A report published by the Defence Committee has called for a review of judicial involvement in the armed services but the views of injured soldiers must now be heard to ensure any changes are fair for all.
The Defence Committee's report talks of a 'disquiet' among military personnel and opinion formers about the 'extent and scale of judicial involvement in military matters'. It also calls for the Government and the MoD to review current legislation and carry out reforms. Any change in legislation could mean immunity for the Government of the day for any negligence which causes injury in battle.
Pressure for legal change has been mounting in some quarters ever since the 'Snatch Land Rover' decision, handed down in June of last year. This crucial judgement confirmed that it should be possible to sue the MoD for negligence that took place prior to combat - for example, if injury results from a failure to provide adequate equipment and training.
The 'Fog of Law' report published by the independent think tank, Policy Exchange, last November, emphasised the importance of 'combat immunity' - the legal protection which prevents the MoD from being sued for negligence as a result of decisions made in the heat of battle. Speaking at the British Institute of International and Comparative Law in January, Laura Croft, a former US Lieutenant Colonel and one of the authors of the report, spoke of her impression that military commanders were altering their practice in the field because of fear of being involved in legal action. Finally, two weeks ago, Philip Hammond, the Secretary of State for Defence, answered a question in the House of Commons about human rights which confirmed his intention of looking more closely at the matter of judicial involvement in the armed forces. He said:
"There are issues about the encroachment of judicial processes into the operation of the armed forces. A number of cases currently before the courts, or pending, could have a significant impact, and we are watching them closely. We are clear that once we commit our armed forces to combat, they must be able to carry out operations without fear of constant review in the civil courts. If we find that the current cases develop in a way that makes that difficult, we will come back to the House with proposals to remedy the situation."
The Defence Committee's report has clearly been influenced by this growing agenda to reduce the impact of legal challenges on the MoD. However, it is one-sided, reflecting the views of a long list of academics and serving and retired members of the services and MOD personnel. The evidence of injured armed service personnel and their families is not included.
The Committee or Government now needs to talk to all sides, including those with a real understanding of the sorts of cases that are being brought, and their importance.
The views of injured servicemen and women matter to everyone. We all need to know that the MoD is being held accountable for any injury inflicted on our armed services unnecessarily or as a result of incompetence or a lack of preparation. Assurances from the MoD itself cannot necessarily be trusted. Major Streatfeild admitted recently in his book that he had deliberately given inaccurate reports whilst serving in Afghanistan that troops had been equipped with everything they needed. In fact, he knew they were not.
In the face of this lack of transparency, the only way that these issues can be explored is in the courts, when someone is injured and instructs a military negligence lawyer to find out why. The MoD has a vast machine to defend its interests: injured soldiers have no representative body, and usually have to rely on us alone to find out the truth.
The Committee's report has asked the MoD to supply evidence that commanders are becoming risk averse as a result of more judicial involvement. However, while speaking on BBC Radio 4's Today programme, James Arbuthnot MP was unable to give a single persuasive example of a commander who had changed his or her practice in the field. This claim that commanders are changing their behaviour therefore needs to be examined closely.
The report also states that before the 'Snatch Land Rover' case the concept of 'combat immunity' was well understood and accepted. The fact that it used to be better understood is not a good reason to change the current situation however. Commanders in the MoD need to be better informed about what could constitute negligence and tighten up processes accordingly.
The fact is that during the 'Snatch Land Rover' case, the MoD was seeking to extend the reach of 'combat immunity' to protect them from being sued for anything they might do when preparing for a tour of duty. They wanted that legal protection to cover them in all situations where there was an injury in combat - even if the negligence that caused it happened weeks or months before that - not just for decisions taken in the heat of battle. For the sake of injured service men and women everywhere, it is important that we don't extend to the MoD this additional right to protection. The MoD must still have a reasonable duty of care in such situations.
'Combat immunity' as it stands is a necessary principle which has the support of members of the armed services and the public. Extending it to allow a blanket immunity from scrutiny and accountability would allow the MoD to operate behind a veil of secrecy. This could result in more unnecessary injuries and deaths.
Philippa Tuckman is partner and military injuries specialist at Bolt Burdon Kemp.