The government must take prompt action to close down multiple avenues of legal assault on the British military, a free-market thinktank said today.

A new form of ‘judicial imperialism’ should urgently be reversed, according to the Policy Exchange report Clearing the Fog of Law, co-authored by strategy consultant and Territorial Army officer Tom Tugendhat.

It says the judiciary is the wrong body to hold the government and the armed forces to account, becuase of how it retrospectively reviews purchasing, training and combat decisions over the way that war is waged. ‘This is properly a matter for ministerial accountability, to parliament and through parliament to the public,’ it says.

The report urges the government to revive the armed forces’ Crown immunity from actions in tort during all future ‘warlike operations’ overseas, by ministerial order under the Crown Proceedings (Armed Forces) Act 1987.

It should also introduce primary legislation to amend the Human Rights Act 1998 to prevent personnel relying on article 2 of the European Convention on Human Rights to take action against the Ministry of Defence over injuries sustained on operations.

‘The British armed forces remain the most accomplished in Europe, but they suffer courtroom defeat after courtroom defeat in London and Strasbourg,’ the thinktank says. 

The tipping point, it says, was Smith v Ministry of Defence (2013), in which the UK Supreme Court established for the first time that soldiers injured in battle or the families of those killed in action may could sue the government for negligence, and for breach of the ‘right to life’ under article 2 of the ECHR.

This, along with other judicial developments such as Al Skeini v UK (2011) and Al Saadoon & Others v Secretary of State for Defence (2008), ‘paved the way for a “spike” in litigation’. The report states at the start of 2014, there were around 190 public law claims against the MoD in relation to British military action in Iraq. The number is likely to have grown to 1,230 by the end of March 2015.

This is in addition to a further 1,000 private law claims.

The report says there is a bias towards expansion built into the modern law of human rights, compounded sometimes ‘by the interplay between British courts and the Strasbourg court, whereby the British courts are concerned to avoid falling behind Strasbourg, either because this risks the UK later being found to be in breach of the [European Convention] and/or because some judges are eager to be at the vanguard of extending human rights law’.

It adds: ‘There is also at times competition among judges and courts – with judges who are seen to be in the vanguard of the development of human rights law enjoying considerable acclaim from other judges, scholars and the media.’

The report concludes that ‘if war is too important to be left to the generals, then surely it is too important to be left to the judges’.