The Ministry of Defence will be ‘paralysed’ by a sustained legal assault that could have ‘catastrophic consequences’ for the safety of the nation, a thinktank claims today.
Policy Exchange, which claims credit for originating the idea of elected police and crime commissioners and free schools, says the costs of litigation against the British armed forces have now risen ‘out of all proportion’.
The report, ‘Fog of War’, says that 5,827 claims were brought against the MoD in 2012/13 with an average £70,000 paid to the 205 people who made successful claims.
According to the report, the main weapon used in legal challenges to UK military operations is the European Convention on Human Rights and the 1998 Human Rights Act.
Authors Tom Tugendhat and Laura Croft cite claims such as Ali Al Jedda v the UK in 2011, when the claimant tried to sue the government after being arrested on suspicion of being a member of a terrorist group. His claim was dismissed by the UK Supreme Court but overturned by the ECtHR.
The report also references Smith and Others v Ministry of Defence , known as the Snatch Land Rover case, when the Supreme Court ruled that British troops remain within the UK jurisdiction and so fall under the Human Rights Act.
Policy Exchange said: ‘Recent legislation and judicial findings have extended the domestic common law claims of negligence and civil claims of duty of care to the combat zone. These constraints have led to confusion among commanders undermining their interaction with allies and affecting the combat capability of the services. ‘
In the long-run, the report said the rise of ‘legal creep’ could pose a ‘mortal threat to the culture and ethos of the military which cannot be easily reversed’.
The report recommends the government introduces legislation to define combat immunity to allow military personnel to take decisions without having to worry about the risk of prosecution.
It also wants parliament to legislate to exempt the MoD from the Corporate Manslaughter and Corporate Homicide Act 2007.
Philippa Tuckman, who leads the military team at London firm Bolt Burden Kemp, said in an online response the report was ‘wholly misconceived’ and designed to strike ‘unnecessary fear’ into commanders in the field.
‘It is irresponsible to make them afraid in this way,’ she said. ‘The report’s authors must know that the ECHR does not allow individuals to be sued: it is aimed at the state – at the body which would benefit from Policy Exchange’s proposals, the MoD.
‘This report is an attack on the rights of our armed forces, and changes in the law should be resisted.’