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Legal claims 'could paralyse' armed forces Legal claims 'could paralyse' armed forces
(about 4 hours later)
A "sustained legal assault" on British forces could have "catastrophic consequences" for the safety of the nation, an influential right-leaning think tank has warned.A "sustained legal assault" on British forces could have "catastrophic consequences" for the safety of the nation, an influential right-leaning think tank has warned.
A report for Policy Exchange says legal action may paralyse the armed forces.A report for Policy Exchange says legal action may paralyse the armed forces.
It highlights a surge in legal claims against the Ministry of Defence - totalling 5,827 in 2012-13. It also says the cost of litigation against the Ministry of Defence is up, with £130m going towards it in 2012-13.
But lawyers for the families of service personnel dismissed the findings as "political" and "biased". Lawyers for the families of service personnel have dismissed the findings as "political" and "biased".
The report says litigation has led to the MoD employing around 310 lawyers and legal consultants at a cost of £36m a year. Entitled 'the Fog of Law', the report says litigation has led to the MoD employing around 310 lawyers and legal consultants at a cost of £36m a year.
Entitled 'the Fog of Law', it points to the application of the Human Rights Act and the growing application of civilian norms to military conduct via the courts as risks to the UK's armed forces. The MoD has earmarked £130m for litigation - including 5,827 legal cases - in 2012-13; under £70m was spent on legal action in 2008-9.
The report points to the application of the Human Rights Act and the growing application of civilian norms to military conduct via the courts as risks to the UK's armed forces.
Combat immunityCombat immunity
The report's authors are Territorial Army Lieutenant Colonel and strategy consultant Tom Tugendhat, and retired US Army Lieutenant Colonel Laura Croft, who served in Iraq and also as a lawyer, teaching international and operational law.The report's authors are Territorial Army Lieutenant Colonel and strategy consultant Tom Tugendhat, and retired US Army Lieutenant Colonel Laura Croft, who served in Iraq and also as a lawyer, teaching international and operational law.
The main "weapon" used in the legal challenge is the European Convention on Human Rights (ECHR), they argue.The main "weapon" used in the legal challenge is the European Convention on Human Rights (ECHR), they argue.
Although the ECHR had applied since September 1953, the Human Rights Act (HRA) in 1998 gave individuals the ability to appeal directly to domestic courts.Although the ECHR had applied since September 1953, the Human Rights Act (HRA) in 1998 gave individuals the ability to appeal directly to domestic courts.
This, combined with the wars in Afghanistan and Iraq, saw a rise in actions brought through the courts.This, combined with the wars in Afghanistan and Iraq, saw a rise in actions brought through the courts.
In the past, those serving in the military were protected from prosecution under Combat Immunity, while the Law of Armed Conflict regulated the conduct of war.In the past, those serving in the military were protected from prosecution under Combat Immunity, while the Law of Armed Conflict regulated the conduct of war.
But recent judicial findings have extended common law claims of negligence and civil claims of duty of care to the combat zone, and the authors claim this is already affecting the combat capability of the services.But recent judicial findings have extended common law claims of negligence and civil claims of duty of care to the combat zone, and the authors claim this is already affecting the combat capability of the services.
'Legal creep''Legal creep'
They cite cases such as that of Ahmed al-Fartoosi, the leader of the radical Shia cleric Moqtada al-Sadr's militia, who is in the process of suing the British government for compensation.They cite cases such as that of Ahmed al-Fartoosi, the leader of the radical Shia cleric Moqtada al-Sadr's militia, who is in the process of suing the British government for compensation.
He alleges abuse during his captivity in Basra, and claims that he was denied his rights under the ECHR.He alleges abuse during his captivity in Basra, and claims that he was denied his rights under the ECHR.
Other claims include that of Ali Al Jedda v the UK (2011). The claimant was arrested travelling from London to Iraq in 2003 on suspicion of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq.Other claims include that of Ali Al Jedda v the UK (2011). The claimant was arrested travelling from London to Iraq in 2003 on suspicion of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq.
He sued the government using Article 5 of the Human Rights Act, a decision thrown out by the UK Supreme Court but overturned by the ECHR.He sued the government using Article 5 of the Human Rights Act, a decision thrown out by the UK Supreme Court but overturned by the ECHR.
This year, the Supreme Court ruled that British troops remain within the UK's jurisdiction and so fall under the Human Rights Act, even when deployed on active service abroad. And this year, the Supreme Court ruled that British troops remain within the UK's jurisdiction and so fall under the Human Rights Act, even when deployed on active service abroad.
This has led to cases in which relatives of British soldiers have sued the MoD under human rights legislation.
The report's authors claim that in the long run, "legal creep" could pose a "mortal threat to the culture and ethos of the military which cannot be easily reversed."The report's authors claim that in the long run, "legal creep" could pose a "mortal threat to the culture and ethos of the military which cannot be easily reversed."
They say that the extension of law risks "catastrophically weakening the UK".They say that the extension of law risks "catastrophically weakening the UK".
And they claim it may not be long before a foreign power or even insurgent forces begin to sponsor legal actions as a way of paralysing UK forces through legal process. And they insist it may not be long before a foreign power or even insurgent forces begin to sponsor legal actions as a way of paralysing UK forces through legal process.
The report adds that claims involving human rights law are increasingly costly, with the MoD estimating that such cases will cost a total of £57m in 2012-13.
The most common cases not involving human rights law brought against the MoD last year related to noise-induced hearing loss and cost £51.3m altogether.
'Reduce risk' obligation'Reduce risk' obligation
Military personnel should not be above the law, says Lt Col Tugendhat. Lt Col Tugendhat told the BBC that military personnel should not be above the law.
But he added: "As the ultimate guarantors of a nation's liberty they have agreed, voluntarily, to surrender or limit many of their own rights. Without this, the nation would be undefended."But he added: "As the ultimate guarantors of a nation's liberty they have agreed, voluntarily, to surrender or limit many of their own rights. Without this, the nation would be undefended."
"The fact is that the application of the ECHR through the Human Rights Act means that, now, foreign European judges from Russia, Moldova, France, Italy, can sit in judgement over orders given by British commanders to British soldiers in operations around the world," he told BBC Radio 4's Today programme. The report recommends that:
"This is very novel and extremely dangerous."
Their report recommends that:
But lawyers for Sue Smith, whose son was killed in a Snatch Land Rover in Iraq in August 2007, criticised Policy Exchange's conclusions.But lawyers for Sue Smith, whose son was killed in a Snatch Land Rover in Iraq in August 2007, criticised Policy Exchange's conclusions.
"This report seems to me to be part of a concerted political attack on the Human Rights Act," said Jocelyn Cockburn of Hodge Jones & Allen. Jocelyn Cockburn of Hodge Jones & Allen said: "Wives or mothers such as Sue Smith come to me not because they wanted compensation money, but to campaign against the use of Snatch Land Rovers in Iraq because they wanted to protect other soldiers, and improve the safety of servicemen and women abroad.
"Wives or mothers such as Sue Smith come to me not because they wanted compensation money, but to campaign against the use of Snatch Land Rovers in Iraq because they wanted to protect other soldiers, and improve the safety of servicemen and women abroad.
"It's very important to have independent scrutiny of decisions made by the MoD. War is risky, and therefore you have an obligation to reduce risk and mitigate the threat.""It's very important to have independent scrutiny of decisions made by the MoD. War is risky, and therefore you have an obligation to reduce risk and mitigate the threat."
Martyn Day from the law firm Leigh Day, which has also fought several high profile cases against the MoD, labelled the report "biased". Martyn Day from law firm Leigh Day, which has also brought several cases against the MoD, described the report as "biased".
He said his firm would argue that it is "the breaking of laws which poses the greatest threat to those who risk all for their country. His firm would argue that it is "the breaking of laws which poses the greatest threat to those who risk all for their country.
"This includes not training or equipping soldiers adequately before putting service personnel into a combat zone.""This includes not training or equipping soldiers adequately before putting service personnel into a combat zone."
He added: "Greater adherence to the laws, both domestic and international, are the only way in which the MoD's litigation will decrease."
The arguments in the report echoed those of the Secretary of State for Defence, Philip Hammond, who remains concerned about the challenge to combat immunity arising from recent court judgements, which could make it more difficult for troops to carry out operations in the future.The arguments in the report echoed those of the Secretary of State for Defence, Philip Hammond, who remains concerned about the challenge to combat immunity arising from recent court judgements, which could make it more difficult for troops to carry out operations in the future.