Military claims: killing the lawyers?

It was Dick the butcher in Henry VI who said ‘the first thing we do, let’s kill all the lawyers’. He had a point. Lawyers can be annoying to political leaders and kings. They pursue remedies against the state and against members of the executive if their clients’ rights have been violated.

That is what they are for. Sometimes politicians in particular find that very annoying indeed.

Holding the state, and the agents of the state such as members of the security forces to account is a fundamental duty that all lawyers have as part of their statutory duty to uphold the rule of law. Compliance with the rule of law requires that nobody should be above it. It has been so since at least Magna Carta.

So how does this fit with all of the recent political rhetoric that suggests that lawyers have grown an ‘industry’ of ‘spurious claims’ arising out of the activities of our military forces overseas? In those cases the lawyers have been instructed by individuals who claim that their rights have been violated.

In some cases the claims have been of ill treatment, in others that their family members have been killed by military forces illegally. The job of the lawyer is to secure remedies. To present their clients cases to those who have the power to investigate and make decisions regarding whether or not those allegations are true. For doing so they are now being vilified. By politicians, even the prime minister, and by certain sections of the media.

What are the implications of these interventions?

Firstly the lawyers are identified with the clients they represent, as if they were pursuing cases themselves, rather than on behalf of their clients. Lawyers take instructions, they do not give them.

They do not make decisions regarding the truth or otherwise of the allegations which their clients make. They put them before the relevant court or tribunal to be tested, along with any other evidence. Vilification of the lawyers is misguided. As misguided as it might be, it is dangerous. It exposes the lawyers to abuse, to threats, sometimes to violence.

Secondly there is a sense in which the public are being told that it is wrong to make security forces who have violated basic human rights accountable for their actions. The language suggests that in difficult situations the usual rules don’t apply. They do apply and they need to be enforced.

Thirdly these interventions lead to other steps to close off remedies otherwise available to victims who allege violations either by changing the rules (for example in relation to judicial review) or removing the funding which allows often penniless and vulnerable individuals to pursue their remedies.

So is this justified in a modern democracy which respects the separation of powers between the executive, the judiciary, and parliament? It’s a big question. So far 326 ‘vexatious’ claims have been settled and compensation of £20m has been paid out. Is that because there was no case to answer?

Any lawyer who has pursued cases against the Ministry of Defence will know that they do not settle unmeritorious claims. Other cases have not succeeded because tribunals or inquiries determined that the claimants were not telling the truth. Just as in any civil justice system some cases are successful and others are not. Does that mean that none of them should be allowed to proceed? Surely not.

In November 2010 the government set up the Iraq Historic Allegations Team (IHAT) to examine allegations made by individuals who claim that their rights have been violated during the military campaign in Iraq. Many recommendations have been made and implemented to ensure that some of the abuses which have been proven do not happen again.

Other cases have proceeded through the civil courts and beyond to Europe. Serious cases of abuse have been proven such as the death of Baha Mousa in 2011 after what was described as an ‘appalling episode of serious gratuitous violence’ by military forces.

In the last week a High Court Judge, Sir George Newman, has found that four UK soldiers who forced a 15-year-old Iraqi boy, Ahmed Jabbar Kareem Ali, into a canal and let him die were responsible for his death. Surely the process which led to this decision was fair, proportionate, and delivered justice.

Lawyers do not of course only protect the rights of victims allegedly abused by members of the security forces. The same lawyers have been protecting the rights of the members of the security forces themselves. Soldiers sent to fight with inadequate equipment, or who have received inadequate medical treatment. Soldiers who have been mistreated by their fellow soldiers.

Their own rights have been protected by the self-same lawyers. Doing their job. Representing their clients and holding the state to account. If any of those lawyers act unprofessionally and in contravention of the strict regulatory regime under which they practise they will be disciplined and held to account themselves.

For decades the Law Society of England and Wales has been intervening overseas to support lawyers at risk whose own rights have been violated, usually because they are representing unpopular claimants or defendants against a repressive state. Many face extreme danger in standing up for their clients’ rights. Many are vilified by a state-controlled media, are subject to threats, violence, and sometimes death, because they have done their jobs as lawyers.

We seem to have started on a direction of travel which could lead to the same place. We must protest. No representative of the state should be found guilty of mistreatment that he or she was not guilty of. But neither should any true victim be denied a remedy.

Tony Fisher is a senior partner at Fisher Jones Greenwood