Speech: Clearing the Fog of law, Policy Exchange seminar

I want to start by congratulating Policy Exchange on initiating the public debate on judicialisation of warfare. The ‘Fog of law’ came out shortly before I became Defence Secretary and I was briefed on it very early on given the critical bearing this development could have on future defence capability.

For me, there are 3 issues which are central to this debate.

The first is human rights law as against humanitarian law. I take the view that the cumulative effect of some of Strasbourg’s decisions on the freedom to conduct military operations raises serious challenges which need to be addressed.

When Britain signed up to the convention no one thought it would apply extra-territorially. There is a perfectly sound body of international law which sets out the rules civilised nations have agreed to apply to the conduct of hostilities, whether war is declared or not. Taking your enemies into captivity rather than killing them is a cornerstone of international humanitarian law and the Geneva conventions provide a workable and humane framework for detention.

But for some years the European Human Rights Court’s decisions have taken us towards a rival structure of legal regulation over military detention which threatens our ability to use this essential operational tool. This has prompted renewed interest in the case for derogating from relevant parts of the convention.

In fairness there are 2 developments which had they come earlier could have mitigated this threat to combat effectiveness.

The first is Lord Hoffmann’s reminder that British courts have discretion in the application of Strasbourg decisions and that they should use it. The second is the recent judgment in the case of Hassan, when the court found that, although Article 5, ‘the right to liberty’ applies to detainees in international armed conflicts, it must be interpreted in line with the Geneva conventions. This goes some way to reconciling the conflict of laws which was of such concern to us.

Nonetheless, we argued in Hassan and continue to take the view that the convention should not apply in such circumstances. Speaking on behalf of the Conservative Party, we have set out plans for a British Bill of Rights which will “limit the reach of human rights cases to the UK so our forces overseas are not subject to persistent human rights claims.” This will remove any doubt and any threat to operational effectiveness.

My second point relates to combat immunity, an issue which has been raised in Parliament by several distinguished former commanders. The Supreme Court ruled last year that claims for compensation based on the alleged defects of the Snatch Land Rover and the recognition equipment attached to Challenger tanks could go to trial, though they will not be heard before 2016. It was in that case that Lord Hope, who I know is with us today coined the phrase “the judicialisation of war”.

These are not easy cases to justify defending. They are brought by badly injured soldiers or by the families of soldiers who gave their lives. The MOD pays generous compensation on a no fault basis whenever such injuries or deaths occur: that is our moral duty. But there are important legal principles at stake which we cannot ignore.

Military operations cannot be run by rules designed for the civilian sphere. They are inherently dangerous. We provide our people with equipment which will reduce the risks they face. But there will always remain a balance of risks and decisions on whether and when to commit military forces and how they will operate must be for ministers and military commanders, and not the courts, to judge. That is why we continue to contest such cases. We will consider legislation on this subject if that should prove necessary in the light of future court decisions.

My third point relates to the rising cost to the taxpayer. So far, arising from the conflicts in Iraq and Afghanistan, we have had three public inquiries, over 200 judicial reviews or applications for them, and over 300 personal injury claims from Iraqi or Afghan nationals. The total cost of these legal proceedings has been around £87 million, the majority of which has gone to lawyers. £11 million has been paid in fees to solicitors and counsel for Afghan and Iraqi personal injury claims. That excludes the £57 million projected cost of service police investigations into reports of incidents in Iraq which may not be complete before 2019.

These include legitimate cases but in the last couple of years we have seen the lodging of claims on a virtually industrial scale, most brought many years after the alleged events. We will be asking the courts to deal robustly with cases where the system is being abused and we should also give due consideration to the way in which increased legal consideration and perception of this constraint has given rise to a misplaced sense of entitlement amongst claimants; and encouraged by lawyers without scruples.

We have the same people to thank for the ridiculous application that the International Criminal Court should investigate Britain for an alleged conspiracy to commit war crimes in Iraq.

Finally, later this month I will present the report of the Al-Sweady Inquiry to Parliament. Unusually, we have a good idea what it will say because the advocates for those Iraqi nationals who claimed that British forces had mutilated and murdered their prisoners conceded, after exhaustive examination, that the claims were groundless. This is no criticism of the conduct of the inquiry, but I am angered that it has taken £30 million of taxpayers’ money to expose what appear to have been barefaced lies.

While the courts are rightly independent, I think it unlikely that they had not taken note of the public and political concern expressed over the past year, and policy exchange can take some credit for informing and stimulating this.

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