The Fog of Law An introduction to the legal erosion of British fighting power Thomas Tugendhat and Laura Croft Foreword by the Rt Hon Lord Justice Moses Policy Exchange is the UK’s leading think tank. We are an educational charity whose mission is to develop and promote new policy ideas that will deliver better public services, a stronger society and a more dynamic economy. Registered charity no: 1096300. Policy Exchange is committed to an evidence-based approach to policy development. We work in partnership with academics and other experts and commission major studies involving thorough empirical research of alternative policy outcomes. We believe that the policy experience of other countries offers important lessons for government in the UK. We also believe that government has much to learn from business and the voluntary sector. Trustees Daniel Finkelstein (Chairman of the Board), Richard Ehrman (Deputy Chair), Theodore Agnew, Richard Briance, Simon Brocklebank-Fowler, Robin Edwards, Virginia Fraser, Edward Heathcoat Amory, David Meller, George Robinson, Robert Rosenkranz, Andrew Sells, Charles Stewart-Smith, Patience Wheatcroft and Simon Wolfson. © Policy Exchange 2013 Published by Policy Exchange, Clutha House, 10 Storey’s Gate, London SW1P 3AY www.policyexchange.org.uk ISBN: 978-1-907689-60-4 Printed by Heron, Dawson and Sawyer Designed by Soapbox, www.soapbox.co.uk 2 | policyexchange.org.uk About the Authors Thomas Tugendhat is a strategy consultant and a Territorial Army Lieutenant Colonel. His most recent period of active service was as Military Assistant to the Chief of the Defence Staff, General Sir David Richards. Previously, he served operationally in Afghanistan and Iraq. He was also a diplomat, serving as the adviser to Afghanistan’s National Security Adviser and later to the Governor of Helmand province, during the period when British forces arrived in Southern Afghanistan (2006). Immediately after the Afghan Government and ISAF forces recaptured Musa Qala, a town in northern Helmand with 30,000 inhabitants, Tom was acting governor. He was awarded the MBE (Military) for his efforts on operations. In his civilian career, he has worked in energy, consulting, communications and journalism, in the Middle East and the UK. Tom graduated in Theology from Bristol University and did his Master’s degree in Islamic Studies at Cambridge University. Laura Croft is a retired US Army Lieutenant Colonel who served as a lawyer in the Judge Advocate General’s Corps. She served with the British Army on secondment as a member of the Strategy Branch for the Chief of the General Staff. Prior to that, while on secondment to Army Legal Services, she was responsible for teaching the Law of Armed Conflict, the Rules of Engagement, and Detention Operations to British Army personnel of all ranks. She also served as chairman of the NATO Law of Armed Conflict Training Working Group. Lieutenant Colonel Croft deployed to Iraq and served as Deputy Staff Judge Advocate (DSJA) for the multi-national division in Mosul. Before that, she was legal adviser to the 173rd Airborne Brigade in Kirkuk and the DSJA for the 10th Mountain Division/Combined Joint Task Force-180 in Bagram, Afghanistan. Laura graduated from Brown University in Providence. She received her J.D. from Louisiana State University Law School and her LL.M. in military law. She is a member of three Bars: the US Supreme Court, the Louisiana State Bar and the Court of Appeals for the Armed Forces. Her awards and decorations include the Legion of Merit, Bronze Star medal, the Combat Action Badge, the Airborne Badge, the Meritorious Service Ribbon (three awards); and the Joint Service Commendation Medal (two awards). Laura is married to a British Army officer. policyexchange.org.uk | 3 “It is of paramount importance that the work that the armed forces do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong.”1 Lord Hope, former Deputy President of the Supreme Court of the United Kingdom “I know somebody ... who was heavily criticised by the coroner because he had to make a split-second decision without a complete intelligence picture, which you have to make in war, and someone was killed. The inquest on this boy who was killed blamed the company commander. That seemed to me absolutely wrong because if you are so worried about having a lawyer, or an international lawyer, following you around the battlefield, you will not do anything”.2 Field Marshal Lord Guthrie of Craigiebank, former Chief of the Defence Staff Pale Ebenezer thought it wrong to fight, But Roaring Bill (who killed him) thought it right.3 Hilaire Belloc 1 Lord Hope, para 100: Smith and Others v The Ministry of Defence [2013] UKSC 41 2 Lord Guthrie of Craigiebank, Oral Evidence to the House of Lords Select Committee on the Constitution: Inquiry into the Constitutional Arrangements for the Use of Armed Force, 5 June 2013, p 22. www.parliament.uk/ documents/lords-committees/ constitution/Armed%20Force/ COMPLETE%20armed%20 force%20evidence%20volume.pdf 3 Hilaire Belloc, “The Pacifist”, 1938 4 | policyexchange.org.uk Contents Acknowledgments 6 Foreword 7 Executive Summary 10 Introduction: Legal siege – what it means and how it has come about 14 1 Coroners’ courts, judicial oversight and the imposition of civilian ‘duty of care’ standards upon the armed forces 22 2 Smith and Others v the Ministry of Defence: the apogee of judicial encroachment 28 3 The importance of detention in war 37 4 Risk taking, military judgment and decision making: the case of the Military Aviation Authority 43 5 ‘Train as you fight’ and the impact of legislation on readiness 47 Conclusion: the impact on operational effectiveness 54 Options 56 Appendix A: Glossary of terms 63 Appendix B: Timeline 64 Appendix C: Table of cases 70 policyexchange.org.uk | 5 Acknowledgments Policy Exchange and the authors wish to acknowledge first and foremost the generous assistance of The Blavatnik Family Foundation and Krishna Rao in making this report possible. This project would never have come to completion without the superlative help of Lynne Middleton, Research Fellow for Security Policy at Policy Exchange – for whom nothing was too much. Two friends of Policy Exchange deserve particular thanks for their unstinting support and wisdom: Lord Carlile of Berriew, QC, CBE, former Independent Reviewer of Terrorism Legislation, whose understanding of the intersection of law, national security policy and politics is unmatched. A great debt is also owed to Lieutenant General Sir Paul Newton, KBE – one of the finest thinkers of his generation in the British Army and now Director of the Strategy and Security Institute at the University of Exeter. The Army’s loss is Exeter’s gain. Brigadier Phil McEvoy, OBE, formerly deputy Director of the Service Prosecuting Authority, gave unstinting and invaluable guidance. Appreciation is also owed to the following individuals who kindly helped us – not all of whom will necessarily agree with every recommendation here. They include: Sir Dan Bethlehem, KCMG, QC, former principal Legal Adviser of the FCO; Lord Faulks of Donnington, QC; Captain Thomas Hughes of St Antony’s College, Oxford and the 9th/12th Royal Lancers; Dame Joan Higgins, DBE of the NHS Litigation Authority; the Rt Hon Lord Hutton; Major General Andrew Mackay, CBE, former Commander of the Helmand Task Force; Sir Michael Pakenham, KBE, CMG of The Blavatnik Family Foundation; Air Chief Marshal Sir Stuart Peach, Vice Chief of the Defence Staff; Air Vice-Marshal Edward Stringer; Jason Sugarman; His Honour Judge Peter Thornton, QC, Chief Coroner of England and Wales; and Robert Weir, QC. Finally, we wish to thank all serving and past officers of all three branches of the armed services who shared their experiences of ‘judicial creep’, most of whom do not wish to be identified. We are also hugely indebted to many Ministry of Defence civil servants, whose dedication and care give the lie to the fashionable idea that MOD ‘mandarins’ are invariably part of the problem. 6 | policyexchange.org.uk Foreword By the Rt Hon Lord Justice Moses None have succeeded in defeating the armed forces of the United Kingdom. Napoleon, Falkenhayn and Hitler could not. But where these enemies failed, our own legal institutions threaten to succeed. So argue the authors of this stimulating, well-reasoned and important paper. They recall that in 2009, soldiers carried twice the weight of the loads born by their predecessors during the Falklands. Now they demonstrate the even greater weight of judicial intervention imposed on the armed forces following the decision of the Supreme Court in June 2013 in the Smith case. The judges, by a majority of four to three, chose, in that case, to admit of the application of Article 2 of the European Convention on Human Rights to soldiers on the field of battle, should their death or injuries be attributable to some earlier decision relating to procurement. Only the dissenting speech of Lord Mance, with two lieutenants, escapes the authors’ barrage. It is piquant that, fearful of the consequences of that decision, the authors aim their not inconsiderable artillery at the judges. In my youth, the prisoner accused of felony need only to have stood in the dock wearing a regimental tie and a handful of campaign medals for the judge to halve the merited sentence and send him down with words of regretful praise. This paper sets out to demonstrate how what is described as ‘judicial creep’ (the authors have too much courtesy to add an ‘s’) threatens the ability of the armed forces to exercise that essence of professional military skill, the ability to act with flexibility and instinct within the framework of a superior commander’s intent.