In July 2013, the House of Commons Defence Committee launched an inquiry into the legal framework governing future operations of the British armed forces as part of its preparations for the next Strategic Defence and Security Review. The Committee has now published its findings in a report entitled ‘UK Armed Forces Personnel and the Legal Framework for Future Operations’.
The very fact that the Defence Committee saw the need to launch an inquiry into the legal framework governing military operations is remarkable. It demonstrates just how much legal considerations are shaping the current strategic and tactical landscape. It also lays bare a substantial degree of unease about the role that rules of law and legal processes play in an area as politically sensitive as the deployment of the armed forces.
Bearing in mind the complexity, contested nature and sheer scope of the topic, those who followed the inquiry closely may be forgiven for awaiting the publication of the Committee’s report with a certain sense of trepidation. How would the Committee deal with the extraordinarily broad remit of the inquiry? And what might lie at the bottom of Pandora’s box? These concerns turned out to be misplaced. The Committee must be commended for producing a balanced and informed report, no doubt assisted by the breadth of the expert evidence available to it. Above all, it is refreshing to see that the Committee succeeded in avoiding some of the untested assumptions and high drama which have been evident in the debate about the legal regulation of the armed forces.
Two main themes emerge from the report. The first is that the legal linkedin database framework governing military operations is complex. This point may not come as a revelation to legal experts working in the field, yet acknowledging this complexity has very significant policy implications. As I have suggested in greater detail elsewhere (‘Deployed Operations and the ECHR’), legal complexity is here to stay and cannot be resolved for good. If all that we can achieve is a better balance of the competing considerations, we must focus our efforts on reducing the adverse effects of legal uncertainty on the armed forces, rather than chasing unrealistic attempts to simplify the law. The Committee’s recommendation to enhance the armed forces’ understanding of the law by providing them with better legal training, manuals and advice would go some way towards this end.
The second theme which emerges from the report is a strong sense that the Government must act more proactively and look at the legal framework for future military operations from a more strategic angle. Indeed, if the challenge posed by legal complexity cannot be fully resolved, it becomes all the more important to employ the full range of options available to reduce its negative impact on operational effectiveness to an acceptable level, whatever that might be. While the report identifies some possible options, the Committee acknowledges that a more concerted effort is required on part of the Government to meet this challenge. The Committee also hints at the existence of a relationship between the legal framework governing military operations and the standing of the armed forces in society. In fact, a good place to start a strategic review of the law governing the conduct of military operations is to consider how one might justify claims that the armed forces should be treated differently in law than the rest of society. In addition to these general points, the following aspects of the report merit brief comment.