Liz Truss

The legal profession cannot be a closed shop

The criticism stemming from the appointment of Liz Truss has been both surprising, and misplaced. “The Prime Minister had failed to comply with her constitutional obligation to appoint as Lord Chancellor someone who appeared qualified to defend the rule of law” complained Lord Falconer, one of many keen to attack Liz Truss before she has even had a chance to settle into the role. Some saw the criticism of the new Lord Chancellor as sexism dressed up as constitutional concern, but it seems more likely that it is just the latest expression of the legal profession’s closed shop mentality.

Many lawyers bemoaned the appointment of Chris Grayling as the first non-lawyer to become Lord Chancellor for over 400 years. The Conservatives are now on their third lay Lord Chancellor in a row, with Liz Truss replacing Michael Gove. The legal profession's hostility to Grayling was in response to the changes he brought about, but it did not necessarily require him to be a lawyer to see what the effects of reforms would be. For all Grayling's critics, it was obvious that the legal profession was going to have to bear its fair share of austerity. It is possible to disagree with Grayling's changes, but it is equally possible to imagine that in some circumstances it may be easier for a dispassionate politician to institute reform when they are not so inextricably enmeshed both professionally and socially within the legal system.

There is really no reason to believe the Liz Truss will be like Chris Grayling just because she is not a lawyer. It does not follow that because somebody is not a trained legal professional, that they cannot see how the justice system could be improved. Experience as a barrister or solicitor does not guarantee competence at a ministerial level; spending a career within a system will of course generate some insights, but it can also lead to myopia. Working within a system can lead to eccentric views about how it should operate, or leave practitioners blind to shortcomings experienced by the people for whom the justice system must operate. The courts must work for judges and for lawyers, but their first function is to work for society as a whole. Most lawyers would be honest enough to admit that it is possible to lose sight of that greater picture, and to be caught up in concern about how the justice system works for their career, or for their particular patch. Liz Truss must take the time to listen to the extremely important concerns of legal practitioners, but it can be an advantage that she comes to the role with fresh eyes.

Like any system, the law can only bear so much change. Over the last six years there has been much upheaval, with Ms Truss’s two immediate predecessors instituting and in some cases then repealing often unpopular changes. It is fundamentally important that the new Lord Chancellor defends a legal system which must sometimes be unpopular as a function of its effectiveness. A proper legal system will always spend adequate resources defending the presumption of innocence even when that presumption is overturned. Rehabilitation must never be lost in the search for justice. The state is duty-bound to resist the superficial appeal of simple retribution. Satisfying headlines should not come at the expense of real and significant improvement. Law and order is an area in which it is easy to wade in with modifications that comfort preconceptions and simplify complex problems. While there will always be some who fear that a non-lawyer presents more of a risk, the values of the justice system are the values of society, and are readily comprehensible.

When our new Lord Chancellor has spent time listening to the profession, she will develop still further her undoubted respect for the system. She will also look at it anew in a manner that few practitioners could ever hope to replicate, even with the most open of minds. Justice is an area in which ephemeral headlines often compete directly with the more challenging and more rewarding task of preserving our long-protected values and the necessary expenditure that funds their promulgation.

Britain's vote to leave the European Union presents an opportunity for legal dynamism. A new Lord Chancellor presents the opportunity to reset the clock on the Government's relationship with the profession. If the legal profession is to get the best out of their Lord Chancellor, then they should have the same optimism and open-mindedness about Ms Truss that they trust she will extend to them.

Rupert Myers is an Associate Fellow at Bright Blue

Human rights and the armed forces

The Rt Hon Liz Truss MP, Britain’s first female Lord Chancellor, faces difficulty in her other role as Secretary of State for Justice. At the top of her list is likely to be the proposed British Bill of Rights and prison reform.

But she is also likely in her ‘red box’ to have the apparent ‘juridification’ of the armed forces. The Government is increasingly concerned that human rights legislation, particularly the European Convention on Human RIghts (ECHR), is being applied to the armed forces overseas. This issue continues to trouble the Ministry of Defence (MoD) which, since the start of the Iraq War, has received over 2,000 public and private legal claims relating to British military action. To date, the Government has found no way of preventing this juridification.

Legal history

The Political Scientist and former British Army Officer, Professor Anthony Forster, states that “for over 200 years wars have been governed by the laws of war and national legislation”. Specifically, laws have been applied to military personnel through both international humanitarian law (IHL) and domestic law.

IHL is commonly referred to as the ‘law of armed conflict’, or the ‘law of war’. IHL comprises of a number of international treaties which attempt to restrict the effects of armed conflict for humanitarian reasons. The rules and regulations of IHL are founded in a vast number of treaties, in particular the Geneva Conventions of 1949 and their Additional Protocols which were ratified during the 1970s.

Military behaviour has also long been restricted by domestic rules and laws. In 1731, the British Royal Navy introduced the first version of what is now known as the Queen’s Regulations. Since than, there have been a number of Acts which set out disciplinary frameworks for each of the services, with a single, harmonised disciplinary system governing all members of the armed forces introduced in 2005.

Since at least World War Two, it has been accepted in the UK that the special circumstances in which service personnel find themselves compared to civilians requires unique legal protections. This consensus resulted in principles such as ‘combat immunity’ and ‘Crown immunity’. The concept of ‘combat immunity’ has been defined as ”a common law doctrine that operates to exclude civil liability for negligence and deliberate damage to property or person committed by the armed forces during certain combat operations”. In practise, this meant that soldiers enjoyed immunity from prosecution in many forms of activity, including in the planning and preparation of attacks. Crown immunity prevented forces’ personnel injured while on duty from seeking compensation from the MoD.

The ‘juridification’ of the armed forces

Juridification is the process of increasing legal intervention in an area which had previously been based on trust. Tom Tugendhat MP, a former soldier, and Laura Croft, a barrister, published a paper last year with Policy Exchange. In the report they claimed that “recent legal developments have undermined the armed forces’ ability to operate effectively on the battlefield”. Professor Forster has agreed with these claims and argues that there “appears to be a strong case” that a process of ‘juridification’ of the British armed forces has occurred.

Forster, and Tugendhat and Croft, conclude that the ECHR has been the main mechanism through which cases have been brought against the MoD. Cases brought against the MoD usually fall into two categories; cases which relate to the armed forces’ treatment of civilians, and cases which relate to the armed forces’ treatment of their own personnel.

Armed forces’ treatment of civilians

There is one key case in the armed forces’ treatment of civilians; Al Skeini. In this case, the families of six Iraqis who died in Basra in 2003 brought a case against the MoD. They claimed that the British government had failed to carry out an investigation into the deaths of their relatives. Four of the relatives had been shot when British troops were conducting a patrol; one was an apparently innocent bystander who had caught in the crossfire between British troops and Iraqi gunmen; and the sixth died at a British base in the custody of British troops. The Rt Hon Geoff Hoon, the then Defence Secretary, decided not to order an independent inquiry into the deaths.

The British High Court, Court of Appeal and Law Lords all found that the Iraq War did not fall within the regional sphere of the ECHR. In order for the protections of the ECHR to apply, the actions of the state must occur within the state’s jurisdiction except in exceptional circumstances.

However, the European Court of Human Rights found that one of the exceptional circumstances in which the ECHR could apply extraterritorially was when a signatory exercised ‘public powers’ on the territory of another state. The Strasbourg Court found that the UK “assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government”, in particular “responsibility for the maintenance of security in south-east Iraq”. Thus, during the period in question, the UK “exercised authority and control over individuals killed in the course of such security operations” and, as a result, a jurisdictional link existed between the UK and the Iraqis who had been killed. The MoD was thus ordered to pay compensation to the 6 victims’ families.

Armed forces’ treatment of their own personnel

There have also been a number of cases relating to the armed forces’ treatment of their own personnel. The main set of these types of claim arose from an apparent friendly fire incident, called the ‘Challenger claims’. During the incident one soldier was killed and a further two were injured. The soldiers claimed that the MoD had failed to equip the Challenger tanks involved and had not offered soldiers adequate tank-recognition training.

The MoD argued that the claims should be struck out because at the time of their deaths and injuries, the British soldiers were not within the jurisdiction of the UK for the purposes of the ECHR. The UK Supreme Court followed the previous Strasbourg verdict and held unanimously that the claimants were in the UK’s jurisdiction for the purposes of the ECHR at the time of their deaths. The MoD thus lost the case and compensation was awarded to the soldiers involved.

Conclusion

There has been an explosion in claims against the MoD which has angered subsequent governments. The current Conservative Government believes these judgments have the potential to significantly limit the capabilities of British troops and is determined to find a remedy to them.

To date, no such remedy has been found. Appearing before the Justice Select Committee earlier this year, the Rt Hon Michael Gove MP - the then Justice Secretary - argued that “there might be a derogation when British troops are engaged in conflict in the same way that France has derogated [from some human rights obligations] in the aftermath of the Bataclan atrocity.” Gove was referring to the November 2015 Paris attacks where terrorists launched coordinated attacks in cafes, restaurants, theatres and outside the Stade de France. Following the attacks, France temporarily suspended some elements of the ECHR This may been one mechanism of preventing claims, but the responsibility for resolving the problem now falls to the new Justice Secretary, the Rt Hon Liz Truss MP.

James Dobson is a researcher at Bright Blue