Whilst there are points in the Kemp article with which issue could be taken, matters of considerable concern are raised and they ought not to be lightly dismissed as some sort of Daily Mail anti-human rights diatribe. (Regrettably, the newspaper does have a tendency to use certain decisions of the courts - especially the European Court of Human Rights - to try to ridicule the whole of human rights law. There has been little to no attempt by this newspaper to offer readers a more balanced view and there is little doubt that, in practice in many areas of law, human rights law has been beneficial to citizens.)
Background to the article:
1. Parliament itself has looked seriously at UK Armed Forces Personnel and the Legal Framework for Future Operations - House of Commons Defence Committee - 12th Report Session 2013-14. Here is an excellent overview of the litigation issue identified by Colonel Kemp.
2. Policy Exchange has produced an interesting report - Clearing the fog of war: saving our armed forces from defeat by judicial diktat and this is examined further in my post of March 2015 - Human Rights on the Battlefield.
The report, authored by Professor Richard Ekins (University of Oxford), Dr Jonathan Morgan (University of Cambridge) and Tom Tugendhat (a former Military Assistant to the Chief of the Defence, Staff General Sir David Richards), reaffirms that armed forces on the battlefield should not be above the law but that the rules governing conflict must fall under the Geneva Conventions rather than the European Convention on Human Rights (ECHR). It argues that a blanket derogation from the ECHR is essential in all future conflicts involving British military personnel.
3. IHAT - The Iraq Historic Allegations Team (IHAT) is continuing its work and it may take until 2019. Colonel Kemp has not exaggerated the number of cases under consideration. The UK government website informs us that:
"Iraq Historic Allegations Team (IHAT) is an organisation set up to review and investigate allegations of abuse by Iraqi civilians by UK armed forces personnel in Iraq during the period of 2003 to July 2009.
The alleged offences range from murder to low-level violence and the time period covers the start of the military campaign in Iraq, in March 2003, through the major combat operations of April 2003 and the following years spent maintaining security as part of the Multi-National Force and mentoring and training Iraqi security forces.
The unit is led by retired senior civilian police detective, Mark Warwick, and comprises some 145 employees, including Royal Navy Police personnel, civilian investigators and civil servants. IHAT is independent of the military chain of command for the purposes of its investigations which are due to be complete by the end of 2019."
4. The Al-Saadoon litigation refers to the number of cases - see the judgment of Mr Justice Leggatt in March 2015. Leggatt J refers (at para 2) to there being at least 1230 cases. Leggatt J's judgment is indicative of the extensive range of preliminary issues which this type of litigation is capable of raising. The consequential legal costs will be very high.
5.The Armed Forces disciplinary system is strong and is set out in the Armed Forces Act 2006 which created, for the first time, a single disciplinary system for all three of the Armed Forces.
6. Geneva Conventions - The various Geneva Conventions bind the UK in international law and are duly recognised by the Armed Forces of the Crown. They are not, of course, recognised by non-State actors such as those who opposed UK Forces in Afghanistan or, at the present time, Islamic State (Daesh).
7. Blackman case: Whether one agrees with either the prosecution or conviction or not, it can certainly be said that the Service Prosecuting Authority (SPA) did not shrink away from bringing case of Royal Marine Sergeant Blackman to the Court Martial. Sergeant Blackman was convicted by the Court Martial of murder. Please see my previous posts about his case - 17th September 2015. Whatever the merits of trial by Court Martial, it supposedly brings to the decision-making body some recognition of the particular problems encountered by the military in the conduct of their duties. The case is now under consideration by the Criminal Cases Review Commission and their deliberations may eventually result in a reference to the Court-Martial Appeal Court.
8. In Northern Ireland, the Good Friday Agreement (Belfast Agreement April 1998) dealt with paramilitary prisoners. It provided for accelerated release of prisoners convicted of Scheduled Offences. No members of the Armed Forces had been convicted of such offences and so this was not applicable to them. Nevertheless, despite such a major concession to paramilitary prisoners, investigations into the actions of the Armed Forces in Northern Ireland continued (Saville Inquiry - Bloody Sunday) and are still continuing as shown by the recent High Court decision in R (B and others) v Chief Constable of the PSNI  EWHC 3691 (Admin)
9. Legal Aid - it certainly has seemed to be readily available to this type of claim. Kemp ended by stating - "If the MoD had any real guts, it would cut the state funding and bring this legal racket to an end."
Apart from the trivial point that legal aid matters are not within the remit of the MoD, it has to be noted that, since the Legal Aid, Sentencing and Punishment of Offenders Act 2012, legal aid is usually only available for a much reduced menu of civil claims (see Schedule 1 to the 2012 Act). (There is provision for exceptional funding though it has not been noticeably generous in its application). Nevertheless, legal aid is available for most judicial review proceedings (Schedule 1 para 19) and for Breach of Convention Rights by a Public Authority (Schedule 1 para 22). It is in those areas where most of the Iraqi claims arise.
10. Solicitors and Discipline: Leigh Day is one firm of solicitors which has handled Iraq matters. The Solicitor's Regulation Authority has referred the firm to the Solicitor's Disciplinary Tribunal - see the SRA statement 6th January 2016 and their earlier statement 15th January 2016. The referral to the tribunal arises from the Al-Sweady Inquiry. The original Al-Sweady Inquiry website appears to have been taken down but the inquiry report is available via the UK government website. Of particular interest are the Inquiry's conclusions - see Conclusions para 5.196 to para 5.202. The government has a noticeable enthusiasm for action against these solicitors.
11. Government stance on claims against itself:
It is clear enough that the government dislikes action being taken against itself in the courts for alleged wrongdoing by British Forces even where the wrongdoing occurred in a prison operated by British Forces in Iraq and was therefore well under the control of the British authorities - see the Baha Mousa case. The government has already removed civil legal aid from many claims (9 above) and, in doing so, has tilted access to justice in favour of government. Furthermore, the ability to bring judicial review proceedings has been deliberately restricted by amendments to the law - (see Courts and Justice Act 2015 Part 4). The rule of law requires that properly based legal claims can be brought to the courts even where those claims lie against the government itself.
Readers may also recall that the government strenuously resisted claims brought by (or on behalf of) British soldiers in relation to Challenger tanks and Snatch Land Rovers - (post of 22nd June 2013) - a matter which was contested all the way to the Supreme Court of the UK. The Supreme Court held that the Ministry of Defence owed a duty of care to provide adequate equipment to soldiers being sent to war. The government had argued that no such duty was owed because of the combat immunity principle.
It is hard to resist the conclusion that the government simply detest claims being brought against itself no matter what the source or merits of the claim.
Additional links and tweets:
Telegraph 17th October 2015 - £150m legal bill for troops just doing their duty
@Barrie_Sander @ObiterJ @COLRICHARDKEMP Has been some abuse of system by claimants. There have been war crimes exposed by that same system— Adam Wagner (@AdamWagner1) January 6, 2016
@Barrie_Sander @ObiterJ @COLRICHARDKEMP There should be a balance, but stopping judicial oversight altogether is not going to achieve it— Adam Wagner (@AdamWagner1) January 6, 2016