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‘Clearing the Fog of Law’, a response.

The recent report from right-wing think tank Policy Exchange Clearing the Fog of Law. Saving our armed forces from defeat by judicial diktat proposes three ways in which military law should be reformed:

(1) Revive s10 of the Crown Proceedings Act 1947, thus making it impossible for any soldier to bring a claim in tort against the Ministry of Defence (MoD);

(2) Legislate to amend the Human Rights Act 1998 (‘the HRA’), thereby reversing the decision in Smith v Ministry of Defence; the case that accorded British soldiers the rights and protections of the European Convention on Human Rights (‘the ECHR’) whilst serving in conflicts abroad, such as in Iraq or Afghanistan;

(3) Develop a scheme to provide compensation to injured personnel without the need for them to establish legal liability for the injury, an idealistically named ‘no fault, full compensation’ scheme.

The report also recommends further alterations to domestic and international law, the focus of which would impact upon the armed forces’ conduct towards their enemies, such as their handling of detainees during conflicts. This is distinct from the report’s views on the ability of service personnel themselves to bring claims in negligence and/or under the HRA, against what is essentially their employer, the MoD. I will deal with each of the above recommendations in turn.

Revive s10 of the Crown Proceedings Act 1947

Policy Exchange suggests that s10 of the Crown Proceedings Act 1947 be revived. s10 prohibited armed forces personnel (or their relatives) from bringing claims for death or personal injury, irrespective of the existence of any legal liability on the part MoD.

The section was later repealed by the Crown Proceedings (Armed Forces) Act 1987. The report’s reasoning for this is that the extension damages the manner in which the military is able to engage in conflicts, that the commanders become overly sensitive to safety concerns which ultimately undermines their “war-fighting ethos”, due in part because of their fear that their quick-fire decisions made under intense pressure, in the heat of battle, are later scrutinised by the courts.

We note that at no point does the report offer any kind of empirical evidence to support their strong and repeated assertions in relation to the damage the legal process is doing to the ability of our commanders to engage in warfare and in fact Lord Hope, giving the majority verdict in our case Smith v MoD (otherwise known as the Snatch Land Rover case) was at pains to stress that nothing should hamper the ability of our military to defend our nation. In any event, the language is disingenuous.

The authors of the report do accept that decisions made in the heat of battle are in fact covered by the concept of combat immunity. It is clear from case law (Mulcahy v MoD; Multiple Claimants v MoD; and Smith v MoD) that there is no common law liability for negligence in respect of acts or omissions on the part of those who are engaged in armed combat. Lord Carnwath, giving a dissenting judgment in Smith, made clear that:

“We have not been referred to any authority in the higher courts, in this country or any comparable jurisdiction, in which the state has been held liable for injuries sustained by its own soldiers in the course of active hostilities.” [para 157]

Everyone agrees this is sound policy. Accepting that immunity still exists for those decisions made whilst engaged in active combat, it is not clear why those decisions made about for instance, distribution of equipment or resources or training, where “there is time to think things through, to plan and to exercise judgement … sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised” (para 95 of Smith). This is particularly true where those decisions, when taken without due care and attention, can cause significant injury or loss of life to our service personnel, without any quantifiable benefit to our military position over that of our enemy’s (perhaps the only acceptable reason why the loss of life to our troops can be countenanced).

Legislate to amend the Human Rights Act

The second recommendation of the Policy Exchange is that the UK should legislate to amend the HRA so that soldiers are not able to rely on Article 2 of the ECHR (without actually specifying how this would be possible). The report also strongly recommends that the UK should derogate from the ECHR during deployed operations.

The manner in which the report discusses the impact of the ECHR on this area of law is where it is at its most misleading. It is accepted that the case of Smith v MoD afforded British soldiers the protections of the ECHR, when engaging in combat in territories outside Europe (thus extending the jurisdiction of the Convention). The report appears to suggest that the case law in relation to extra-territoriality jumps from the Banković v Belgium case in 2001 to the Al-Skeini v UK case in 2011, implies that no cases were heard in between, and insists that the latter case and the decision of Smith v MoD (heard at the Supreme Court in the UK) “constituted a major extension of the reach of the European Convention”. In reality, instead of there existing only three cases to have considered this issue, there have in fact been almost thirty.

It would be too lengthy to set out each case in this blog, but essentially, the jurisprudence on extra-territoriality has developed from one where jurisprudence was interpreted on the basis of a primarily territorial view, with a number of circumstantial exceptions (one being military intervention in a foreign territory) to one where it is found on the basis of the relationship between the State and the individual and is determined on the degree of authority and control the State exerts over that individual.

If the degree of effective control is considered to have exceeded a certain threshold, the State is expected to observe the individual’s human rights. The latter approach accords with the general principles of public international law in that it is only a State’s sovereignty that is understood by reference to a geographical territory, being distinct from jurisdiction which is considered to be linked with the State’s authority over the individuals in that territory.

In fact, it was in 1975 in the case of Cyprus v Turkey, that the then European Commission first advanced the concept that jurisdiction was not restricted to the national territory of the Contracting States and that all persons under the State’s “authority and responsibility” shall be protected by the Convention’s fundamental safeguards. Contrary to the Policy Exchange’s presentation of Banković as the foremost case on the matter, it has been criticised for not following what had hitherto been a developing legal and theoretical foundation on the issue.

Introduce a ‘no-fault, full compensation’ scheme

The Policy Exchange’s final recommendation is that of a ‘no fault, full compensation’ scheme which they propose should be developed in place of a soldier’s right to bring a claim against the MoD. In theory, one might agree that this proposal could be beneficial to soldiers and their families, however, its idealism is undermined by a plethora of issues. The current scheme, the ‘Armed Forces Compensation Scheme’, (‘AFCS’) the existing mechanisms of which it is anticipated that the new ‘no fault’ scheme would utilise, can best be described as Kafkaesque.

Soldiers repeatedly complain that its terms are complex, convoluted and diffuse, designed deliberately so in order to undermine the soldier’s ability to challenge the outcome of their case. In our experience, even the staff at Veterans UK who administer the scheme do not have the expertise and experience to properly quantify the claims.

The current AFCS and the anticipated scheme both exclude lawyers on the basis that this will save the MoD costs. What this means is that severely injured soldiers and bereaved families are left to take on the might of the Ministry of Defence alone, or, if they wish to instruct a lawyer they have to pay the legal bill out of the compensation they ultimately receive.

Soldiers suffering from mental ill-health are at particular risk of discrimination in a system such as this: firstly, because injuries to mental health are not yet treated equally to those of injuries of a physical nature and secondly, because the overly-complex system will be that much harder to navigate for those soldiers who are already experiencing mental ill-health. If the current AFCS worked as it should, no injured soldier would need to bring a claim in negligence against the MoD for claims valued at less than £570,000 (the current cap on compensation through the AFCS scheme). The numbers of claims against the MoD for injuries sustained whilst on duty going through the courts belies the effectiveness of the AFCS.

Even without the unease of these issues, it is very concerning that this scheme would dispose of the necessary examination and analysis into circumstances that have resulted in death and injury. It is only through this scrutiny that the armed forces can learn lessons about their conduct and avoid what are often preventable deaths and injuries occurring in the future. Given the concerns about some of the failings identified at the inquests into the deaths of British service personnel in Iraq and Afghanistan, there is neither any recommendations in this report as to how these failures would be identified without the ability to have them reviewed by the courts, nor is there any acknowledgement that scrutiny might actually have raised standards and saved lives.

Furthermore, it is callous to preclude a grieving family from the ability to understand what actually happened to their relative and ultimately obtain justice; arriving at the truth is often the only way in which individuals can be set free from the trauma of losing a loved one.

In our experience, service personnel are very resistant to bringing claims against the MoD and it is often only in the most serious cases of negligence, where they are in desperate need of financial assistance, that they will. As such, only 0.1% of the MoD’s budget is spent on compensation. In these cases, it is the courts, and not Parliament who are best placed to analyse the evidence and discern the facts. It is not realistic to suggest that Parliament is able to provide a grieving mother the same level of scrutiny or review.

Ultimately, we cannot agree with the concept that our soldiers must recognise the human rights of others whilst their own are denied. If we lose the ability of the individual to hold the State to account we lose a vital component of what makes a free and democratic society.