I thought I would wait until the inevitable froth had subsided before writing something about this .
There has been some incredible nonsense written about the recent Supreme Court ruling in;
Smith and others (Appellants) v The Ministry of Defence (Respondent)
Ellis (Respondent) v The Ministry of Defence (Appellant)
Allbutt and others (Respondents) v The Ministry of Defence (Appellant)
In what seems something of a departure from the normal way of things, most of the mainstream media were seemingly on the side of the Ministry of Defence.
First of all it should be clearly understood that the ruling is not a judgement on the merits of the claim but whether the claim can be heard in court, it provides permission to proceed with action, nothing more, nothing less. Whether the MoD is guilty of a breach under the Human Rights Act is yet to be determined, the claimants will have their day in court, and so will the MoD.
Contrary to some opinions, this decision will not be opening any floodgates any time soon.
The court ruled on the three claims that;
- In the Al-Skeini case the ECHR ruled that six Iraqi civilians that died as a result of British Forces actions were within the UK’s jurisdiction for the purpose of the act and therefore points to a general judgement that extra-territorial jurisdiction can exist wherever a state exercises control and authority over an individual. One follows the other, if it can exercise control of local inhabitants through its armed forces then it must also apply to those armed forces, control implies responsibility, implies jurisdiction.
- The scope of combat immunity should not be extended to the planning and preparation for active operations against the enemy
This ruling overrides a previous decision on Smith v Oxfordshire Coroner in 2010.
In drawing a distinction between the ‘heat of the battle’ and the planning and preparation phases, Justice Lord Hope made it very clear;
The doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy. The Challenger claims are not within the scope of the doctrine because they relate to decisions which are sufficiently far removed from the pressures and risks of active operations against the enemy
I find the rush to trivialise and belittle the claims rather sinister because despite all the associated bluster about having lawyers second guess decisions made in the heat of combat the specific cases are about negligence of the MoD, not individual commanders involved in combat.
‘Planning and preparation for active operations’ being the key phrase.
Seems to me, much from the MoD and media is like a classic case of arguing about something else in order to mask the real issue.
This ruling is clearly not about what happens in some dusty theatre of war where service personnel are fighting with what they have and making decision under stress.
Another statement from the ruling is also illustrative;
it is of paramount importance that the work that the armed forces do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong
What it is about is saying to the MoD, sending personnel over the start line with 5 rounds of ammunition, not enough body armour and inadequate vehicles is just not good enough and those making the decisions do not get a free pass because of ‘combat conditions’
or at least those claims of negligence can be tested in court.
I have every sympathy for the families that have campaigned for this ruling, often against much resistance, includinh withdrawing legal aid.
I can also understand the MoD and Government’s position about it being the thin end of a wedge and having an impact on operations, even the perception of possible future action will have an impact.
But, the Supreme Court have made it abundantly clear what their judgement IS NOT about.
Richard North makes the following excellent point;
…there is nothing in the judgement, per se which makes any commander, or indeed the MoD, liable under law for requiring military men to fight with the equipment they have available – if it is the case where only particular equipment is available and there are no alternatives.
What the Sue Smith Snatch case rehearses is the scenario where there is alternative equipment available or, with reasonable foresight and planning, that equipment could have been available, and it is not used or made available.
This case is not about Snatch Land Rovers, it is about what constitutes ‘reasonable foresight and planning’
This is the key aspect of the case.
Service personnel sign on the dotted line and accept risk, they understand perfectly that things are not always perfect and that casualty avoidance can sometime increase casualties. Many of the arguments put forth seem to lean heavily on this pragmatism and good will of those serving, blithely recognising with a casual shrug of the shoulder that ‘shit happens’
Seems unfair to overly rely on this.
That might be fine, soldiers may well accept risk, uncertainty and changing threats are a fact of life but should the MoD and Government of the day be given such leeway to casually avoid responsibility and an obvious duty of care?
The great and the good are often keen to talk about the debt the nation owes them, maybe its time for Tommy Atkins call that debt in.
The full judgement is at the link below
And a summary for those without the stamina for 70 odd pages