Fog Of Law

Memorandum to Defence Select Committee – Hilary Meredith Solicitors Limited

UK Armed Forces Personnel and the Legal Framework for Future Operations and Government Response – The Injured Soldier’s Perspective – August 2014

Summary” This memorandum considers the recent developments made in preparation for the Strategic Defence and Security Review taking place in 2015 and offers an important perspective that we believe has not been considered by the Defence Select Committee, namely that of our injured service personnel and veterans.

There has been a recent flurry of publications such as The Fog of Law and The UK Armed Forces Personnel and the Legal Framework for Future Operations urging the Government to reform and clarify the laws applicable to the Ministry of Defence, with particular emphasis upon those laws that will affect payments of compensation.

Following the Government’s response, dated 24th July 2014, it is clear that changes to the legal framework governing military operations and compensation are on the horizon. However undertaking legal reform in the military arena is an enormous task and it is therefore vital that those changes are right. We are concerned that the evidence provided to the Defence Select Committee and the Government to influence those changes does not give sufficient consideration to our injured service personnel and veterans. This memorandum therefore provides the perspective of the injured soldier on the two main areas of concern in The Fog of Law and The UK Armed Forces Personnel and the Legal Framework for Future Operations: Human Rights and Combat Immunity.

Human Rights Law” The introduction of the Human Rights Act 1998 to enshrine and protect our basic rights has had an enormous impact on UK law. Its importance to both civilians and military personnel alike is clear. It is also apparent however that not all of the consequences of the Human Rights Act 1998 have had the desired effects, leading to controversy amongst commentators and many urging the Government to legislate to limit its jurisdiction and reiterate the supremacy of the Law of Armed Conflict (International Humanitarian Law). It is vital however that in addressing concerns with human rights legislation that a broad brush approach to reform is not adopted which could lead to the complete removal of our soldiers’ basic human rights which are essential to operations.

The UK Armed Forces Personnel and the Legal Framework for Future Operations publication submitted that human rights law is fundamentally incompatible with the nature of soldiering and that the Law of Armed Conflict should have supremacy over any such human rights legislation.

This submission can be broken down into individual issues. Firstly there is the contention that human rights law is simply incompatible with any part of military operations and secondly there is the contention that the Law of Armed Conflict should have supremacy over human rights law. Both claims suggest the existence of an underlying problem giving rise to these issues with human rights legislation. It is only by adopting a narrow approach to reform that particular problems can be addressed enabling wider issues to be resolved. It is not right to simply retract all fundamental rights that our brave soldiers should be entitled to whether they are on the battlefield or training in the UK.

It is clear from both The UK Armed Forces Personnel and Legal Framework for Future Operations and the Fog of Law that the underlying problem is the advance of claims by human rights lawyers acting for those whom our military are at risk from, using our legal aid to do so. The recent judicial decisions made in such claims have provided that human rights legislation does extend to protect the enemy. This particular issue needs to be addressed urgently by narrowing the jurisdiction of human rights protection to apply to our soldiers only, with the Law of Armed Conflict left to govern our soldiers’ dealings with the enemy.

In Al Skeini v United Kingdom and Al Jedda v United Kingdom both judges found for foreign claimants enabling them to seek compensation from the British tax payer. In Al Jedda the claimant challenged his continued detention and refusal to return him to the UK. He was successful and his detention was declared unlawful. In Al Skeini it was held that the Human Rights Act 1998 should apply to acts outside a state’s territory which enabled the claimant to successfully claim compensation.

Removing the availability of human rights legislation to the enemy so that such matters are merely governed by the Law of Armed Conflict would alleviate the main concerns of the Fog of Law and UK Armed Forces Personnel publications. It is vital that our Armed Forces’ ability to deal with the enemy and respond to threats is not hindered with thoughts of the enemy’s entitlement to our human rights protection. They have more than enough to cope with on the battlefield without the enemy claiming brutality and demanding compensation. Service personnel are shining examples of the most upstanding, disciplined and honourable members of society and should be afforded the protection of human rights legislation at all times, irrespective of where they serve. Consequently the legislation and principles found in case law, such as Al Skeini, should only be extended to protect our soldiers, with the Law of Armed Conflict left to govern the enemy.

Limiting the jurisdiction of the human rights act to our soldiers would remove the current conflict with the Law of Armed Conflict. The Law of Armed Conflict would have supremacy in governing British soldiers’ treatment of the enemy. In order to support its effectiveness, however the Law of Armed Conflict need to be examined further to provide more detailed advice to our soldiers regarding the conditions of detention and their right to detain on grounds of security.

This was a particular concern of the UK Armed Forces Personnel and Legal Framework for Future Operations which recommended that the government improved the law in terms of conditions of detention, vulnerable categories of detainees, transfer of detainees and grounds of procedures for detainment.

It is important that our soldiers are given some greater clarity and reassurance in order that they can deal with the enemy confidently and claims from the enemy can be avoided, together with the cumbersome burden and cost of dealing with the same. This would leave compensation to be awarded only to our deserving soldiers.

Combat Immunity” One of the most closely followed and anticipated judicial decisions was that of Smith & Ors v Ministry of Defence, which went to the Supreme Court in July last year. It also appears to be one of the most misunderstood decisions on combat immunity with its consequences being widely overestimated by commentators. The judgment has merely taken steps towards defining the principle rather than narrowing combat immunity (as alleged by the UK Armed Forces Personnel and Legal Framework for Future Operations) in order that it applies to the decisions and situations where it should, quite rightly, apply.

For example The Fog of Law suggests that soldiers fear having to justify actions taken in the heat, smoke and dust of battle in litigation, inquest and public inquiry which has had the consequence of eroding freedom of movement of manoeuvre on the battlefield.

It is exactly these circumstances in which combat immunity protects the Ministry of Defence from liability. Case law has developed, quite rightly and sensibly, that the duty of care owed by the Ministry of Defence does not apply in the heat of battle. It would be outrageous if the Ministry of Defence was sued on the basis of a Captain making the wrong decision under gun fire and it would be impossible to effectively operate a defence system if that were the case. Smith has not undermined this principle as feared by the Fog of Law. Smith held that the Snatch Land Rover claims could not be struck out as they did fall within the jurisdiction of the ECHR and could proceed to trial. The Supreme Court also held that the negligence claims could not be struck out on the grounds that combat immunity may apply. Combat immunity was considered to be a factual issue left to be determined at trial. Smith did however construe combat immunity narrowly in order that it would apply only to actual or imminent armed conflict and not to failures at the earlier stages of planning and preparation for active operations. The claims are yet to come to trial however. It is clear that Smith has merely added some clarity to the doctrine. It is vital that the true impact of the judgment is recognised in order that changes are not rushed by the uneducated politician which would have a catastrophic impact on the payment of compensation to our soldiers who are severely injured in accidents.

It is also important to understand the nature of certain claims which, to the untrained eye, might appear to relate to issues on the battlefield yet do not attract the protection of combat immunity (much to The Fog of Law’s dislike). Smith has confirmed that matters of procurement may be subject to litigation should negligent decisions (made in the absence of imminent or armed conflict) cause personal injury. The development should be welcomed, not least because it provides further clarification of the parameters of combat immunity.

For example, in the case of Samantha Roberts v Ministry of Defence, Sergeant Roberts was sadly killed in a friendly fire incident because he was ordered to give his body armour to someone else. One might assume the Ministry of Defence is protected by combat immunity; however the case illustrates serious problems with procurement in that the Ministry of Defence failed to purchase sufficient protective body armour.

As demonstrated here, it is not the events on the battlefield that are the subject matter of the litigation. Following investigation of the incident it was revealed that the cause of the injury was the negligence of those at home sitting behind a desk or working in the comfort of camp. They have supplied troops with inadequate materials and exposed them to an unnecessary and avoidable risk of injury. Why, in these circumstances, should the Ministry of Defence avoid responsibility? It is wrong to prevent our service personnel, who put their lives on the line to protect us, from claiming compensation they are entitled to when they have suffered injury as a result of negligence. Crown immunity no longer exists and is unlikely to be reintroduced. The British public would be horrified at such a proposal. The government should support our service personnel in obtaining compensation for personal injury suffered away from conflicts. 

It is wrongly suggested by both publications, in support of arguments against Smith and the alleged narrowing of combat immunity, that the so called ‘judicialisation of war’ has impacted upon decision making on the ground, causing a lack of confidence amongst personnel and fear of reputational damage. The majority of claimants approach solicitors either once limitation has passed or at a very late stage in terms of limitation. This is because many service personnel are still unaware they can bring a personal injury claim against the Ministry of Defence, despite Crown immunity being repealed over 27 years ago.

It is even suggested by the Fog of Law that members of the Armed Forces themselves are compensated for injuries under the Armed Forces Compensation Scheme without needing to take legal action. The Armed Forces “Compensation” Scheme is the military pension scheme which offers a gratuitous lump sum for injury whilst in service. It is essentially a worker’s industrial injury scheme.

Consequently service personnel have never heard of negligence claims. In any event, it is the Ministry of Defence that is held liable, not individual soldiers. Given this situation, it is very difficult to believe that personnel even consider the risk of litigation whilst making decisions let alone worry about it. If however the allegation made by two publications is true and commanders are worried about being held accountable, this would not be the fault of claimants or judges, but the result of inappropriate and undue pressure from the Ministry of Defence down the chain of command. Our injured soldiers need to be better protected from the Government which it serves so loyally.

It is clear that the recent case law has not provided the Ministry of Defence with the outcomes desired in order to avoid paying compensation to our service personnel. Consequently intervention by Parliament is urged to define combat immunity and therefore overturn the ‘judge made laws’ in favour of the Ministry of Defence. In this regard The Fog of Law advocates the introduction of legislation which would expand the protection of combat immunity and minimise or eradicate military personal injury litigation. However, legislation would only be appropriate if it enshrined the principles developed by case law in order to support the decisions of the judiciary.

It is deeply worrying that the Government’s response endorses this dictatorship approach, undermining all principles of natural justice and democracy. It is with such views of the Government that demonstrates why the judiciary is so important in our legal system to make unbiased and corruption free decisions on UK law.

Combat immunity is a complicated and specialist area to deal with, requiring significant legal expertise and experience. Parliamentary intervention to reverse the judge made principles would be inappropriate. Combat immunity has been developed by members of the judiciary who have had the benefit of considering complex legal arguments put forwards by both parties to the issue and years of litigation experience. The very nature of combat immunity is difficult to define with precision and indeed it is important that there remains adequate flexibility to deal with the individual facts of each case justly. Any definition of combat immunity will require a judge’s discretion. 

The publications appear so dissatisfied with the recent case law that restoration of s.10 Crown Proceedings Act 1947 is even suggested whereby military personnel would be unable to bring claims against the Ministry of Defence. Full Crown immunity would remove any accountability or compensation being paid to brave soldiers injuring themselves in service to their country. The issue to be considered however is that the majority of personal injury claims against the Ministry of Defence concern soldiers who are injured during training rather than in theatre. The Fog of Law criticises such claims on the basis that they put too much pressure on the Ministry of Defence to train soldiers better and make training less perilous. Surely this is exactly the kind of positive effect that bringing claims can have? They highlight where training is going wrong so issues can be addressed. Training can be rigorous enough to equip soldiers for facing enemy threats whilst not exposing personnel to perilous levels of danger.

For example, the terrible deaths of three experienced reservists undertaking the Special Forces Aptitude Test in blistering heat last July highlighted several issues with training. Firstly it showed the Ministry of Defence needed to revisit its guidance on climatic injuries, both hot and cold, and ensure policies are implemented. Secondly it showed there are issues with training reservist soldiers. Reservists cannot train to the same extent as regular soldiers but are expected, understandably, to meet their standards. It may be the case that reservists require a great deal more preparation than regular soldiers prior to being exposed to dangerous situations where they are put at significant risk of injury.

It is tragic enough that soldiers are killed due to incidents in theatre without losing lives to negligent failures on home turf. Too often safety measures and risk assessments are not adhered to, briefings are not done, and complaints of injury are not heeded. There is no reason for the Ministry of Defence to avoid liability in such circumstances. Accountability is vital to maintaining the highest standards since it ensures problems are addressed and not ignored. Small amendments to training procedures or equipment can drastically reduce the likelihood of injuries occurring. These may include for example, proper cold weather equipment to avoid NFCIs or proper hearing protection to avoid ear injuries. After all, we would not send a fireman into a blaze without suitable equipment. A greater investment of time and money in these matters would pay for itself through fewer compensation payouts and would improve the strength of our Armed Forces.

Conclusions” Injuries and fatalities are generally not the result of an unfortunate accident during warfare, but due to problems with equipment, systems and policies; decisions made from the safety and comfort of the UK. Claims, inquests and inquiries bring these issues to the forefront and ensure they are addressed in order to avoid similar incidents in future.

Compensating soldiers who sustain injury during service as a result of negligence is envisaged by society. We all take a greater responsibility for those serving and ex-service personnel, as reflected by the Armed Forces Covenant. To suggest that suffering an injury is a risk accepted by soldiers is archaic and certainly not the view we should take towards those who are fighting for our country. Many injured personnel are discharged from the military and are unable to work again, requiring significant care and equipment for the rest of their lives.

Compensation under the Armed Forces Compensation Scheme does not provide for such heads of loss and injured service personnel would be forced to claim benefits from the state and treatment from the NHS, coming out of the public purse in any event. Therefore why not allow soldiers the dignity of seeking proper recourse for their injuries through the medium of compensation?

The dispute ultimately relates to one central issue: money. The Ministry of Defence’s motivation for avoiding liability is to avoid paying out compensation to servicemen and women. The payments of compensation amount to less than 1% of the Defence Budget with billions of pounds being wasted in write offs. In 2012-2013 a mere 3% of service personnel brought claims against the Ministry of Defence. It is clear that the so called ‘compensation culture’ is simply an illusion developed by the Government.

The true picture is one whereby our brave soldiers are considered to be a statistic, for which compensation should be minimised. The real question the Defence Select Committee should be exploring is why the Government and Ministry of Defence are so desperate for the law to be changed? Cynically I submit it is due to the worrying expectation that our Armed Forces personnel, so heavily dependent on reserve forces, and with the threat of significant global conflict, are simply not as well equipped to deal with threats as they may previously have been.

Warfare is advancing and our Government is not investing sufficiently to ensure our Armed Forces can keep up. The result of this, as the Government are already predicting, is that injuries and fatalities will increase and they wish to minimise the financial consequences in terms of compensation. We strongly urge the Defence Committee to consider the perspective of the injured soldier and the adverse consequences the changes proposed by the Government will have on personnel and take appropriate steps to protect our military.

Hilary Meredith-Beckham, CEO, Hilary Meredith Solicitors Limited

Hannah Ashcroft, Trainee Solicitor, Hilary Meredith Solicitors Limited