MoD litigation: making judges into gods of war

The UK Supreme Court ruling that servicemen can sue the Ministry of Defence for negligence is a disaster for troop morale and the public good.

Jon Holbrook

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Last week, the UK Supreme Court allowed servicemen and their families to sue the Ministry of Defence for compensation as a result of their deaths or injuries while on duty in Iraq between 2003 and 2007. Three of the servicemen were killed while on patrol in Snatch Land Rovers and three other servicemen, one of whom was killed, were fired on by British Challenger tanks (‘friendly fire’). Before the issue of these claims, collectively known as Smith v MoD, few compensation claims were issued by servicemen or their families in respect of battlefield injuries. No doubt there were many reasons, but a principal factor was a cultural awareness that suing the MoD would hamper its ability to defend the realm.

In recent years, cultural norms about suing have changed, giving rise to expressions like ‘blame and claim’ or ‘compensation culture’. These expressions resonate with modern-day reality, but the factor that best explains the Smith litigation is the rise of ‘individual rights’: the notion that an individual has legal rights that he can assert against the state. In the Smith litigation, three of the claimants rely on Article 2 of the European Convention on Human Rights to argue that the state was under a positive legal duty to take preventive measures to protect life on the battlefield. And four claimants allege that the state was under a positive legal duty under the law of negligence to avoid death or injury. Breach of these legal rights, the claimants argue, entitles them to a finding that the MoD was at fault and should pay compensation.

In so far as the individual-rights culture has any traction in society, it secures it with an approach that claims to have two elements. First, individual rights are said to be universal and hence fair, and secondly, the assertion of these rights is claimed to be beneficial for society – the benefit in the context of suing the MoD being that military service is made safer. These two elements were well expressed by the ‘award-winning civil-liberties lawyer’, Jocelyn Cockburn of Hodge Jones & Allen, the solicitors’ firm that represented most of the claimants in the Smith litigation.

The Hodge Jones & Allen press release about the Supreme Court judgment drew attention firstly to the alleged universality of its approach: ‘The right to life under the European Convention on Human Rights is a fundamental right which applies to “everyone”… It is essential that we recognise the human rights and dignity of our own soldiers. Apart from the fact that they are entitled as human beings to rights that we recognise as “universal”, how else can we expect them to uphold the fundamental human rights of those they come across in conflict if they themselves are not protected?’

Who can object to the fact that soldiers are ‘human beings’ and hence entitled to ‘human rights’, rights that are universal? But this beguiling language hides the fact that the individual rights relied on to sue the MoD are anything but universal. It is important to consider the substance of the claims. Military personnel who sacrifice so much are entitled to be looked after at the state’s expense, as are their bereaved families. That is the sort of universality that society supports. But that was not the issue the Supreme Court considered. The key element of the Smith claims is that the claimants are entitled to compensation not because they had been injured or killed, but because the MoD had been negligent. The logic of the cases is that the lives of some servicemen are worth more than others: damages go only to those who died negligently. If Corporal Stephen Allbutt had died in his tank from an Iraqi high-explosive shell, there would be no claim. But because he died in a ‘friendly fire’ incident, his estate has a claim. The Smith litigation sanctions the notion that two servicemen could have identical injuries, they could have been fighting in the same battle at the same time, but one may have a damages claim that the other does not. This is an argument that is anything but universal: it is divisive, and despite, or perhaps because of, the pompous talk of human rights, it is grossly unjust.

So, what of the claimants’ second argument, that their litigation raises standards by making military service safer? The claimants’ solicitor says: ‘It is clearly in the public interest that the authorities are legally required to consider the safety of their soldiers in times of military conflict. Safety will not be the only consideration or even perhaps the primary consideration, but it is right that our soldiers should expect to be properly equipped.’ The question here is not whether soldiers should be properly equipped; it is whether the standard of proper equipment should be made by the MoD or judges. Neither is it disputed that the safety of soldiers should be considered. What is disputed is whether imposing a legal obligation on the MoD regarding safety is desirable. In short, the issue is: who has the final say on MoD priorities – the military or judges?

The Smith litigation has resolved this question in favour of judges. The MoD is now susceptible to legal regulation whenever deaths or injuries are incurred on the battlefield. In the pre-individual rights era, the MoD could rely on the doctrine of combat immunity to prevent the courts enquiring into how military operations were conducted. The basis for combat immunity was seen as self-evidently necessary in the interests of society as a whole. In 1940, a court justified it with words that showed incredulity at the idea that the field of battle could be subject to legal regulation:

‘It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a king’s ship of war was under a common-law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations… It would mean that the courts could be called upon to say whether a soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. No one can imagine a court undertaking the trial of such an issue, either during or after a war.’ (Shaw Savill v Commonwealth)

But that was in 1940, before the individual-rights era and when society had a strong sense of the public good. Combat immunity was applied by the courts in other cases, including one decided in 1996, but by then the court was unable to assert the soundness of the doctrine with the confident judicial language of 1940 (Mulcahy v Ministry of Defence). In 2003, the court qualified the nature of combat immunity by distinguishing between planning and preparation for a specific military operation, which did attract combat immunity, and planning and preparation in general, which did not (Multiple Claimants v MoD). In the Smith litigation, the Supreme Court has rendered that distinction of limited effect by noting that on the facts of the cases, the friendly fire or the blowing up of lightly armoured Snatch Land Rovers may have been avoidable with better planning, training and equipment. These issues, the court said, ‘are sufficiently far removed from the pressures and risks of active operations against the enemy’ to be beyond the scope of combat immunity. Accordingly, the court may enquire into whether the state’s legal obligations had been breached.

This is an argument that has given judges considerable freedom to scrutinise the MoD’s activities, as the ingenious claimant will be able to frame his claim in terms of inadequate training, planning, procurement or deployment. By framing his case this way, the claimant can overcome combat immunity and secure his day in court. (In fact, given the complicated nature of the claims, he is more likely to secure many days in court.)

Lords Mance and Wilson gave a trenchant minority judgment in the Smith case, highlighting how the majority view would impede the MoD’s ability to function. They asked whether many disastrous casualties of the First World War could have been avoided if the War Office had recognised the significance of the proposal for a tank that was put to it in 1912, 1914 and 1916 by the Australian engineer Lancelot de Mole. When de Mole was given a post-war Commission on Awards to Investors in 1919, it was noted that his ‘brilliant invention’, the tank, ‘was in advance of his time, and failed to be appreciated and was put aside because the occasion for its use had not then arisen’. Were the MoD negligent for not having developed the engineer’s ideas in 1912? How many lives could have been saved if the MoD had developed his ideas in 1912? Fortunately, in the aftermath of the First World War, there was no culture of individual rights that would have encouraged thousands of young men and their families to sue for their losses.

In the Second World War, was the fall of Singapore, with the ensuing slaughter and torture, due to culpable failures to fortify the Malay peninsular or to provide armoured vehicles or aircraft for protection? Or was it due to failures of military commanders on the ground? Or was it inevitable in the context of what Churchill described as ‘our bitter needs elsewhere’? These questions should be the preserve of military historians. But in future, such issues will be adjudicated on by judges asking themselves whether military planners had breached a legal duty of care to avoid death or injury.

Writing in 2009, Dominic Raab MP warned of the tide in favour of individual rights and noted how when the Falklands Islands were seized by Argentine forces in 1982, ‘the UK was not fully prepared to defend the islands from surprise Argentine attack’. He observed how ‘under expanded human-rights rulings, if ill-prepared troops die in battle the courts may be required to decide whether the military commanders and civil servants acted reasonably in sending them to fight under such challenging circumstances’. The recently announced payout of £20million by the MoD for legal wrongs committed against the Mau Mau in Kenya in the 1950s would suggest that today’s champions of individual rights should seek their clients by chasing military historians rather than ambulances.

These examples present an appalling vista for future military operations. The judicialisation of combat operations even gives rise to the possibility of servicemen applying to court before and during combat operations. As Lord Mance points out, it is now possible for a soldier, even during war, to complain that his ‘equipment or training was inadequate and that it would be a breach of the state’s common law duty of care and/or duties under the Human Rights Convention even to order him or her to go into combat with it. He notes the possibility of a serviceman seeking ‘interim relief prohibiting the further use or giving of orders to use the allegedly defective equipment’. It is not unknown for judges to stop the printing presses late at night and at short notice as a precaution against the commission of a legal wrong. We now have the prospect of judges halting or stopping combat operations until satisfied that the operations have been adequately planned and resourced.

The impact on morale of being accused of negligence should never be underestimated. And what if the MoD needs to defend itself by pointing the finger at the claimant or some of his colleagues? This is understood to be part of the MoD’s defence to the friendly-fire claims. It is hard to think of a more destructive force to the military’s collective morale than litigation that forces military commanders either to surrender in the face of a lawsuit or blame their footsoldiers. The likelihood is that even in cases that the MoD could win, many of the claims will settle before being fought in court.

The extent to which these scenarios materialise is largely beside the point, although there are already reported to be 150 claims against the MoD that were stayed pending the Supreme Court’s decision in Smith. What is clear is that the very threat of litigation will change how the military functions. Learned Hand, one of America’s most famous judges, said he feared a lawsuit more than death or taxes. The fear of being sued changes behaviour. The fear of a negligence lawsuit discourages risky and dangerous behaviour – the very behaviour that is integral to military operations. Military officials will deny being fearful, but they cannot deny that the threat of being sued by the family of a bereaved serviceman will change the way the military operates. Put starkly, when planning a military operation officials will have to factor in a non-military question: the risk of being sued. Nobody will be able to quantify the impact of Smith, but there will be an impact. Its influence may be subtle, but the Supreme Court has introduced a powerful incentive on the military to adjust its priorities to manage the risk of being sued.

The Hodge Jones & Allen press release can now be decoded: for ‘rights which apply to everyone’ and are ‘universal’ read ‘rights that apply only to those injured negligently’, and for ‘fundamental human rights’ read ‘divisive and grossly unjust rights’. As for the claim that the public good is served by sanctioning the legal regulation of military combat, think First World War tanks, think fall of Singapore, think Falklands War, think late-night injunctions halting combat operations, and think of MoD commanders having to defend themselves in court by drawing attention to the alleged failings of comrades of the deceased. The Smith litigation uses individual rights to assault the greater good.

Jon Holbrook is a barrister in London. Follow him on Twitter @JonHolb.

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