Is the law impeding our armed forces?

As we denigrate our troops, lawyers get rich. So said the Daily Telegraph in an editorial earlier this month. Its leader-writer singled out Public Interest Lawyers, solicitors for relatives of Iraqis killed by British troops a decade ago. The Birmingham-based firm had just made a dramatic concession at a public inquiry examining their clients’ claims.

Just a day earlier, the prospect of yet another public inquiry into the actions of British troops came a little closer when the Court of Appeal ruled on a claim by families of 24 civilian workers shot dead 65 years ago in Malaysia.

It is not hard to imagine the effect that human rights claims are having on senior military commanders. One need only read The Fog of Law, a paper published last October by the conservatively minded think-tank Policy Exchange. Written by Tom Tugendhat, a former Territorial Army colonel with a glittering parliamentary career ahead of him, and Laura Croft, a retired US Army colonel who served as a senior military lawyer, it argues that ‘recent legal developments have undermined the armed forces’ ability to operate effectively on the battlefield’.

The paper draws on a key ruling last June. In Smith, sometimes referred to as the ‘snatch Land Rover’ case, the Supreme Court decided that British soldiers serving on foreign battlefields were protected by the human rights convention. By a majority of four to three, the court dismissed a claim by the Ministry of Defence that the doctrine of combat immunity prevented claims being brought on behalf of troops killed or injured in Iraq.

This was decided as a preliminary issue and Lord Hope, for the majority, said it was ‘far from clear’ that the claimants would succeed at trial. But Lord Mance, in the minority, feared that the judgment would lead to the ‘judicialisation of war’. By that, he meant it would ‘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 in this context that we must examine the concession I mentioned earlier. It came at the Al-Sweady inquiry, named after an Iraqi who died in May 2004 following an ambush of British troops by armed insurgents near a checkpoint known as Danny Boy.

Many Iraqis were killed in the firefight that followed. In the normal course, their bodies would have been left on the battlefield for subsequent burial. However, commanders wanted to know whether an insurgent suspected of killing six British soldiers in 2003 was among the dead. So, according to the MoD, soldiers brought the bodies of 20 dead Iraqis back to their base at Camp Abu Naji for checking, along with nine live prisoners.

Their families challenged these figures. They alleged that at least one of the 20, Hamid Al-Sweady, was still alive on arrival at the British base and subsequently murdered. Other detainees were ill-treated, they said. So the families issued proceedings for judicial review, asking the court to order an independent investigation.

But the MoD proved unable to comply with its duty of disclosure. Eventually, the defence secretary, Bob Ainsworth, accepted that the High Court was not in a position to decide the case. He conceded the relatives’ request for a public inquiry and agreed to pay indemnity costs.

The Al-Sweady inquiry heard its last planned witness on 20 March. That was when Patrick O’Connor QC, for the Iraqi families, made his dramatic concession, telling the chairman that his clients would ‘not be submitting that, on the balance of probabilities, live Iraqis captured during the course of the battle on 14 May 2004 died or were killed at Camp Abu Naji’.

O’Connor emphasised that his clients were dependent upon the material that had been disclosed by the inquiry, which was incomplete. He was not conceding that those who died had been lawfully killed. But the evidence supported the conclusion that 20 bodies had been recovered from the battlefield and 20 bodies were returned to the Iraqi authorities the next day.

That was not something it had been easy for his clients to accept. Sir Thayne Forbes, the inquiry chairman, commended O’Connor and his team for their concession, saying it was ‘in the highest traditions of the English bar’.

But who was to blame for a five-year inquiry costing more than £22m? O’Connor reminded Forbes that it had been set up by the government because the MoD’s ‘lamentable’ approach to disclosure had left it unable to satisfy the High Court that the Iraqi claims were unarguable. ‘This position was itself a reflection of the lack of proper records at Camp Abu Naji at the time and ineffective subsequent internal army investigations,’ he added.

So the army must carry the blame. But not, fortunately, for murder.