Armed Forces Bill — House of Lords, 2016-02-11
Topic: Defense
Alan William John West (Labour, Centre-left): My Lords, military justice has come a very long way since the days—as happened to me many years ago at my captain’s table, waiting to dispense justice—when I heard my regulating petty officer order, "Wheel the guilty bastard in" In general, the Bill is uncontentious. Indeed, I think it resolves a number of anomalies. I know that my noble friend Lord Touhig has a number of areas which he might like to see expanded or tightened up and he will talk to those later. There are, however, two issues which I wish to raise and I have given the noble Earl prior notice of my concerns. I thank him for the briefing he gave to all of us on the Bill beforehand The first regards the issue of mesothelioma. After considerable pressure from the noble Lord, Lord Alton, and my Labour colleagues, the Government have taken action and announced that veterans exposed to asbestos during their military service and diagnosed with mesothelioma on or after 16 December 2015 will receive compensation. That includes veterans exposed before 1987, ensuring equality with that compensation available to all civilians. The Government are to be congratulated on that. One has to remember that none of us knew that it was dangerous. I can remember having snowball fights with asbestos in the boiler room of HMS "Albion" because we did not know that it was so dangerous But the announcement ignores a small number of sufferers who do not meet the qualifying dates. I know that the noble Earl—the Minister—is unhappy with what seems to go against the spirit of the Armed Forces covenant. Action needs to be taken quickly because people are dying as we speak. An article in this morning’s Independent puts it very succinctly: mesothelioma patients survive typically for one year following their diagnosis, so about 25% of those diagnosed will die every three months The Government need to act with alacrity and contact the afflicted veterans and their widows and families. Compensation should be available following the precedent of the mineworkers’ scheme for chest diseases. More than three months ago, the Prime Minister at PMQs undertook to look at this matter. I ask the Minister: can we now resolve this issue once and for all? I believe that it is the right thing to do My next concern stems from the Supreme Court’s decision of 2013 in the case of Smith and others v the Ministry of Defence, in which, by a majority of four to three, the court concluded that a claim should go to trial so that a judge could decide on the evidence whether it was covered by the doctrine of combat immunity or could give rise to a claim based on the Human Rights Act. The judgment has, not surprisingly, raised considerable concern in the military and the noble and gallant Lord, Lord Craig of Radley, asked in a Question on 25 June 2013 for reassurance about the relationship between human rights legislation and military law in war. The noble Lord, Lord Astor of Hever—the government Minister at the time—did not give the cast-iron reassurance that one would have expected The noble Lord, Lord Faulks, in the Armed Forces legal challenge Motion of 7 November 2013, said that he was driven to agree with the noble and learned Lord, Lord Mance, who gave a minority judgment in Smith. The noble and learned Lord, Lord Mance, said that the approach taken by the majority, "will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British Army. It is likely to lead to the judicialisation of war, in sharp contrast with Stark J’s dictum in Shaw Savill (1940) that ‘war cannot be controlled or conducted by judicial tribunals’" The noble and learned Lord, Lord Mance, added: "To offer as a panacea ... that courts should be very cautious about accepting such claims is to acknowledge the problem, but to offer no real solution" The noble Lord, Lord Faulks, stated: "I have real difficulty in understanding what Article 2, the ‘Right to Life’, really means in the context of armed conflict. There is something strangely poignant when the mother of a soldier says to the press, after the decision in Smith, ‘Now all those soldiers have the right to life’. Perhaps that is the effect on the public’s mind of the decision".—[Official Report, 7/11/13; cols. 393-94.] I have to say that I share the views of both the noble and learned Lord and the noble Lord. Thirty-four years ago this May, my ship was bombed and sunk during the amphibious landings in the Falkland Islands. I knew that my anti-aircraft armament was insufficient to counter air attacks so close against land. But it is the duty of military men to fight the war they are in with the equipment they have. The Smith judgment could see me taken to court for taking the correct military decision. This cannot be right It is total nonsense that one can use human rights legislation to drag military leaders through the courts for decisions made in war. In combat, men kill and are killed on a regular basis fighting for their country. Civilian norms cannot possibly apply. Yet there is a growing tendency, particularly in the European courts, to make judgments as if events on the battlefield were taking place in the halcyon days of peace It is not just the pernicious effect on the individual. In 2013, the Policy Exchange think tank produced a study entitled The Fog of Law, which showed clearly that such legal mission creep could paralyse the effectiveness of the military. In simple terms, our military will cease being able to win wars for us If health and safety at work were always to prevail, our military would be unable to fight. In combat, a sailor, soldier or airman might be ordered to take action that could result in virtually certain death. On the battlefield the right to life is not certain. I remain concerned about a possible wave of litigation and the impact it could have on our people and our military effectiveness. Parliament should intervene, and I ask the Minister: what can be done to stop the pernicious effect of this judgment and the pressures from the European Court of Human Rights Perhaps something can be done in this Bill. The noble and learned Lord, Lord Mackay of Clashfern, intends to put down an amendment. He asked me to mention this. He will propose a clause that says something along the lines of, "The Human Rights Act 1998 will apply to a conflict operation in time of war only to the extent that is consistent with the provisions of the Geneva Convention". The amendment is with the Public Bills Office at the moment. I would support it. If it is not in the Bill, I ask the Minister where such legislation can be enacted. How do the Government intend to get us out of this mess?