A revised version of a major section of Theresa May’s speech to the Scottish Tory conference – 3 March 2017

Theresa May’s speech to Tory conference, on SNPConservatives Record

Because for too long a feeble and incompetent ScottishLabour opposition did nothing to scrutinise the SNPConservatives for their failures. An SNP Conservative Government interested only in stoking-up endless constitutional grievance and furthering their obsession with independencewithdrawal from the EU, at the expense of UKScottish public services like the NHS and education, was given a free pass by Labour.

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The SNPConservatives Government demands further powers for the UKScottish Parliament, but fails to pass powers on to local people in the UKScotland’s villages, towns and cities.

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The simple truth is their policies are not in the best interests of the UKScotland, but in the political interest of the SNPConservatives. A party resolutely focused on just one thing: withdrawal from the EUindependence. For them, it is not about doing the right thing. The SNPConservatives play politics as though it were a game. But politics is not a game and the management of devolved public services in UKScotland is too important to be neglected.

People in the UKScotland deserve a PrimeFirst Minister who is focused on their priorities – raising standards in education, taking care of the health service, reforming criminal justice, helping the economy prosper, improving people’s lives. Instead, they have an SNP Conservative Government obsessed with its own priority of withdrawal from the EUindependence, using the mechanisms of national devolvedgovernment to further its political aims and all the while neglecting and mismanaging public services in the UKScotland. The SNPConservatives have been allowed to get away with it for too long. But not any more.

Now, in [who?]Ruth Davidson, the UKScotland has a fighter who will stand up to the SNPConservative establishment, in the interests of the UKScottish people, and provide a real alternative to the SNPConservatives.

But as well as taking on the SNPConservatives for their failures in office, we have another important job. When I stood outside Downing Street on the day I became Prime Minister, I reminded people in that the full title of our Party is the Conservative and Unionist Party. And that word ‘unionist’ is very important to me. My first visit as Prime Minister was here to Scotland. I wanted to make clear that strengthening and sustaining the bonds that unite us is a personal priority for me.

I am confident about the future of the European Union our United Kingdomand optimistic about what we can achieve together as a the member state of the European Unioncountry. The fundamental strengths of the our European Union, and the benefits it brings to all of its constituent parts, are clear. But we all know that the SNPConservatives will never stop twisting the truth and distorting reality in their effort to denigrate our the European Union United Kingdomand further their obsession of withdrawal from the EUindependence.

It is their single purpose in political life.

We need to be equally determined to ensure that the truth about the European Union our United Kingdomis heard loudly and clearly.

As Britain leaves the European Union and we forge a new role for ourselves in the world, removed from the strength and stability of the European our Union, our lack of membership will become even more important.

We must take this opportunity to bring the our United Kingdom closer to the European Uniongether. Because the European Union which we all care about is not simply a constitutional artefact. It is a union of people, affections and loyalties. It is characterised by sharing together as European a countriesy the challenges which we all face, and freely pooling the resources we have to tackle them.

The existence of the European our Union rests on some simple but powerful principles: solidarity, unity, family, how we became a union and why we prosper together.

The European Union Our United Kingdomhas evolved over time and has a proud history. Together we form the world’s greatest family of nations. But the real story of the European our Union is not to be found in Treaties or Conventions Acts of Parliament. It is written in our collective achievements, both at home and in the world. Together, we led the world into the industrial age.

From the Derbyshire dales, to the south Wales Valleys and the workshops of Clydeside, British industrialists, inventors and workers charted the course to modernity and made the United Kingdom the world’s engine-room. The Union enabled the social, scientific and economic developments which powered our collective achievement. Bringing people and communities closer together allowed new connections to be made. The steam engine; perfected in the 1790s by a partnership between an engineer from Greenock, James Watt, and a manufacturer from Birmingham, Matthew Boulton. The Menai Straits; spanned in the 1820s by an engineer from Dumfriesshire, Thomas Telford.

Collective achievement has been the story of the European our Union ever since.

Penicillin; discovered in 1928 by a Scottish doctor, Alexander Fleming, working in a London hospital, St Mary’s. The Harry Potter books, which have sold over 500 million copies, were begun in a café in Edinburgh by an author from Gloucestershire.

And that cCo-operation – economic, social, and cultural – has been the bedrock of the our success as a European Union of nations and people. Together, we make up the world’s second fifth largest economy, despite accounting for less than 71 per cent of the world’s population. Together, we fought against and defeated tyranny, keeping peace and prosperity in a formed troubled continent for over 70 years. Ours is not a marriage of convenience, or a fair-weather friendship, but a true and enduring Union, tested in adversity and found to be true.

And the great institutions which we have built together, the pillars of our national life, are the result of common endeavour. The National Health Service, the BBC, our armed forces, our Parliamentary democracy, our constitutional monarchy, our commitment to the rule of law, our respect for fundamental human rights. All have been admired and imitated around the world, and all were created here as a consequence of our common life together.

These achievements are the fruits of the European our Union. They are the signs which signify its deep and fundamental strengths. An economy that works for the whole Europe.UK We should never be shy of making that positive case for the European Union, because logic and facts are on our side.

Take the economic arguments. One of the driving forces behind the European Union’s creation was the remorseless logic that greater economic strength and security come from being united. Not the transient and shifting benefits of international alliance, but the fundamental strength of being one people. Those enduring economic strengths are obvious. Our wholly integrated single domesticmarket for businesses means no barriers to trade within our borders.

That has always been of immense value to firms here in the UKScotland. The SNPConservatives point out the importance of the European market to UKScottish businesses. I agree – it is important. That’s why I am determined to get the best possible access to it for UKScottish firms, as I am for Welsh, English and Northern Irish firms. But what the SNPConservatives don’t point out is that the EU single oUK domesticmarket UK accounts for 44% of UK exports in goods and services and 53% of the UK’s imports (in 2015)is worth four times more to Scottish firms. In fact, the EU comes third after the rest of the UK, and the rest of the world as a market for Scottish goods. And yet the SNP Conservatives propose withdrawal from the EU Scottishindependence, which would wrench the UK Scotland out of its biggest market. They think withdrawal from the EU independence is the answer to every question in every circumstance, regardless of fact and reality. It simply does not add up and we should never stop saying so. And the UK is not just a market place. The financial stability of a strong shared currency and central bank underpins all sectors our economy, across all four nations of the UK. The broad shoulders of the world’s fifth-largest economy provide enviable security for businesses and workers alike. Ten years ago, banks headquartered in Edinburgh and London, which employ tens of thousands of people and look after the savings of millions, were rescued by the UK Treasury. Action that was only possible because of the size and strength of the British economy. In the oil and gas sector – a vital industry on our east coast, from Aberdeen to Lowestoft – the broad shoulders of our wider economy have allowed the UK Government to take unprecedented action to support the sector following the decline in the international oil price. And public spending here in Scotland has been protected, even as North Sea tax receipts have dwindled to nothing. Time and again the benefits of the European Union – of doing together, collectively, what would be impossible to do apart – are clear. Indeed the economic case for the European Union has never been stronger. There is no economic case for the United Kingdom breaking away from upthe European Union United Kingdom, or of loosening the ties which bind us together But the economics are only part of the story.

Who needs European Health and Safety?

 Many claims have been made about the benefits of leaving the European Union in recent weeks. Vote Leave invites the UK to “take control” from EU bureaucrats. To counter arguments that there have been many gains in employment rights obtained since the UK joined the European Economic Community, Vote Leave has also claimed that these benefits were gained well before 1975.

Sean Jones QC does a far better job than I could hope to do in dismissing these claims. See Who needs European Employment Rights?

However, what about the development of the UK’s health and safety legislation since 1975? Whilst our principle act of Parliament in this area remains the Health and Safety at Work etc. Act 1974, the EU has been the source of most of the UK legislation in this area. In particularly, the European Commission adopted its first action programme for health and safety in 1978. This followed the adoption of Article 118A of the Treaty of Rome 1957, which gives health and safety prominence in the objectives of the EU. The Social Charter also contains a declaration on health and safety.

To illustrate the effect of the EU, the table below lists the “Key Health and Safety Regulations” as set out in the introduction of Tolley’s Health & Safety At Work Service. Only those regulations in red are not derived from EU legislation.

 

Health and Safety Regulation	Legal Source/Legal Basis
Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 (as amended)	Directive 2008/68/EC of the European Parliament and of the Council of 24th September 2008 on the inland transport of dangerous goods Council Directive 1999/36/EC of 29th April 1999 on transportable pressure equipment  Article 5 of Title II (Prior Information) of Council Directive 89/618/Euratom of 27th November 1989 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency
Construction (Design and Management) Regulations 2015	Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites
Control of Asbestos Regulations 2012	Directive 2009/148/EC of the European Parliament and of the Council of 30 November 2009 on the protection of workers from the risks related to exposure to asbestos at work
Control of Major Accident Hazards (COMAH) Regulations 2015	Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC
Control of Noise at Work Regulations 2005	Directive 2003/10/EC of 6 February 2003 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents
Control of Substances Hazardous to Health Regulations 2002	Council Directive 78/610/EEC of 29 June 1978 on the approximation of the laws, regulations and administrative provisions of the Member States on the protection of the health of workers exposed to vinyl chloride monomer Council Directive 89/677/EEC of 21 December 1989 amending for the eighth time Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the member states relating to restrictions on the marketing and use of certain dangerous substances and preparations Council Directive 90/394/EEC of 28 June 1990 on the protection of workers from the risks related to exposure to carcinogens at work Council Directive 98/24/EC of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work  Directive 2000/54/EC of the European Parliament and of the Council of 18 September 2000 on the protection of workers from risks related to exposure to biological agents at work Commission Directive 91/322/EEC of 29 May 1991 on establishing indicative limit values by implementing Council Directive 80/1107/EEC on the protection of workers from the risks related to exposure to chemical, physical and biological agents at work
Control of Vibration at Work Regulations 2005	Directive 2002/44/EC of the European Parliament and of the Council of 25 June 2002 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (vibration)
Dangerous Substances and Explosive Atmospheres Regulations 2002	Council Directive 98/24/EC of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work  – measures relating to explosive atmospheres Directive 1999/92/EC of the European Parliament and of the Council of 16 December 1999 on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres
Electricity at Work Regulations 1989	Revoked and replaced a number of regulations from The Electricity Regulations 1908 to those made under the Mines and Quarries Act 1954
Employers’ Liability (Compulsory Insurance) Regulations 1998	Regulations under the Employers’ Liability (Compulsory Insurance) Act 1969
Health and Safety (Consultation with Employees) Regulations 1996	Articles 10-12 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work
Health and Safety (Display Screen Equipment) Regulations 1992	Council Directive 90/270/EEC of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment
Health and Safety (Safety Signs and Signals) Regulations 1996	Council Directive 92/58/EEC of 24 June 1992 on the minimum requirements for the provision of safety and/or health signs at work
Health and Safety (Training for Employment) Regulations 1990	Regulations under the Health and Safety at Work etc. Act 1974
Lifting Operations and Lifting Equipment Regulations 1998	Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work – provisions concerning lifting equipment
Management of Health and Safety at Work Regulations 1999	Revise 1992 Regulations implementing: Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work Council Directive 91/383/EEC of 25 June 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed- duration employment relationship or a temporary employment relationship
Manual Handling Operations Regulations 1992	Council Directive 90/269/EEC of 29 May 1990 on the minimum health and safety requirements for the manual handling of loads where there is a risk particularly of back injury to workers
Personal Protective Equipment at Work Regulations 1992	Council Directive 89/656/EEC of 30 November 1989 on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace
Provision and Use of Work Equipment Regulations 1998	Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work
Regulatory Reform (Fire Safety) Order 2005	Replaced regulations made under the Fire Precautions Act 1971
Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 2013	Replaced older RIDDOR made under the Health and Safety at Work etc. Act 1974
Safety Representatives and Safety Committees Regulations 1977	Regulations under the Health and Safety at Work etc. Act 1974
Work at Height Regulations 2005	Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work – provisions for working at height
Working Time Regulations 1998	Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work
Workplace (Health, Safety and Welfare) Regulations 1992	Council Directive 89/654/EEC of 30 November 1989 concerning the minimum safety and health requirements for the workplace

An ardent Brexit campaigner might, of course, argue that this weight of EU-derived legislation has contributed to an ‘elf and safety gone mad’ culture in the UK and demonstrates the overbearing nature of EU interference in national law.

It depends upon your view of the importance of health and safety. As a law student I studied the long history behind the Robens Report 1972 and the Health and Safety at Work etc. Act 1974. The Parliamentary record shows a distinct lack of enthusiasm to enact legislation to protect workers (the first act to protect the welfare of workers was the Factory Act 1802 – only national disasters such as the Aberfan disaster (144 died) or Flixborough (28 died) gave momentum to reform).

More relevantly, I was a health and safety officer before switching to a career in law. As such, I introduced a formal risk assessment system at my place of work, driven by the introduction of risk assessment requirements under the Control of Substances Hazardous to Health Regulations 1988 (‘COSHH’) (made consistent with Council Directive 80/1107/EEC of 27 November 1980 on the protection of workers from the risks related to exposure to chemical, physical and biological agents at work).

Risk assessments are now the standard means to manage health and safety, and arguably the non-prescriptive nature of the Health and Safety at Work etc. Act 1974 needs this approach. However, the legislation to formalize this style of health and safety management comes from a group of Regulations which came into force on 1 January 1993 and which are derived from EU directives known as the Framework and Daughter directives – known as the ‘six pack’ of UK regulations on the management of health and safety at work, work equipment, DSE, manual handling, PPE, and health, safety and welfare in workplaces. Other important regulations requiring more specific types of risk assessment relate to noise, manual handling operations, personal protective equipment, display screen equipment, and vibration.

Campaigners against the Human Rights Act 1998 want to repeal the Act, possibly including withdrawing the UK from the European Convention of Human Rights and Fundamental Freedoms. Lord Bingham famously asked, “Which of these [human rights], I ask, would we wish to discard?”. I would similarly ask, which of these health and safety regulations would you wish to discard, merely because they are derived from EU legislation?

Unfair Parking Contracts

Many NHS and similar public authority car parks are now run by commercial parking companies. However, the terms and conditions of their parking and subsequent enforcement of them is, in my opinion, unfair and unenforceable.

Take, for example, the terms and conditions governing the pay-and-display parking at my local hospital, Queen Alexandra Hospital. These are displayed near the pay-and-display ticket machines (see picture above), or at regularly spaced intervals up lampposts in the pay-and-display parking areas (see picture right).

It is not obvious with whom a visitor to the hospital is contracting for car parking services. The display next to the ticket machine mentions 3 parties: Carillion, Portsmouth Hospitals NHS Trust and, right at the bottom with the least prominence, Parkshield. Parkshield also give themselves the official sounding trading name of PCP Parking Enforcement Agency, but do not be fooled. There is nothing official about this “Enforcement Agency”; it has no statutory powers of enforcement. It is merely Parkshield Collection Limited, a private limited company formed on 12 December 2011, being a service provider at the end of a contractual chain with Portsmouth Hospitals NHS Trust or the landowner of the parking spaces.

Parking without a parking ticket in Queen Alexandra Hospital is not an offence under the Road Traffic Regulation Act 1984 or Traffic Management Act 2004. The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 do not apply. However, Parkshield and many other private operators dress themselves up as being official. They will often use the same terminology as under these Acts and their regulations, particularly in the use of terms such as “penalty charge notice” and regarding an appeals process and their enforcement powers.

The Parkshield terms and conditions themselves are not exactly well written. It would be difficult to state that these were “expressed in plain, intelligible language”, but to the extent that this means there is any doubt, the interpretation most favourable to the visitor must prevail (see reg 7 of the Unfair Terms in Consumer Contracts Regulations 1999). The terms and conditions appear to be made up of the following:

• an obligation to pay and display a ticket purchased at the machine, at the scale of charges shown
• an obligation to pay £60.00 within 14 days if any of a set of terms and conditions are breached. These are listed under the heading “TERMS”:
  1. Failure to obtain/purchase & display face up a valid ticket for the correct period/tariff.
  2. No parking in excess of the time period paid for.
  3. No parking on hatched lines, in roadway or in reserved or permit only spaces.
  4. No parking in disabled parking spaces without displaying a current disabled badge.
  5. Failure to park within a lined bay.
  6. No staff parking.
• an obligation to pay a ‘standard charge’ of £100.00 reduced to £60.00 if payment is received within 14 days from date of issue, with additional unspecified card processing fees

I am particularly interested in the obligation to pay £100.00 (or the discounted £60.00). I believe that this obligation is either a straight forward penalty, and thus enforceable under English contract law, or is an unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs), and so not binding.

Penalty

It is settled law that a penalty is unenforceable under English contract law. So what is a penalty? If a provision is intended to deter a party from breaking a contract and is not a genuine attempt to provide compensation to the innocent party for breach, then it is more likely to be considered to be a penalty, following the most recent case law on penalties (Murray v Leisureplay PLC [2005] EWCA Civ 963). It is clear from Parkshield’s terms and conditions that the parking charge of £60 or the standard charge of £100 only applies if there is a breach (“contravening the terms and conditions stated”).

Imagine that you bought a parking ticket at the QA, but that it slipped off the dashboard, or that you were 5 minutes late getting back to your car. Would £60 (or £100, if you held out on receiving a penalty charge notice) be appropriate compensation for Parkshield where there had been no loss other than possible cost of issuing a penalty charge notice (ticket not displayed, but available for proof of payment) or £5.20 (maximum difference in time bands in scale of charges)? I would argue that that it would be excessive, and therefore a penalty.

Unfair Term

Even if Parkshield were able to claim that their charge of £60 or £100 was not a penalty, would the term be unfair under UTCCRs? Clearly no visitor can negotiate the terms of their parking; this is a take it or leave it deal. The visitor, or consumer, is therefore being required to agree to a “contractual term which has not been negotiated” which is certainly “to the detriment of the consumer” (reg 5(1) of the UTCCRs). As to whether this term would be unfair, perhaps the indicative and non-exhaustive list of terms which may be regarded as unfair at Schedule 2 to the UTCCRs can assist? “Terms which have the object or effect of- … (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;” – gotcha. Under UTCCRs, an unfair term is not binding on the consumer.

Enforcement

I don’t know how Parkshield goes about seeking to enforce its terms and conditions, but if they were to send me a parking charge notice, I’d be inclined to politely refuse their demands until they could show a legal basis for them. In the end, if they got as far as serving a statement of claim (issuing court proceedings), I’d apply for the case to be heard in the Small Claims Court (as way below the £10,000 threshold). In a Small Claims Court neither party is liable for the legal costs of the other, no matter who wins the case. At worst, I’d have to pay the £100 plus Parkshield court fee (about £35).

Note: This is my own take on Parkshield and similar parking companies’ terms and conditions, and is posted here for discussion only and not for anyone to rely upon as legal advice. In particular, I am no expert on Small Claims Courts and whether a defendant’s application to have a small claim transferred to that Court would always be successful.

There is more that could be analysed about this typical scenario. How is it that Parkshield can get registered keeper information from DVLA? Upon what legal basis is a registered keeper deemed to have entered into the contract to pay the excess £60 or £100?

Has the Guardian f****d up?*

Alan Rusbridger at Home Affairs Committee Hearing

* FedEx’d

At the Home Affairs Committee hearing yesterday (3 December 2013), the editor of the Guardian newspaper, Alan Rusbridger, was called as a witness for the Committee’s counter-terrorism evidence session. The Home Affairs Committee is a select committee of the House of Commons.

There will be much comment written about this part of the session. There are some key questions that can be raised. Was it appropriate to call Alan Rusbridger before the Committee? Did his evidence assist the Committee in any way with any aspect of an investigation into counter-terrorism? Where should the balance lie between the privacy of the citizen and mass surveillance by the State for counter-terrorism purposes? To what extent should the freedom of the press be curtailed in the interests of anti-terrorism and the security services?

Here, I am only going to address the key question raised directly or indirectly by the Committee member Michael Ellis MP, the barrister and Conservative MP for Northampton North. Did the Guardian breach FedEx UK terms and conditions by having information  leaked to them by Edward Snowden couriered to the New York Times?

Given that Mr Ellis saved this question to be his last to Alan Rusbridger, it is clear that Mr Ellis considers this is a question of fundamental importance.

FedEx UK Conditions of Carriage (effective 2 January 2013) include at Condition 4.4:

4.4 – The following items are not acceptable for carriage to any destination unless otherwise expressly agreed in writing in advance with the Carrier:
…
4.4.8 – PROPERTY THE CARRIAGE OF WHICH IS PROHIBITED BY ANY LAW, REGULATION OR STATUTE OF ANY COUNTRY FROM, TO OR THROUGH WHICH ANY SHIPMENT MAY BE CARRIED;
…

No other term appears to be relevant. It is difficult to imagine that any physical media that the Guardian may have used for the transmission of the leaked information would be subject to any specific prohibition from carriage. Whilst proving a negative is a tricky exercise, it is safe to assume that the media used was lawful for the purposes of carriage.
So how else might the carriage of the information be prohibited?

Perhaps, by purposive interpretation of section 5 of the Official Secrets Act 1989 (in particular section 5(6)), we can decide that sending information by courier that the sender had reasonable cause to believe has come into his possession in breach of section 1 of the Official Secrets Act 1911, is ‘carriage which is prohibited by law’ for the purposes of the FedEx UK condition.

So can the Guardian be considered to have reasonable cause to believe that the Snowden information was disclosed to it in breach of the section 1 provision? There are some obvious problems here. Firstly, any obtaining of the leaked information by Snowden was done by an American citizen in the United States of America. This must surely be outside of the extent of the Official Secrets Act 1911, as set out in section 10. On this basis alone, it can be argued that section 5(6) of the 1989 Act does not apply.

This leaves only the primary provisions of section 5 of the 1989 Act. In particular, has the Guardian made an unauthorised disclosure of information under section 5(2) of the 1989 Act? Although the Guardian is clearly not a civil servant or government contractor, it is possible to draw a chain of confidence from the UK source of any information, through Edward Snowden, to the Guardian under section 5(1) of the 1989 Act, so that section 5(2) applies. However, there is a defence to a section 5(2) offence at section 5(3). This, in short, would require the Guardian to prove that its disclosure was not damaging. In considering what is damaging, reference has to be made to the defence set out at section 2 of the 1989 Act, which includes, at section 2(2):

… a disclosure is damaging if—
(a) it damages the capability of, or of any part of, the armed forces of the Crown to carry out their tasks or leads to loss of life or injury to members of those forces or serious damage to the equipment or installations of those forces; or
(b) otherwise than as mentioned in paragraph (a) above, it endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad; or
(c) it is of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects.

It would be interesting to see this argued before a jury. I suspect a verdict in favour of the Guardian would be returned, even if it would be perverse verdict similar to the not-guilty finding of the jury in the Clive Ponting case (R v Ponting [1985] Crim LR 318 – leak of documents by an MoD civil servant to an MP, which showed that the General Belgrano had been sighted by HMS Conqueror a day before officially reported, and was steaming away from the Royal Navy taskforce outside the Falkland Islands exclusion zone when it was attacked and sunk. It was a result of the failure of this prosecution that section 2 of the Official Secrets Act 1911 was repealed, with the Official Secrets Act 1989 replacing it.)

Lastly, there was a suggestion made during the session in which the Guardian editor was questioned that the Guardian could be under investigation under the Terrorism Act 2000, in particular section 58A of the 2000 Act:

58A Eliciting, publishing or communicating information about members of armed forces etc

(1) A person commits an offence who—

(a) elicits or attempts to elicit information about an individual who is or has been—

(i) a member of Her Majesty’s forces,

(ii) a member of any of the intelligence services, or

(iii) a constable,

which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or

(b) publishes or communicates any such information.

(2) It is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action.

Again, it would be interesting to hear the Guardian’s defence of “reasonable excuse” argued before a jury.

However, in the absence of any conviction under the 1989 Act or 2000 Act, with the Guardian reasonably able to believe that it has a defence to any relevant charge, it is hard to see that it has breached the terms of carriage of FedEx. The claim that the Guardian had was clearly a desperate, cheap shot.

All warfare is based on deception

Bamboo book of The Art of War – title and contents page

The title to this post is a proverb that can trace its roots to the Chinese book, The Art of War, attributed to Sun Tzu. It comes from the passage at verse 18 in Chapter 1:

兵者，詭道也。故能而示之不能，用而示之不用，近而示之遠，遠而示之近

(All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.)

It would seem, following the report by the Policy Exchange titled The Fog or War, that deception includes convincing politicians that military action is being impeded by actual or potential legal oversight.

I have written before on combat immunity, one of the topics discussed in The Fog of War, following the High Court judgment in Smith and others v Ministry of Defence (Civil liability in military uniform) and the Supreme Court ruling in the same case (Combat immunity takes a hit). I concluded that I cannot see any justification for giving the military a broad exemption from liability for negligence claims. As the Policy Exchange itself points out, there is a mechanism for the Secretary of State to give the military immunity where required in the national interest, subject to Parliamentary scrutiny (section 2 of the Crown Proceedings (Armed Forces) Act 1987). I summarised my view in a radio package by Voice of Russia on the Policy Exchange report – listen here.

However, The Fog of War also addresses the question of the application of human rights law to the battlefield. It suggests a scenario where battlefield commanders at all levels become inhibited from acting as a result of their concern about subsequent legal scrutiny of their actions. Similarly, the impact of health and safety legislation, despite the many exemptions that apply to the military, is discussed as being a burden. Much is made of the evidence given before a House of Commons Select Committee of “over-compliance” by the MoD with health and safety regulations. The report also details the nature (and exemptions) included in the Corporate Manslaughter and Corporate Homicide Act 2007. We are being led to believe that as the Supreme Court  in Smith v MoD restricted what were ‘military activities’ for the purposes of what constitutes combat immunity in negligence actions, ‘judicial mission creep’ will bring about paralysis on the battlefield. Commanders under fire will think more about potential law suits than the task at hand.

This all suggests a massive lack of training and understanding by the military of their obligations and duties under the law. I am tempted to be tribal and say this must be an army and navy problem. I was regularly given training during my time in the RAF on what was then called the Green Card (rules of engagement when armed in the UK) and was also required at one point to learn the Yellow Card (rules of engagement when in Northern Ireland). As an officer in charge of armed guards, I also had to give reminders to guards about to go on duty on their rules of engagement. None of this was too difficult.

Similarly, I don’t see that with proper training, the application of human rights and the law of armed conflict should hinder operations. To give the military some implied discretion over the relative importance of human rights and rules such as those under the Geneva Convention in tactical situations to me seems a dangerously retrograde step. Does anyone think that Marine A was not guilty of murder?

I was also the first officer trained in health and safety to be posted to a joint service unit in the Falklands (JCUFI). As might be imagined, this required a lot of remedial work in writing up safety policies and procedures, as well as training the non-RAF elements (the RAF at that time seemed far more advanced in health and safety compliance, possibly because in many ways the RAF is essentially an engineering and logistics operation). I came across a lot of initial resistance from those who had never considered or been trained in health and safety best practice, with similar complaints to those listed in Fog of War that to be health and safety compliant was to reduce military capability and effectiveness. However, careful explanation of ALARP principles (in practice, the application of common sense) and the realisation that ALARP practices usually led to more efficient procedures and outcomes usually convinced personnel (and superiors).

What I find particularly alarming about The Fog of War, however, is the argument that as the British military is always under-resourced, it must rely on risk-taking:

In comparison with its rivals, the UK has traditionally maintained armed forces at levels which might easily seem inadequate for the tasks which they are expected to face. They have compensated by training and encouraging leaders at all levels to innovate. Historically, this has allowed the UK to maintain a smaller force than its rivals – and still more than match them on operations. In the 2011 version of the military’s professional instructions, the British Army states that: “a warfighting ethos, as distinct from a purely professional one, is absolutely fundamental to all those in the armed forces”. This is not an arbitrary distinction. As the recently retired Commander of Force Development and Training, Lieutenant General Sir Paul Newton puts it: “The reason we make this particularly British distinction is that our armed forces are small; they do not enjoy unlimited resources; and we tend to commit the military only as a last resort so wresting control away from the adversary requires agility; confidence can be a life or death issue. As the doctrine states, ‘this approach requires … decentralised command,
freedom and speed of action and initiative, but which is responsive to superior direction when a subordinate overreaches himself ’.” Small militaries must be creative and take calculated risks if they are to prevail. But this initiative, central to the British way of warfare, risks being undermined by juridically-inspired caution.

…

Britain’s forces have a reputation for agility because they have traditionally accepted risk. Being willing to deploy with what they have – both in terms of equipment and training – and then adjust according to requirement on arrival has given the UK a speed of reaction that few others can match.

To anyone who has read any critical analyses of the conduct of the British armed forces in recent engagements, these passages are particularly dispiriting. Whilst ‘can do’ and ‘cracking on’ attitudes can be commendable, even military training videos show that an excess of these attitudes can lead to trouble.They also encourage politicians to act too quickly and, in my view, be too ready to turn to the military option.

It’s the lack of critical thinking that is worrying. The authors of The Fog of War do not seem to appreciate that recent military actions in Iraq and Afghanistan, where there has been the most alleged judicial creep, should at best be described as police actions. These were not and should not be seen as wars, just as the prevention of terrorism should never be catagorised as the almost oxymoronic ‘war on terror’.

An aggressive, warfighting ethos that is risk-taking and not risk-averse is not always the best approach. Such a culture only breeds high ranking officers who are incapable of saying “No” to their politician task-masters. I particularly recommend the book Losing Small Wars for the analysis of Frank Ledwidge on the damaging effects of this culture, particularly for police and anti-insurgent actions.