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The MoD's New Compensation Scheme Distorts the Doctrine of Combat Immunity

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About The Author

'Elizabeth Peters' (Guest Contributor)

'Elizabeth' served in Her Majesty's Armed Forces as an RAF Registered Nurse, serving in the Princess Mary's Royal Air Force Nursing Service. After a successful military career, she is following her dream of becoming a barrister, specialising in military law. 'Elizabeth' has graduated from law school and is currently completing her BPTC alongside her LLM. Outside the law, 'Elizabeth''s interests and hobbies include travelling, reading, writing and European history.

I don't believe that any prime minister would send our troops into conflict without the assurance from the military that they had the equipment necessary for the operation.

Gordon Brown

The job of a soldier is not without risk, whether it be of injury or death. And while this is a risk that is understood and accepted by soldiers as part and parcel of the career they have chosen, they place their trust in their superior officers and commanders that this risk will be minimised to the greatest extent possible.

However, in recent years, it has been discovered and documented in a variety of reports – such as that written by Sir John Chilchot – that the Ministry of Defence (MoD) has broken that trust through the negligent provision of inadequate equipment to troops. It would seem just that the families of soldiers whose loved ones have been killed or injured as a result of this would receive compensation to help try and relieve the burden now affecting their lives.

Yet the extent to which this compensation has been available was, up until recently, highly limited. Before a landmark decision in the Supreme Court, a wide version of the doctrine of combat immunity had placed strict limits on the ability of these families to successfully seek justice.

Yet, the MoD has recently announced proposals that seek to – in effect – bypass the opportunity for much-deserved redress that the Supreme Court ushered in. As this article examines, the proposed new scheme that takes away from claimants their right to have their day in court misuses the justifications for the doctrine of combat immunity, undermines new-found accountability and oversight of the armed forces and also increases the likelihood of repeating avoidable mistakes and more soldiers being killed or injured.

The Doctrine of Combat Immunity

The Doctrine of combat immunity was established in the case of Mulcahy v Ministry of Defence [1996], where the Court of Appeal held that when the armed forces are in the course of military operations, they are not under a tortious duty of care to avoid casing loss or damage to service personnel. They therefore rejected a claim against the MoD from a soldier who – during his service in the Gulf War – had been injured when a Howitzer had been negligently fired by his superior officer. The effect of this ruling was that any attempt to bring a claim in negligence against the MoD would always fail.

The doctrine was initially given a wide scope, applying not only to situations involving the presence of the enemy but also to all operations where armed forces are exposed to potential threats, including in planning and preparation for combat. As Jessica Johnson has previously explored for Keep Calm Talk Law, this was justified by channelling one of the four factors from Caparo v Dickman [1990]: it would not be ‘just, fair and reasonable’ to impose a duty of care on the grounds that it would be detrimental to military operations for military personnel to deal with such matters. There also remained a risk of opening the floodgates; holding the MoD liable for all fatalities and injuries occurring in wartime would result in such a colossal amount of litigation that the military would be distracted from securing their primary aims. After all, risk-averse decision-making could harm the armed forces’ objectives and the safety of UK troops.

Despite these justifications, such a wide doctrine of combat immunity was controversial. In the eyes of some, it undermined the MoD’s accountability to the public and, in particular, to soldiers and their families. Furthermore, while it seems fair not to tie the hands of commanders making decisions in the heat of battle with threats of litigation, it is doubtful whether the immunity should extend to errors in planning provisions and training that – as they are far away from the field of battle – are more likely to avoidable and unreasonable.

Indeed, allowing such a wide invocation of the doctrine in all manner of cases was causing such perceived injustice that it led the think-tank Policy Exchange to write:

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.

A Landmark Case – Smith v Ministry of Defence

It was in this context that the scope of the Doctrine of Combat Immunity was redrawn in the Supreme Court’s landmark decision in Smith v Ministry of Defence [2013], where a 4-3 majority in a heavily-split court favoured a narrow interpretation of the doctrine, and also accepted that Schedule 1, Article 2 of the Human Rights Act 1998 could be used in military conflict cases.

In this case, the claimants argued that 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. One of the claimants, the mother of a soldier who had been killed while driving a ‘Snatch’ Land Rover, based her argument on the fact that the MoD were aware that such vehicles had not been designed or tested for warfare involving Improvised Explosive Devices (IEDs) or the terrain they were being exposed to.

The majority, while reiterating the existence of the doctrine of combat immunity, rejected that MoD’s argument that it should apply to the claimant’s case because the injuries had occurred when troops were in combat. Instead, the majority held that the doctrine of ‘combat immunity’ should be construed narrowly and should not be extended to prevent claims alleging negligence in the planning of and preparation for operations where the relevant steps were taken far away in place and time from the operations themselves.

Moreover, they held that the question whether the duties of care put forward by the claimants are ‘fair, just and reasonable’ cannot be decided before the precise facts behind the claims are determined at trial. Thus the Court of Appeal’s decision not to strike out the negligence claims was upheld, though the majority emphasized that the judge who decides what is ‘fair, just and reasonable’ at trial will have to be very careful to avoid recognising any duty which is ‘unrealistic or excessively burdensome’.

This decision represents emphasis on the need to continually balance the interests of soldiers with the interests of military operations. As Jessica Johnson has argued for Keep Calm Talk Law, allowing national interests to automatically prevail over the individual’s fundamental rights would be to treat these soldiers as subordinates to ordinary citizens. They are still employees, and are still entitled to a safe work environment.

The controversial nature of the decision was evident from the icy dissents from the minority judges: Lord Mance – who argued that cases to which the doctrine applied represented cases where there is little doubt that it is not be “fair, just and reasonable” to recognise a duty of care – predicted the ruling would lead to the ‘judicialisation of war’ and Lord Carnwath argued that the Court was authorising an extension of the law into a new field, without guidance from ‘any authority in the higher courts, in this country or any comparable jurisdiction.’

Reaction to Smith v Ministry of Defence

Further condemnations to the judgment were swift. While Colonel Richard Kemp lamented the introduction of a ‘constricting health and safety culture [into] the vital job our soldiers do’, other critics argued that increased litigation costs would divert away money that should be spent on training and equipment. Meanwhile, the then-Defence Secretary Philip Hammond expressed his concern that:

British troops could be prevented from carrying out their missions for fear of falling foul of human rights legislation. We can’t have troop commanders living in fear of how lawyers back in London might interpret their battlefield decisions that are vital to protecting our national security.

Despite such criticisms, the ruling in Smith v Ministry of Defence [2013] should be considered a welcome judgment; for one thing, it allowed family members of soldiers killed at war by acts of negligence by the MoD to seek justice. Furthermore, it appears that the decision has increased standards in the armed forces – as the organisation Liberty has pointed out:

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.

Indeed, it might be thought ironic that the senior members of the armed forces who criticised the judgment overlook the fact that this ensured they received the proper funds to effectively equip their troops that they had been calling for.

The Ministry of Defence’s Proposals

In February 2017, the MoD announced plans to channel complaints for negligence and other law suits grounded on failures to provide adequate equipment or training away from court into an internal MoD compensation scheme. The scheme would see injured personnel – or the family of those killed – in combat awarded compensation ‘equal to that which a court would have awarded if the government had been negligent’ by panels of retired judges or experienced lawyers appointed by the MoD. Meanwhile, new legislation would be introduced to extend combat immunity and thereby prevent claims against the MoD going to court.

Using the rationale underpinning the doctrine of combat immunity as a justification, Defence Secretary Michael Fallon argued that the scheme – which does ease claimants’ task by doing away with the need to prove the MoD’s negligence – will help the MoD carry out its operations without having to worry about the threat of litigation. This argument was expanded on by Tom Tugendhat MP, who suggested that the proposals will mean that commanders:

[W]ill not be consistently taking decisions looking over their shoulders and wondering whether a lawyer is going to second guess them in a courtroom 20 years hence.

Serious concerns have been expressed out these reforms. For one thing, these proposals seem to fall into a campaign initiated by the MoD to protect itself from law suits: in October 2016, it announced it was planning to stop an “industry of vexatious claims” against troops by option out of the ECHR during future conflicts, while it has also attempted to prosecute lawyers who pursued alleged abuses in Iraq. 

Furthermore, the internal nature of the panels have caused unease about the extent to which natural justice will be adhered to. As Robert Bourns, President of the Law Society, pointed out:

[C]ases would not be heard by an independent judge, facts would not be independently investigated, responsibility would not be established and a state institution, if liable, would not be held to account.

The major flaw with these proposals, however, is the rationale advanced in justification for them, which is based on a misreading (or a manipulation) of the decision in Smith. Indeed, it must not be forgotten that the Supreme Court in that case did not do away with the doctrine of combat immunity completely; instead, it altered the way in which it is applied to strike a better balance between the rights of individual soldiers and the needs of the MoD. Ultimately, for cases in which the MoD that legitimately deserve combat immunity, the doctrine still applies while for cases which the MoD do not, the rights of individual soldiers prevail. As Jocelyn Cockburn, a solicitor at the law firm Hodge Jones and Allen notes:

The impact, and possibly the intention, of this change is to protect the MoD from scrutiny by the courts – for instance in relation to allegations of faulty equipment.

This is problematic, for these are the cases where – as the Supreme Court in Smith rightly recognised – the need to protect the rights of soldiers as individuals means the doctrine of combat immunity should not apply. Furthermore, it ignores the benefits – emphasised in the above quote from Liberty – that come from such cases that were emphasised by Liberty; they shed light on the MoD’s failures to soldiers properly during the wars in Afghanistan and Iraq that might not otherwise have come to light.

Therefore, under these proposals, not only would deserving claimants denied any legal redress and compensation, but future soldiers might have to go to war at risk of suffering injury or being killed as a result of the same, preventable errors.

Conclusion

Warfare will inevitably involve the taking of risks, whether that be by service personnel during a firefight or by commanders making decisions about how to deploy those troops. And it is similarly inevitable that this can result in injury and loss of life. In many ways, therefore, the law needs to be hesitant in holding such individuals liable; after all, senior personnel need to have the ability to react quickly and be flexible in their decision making, particularly when undertaking tactical manoeuvres. The doctrine of combat immunity is thus a necessary concept.

Yet as the decision in Smith v Ministry of Defence [2013] rightfully recognised, the doctrine should only be allowed to go so far. A balance must be struck between the rights of individuals and the need to ensure the armed forces can remain effective in combat.

And the doctrine must not be something that is manipulated. Sure, as the age of austerity and spending cuts impacts upon all areas of government, including defence, it might appear that a vital cost-cutting measures is removing injured soldiers and grieving families’ ability to seek compensation in court.

However, it must not be forgotten that imposing duties on the MoD to endeavour to meet high standards in supplying up-to-date equipment, to invest in training and to focus its attention on upholding their duty of care to service personnel benefits the MoD itself. The fact that they will not be faced with litigation is merely additional from the benefits that come with serving members of the armed forces being equipped, and knowing they are equipped, with the best protection and equipment money can buy. For this reason, these proposals are not only unjust, but impractical and self-defeating.

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Tagged: Armed Conflict, Courts, Justice, Litigation, Supreme Court, Tort Law

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