Armed Services: Claims — House of Lords, 2016-11-24
Topic: Defense
Donald Thomas (Liberal Democrats, Centre to centre-left): 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.