the ECHR. The Baha Mousa family was in fact able to sue the Ministry of Defence under common law. A settlement was eventually reached as a result of mediation.

Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords

I am grateful to the noble Lord for his comments if I misunderstood him.

The noble and gallant Lord, Lord Richards, asked whether the Government would retrospectively end prosecutions. The Government are extremely reluctant to propose retrospective legislation because it compromises the principle of legal certainty. However, we will seek to ensure that investigations are brought to a close as quickly as possible.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Chair, EU Justice Sub-Committee

Does the noble Earl accept that in the Baha Mousa case there would have been no inquiry but for the European Convention on Human Rights? It was used to force the Government to have an inquiry, which in turn led to investigation and so on. That was the tool in the hands of the family of Baha Mousa, which enabled us to know fully what had taken place, and for us all to express the horror we are expressing today. Otherwise, could we be sure that something would have happened?

Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords

My Lords, I will look into the sequence of events that led up to that inquiry because I am not in a position to gainsay what the noble Baroness has just pointed out. I agree that it is important that we tease out these issues.

Moving to a slightly different issue, we have taken steps to tackle improper conduct by those in the legal profession, as mentioned by the noble Lord, Lord Ramsbotham. It is only right that law firms should not be incentivised or encouraged to represent or put forward unfounded or speculative claims, and where a solicitor’s conduct falls short of expected professional standards, action should be taken to address this. Noble Lords will recall the grave concerns expressed following the publication of the al-Sweady public inquiry report. The Ministry of Defence took the unprecedented step of referring these matters to the Solicitors Regulation Authority, which investigated them thoroughly. As a result, the solicitors concerned will face disciplinary tribunal hearings in 2017.

I reassure the noble and gallant Lords, Lord Craig and Lord Richards, that we are seeking to clarify the issue commonly referred to as combat immunity—the common law doctrine that excludes civil liability for injury caused by the negligence of those engaged in the course of hostilities. The doctrine also means that members of the UK Armed Forces are under no duty of care in tort to avoid causing loss or damage to another member of the UK Armed Forces, or anyone else. It is essential, as a number of noble Lords have made clear, to ensure that this doctrine should be applied in full, and that the courts should not be called upon to adjudicate matters which should be the subject of military decision-making. It goes without saying that those who have been injured or suffered bereavement in the course of combat or hostilities have our deepest sympathies, but the uncertainty that has resulted about the circumstances in which the doctrine should be applied is a cause for concern and leaves the Ministry of Defence and the Armed Forces open to a raft of claims. More importantly, as pointed out very cogently by the noble and gallant Lord, Lord Stirrup, it potentially calls into question the professional judgment of military commanders, giving rise to the prospect of what has been called the “judicialisation” of war. We take this matter very seriously. We are considering it closely, and we expect to be in a position to announce our proposals very shortly.

The noble Lord, Lord Thomas, suggested that the combat immunity cases are essentially about procurement rather than battlefield decisions. With respect, I do not think that is quite right. I apologise again if I have misunderstood him but I believe that he suggested—

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

I certainly did not say that. I said that I could not imagine any case arising that the Ministry of Defence would settle where combat immunity was a defence.

Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords

I am grateful. However, to clarify this point, the Challenger case mentioned by the noble Lord turns on training rather than procurement, but the important point here is that no one now knows the extent to which military decisions may be questioned in court. That is the problem the Government must, and will, address. I also suggest that combat immunity is a real problem. We have three major cases progressing through the courts at the moment, and many others are stayed behind them. Therefore, to suggest that this is only a minor issue involving one or two people is incorrect.

The noble and learned Lord, Lord Hope, suggested that the Armed Forces compensation scheme should be made subject to statute. In fact, the scheme covers any claims made since 6 April 2005. It was made part of the Armed Forces Act of that year.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that one solution would be to reinstate Section 10 of the Crown Proceedings Act. I am hesitant about that solution. It is one of the options we have been looking at but it would be possible only under certain specific circumstances, and careful consideration would need to be given to the impact on service personnel. Certainly, I agree with the noble and learned Lord that such a step would not be sufficient on its own.

I also want to make it clear that we remain unequivocal in our commitment and duty to look after our Armed Forces and veterans, particularly those who are subject to investigation. What is more, we remain steadfast in our commitment to support those who face legal proceedings. In respect of the Iraq conflict, the IHAT is now making rapid progress towards its expected completion by the end of 2019—a point which Sir David Calvert-Smith affirmed in his recent review of the IHAT. Some 70% of the more than 3,000 allegations received have already been disposed of, the vast majority without the need to interview service personnel or veterans. I say to the noble Lord, Lord Touhig, that we are confident, based in part on Sir David Calvert-Smith’s report, that the IHAT will be able to meet the progress targets it has set. The IHAT’s workforce is comprised of Royal Navy Police and experienced former civilian police officers who are dedicated to conducting their investigations as sensitively and effectively as possible. The noble Lord, Lord Touhig, questioned whether three days was enough training on the conditions in Iraq, and said that perhaps Ministers were not briefed about the proceedings often enough. There is a balance to be struck here. Ministers absolutely respect the IHAT’s independence, but I am sure they will take full account of any recommendations the Commons Defence Committee makes on this matter.

I think the noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that we are actively paying Iraqi witnesses to travel to interviews. I make it clear that the IHAT pays only travel and subsistence expenses and loss of earnings. That is essential if the necessary investigations are to proceed.

My noble friend Lord Robathan turned our attention to issues in Northern Ireland, and said very powerfully that something has to be done about prosecutions of veterans in Northern Ireland 30 or 40 years after the event. I very much share my noble friend’s concern that these legacy investigations must recognise that the vast majority of deaths in the Troubles were the direct responsibility of the terrorists. Northern Ireland would not be the peaceful place it is today without the tireless work and many sacrifices made by the Armed Forces.

The noble Lord, Lord Bew, also referred to issues in Northern Ireland, and in particular the soldiers from Bloody Sunday who face prosecutions, whereas the terrorists do not. The noble Lord will recognise that, as a Ministry of Defence Minister, I cannot comment on or influence possible prosecution decisions. I am sure that those who make such decisions will take due note of his words.

I shall of course write to noble Lords whose questions I have not had time to answer today. At the end of a debate of this kind it is right for me to conclude by reiterating my unwavering admiration for our Armed Forces. The job they do, protecting and defending our freedom, security and prosperity in often difficult and challenging circumstances, is second to none. In this spirit the Government are seeking to move forward and deliver their manifesto commitment to ensure that our Armed Forces are able to do their job effectively, safe in the knowledge that they have our full and unstinting support, and confident in our ability and intent to protect their freedoms when they return home.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

My Lords, the Minister mentioned bringing forward some further information about combat immunity shortly. Can he define “shortly”?

Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords

I believe that I said “very shortly”, and I say that advisedly—it will be within the next month.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct 2:01 pm, 24th November 2016

My Lords, essentially, I confine myself to thanking all noble Lords who have taken part in this debate—those who are neither gallant nor learned no less than those who are. I am most grateful, too, to the Minister for his full and sympathetic response. There is not of course absolute consensus among us as to the way ahead, but I think most of us are agreed that there is a problem here. It is to be hoped that some of the ideas put forward by speakers in this debate will contribute to its solution.

I will respond to only one point, which arose from the speech given by the noble Lord, Lord Thomas of Gresford. I confess surprise that he quarrels with my suggested scheme for dealing with any future claims by our own injured servicemen. Surely they would be immeasurably better off with full—I repeat, full—tort-based compensation on a no-fault basis than with the highly speculative claims they now have following Smith. However, I leave it at that, thank all those who have contributed and beg to move.

Motion agreed.