Some are expecting the armed forces to become paralysed as a result of recent legal intervention. The Policy Exchange report, Fog of War, written by Tom Tugendhat and Laura Croft, claims that the military may soon be unable to conduct certain operations swiftly and efficiently. This could eventually lead to the security of the nation being put at risk.
Previously, the Ministry of Defence (MoD) were able to rely on combat immunity. This ensured that the armed forces were excluded from having claims brought against them for their liability in tort.
However, in June 2013, the case of Smith & Ors v Ministry of Defence undermined the doctrine of combat immunity. Sue Smith, the mother of Pte Phillip Hewett, who was killed in Iraq due to inadequate protection, challenged this doctrine in the courts. She wanted to seek damages for the MoD’s negligence based on the fact that the Land Rovers the armed forces were using were poorly protected. Pte Hewett was in one of these ‘Snatch’ Land Rovers when he died of heatstroke. His mother was unable to bring a claim for damages as the doctrine of combat immunity made it impossible.
Therefore, she took legal proceedings attempting to undermine this doctrine and argued that it contravened Article 2 of the Human Rights Act 1998. This was on the basis that the MoD had failed to avoid a real and immediate risk of life, which it had, or ought to have had, knowledge of. It was decided that the MoD had sufficient knowledge as others had died as a result of the Land Rovers.
On the other hand, the MoD argued that it is impossible for soldiers to be protected by the Human Rights Act while they are working as this would undermine effective combat. They argued that to ensure every soldier was kept safe while on foreign land to the expected under the Human Rights Act would prove to be a logistical and logical nightmare. They claimed it would mean the armed forces would be prevented from doing their jobs properly. It is for this reason that the MoD intended to strike the claim down on the basis of combat immunity.
However, the Supreme Court ruled against the MoD and allowed the claim for damages to proceed to trial. This is a significant development as if Sue Smith wins the right to damages, it could mean that families of military personnel that have died may be able to bring claims. It is believed that there are around 30 soldiers whose deaths have been linked to the Land Rovers which could mean there is a potential for 30 claims on this basis alone. As well as this, allowing such claims may open the floodgates and allow hundreds more negligence cases to come before the courts.
The money that the MoD may have to pay out in such cases would more than likely be taken from the military budget. As a result, there would be less money for the MoD to spend on defence, including weaponry, training and even soldiers. Former RAF officer and solicitor at Walker Morris, Chris Payling, also expressed his concern at the outcome of the Smith case. He believes that if her claim for negligence is upheld, the defence industry may face the repercussions. The benchmark for equipment testing may move from ‘safe to operate’ to ‘fit for purpose’. A soldier must have the ‘reasonable equipment to enable him to do the job he’s been tasked to do’ and failing to have such reasonable equipment ‘breaches his right to life’. Therefore, if equipment is faulty and has caused that soldier’s death, the company that made that equipment may be held liable. The sums that these companies may have to pay out in damages could potentially bankrupt them in the long run which would have a knock-on effect to the military.
Tugendhat and Croft believe that Parliament should attempt to define ‘combat immunity’ and extend the provisions to deployment off-base. This would mean that claims cannot be brought where a soldier has died or been injured as a result of negligence during combat. It would ensure that cases such as the one that Sue Smith brought before the courts would have no standing. Tugendhat and Croft think that allowing cases such as these will ‘paralyse’ the military and may pose a ‘mortal threat’. This is because commanders are already becoming confused with what they can and cannot do with regards to allies and enemies and how they can conduct their combat. Military personnel may worry about facing prosecution for certain acts that would have otherwise been acceptable, and a consequence of this could mean that security is put at grave risk.
The threat of being sued for negligence is currently not the only legal trouble the MoD is facing. At present, the military are not fully exempt from the Corporate Manslaughter and Corporate Homicide Act 2007. The report raises the issue that if the Smith case can narrow combat immunity, some operations and actions may now fall under the ambit of the Act. Tugendhat and Croft call for ‘military activities’ to be re-evaluated considering the Smith case. They feel it was parliamentary intention to protect the armed forces by excluding them from the Act, but the decision in the Smith case has threatened the integrity of legislation in relation to the military.
The report also argues that the UK should derogate from the European Convention of Human Rights (ECHR) with respect to the armed forces when they are deployed on operations. Many cases have been brought before the courts on human rights issues, which the authors believe have resulted in perverse outcomes. As these outcomes are now precedent, it means courts are bound by the decisions made, so should similar cases come forward the outcomes will always be the same. These cases are controversial and so various MPs and solicitors have frequently expressed their personal outrage at the injustices they believe the European Court are responsible for.
Richard Hammond MP, the Secretary of State for Defence, agrees with the proposal put forward in the report. He states that ‘it cannot be right that troops on operations have to put the ECHR ahead of what is operationally vital to protect our national security’.
Instead of turning to the ECHR, Tugendhat and Croft believe the best way forward would be to fully establish and incorporate the Law of Armed Conflict. The manual attempts to bring regulation to armed combat and it is believed that the rules and regulations laid out would provide far better military efficiency if followed exclusively. Having one set of principles to work by would avoid confusion for military personnel as well as avoiding the worry of a prosecution. It would mean families cannot bring cases for damages against the MoD which would mean they are fully protected as well as the defence industry as a whole. The importance of the MoD having sufficient funds during difficult economic times has been stressed as insufficient funds may prove detrimental to national security.
While the report has ensured debate, there is no certainty that Parliament will take the proposals into consideration. For now, the MoD must wait for an outcome when Sue Smith takes her case for damages to trial. If successful, the operation of the armed forces could significantly change.