Armed forces should 'fight the enemy, not the lawyers'

Two of the Conservative party's greatest bugbears '“ the European Convention on Human Rights (ECHR) and the lawyers who enforce it '“ are to be removed following government plans to derogate from elements of the convention before British troops enter future conflicts abroad.

Appearing on Sky News's Sunrise programme, the prime minister, Theresa May, said human rights legislation has been used to generate an 'industry of vexatious claims which has grown up, with lawyers appearing to chase around to find anybody who will bring a claim against our troops'.

Speaking later at the Tory party conference, the defence secretary, Michael Fallon, said the legal system had been 'abused to falsely accuse' the armed forces. 'Already one of the firms that filed thousands of these claims, the so-called 'Public Interest Lawyers', has had its legal aid contract terminated and shut down in August. It won't be missed,' he added, before highlighting plans to introduce a new time limit for bringing claims and tackling 'no win, no fee' claims.

Fallon also pulled no punches when discussing the ECHR, claiming it is 'damaging our troops, undermining military operations, and costing taxpayers' millions', before then repeating the prime minister's plan to ignore the convention to 'protect our armed forces from many of the industrial-scale claims we have seen post Iraq and Afghanistan'.

'Now this isn't about putting our armed forces above the criminal law or the Geneva Conventions,' he continued. 'Serious claims will be investigated '“ but spurious claims will be stopped. And our armed forces will be able to do their job, fighting the enemy, not the lawyers.'

Writing in the Daily Mail, Colonel Richard Kemp CBE said that he 'might have faced years of investigation and harassment by left-wing lawyers demanding heavy punishment for [him] and compensation for their clients' if he breached the human rights of 'Al Qaeda terrorists and murderers'.

The former commander of British forces in Afghanistan and Iraq added that the behaviour of lawyers such as PIL's Phil Shiner had been 'shameful'.

The Iraq Historic Allegations Team (IHAT), set up to investigate allegations of abuse of Iraqi civilians, has considered more than 1,500 claims since 2010. And while the number of claims is set to drop to just 250 following the collapse of PIL, some 326 cases have been settled to the tune of £20m in compensation. All told, the Ministry of Defence (MoD) has spent more than £100m on investigations, inquiries, and compensation related to the Iraq war since 2004.

As has been previously pointed out, the legal profession is an easy target for politicians during wartime, and one that has often been used to deflect attention away from bad policy decisions '“ see any tabloid story with 'fat cat lawyer' in the title. Yet even Labour has been up to a spot of lawyer bashing of late.

In an interview with Sky News last week, the shadow defence secretary, Clive Lewis, said lawyers who 'harangue and harass' British troops must be 'stopped immediately', adding: 'We will make sure this country knows Labour will put the needs and interests of our armed forces first and foremost.'

The public condemnation of PIL and Leigh Day has certainly given ECHR critics and detractors of the profession a juicy bone to gnaw on, even though criminal or regulatory offences have yet to be proven against the firms in question, or their principals. Critics of the government's plans have also had their say, however.

The Law Society president, Robert Bourns, said Britain must not forego the guiding principles of human rights and the rule of law to tackle 'a small number of vexatious claims'.

'The government's proposal to derogate from the ECHR risks preventing genuine claims, which might include those brought by UK armed forces against the MoD,' he continued. 'It is the role of the justice system to determine the validity of claims, a function that is and must remain separate from government.'

Martha Spurrier, director of Liberty, added: 'To save the MoD from the shame of having to admit that civilians suffered abuse on its watch, ministers are prepared to rob our soldiers of this sensible legal framework that both clarifies their use of force and offers them redress when their own rights are breached.

'For a supposedly civilised nation, this is a pernicious and retrograde step that will embolden our enemies and alienate our allies.'

Meanwhile, Des James, the father of Private Cheryl James, who died at Deepcut Barracks in 1995, rounded on those politicians who had 'vilified lawyers'.

'The government has a short memory,' he said. 'It is ignoring the many servicemen and women and their families '“ like mine '“ who have used the ECHR to hold the MoD to account when it has failed to meet the standards we rightly expect and deserve, often with shattering consequences.'

John van der Luit-Drummond is deputy editor at Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD