In this speech Lord Bilimoria discusses the Armed Forces and the effect of claims made against soldiers and the Armed Forces as well as the European Court of Human Rights and the influence it currently plays in this area. He concludes that we should support soldiers and we cannot let them down.
Armed Services: Claims
24 November 2016
Moved by: Lord Brown:
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. He asks why the UK Armed forces cannot opt-out of certain elements of the ECHR
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!
We cannot let them down.