Contribution
My Lords, I think we generally agree that our country needs our Armed Forces, including the reserves and the cadets, more than ever. We need to encourage people to join, and we need to look after them when they do. We ask them to risk their lives on our behalf. If we do that, we should ensure that they have the appropriate legal protection.
There used to be a common-law principle of so-called combat immunity. That meant that the courts did not get involved in measuring the responsibility for what occurs in the heat of battle. Aggression that may, with the benefit of hindsight, be seen to be excessive should not be analysed, many years later, in the studied calm of a courtroom, with lawyers employing slippery words such as “proportionality”. This is to say nothing of so-called blue-on-blue or friendly-fire incidents, which are inevitable from time to time.
I would not want to give our Armed Forces a free pass legally; they would not want one. The law of armed conflict is necessary and well established. The Geneva conventions and the accumulation of international conventions and treaties are generally described as international humanitarian law, which is generally respected. What worries me, as it does the noble Baroness, Lady Goldie, is the ECHR and its incorporation into our law by the Human Rights Act 1998. It has brought the law into places where it has no business.
The Strasbourg jurisdiction in this area has become exorbitant. It has held, for example, as the noble Baroness said, that the European—yes, European—Convention on Human Rights applies to theatres of war in Afghanistan and Iraq. Reference was made to Al-Skeini. There is also a case called Al-Jedda. These cases brought about, among other things, the persecution of our troops by lawyers such as Phil Shiner, a lawyer eventually imprisoned for his deeds but not without causing immense damage expense before his imprisonment. The causation, I fear, is clearly established by the decisions of human rights lawyers to rely on the convention in an inappropriate way.
The rights embodied in the convention are in themselves wholly unexceptionable, but the living instrument approach has meant that judges have approached its application in what might be described as an open-textured way, resulting in real uncertainty as to what our troops are entitled to do legally. Article 2, on the right to life, has, for example, been held to justify a claim against the Ministry of Defence in connection with the supply of Land Rovers: it is the case of Smith v Ministry of Defence.
For some time now, the think tank Policy Exchange has focused on the so-called problems of lawfare. Tom Tugendhat MP, now shadow Foreign Secretary, wrote a paper some time ago, entitled The Fog of Law. It remarked on all these facets, which are causing such a difficulty for our troops.
We have now reached a position where our troops are embarrassed in front of allies, and we are accused by our allies of legal freeloading when lawyers try to explain our legal position. Lawyers are conservative in the advice that they give, if not in their politics. The result is that our troops are vulnerable to legal attack, and their leaders may well become inappropriately circumspect in their approach, in the light of the legal advice that they receive.
The amendment attempts to give our reserves and all our troops proper protection from the incursions of the ECHR. I ask the Minister, for whom we all have great respect, to explain whether the Government consider that the current state of the law is justifiable and whether it is truly in the interests of our servicemen and servicewomen or, indeed, in the public interest.