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Lord Vincent of Coleshill: My Lords, I, too, am grateful to the noble Lord, Lord Campbell of Alloway, for initiating the debate on the interpretation of military law and its application to members of the Armed Forces, particularly in the case of those who have been committed to military operations.

Let me make it clear at the outset that I accept fully the need for members of the Armed Forces to be accountable for their actions undertaken within a relevant legal framework, including the specific rules of engagement that are applicable in each operation.
 
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But it is equally important that those who define and apply such legally binding criteria do so in a form that is compatible with the nature of the operations our Armed Forces have been directed to undertake.

Those who have formal responsibility for investigating and dealing with possible cases of misconduct on military operations also need to take account of their unique and changing characteristics. Military operations have no equivalent in any other context that I can think of, whereby members of our Armed Forces are required to go when and where they are directed and, if needed, to put themselves in harm's way, often repeatedly in unforeseen and highly confusing operational environments.

I referred to "the changing characteristics" of such operations for reasons that have become increasingly clear in Iraq and Afghanistan. Today, our Armed Forces are not operating in environments only where there has been no declaration of war or where their adversaries wear no uniform, they also have to respond to terrorists who seek to conceal themselves as members of the population at large whom our Armed Forces are there to help and to protect.

Furthermore, such adversaries have no commitment whatever to international agreements, such as the Geneva Conventions or the Human Rights Act. It is often a deliberate part of terrorist operations that they seek to exploit such legislation to their own advantage by ignoring it themselves while our Armed Forces are bound by it and accountable to it.

To cope with these complexities, our Armed Forces today, for most such operations, are issued with rules of engagement to provide direction on the degree of force that may be justified, including lethal force, under a wide range of operational circumstances. The potential difficulty is that the rules of engagement themselves can make it very difficult when critical decisions have to be taken—literally in seconds and often by junior ranks faced with life-or-death circumstances—to determine what degree of force can legitimately be used. This can often take place, as Trooper Williams experienced so clearly and dramatically, when your adversary has no such constraints on his actions whatever.

In a broader context, this more complex and demanding environment in which members of our Armed Forces now have to conduct themselves on operations is in sharp contrast to the experience and expectations of our society at large which increasingly expects to be protected by such legislation as the Human Rights Act and Health and Safety at Work Act. And since the phasing out of national service in the early 1960s, together with the substantial reductions in our Armed Forces since the ending of the Cold War, an ever-decreasing proportion of our adult population, including Members of Parliament, the government and the legal profession, have any first-hand experience of military operations at all.

In one sense, that is greatly to be welcomed, because since 1945, our security and defence policies have generally proved so effective, despite the periodic alarms and excursions, that, for the population at large, we have overall enjoyed in this country the
 
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longest period of peace and growing prosperity in modern history. But one practical difficulty arising from this remarkable and welcome outcome is that there are ever-fewer people who can make genuinely well informed judgments based on hard-won military experience on active service about the justification or otherwise for the conduct of military operations by our Armed Forces, both collectively and individually. Clearly, in the case of Trooper Williams, this judgment went seriously awry until, after many months, the charge against him for murder was eventually dismissed with no case to answer. We need to learn the lessons that arise from that case, taking also into account the broader developments in society at large to which I have referred.

It is against that background that I read with interest the brief article by the Secretary of State for Defence in the House Magazine on 13 June, written shortly after his appointment. He said:

"What will the world look like in the years ahead, and how shall we change to meet the threats it will pose in defence of our rights and in the discharge of our global responsibilities? First, our security will be best served by going to meet the threats of the future, rather than waiting for them to come to us, as we once did. Second, those threats are likely to emerge in places which perhaps didn't show up on our radar screens a few years ago. They will be disparate, well-hidden and will be happy to use innocent civilians as cover, be it politically or physically. This is why we are building quickly deployable forces, embracing new technologies to ensure that we can best take advantage of our fleeting chances to strike at this new enemy".

If the members of our Armed Forces, who repeatedly put their lives on the line in such operations, are to be expected to,

"take their fleeting chances to strike at this new enemy",

they need to be empowered legally and relevantly to do so and, subsequently, to be judged on a realistic knowledge and awareness of the uniquely hazardous and uncertain environments to which, without any choice, they are committed. My question to Her Majesty's Government is: how is that to be achieved?

12.24 pm

Baroness Park of Monmouth: My Lords, I wish to speak in the context of the present debate on the duty of care as it affects the relationship between the Government—the MoD—and our Armed Forces. Sir Michael Rose once said:

"Soldiers are not merely civilians in uniform. They form the distinctive group within our society which is required either to kill other human beings or expressly to sacrifice themselves for the nation".

They should not suffer because of our failure to seek a derogation or even a reservation when signing the Act.

As Lord Carver said at the time,

"In practical terms it would not be possible under severe active service conditions to apply most of the provisions of the Act",

and that is precisely when soldiers need and are entitled to be tried—if tried they have to be—within the service under well-tried military procedures and according to the rules of engagement.
 
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The duty of care extends to ensuring that the forces are not put under unnecessary strain, a strain that is very likely to arise in a continuing campaign such as Iraq, where peace is not peace and war is not war and the enemy is very difficult to identify, and where it is even more vital for the morale of the troops that they know exactly what the rules are and how they are protected. In future capabilities, the committee in the other place concluded that many frontline units in the Army have for some years been experiencing an operational and training cycle whose intensity is unsustainable in the longer term and that the Strategic Defence Review had provided relatively little resilience. Good morale has therefore a practical necessity.

The committee thought that if the Army has only just enough personnel to man the proposed force structure, a lack of resilience could be expected in the future. But meanwhile the Government are taking on more and more tasks. The present emphasis on expeditionary operations may not be taking sufficient account of whether there are actually enough boots on the ground. Increasingly, the Armed Forces are being committed to EU and UN plans for battle groups, the initial operational capability, support for an AU force, including possible action in Africa, and filling the large shortfall in the European capability. Little or none of that was foreseen in the Strategic Defence Review, and neither the EU nor the UN are capable of managing all those forces.

Meanwhile, the Prime Minister's Strategy Unit has produced a massive, glossy, 161-page tome, Investing in Prevention: An International Strategy to Manage Risks of Instability and Improve Crisis Response. Why that was necessary as well as the Global Conflict Prevention Pool in which the MoD, FCO and DfID work together is far from clear. The MoD's strategy Delivering Security in a Changing World already envisages that the UK will be regularly engaged in stabilisation and post-conflict efforts, with all their special problems—for the foreseeable future. The only thing for which HMG evidently has no plans is where to find the available resources.

Due care should include not only the safety and reassurance of judgments within the military system; it should consider morale in other areas. That includes the anxiety which will be suffered by families and the doubts of potential recruits.

I am baffled by the immense tome from the Strategy Unit compiled by 28 policy analysts, of whom only three were from the MoD, and a red team of five, of whom one was—surprise, surprise—a partner in McKinsey's. It is full of diagrams, tables, recommendations on everything from supporting NEPAD and the EU to an incentive to capacity matrix, figures, boxes, tables, strategies and basic instability frameworks. I should not be surprised if the cost of this tome in terms of staff and production would not go quite a long way to improving service housing.

The Government are failing in a duty of care, both in legal and in moral terms. Co-ordinating war-making and the subsequent peace-building is sensible, but not confusing and diluting the role of the Armed
 
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Forces in an attempt to treat them as if they were civilians, just like you and me. They are not, any more than DfID is composed of diplomats or soldiers.

The MoD is not there to operate, as it seems it did, on the basis of political correctness. That is the last thing that should concern it. For our part, we have a simple duty and noble and gallant Lords are certainly fulfilling that today. We must demand that the Government protect the troops as they protect us and allow those troops the safety and reassurance to which they have a right.

12.29 pm

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