My Lords, the judgment in Smith, although 72 pages long, deals with one aspect only of the several problems that face the military as a result of the application of human rights, as opposed to international humanitarian law, to our Armed Forces serving abroad. It is important to recognise that Smith deals only with claims by our own soldiery regarding deaths and serious injuries against the ministry, not against individual officers. This amendment, and this is important, deals with only one aspect of Smith: the human rights claims brought by our armed services, not negligence claims.
The fact of the matter is that even if this amendment is put in place, it leaves the negligence capability—the ability of the soldiers to claim negligence against the military—still open to them. So questions of compensation and of blame are still open to be litigated. As I made plain on Second Reading, I would deal with the compensation claims as well, but not in such a way as to deprive the injured soldiers or the relatives of the deceased soldiers of any money. Instead, without their
needing to establish liability and negligence, I would increase their entitlement beyond that under the pension scheme by giving them the equivalent of common law damages and getting rid of all the litigation. It is the litigation and the risk of litigation arising out of these cases that inhibits our military capabilities, puts people on the defensive and does all the things that worry the senior military personnel.
This is a minor point—and I speak with diffidence—but I would not draft the provision in the way that this particular proposal is drafted. It seems to me that it goes too wide. What is required to deal with the human rights aspect of Smith is to embargo claims under Articles 2 and possibly 3 of the convention on the part of our armed services. We could have some formulation along the lines that members of the armed services engaged in military operations outside the UK should not be entitled to claim by reference to Article 2, or Articles 2 and 3, of the European convention. As presently drafted, it disapplies the entire Act and, as my noble and learned friend Lord Hope rightly says, there are undoubtedly aspects of the Human Rights Act which plainly would apply. For example, take a court martial of one of these personnel serving abroad: one would presumably want to apply Article 6 of the convention to their case. It is not that which we are concerned to deal with; it is only the human rights aspect.
Similarly, there is nothing in this amendment or in Smith which deals with the very real problems that have been caused to other aspects of our armed services abroad, such as claims by foreign combatants and civilians, claims that Strasbourg dealt with in cases such as al-Skeini, and cases concerning the detention of foreign suspects, as in the case of al-Jedda.
I believe that it is quite possible to introduce this limited disapplication of a right to rely on Articles 2 and 3 consistently with our human rights obligations. In other words, I think that there is a very powerful argument for saying that the majority in the Supreme Court in Smith did not actually need under the convention to go as far as to accept that Article 2 and Article 3 liability could arise on the part of the UK in respect of any of these claims.
On Second Reading, I mentioned, as did others, the publication Clearing the Fog of Law, which is compulsory reading for anyone who takes a serious interest in the problems caused by applying human rights law to our Armed Forces abroad. It deals with this narrow question raised by Smith at pages 43 to 45. I will not quote from it at length, but it is written by Tom Tugendhat, a retired colonel who is now a Member of Parliament, and two distinguished legal academics, one from Cambridge and one from Oxford. They state:
“It is strongly arguable that the UK Supreme Court misconstrued Article 2 of”,
the convention,
“imposing more extensive obligations than the European Court of Human Rights would mandate. Legislative reversal of Smith … is the only practical way that the outer boundary of Article 2 of”,
the convention,
“can be tested before the ultimate interpreter of the Convention in Strasbourg”.
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To quote just a little more, they continue:
“The majority’s decision—that Article 2 of”
the convention,
“applies (or might apply) to the claims in Smith … is anyway dubious. Lord Hope, for the majority, admitted that there was no direct Strasbourg authority on Article 2’s application to a state’s own troops during conflict. It is therefore odd that the Supreme Court nonetheless upheld the claim. The point cannot be authoritatively settled by the European Court of Human Rights unless Parliament legislates to reverse the Supreme Court’s interpretation of Article 2 of”,
the convention. There is then a quotation from what is in fact a judgment that I gave in an earlier Supreme Court decision in another case called Smith, against the Oxfordshire coroner. But as I say, those two or three pages really should be read.