Human Rights and Tommy Atkins

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;

  1. 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.
  2. 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


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June 28, 2013 1:00 am

A very sane and reasonable summary of the matter, TD.

It is disappointing but sadly not altogether surprising that many media outlets that campaigned for ‘Our Boys’ and the Military Covenant in recent years have ignored it in this context for the one-sided “service personnel knew what they signed up for” line. For the Military Covenant makes it abundantly clear that duty is not a one-sided affair:

“Soldiers will be called upon to make personal sacrifices – including the ultimate sacrifice – in the service of the Nation. In putting the needs of the Nation and the Army before their own, they forego some of the rights enjoyed by those outside the Armed Forces. [b]In return, British soldiers must always be able to expect fair treatment, to be valued and respected as individuals, and that they (and their families) will be sustained and rewarded by commensurate terms and conditions of service.[/b]”

As you rightly say the decisions that should be challenged are the ones such as:

The SofS for Defence prohibiting CDS from liaising with Chief of Defence Logistics to prepare for the Iraq invasion, giving the MOD and industry just 4 months to prepare as opposed to the 6 months indicated by Ex Saif Sareea II. Hence forces entering Iraq without sufficient, adequate NBC kit, and bits of kit turning up 2 months later (i.a.w. the indicated 6 months).

The Treasury limiting the initial Helmand deployment to just 3,150 personnel (later 3,350) and £1.3 billion for a limited three-year campaign – based on no apparent military assessment of the mission.

The Very Senior Officers in the RAF who made false declarations of compliance with regulations on Chinook Mk2 FADEC, in particular withholding critical information from pilots, and then ensured that the Board of Inquiry blamed the pilots.

Air Commodore George Baber who “failed to give the NSC (Nimrod safety case) the priority it deserved. In doing so, he failed, in truth, to make safety his first priority.” And Wing Commander Eagles who “failed to give adequate priority, care and personal attention to the NSC task. He failed properly to utilise the resources available to him within the Nimrod IPT to ensure the airworthiness of the Nimrod fleet.”

How anyone can seriously claim that the MOD fulfilled its Duty of Care (in any sense legally, let alone in accordance with the Military Covenant) in these and many other cases defies belief.

The most ridiculous argument of all (apart from the particularly idiotic “WWI relatives will sue next”), from people who should know better, has been that it might encourage commanders to focus on covering their arse instead of taking calculated gambles. When in reality, we have long had a system of Ministers and VSOs taking uncalculated risks and arse-covering ex post facto through lies, denials and obfuscation?

Recently the North Sea Oil and Gas industry has been commemorating the 25th anniversary of the loss of 167 men in the Piper Alpha. The focus has not only been on what happened, but also how it could happen, how it forced the industry to change and how the industry must continue to focus on improving safety. One speech at the Piper 25 Conference was from Charles Haddon-Cave, on the subject of his Nimrod XV230 review.

There are many similarities between the two, in terms of failures of leadership, incentives and cultures. But whereas the oil industry is a very different industry today in terms of safety as a result of wake-up call it received, XV230 exposed how the MOD (led by Very Senior Officers) continues to disregard safety in ways that amount to nonfeasance, misfeasance or, in a few cases, malfeasance. If the MOD will not make the change itself then change must and will ultimately be imposed upon it.

For God knows, the Armed Forces have needlessly lost enough personnel over the centuries because lessons were not learned in spite of what Ministers might claim in Parliament. We should not and cannot continue to allow the bravery of our personnel to be abused by the duplicity and chicanery of those set over them.

June 28, 2013 2:17 am

A very good post Lewis and likewise I support TD in his summary of the case. There are many black marks on the MoD’s book in relation to Snatch and wider issues.

Just a quick point if I may, ‘ XV230 exposed how the MOD (led by Very Senior Officers) continues to disregard safety in ways ‘ I can assure you the wheel is turning (back) slowly. The events leading to XV230 were (thanks to HC and his excellent inquiry) well known, disgraceful and embarassing. Post HC we have had a sea change in thought to an earlier time. We should never rest, however I genuienlly believe we (as in the RAF) have learnt.

June 28, 2013 3:41 am

20/20 hindsight is such a wonderful thing everything is so obvious by then. Anyone who holds up ‘planning’ as the solution probably hasn’t done much of it. The reality is that once the guys cross the start line (sorry LoD) then all bets are off because the enemy intervenes and exploits that weakness that hadn’t been foreseen.

Expecting ‘Senior Officers’ sitting in London, Andover, etc to foresee vunerabilities that are exploitable by an enemy that has not been previously engaged and about whom int may be sparse and unavailable is incredibly naive. A chess grand master may be able to plan upteen moves ahead on a chessboard, back on the real battlefield its a lot more difficult. All campaigns start as a ‘come as you are’ party, risks are unavoidable and evolving.

Even Normandy, great planning but one thing was missed that resulted in lots of casualties in summer 1944. The evolving German use of mortars (because they lost the CB battle). It was foreseeable and the technology to deal with it could have been available. Are thousands of families now onto compensation?

June 28, 2013 4:03 am

TD got to get a bit more background on the “5 rounds of ammo” case, is it a camp patrol? If it is, then 5 rounds for the prowler detail is standard, their job is to harass infiltrators, not standoff an enemy company by themselves. Technically, most of the use of the 5 rounds is actually more as warning shots and noisemakers to warn the rest of the guard detail, who will then bring the heavy stuff while the patrol GTFOs.

There are reasons for the low ammo carry too, mainly due to the fact that if the patrol gets bushwacked, which is very likely in a long term COIN campaign, any insurgent only gains 2 ARs and 10 rounds of ammo instead of the 360 rounds in a combat load.

Peter Elliott
June 28, 2013 6:27 am

The perception of acceptable risk for the serving soldier will continue to evolve becuase both society itself and the effectiveness of various weapons and tactics evolves. What worked in the last war won’t always work in the next and people die becuase of it. And the penny drops at different times for different people.

Duke of Wellington positioned his men on the reverse slope of the hill and ordered them to lie down when not actually engaged not becuase he was concerned about their human rights but becuase he realised that their ability to fight would be seriously impaired if they were exposed for too long to direct fire. The men weren’t stupid and regarded him highly for it anyway. Took another hundred years for the officers’ honour code to catch up and for them to acknowledge that taking cover wasn’t a cowardly act. But that’s evolving social forces for you.

Brian Black
Brian Black
June 28, 2013 11:02 am

Hi, Observer.
The “5 rounds” story is largely attributed to apparent leaks of evidence submitted to the Chilcot enquiry. This particular evidence may or may not have been made public yet, but you can trawl through the public transcripts and submissions at .

Press stories source the CO of 9 Supply Regt RLC, and tell of how convoys would be sent out to the combat units with only the five rounds of ammunition per person. Available ammunition being prioritised away from Corps units regardless of where they may be operating.

Rumours tell of how there was only enough body armour for loggies in lead and rear vehicles, and also suggest that the actual distribution of ammo in the convoys was one or two rounds apiece for most troops, which allowed a few more bullets for an LSW gunner in the front and rear vehicles.

June 28, 2013 3:34 pm

Thanks BB. There is a whole mess of info there.

Personally, I think we need more background before making a call. For all we know, they may have 5 rounds per person… and a squadron of Apaches flying cover, with an MBT as point vehicle. :P

June 28, 2013 7:56 pm

@Black Brian

The two “lessons learnt” reports the Telegraph cited can be found online now:

Operations in Iraq – An Analysis from the Land Perspective (TELIC 1)

Stability Operations in Iraq – An Analysis from the Land Perspective (TELIC 2 – 5)

There is also Operation TELIC Lessons Compendium

@ Obsvr

“All campaigns start as a ‘come as you are’ party, risks are unavoidable and evolving.”

Except Iraq (and Helmand for that matter) should never have been a ‘come as you are’ party.

Before Iraq, the Treasury and PAC/NAO pressurised the MOD to achieve cash savings by reducing stock levels. The reasoning was that equipment would be provided as and when required, on a Just In Time basis.

The MOD knew from experience in Kosovo and Ex Saif Sareea that this meant a 6 month flash to bang: identifying requirements, talking to industry, procuring spares, modifying and deploying equipment and training personnel in theatre.

Now they had plenty of time to do this with Iraq. The Government knew it had committed itself to war months earlier. Yet for political reasons, they refused to allow the MOD more than 3 months time to get everything organised. They were more concerned about ensuring they did not lose Parliament than ensuring that operational forces were given adequate preparation.

As a result, there were significant kit shortages, some lasting well into April. Many of them were eventually delivered within the 6 month period that the MOD estimated was required – unfortunately such was the state of the logistics system (again, something that was known to be a problem in Kosovo), they rarely made it to the right people in the right place at the right time.

As the TELIC 1 report above concluded:

“Many of the shortcomings of the Operation could have been avoided if the available time had been used more effectively”

“At times during Operation TELIC reliance was placed on the quality of soldiers to make up for shortcomings which should have been identified and rectified. We can do better.”

June 29, 2013 1:08 am

@ Lewis

“Except Iraq (and Helmand for that matter) should never have been a ‘come as you are’ party.”

You’re confusing two issues, logistic preparedness and having the right equipment for a specific campaign. My point is that the latter will never be right on day 1. All campaigns have idiosyncratic aspects, often evolving rapidly in the time honoured context oif measure and counter-measure. It takes two parties to have a war and they interact with each other and with the physical battlespace.

June 29, 2013 4:21 am

And some of it might be pure oopsies on the unit’s part?

Think it was either Swimming Trunks or Red that mentioned to us once of the fact that important kit was left behind when he was deployed to the GW and was only shipped there a few months later and rummaged through?

June 29, 2013 7:22 am

Just to pitch in on this point, this harks back to Ex Saif Sareea II. At the time, the tank regiments marked for the deployment made it clear that the air filters would be inadequate for the task. They were over ruled on grounds of cost. The subsequent debacle involving filters (and road wheels and track pads) had to be corrected in theatre, and the subsequent logistical burden of correcting that fault was later identified as being a significant cause of friction and impedence in the overall supply chain, which then impacted on other ground vehicles, and even the supply chain for the C-130K.

That was something that was known about months in advance and not solved. Had that been a live operation and the faults cost lives, there’s an argument that the MoD would have been banged to rights, and rightly so.

This case also will likely draw attention to the UOR system. Which is another place the MoD could be in trouble, because it’s not like there wasn’t a host of mine resistant vehicles already out there waiting to be purchased and deployed.

Lord Jim III
Lord Jim III
July 1, 2013 6:37 am

If we put aside all the shouting conning from the Government and MoD I think this could be the start of something good. It is going to throw a fairly large spanner in the FF2020 programme and draw attention to the current trend of taking capability holidays. Above all it is going to make ensure that all the basics are covered a priority within the equipment programme.

As pointed out UORs are also going to come under the spotlight and the abuse of the system that has allowed essential kit such as body armour to be purchased in insufficient amounts to save a few pennies. Levels of stores will generally have to be increased to allow units to enter the field fully equipped. Yes there are things that will need to be purchased under UORs but these will be genuinely unforeseen items. Sets of basic equipment for different theatres will have to be held on the shelf for at least battalion level deployments, be they in the dessert, Snow, mountains or jungle for example.

So I can see some of the new shiny toy programmes being delayed or cancelled to free up money to ensure all our squaddies have all the basics issued and that they are the best available. If we are honest this will not cost much in the grand scheme of things but the Chiefs will have to look at the small things now and not just the big ticket items,,but there a some of these that need to be given a higher priority and others that can drop doen the list.

I can see FRES UV moving up and I hope Crowsnest gains momentum as sending a carrier to sea without intergral AEW is an obvious no no and the lessons from the Falklands is a serious lesson. The Trident replacement needs to drop down the list or have alternative funding found.

Will it take a major sea disaster and the MoD being sued due to the lack of a MR platform to effectively co-ordinate the response, or another major case to get the Chiefs to realise that they cannot keep doing things the old way, where essential kit and modifications to kit are not purchased but lashed together under a UOR at the last minute. They do not have access to a Crystal Ball I accept but basic risk assessment and threat anaysis isn’t too hard.

July 31, 2013 12:05 pm

Less than a month later we have in the Telegraph this morning:

The paper says the basis of the case is:

“… the MoD failed to supply sufficient ammunition to help the Red Caps defend themselves.
They also argue commanders failed to give them effective communications to the Royal Military Police and roadworthy vehicles”

If the case gets to court, who do you think is going to be in the hot seat, the senior civil servants and ministers or the company/battalion level officers who actually ordered the mission and sent the blokes out on their ill-fated patrol?

I’ll watch this one with keen interest. Anyone still serving in position of command should start reading up on preparing risk-assessments and keeping decision logs.

July 31, 2013 12:15 pm

HL – please let it be the political fiddlers and self-serving civil servants that created the problems (grand deployments funded on shoestrings) that end up in the dock!

July 31, 2013 12:32 pm

I quite agree it would be nice if the people who made the big decision were held responsible for them, I am not holding my breath though. As most on here will know, sh!t always rolls down hill.