"None have succeeded in defeating the armed forces of the United Kingdom. Napoleon and Hitler could not. But where these enemies failed, our own legal institutions threaten to succeed".
This was the stark conclusion of The Fog of Law, a 2013 report by the think tank Policy Exchange which asserted that judicial decisions – involving the Human Rights Act and negligence claims by injured soldiers against the Ministry of Defence – had “undermined the armed forces' ability to operate effectively on the battlefield.”
Last year’s report from the House of Commons Defence Select Committee UK Armed Forces Personnel and the Legal Framework for Future Operations reiterated some of the concerns expressed in The Fog of Law and may well gain more political traction now that the Conservatives have won the election on a manifesto including Human Rights Act repeal.
So, where now for law and the British Armed Forces?
The main development cited by the authors of The Fog of Law regarding the relationship between the courts and the military was the 2013 Supreme Court decision in Smith & Others v Ministry of Defence. This decision, it is suggested, undermined or even destroyed the notion of combat immunity.
What is Combat Immunity?
Combat immunity provides that when the armed forces are in the course of military operations, they are under no actionable duty of care in tort to avoid causing loss or damage to their fellow soldiers, or indeed to anyone else.
Quite rightly, the Ministry of Defence (MoD) cannot be sued when a commander makes a mistake in the heat of battle.
Combat immunity is not limited purely to situations involving the presence of the enemy but applies to all operations against the enemy where armed forces are exposed to attack or threat of attack, including planning and preparation for combat. In these situations, the army cannot be sued for breach of its duty of care.
The Smith Case and Combat Immunity
The scope of combat immunity was analysed by the Supreme Court in the Smith case which concerned the deaths or serious injuries of several British soldiers in Iraq due to alleged equipment deficiencies.
The claimants argued that in failing to supply soldiers with suitable equipment, the MoD both breached the right to life of those killed – a right guaranteed by Article 2 of the Human Rights Act – and also negligently breached its duty of care.
The MoD argued that combat immunity should apply as the injuries occurred when troops were in combat and also argued that the Human Rights Act could not apply extra-territorially to soldiers serving away from their military bases.
In a controversial majority decision, the Supreme Court found for the claimants, holding that the European Convention on Human Rights did, in fact, extend to soldiers outside military bases.
The Court also held that government decisions about the procurement of equipment, and training of soldiers, would fall outside the doctrine of combat immunity. If the MoD sends soldiers into battle with inadequate equipment, that could potentially be an actionable military injury claim, even though the actual injuries will be sustained during combat.
This was seen by some as an unacceptable reduction of the scope of combat immunity.
Legal Pressures Have Helped Ensure British Soldiers are Properly Equipped
The decade following the start of the Iraq war saw persistent complaints that British troops were being given inadequate equipment and that this was putting soldiers' lives at risk.
More recently, these complaints have subsided. This may reflect the reduction of British military commitments, but it may also reflect the fact that legal pressures and litigation have helped to ensure that British troops are properly equipped.
Once the MoD was exposed to legal liability for failing to properly equip our troops, it had to ensure that it did whatever was reasonably practicable to ensure proper body armour. The irony is that the legal pressures which the service chiefs were so quick to condemn may have been the very lever that enabled them to secure the proper equipment that they wanted.
As the new government implements deep cuts in public spending – including defence spending – it may see an attraction in removing the recourse to the courts of soldiers injured as a result of under-resourcing. But, for soldiers who risk their lives for us, that would be neither fair nor just.
Richard Scorer is a Senior Personal Injury Solicitor at Slater and Gordon Lawyers UK
* The original version of this article by Richard Scorer was published in New Law Journal on 29th May 2015 and is reproduced with their kind permission.