The authors of a recent pamphlet on combat liability are right in one regard – the law in this area should be transparent.

Did you know why it is the ‘British’ army but the ‘Royal’ Navy and ‘Royal’ Air Force? I only learnt the answer in a recent pamphlet from the Policy Exchange, The Fog of Law by Thomas Tugendhat and Laura Croft. It turns out to be a long-surviving consequence of the New Model Army and the assertion of parliamentary authority against the king. The authors take up constitutional issues relevant to the military. They will accept loyalty to the Crown and parliament; they are not keen on accountability to the judges.  

The authors, both former officers – one US and one British – have been stirred into print by recent court cases. In particular, they do not like the decision of the majority of the Supreme Court in Smith and Others v Ministry of Defence [2013] 41. In both human rights and negligence, judges have been increasingly willing to hold the military to account. The Policy Exchange authors wish to commend the argument of the losing minority, led by Lord Mance, who pointed to the dangers, particularly in relation to the issue of negligence and the battlefield. They think it is perilous even to allow the possibility that the Ministry of Defence may be liable for failures before a military deployment.

The particular judgment that got the authors in a lather was from Lord Hope, for the majority. He held – rather mildly – that a case against the MoD for inadequate equipment and training should not be struck out automatically without considering the facts. He was pretty restrained about the ultimate prospects of success: ‘Great care needs to be taken not to subject those responsible for decisions at any level that affect what takes place on the battlefield, or in operations of the kind that were being conducted in Iraq after the end of hostilities, to duties that are unrealistic or excessively burdensome.’ No judge on the way to, or in, the Supreme Court ever denied this principle of ‘combat immunity’ that has survived as a last outpost of the previously more general protection of the Crown.

The authors might, in the circumstances, be thought to be making rather a mountain out of a molehill. But what scares them is the mere possibility of liability. This, they argue, will by itself make military commanders risk averse and reduce Britain’s military effectiveness. To be fair, they do accept the need for some form of legal framework. But they prefer the rather looser shackles of the ‘law of armed conflict’, which is a bit more vague and not so easily enforced.

The pamphlet recognises, if does not applaud, the role of solicitors in extending the law in this area. Thus, some of the leading firms in the field are name-checked, at their head Phil Shiner of Public Interest Lawyers. His best-known success was the case of Baha Mousa, where the assertion of a human rights jurisdiction in British bases in Iraq ultimately revealed major abuse after (against considerable military and political opposition) the establishment of a judicial inquiry. The authors are not keen on the legal aid which has financed many of the lead cases. They are all for a residence test, arguing with what might be characterised as an unworthy degree of disingenuity: ‘This is not an extraordinary measure since other, more important areas of legal aid are being cut.’

But legal aid is crucial for these cases, to uphold the important public interest of appropriate accountability in the courts. In his foreword, Lord Justice Moses puts the blame on a compensation culture and ‘the expectations of the public and the response of the politician to those expectations’. However, it is surely more complicated than that. A covert issue in this debate is the widespread understanding that recent interventions in Iraq and Afghanistan have not been dictated by national threat. For wars of this kind, the judges and, if Lord Justice Moses is right, people have come to expect the otherwise prevailing levels of accountability. They recognise that these are different situations from that where an enemy is once again rampaging through the low countries sweeping our troops before it. These are wars of choice not survival.

Lord Hope surely got pretty close to the correct constitutional balance. Field commanders should be reassured by the unanimity behind the concept of combat immunity. Plus, ministers should be able to derogate from the European convention (as they can) and be immune from the ordinary rules of negligence when there is a public emergency genuinely threatening the life of the nation. But the state should be liable when there is no such emergency and armed forces are sent into battle untrained, lacking proper supervision or with lousy equipment. In one important regard, however, the authors may be right. The law in this area should be transparent. That is easily done: legislate for the position that the courts have now reached.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice