My Lords, this amendment seeks to explore the result of a case known as Smith and others v Ministry of Defence, which has provoked a good deal of concern among those experienced in the military and in service. I feel that it is right to try to deal with it in the course of this Bill. It is therefore
necessary for me to explain as quickly as I can what the judgment entails. There was a fairly sharp difference of opinion within the Supreme Court about the rule that should apply.
It was a case before seven judges concerning claims arising out of the deaths of three young men and the suffering by two other young men of serious injuries while serving in the British Army in Iraq. The claims related to the training given to the soldiers before their engagement with the enemy, the provision of suitable equipment and the selection made of available equipment for a particular operation. They fell into two groups. The first, the challenger claimed, was the result of a “friendly fire” incident that occurred during combat when Iraq was being invaded by the coalition forces in 2003. The second was the result of a series of attacks using roadside bombs on personnel travelling in Snatch Land Rovers in 2005 and 2006 when combat was over and had been replaced by a period of military occupation. The British forces were assisting the civil power in Iraq, which at the time had an interim Government.
It is very important to understand that, at least in substance, the claims were not against those involved in the operations. The report of the Supreme Court concerns a stage in the proceedings when the question was whether the pleadings disclosed a case that should proceed to a full trial of the facts. The claims concerned the European Convention on Human Rights and the common law of England. Article 1 provides that:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”.
All the judges of the court agreed unanimously that the jurisdiction of the United Kingdom extends to securing the protection of Article 2 of the convention to members of the Armed Forces when they are serving outside the territory of the United Kingdom. That was an important point because, until then, there had been a general feeling that jurisdiction depended on the territorial extent of the state in question.
Article 2.1 was brought into play by that unanimous decision. It provides that:
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”.
After detailed consideration of the relevant decisions of the European Court of Human Rights, the noble and learned Lord, Lord Hope of Craighead, summed up the position in this way:
“The guidance which I would draw from the Court’s jurisprudence in this area is that the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article. It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy”.
That is a reflection of a line of authority that indicates that, for example, the chief constable of a police force does not have a specific duty enforceable in the law of
negligence in respect of individual members of the public in his area. The noble and learned Lord went on:
“So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy”.
That is the important point to think about in relation to the decision—that it did not impute any liability to those who were directly or actively engaged in direct contact with the enemy. He continued:
“But finding whether there is room for claims to be brought in the middle ground”—
that is, between the two—
“so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content, is much more difficult. No hard and fast rules can be laid down. It will require the exercise of judgment. This can only be done in the light of the facts of each case”.
That is one result of the analysis in the case of Smith.
I should mention that the convention is modified by a protocol which provides for a modification of convention obligations where a member of the convention is threatened by war. However, this was deemed by the noble and learned Lord, Lord Hope, to have no application to the circumstances that he was considering, as the operations in Iraq were not the result of a threat of war against the United Kingdom. It is interesting to consider whether the United Kingdom can engage in war against Iraq when Iraq is not at war with the United Kingdom.
The other basis of the claim was a duty of care laid upon the body responsible for the safety of the soldiers by the common law of England. This is a consideration completely separate from the Human Rights Act. As an exception to the general application of that duty, the courts have developed the concept of “combat immunity”. The noble and learned Lord, Lord Hope, used as a formulation of this concept a statement by Mr Justice Dixon in an Australian case. He said:
“To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy”.
In discussing this subsequent development, the noble and learned Lord, Lord Hope, pointed out that, being an immunity, it has to be strictly construed. He concluded on both grounds that an application of these views to the case before the court required a close consideration of the facts and that it should proceed to a full trial. With that conclusion, three of his colleagues agreed, but Lord Carnwath, who was in the minority on the claims in the first group, agreed with the other four that the claims in the second group should go to trial—that is, where it was no longer a combat situation but a peacekeeping situation.
The minority judgment was first given by Lord Mance. He disagreed for a reason which he stated thus as far as the common law basis of the claim was concerned:
“I consider that that the Challenger claims, which are only in common law negligence, should be struck out in their entirety on the basis that the state owes no such duty of care as alleged with regard to the provision of technology, equipment or training to avoid death or injury in the course of an active military operation”.
Again, that is a reflection of the principle that I mentioned in relation to, for example, the police. On the human rights basis, Lord Mance said:
“In my opinion therefore this Court should proceed on the basis that the policy considerations which guide its domestic law in the present area of national interest will find an echo in Strasbourg, and not invade a field which would involve, in the context of claims for civil compensation, extensive and highly sensitive review with the benefit of hindsight the United Kingdom’s country’s policies, strategy and tactics relating to the deployment and use of its armed forces in combat. The United Kingdom’s performance of its investigatory and procedural duties under article 2 is not in doubt”—
and he mentions a few inquiries, including the Chilcot inquiry, lamenting that it was rather late, although that was in 2013. He concludes:
“The issue with which this judgment is concerned is whether deaths and (at common law) injuries in combat fall to be investigated in the civil courts, at whatever level in the armed forces, Whitehall or the government responsibility for them is suggested to arise. The answer I would give is, no”.
Lord Carnwath agreed to a large extent with Lord Mance, but he took the view that as some of the claims related to what amounted to peacekeeping operations, a joint approach did not apply.
That is a short analysis of the judgment and the issues involved. As I said, my amendment is simply phrased to allow this matter to be considered. I suggest that it is for your Lordships to consider what should be done in the light of this judgment, which is an important one with strong differences of opinion echoed at the highest level in our legal system.
One possibility is to do nothing and just leave the issue as unresolved. It has been resolved by a majority of the Supreme Court and that would stand, but due to the fact that there is such a sharp difference of opinion I thought that it was worth finding out whether your Lordships would consider legislation on this point. I suggest that the first option for legislation is to provide that no action for negligence will be available when injury or death occurs in combat or in military peacekeeping operations to the personnel involved in those operations. That is the minority judgment—that if the injury occurs in the course of a military operation, combat or peacekeeping, there should be no claim in negligence. The second is that it would apply only in combat operations and that, if it were a peacekeeping operation, a claim would arise.
The major option, if one goes along with the judgment of the noble and learned Lord, Lord Hope, and those who agreed with him, would be that no action for negligence will be available when injury or death occurs in combat or military peacekeeping operations against anyone involved in these operations but it will be available against others if that is realistic and proportionate. That seems to me to be what is said about the Human Rights Act. Again, the question would be whether that applies only in combat operations or whether peacekeeping operations are also included.
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If your Lordships are of the view that legislation on either of these bases is something that should be considered, it is right to remember the view put forward by the noble and learned Lord, Lord Hope, and Lord Mance that the Human Rights Act and the human rights convention involve, to a degree, what has been referred to as the margin of appreciation. That allows a state to mould to some extent the way in which it performs obligations under the convention. Therefore, if legislation was produced in the United Kingdom jurisdiction along the lines that I have just set out, it would be at least eminently arguable that that was within the margin of appreciation on Article 2. While not expressly setting aside the convention or the Act, it would mean that the Act did not apply in its ordinary sense to the operations in question.
These are the matters for consideration. So far as I am concerned, the only thing that I would like to say about these is that they have no impact on the compensation for either the people injured or the relatives of those who have been killed in such operations. Compensation is a separate matter. This is an issue of compensation, but it is separate from the basic right to compensation in other provisions, which I have not had occasion to set out in detail.
In seeking to put this before your Lordships, I point out that this is in a sense a unique tribunal. We have distinguished military Members with considerable experience at the highest level of the Armed Forces of the Crown, as well as judges who have taken part in these discussions and decisions. Surely this must be a good place in which to try to reach a wise conclusion.