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Supreme court MoD ruling 'will have huge impact on military operations'

Guardian 19 Jun 2013 said:
The supreme court ruling that the Ministry of Defence can be sued for negligence, that the scope of the Human Rights Act should be extended and the traditional doctrine of combat immunity should be interpreted narrowly, will have a huge impact on military commanders, senior officials made clear on Wednesday.

Anxiety about the effect on discipline, morale, training, and the conduct of future operations, was reflected in a sharp statement issued by the defence secretary, Philip Hammond.

"I am very concerned at the wider implications of this judgment, which could ultimately make it more difficult for our troops to carry out operations and potentially throws open a wide range of military decisions to the uncertainty of litigation," he said.

Battlefield commanders have already expressed concern about what they considered an unacceptable encroachment of human rights laws in operations against insurgents in Iraq and Afghanistan, which have led to a stream of court cases, both criminal and civil...

I have such mixed feelings about this 6-3 majority Supreme Court ruling stipulating the application of the Human Rights Act to members of the Armed Forces on operations. While I understand that its provisions are not intended in 'the heat of battle' or for 'high level decisions', I am still left in some confusion.

I am all for holding the Government's feet to the fire regarding the provision of proper equipment for our own forces but will the HRA apply to our enemies too; how inclusive is it? For example, will we be required to provide them with proper protection before opening fire on them or will the HRA only apply to "our humans" which would be unfairly discriminatory? Perhaps enemy forces will have to be categorised as "inhumans" for legal purposes, thereby not qualifying for the human rights accorded our own personnel. Otherwise, we would have to warn them about any imminent danger before opening fire on them, wouldn't we?

Will we have to send out advance parties to clearly mark any trip hazards before an attack, thus reducing the risk of personal injury? Should uneven terrain be properly illuminated during night operations?

Or, indeed, is the day of the human combatant over? After all, robot systems should be able to fulfil most roles thus reducing the risk to personnel. It's just a question off waiting until they are invented/acquired. The ruling implies that any delay in their provision is not a justifiable reason to act without them so where lies the future for our armed forces?


War Hero
This whole case comes about because of the decision to send lightly armoured Snatch L/rovers to do a job which cried out for something more substantial. If the MOD had put their hand up and admitted that it was a mistake and paid compensation to the families of the soldiers who died and not dragged them through the courts to get redress this situation could have been avoided.
Senior civil servants and local government CEOs(to name a few) can walk away and get huge pay outs for cocking up but the government suddenly becomes very tight-fisted when it comes to coughing up for people at the other end of the food chain.
I thought the Snatch Land Rovers were used initially because they were deemed the only available vehicles mobile enough to negotiate built up areas and confined spaces while offering a modicum of protection. The alternative was patrolling on foot. Whose job is it to decide such tactical decisions are wrong at the time? The courts back in the UK?
It's often argued that the UK consistently “punches above its weight” on warlike operations. That's predominantly a result of the Forces taking calculated risks, doing the best they can with the kit they have. Regrettably, in that process, some poor buggers get slotted or maimed. So as well as worrying about budget constraints, Rules of Engagement, International Law and how to win with the lowest possible butcher's bill, there is now the additional worry of violating the Human Rights of the fighting asset.

As I see this inane ruling, the the initial finger pointing will be at the Unit/Field/Theatre commander. With luck (and I mean luck), the the finger might be diverted further up the food chain. I would bet a Pound to a pile of s**t, though, that the finger will never get as far as MoD Centre and those blood sucking parasites in the Treasury. It will be a foregone conclusion that the finger will never point as far as the Cabinet and the PM.

The loss or maiming of any individual is a human tragedy and bereft parents, wives and children are, naturally, emotionally devastated. They will now be rich pickings for the myriad ambulance chasing briefs only too happy to line their own pockets or handbags. All the glib assurances radiating from the mad house today will still need shed loads of money arguing “no fault” and the inevitable endless bloody appeals, no doubt to the ultimate Supreme Court in Europe.

In short, at long last, we are militarily buggered.

MG Maniac

War Hero
Whatever happened to vicarious liability???? ... if said Unit Commander having said finger pointed can prove that he(she) was following the rules of engagement/standing orders/etc to the letter then surely them upstairs have got to take the liability for the fall out.
You'd think so, wouldn't you. If it's not having the right kit or insufficient quantity, though, it could get very complicated.

Operational planning includes deciding what assets, in what quantity are needed for the task. All very well in the ideal world but it's usually planning around what assets are actually available. That is an invitation for two eventualities;

a. the task's binned to the detriment of the overall objective/campaign.

b. the task is undertaken at the risk of losing life and limb of those actually undertaking it.

Unless the risk is clearly suicidal, option b has tended to be the British tradition. For how long now, though? I can't see the blame ascending very far up the food chain. The blunties who didn't provide the right kit will probably be well insulated from the blame trail. I can say that from some experience. Many years ago, I had a frank and open exchange of oppinions with a certain Portsmouth DD's XO. They'd lost a number of Liferafts in some inclement WX and were SPC 1 demanding replacements. Liferafts are serviced and packed to a very planned and tight programme and there was (probably still is) rarely packed units ready sitting on a pallet. As it happened, the last of that week's repair and packing centre's (Portsmouth, the one and only) production was already on the Trunker magic roundabout wagon to Devonport for a certain FF's post Upkeep sea trials. He wasn't happy that the lads in the Old Pipe Shop couldn't magic up some serviceable rafts within 24 hours and I wasn't going to authorise the Trunker being intercepted for the needed Rafts to be liberated for his use. In measured tones, he warned me that if there was an incident and lives were lost for lack of Rafts, I would be held responsible. My reply was that I would be directly responsible for his CAT A OPDEF but it would be the Ship's responsiblity if tasking continued with a known material deficiency. I can hear the sharp intakes of breath now, but that's one of the unpleasant realities of the Support Chain. I'm sure the point I'm making won't be lost.
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Welcome. The blanket of insane levels of political correctness that has been seeping into every other institution / organisation in this country for the past 20 years has finally embedded it's sweaty arse into the core of the Armed Forces. The decision made to extend such legislation into theatres of combat was most likely made by a group of nodules who have never set foot outside our green land for anything more than a month in the Seychelles.

Of course, don't think about raising a questioning voice for fear of being accused of any number of 'extremist' views.

Situation UK - utterly and totally fcuked.


War Hero
Stand by for the next onslaught of ambulance chasing blood sucking solicitors, they could make a fortune dragging very difficult claims through the courts, what’s the chance of service families getting legal aid?


Lantern Swinger
Alternatively, I can imagine scenarios where forces are sent to do a job but due to penny-pinching, not given the assets that they reasonably require, even though those assets may exist.

I'm not sure this latest decision is entirely a bad thing.
It seems that Dr David Betz, Senior Lecturer in War Studies at King's College London, has reached the same conclusion as I have about the enforced use of robot systems in future for the practise of HRA-cognisant, risk-free warfare by UK armed forces:

...Henceforth, one presumes, it is this sort of war which will meet the accepted level of health and safety provision:

What it Looks Like When a Predator Drone Vaporizes People - YouTube


In reality we (UK) have punched above our weight for many years. We do not have the capacity to fight in every conflict that comes along. Less ships, less aircraft and less boots on the ground, but the services are still expected to put their lives on the line with inferior equipment and a supply chain that is a total waste of space. (I don't care if you can see it on the shelf, the computer says we haven't got any!) I've been in that food chain and I tried to change some of the practices, but when you have idiots getting promoted to get them off the section, they only cause more trouble the further up the ladder they go.
(I don't care if you can see it on the shelf, the computer says we haven't got any!)

Yes, that happens; and if the Storeman could be arsed to be arsed, he'd probably see that it was either;

a. quarantined; unfit for issue

b. delayed Due Out for an SPC higher than yours

c. TLS, low stock reserve for the V Boats

A little knowledge is a confusing thing.


War Hero
There are always at least two viewpoints.

Whilst I can appreciate that warfare itself does not lend itself particularly well when scrutinised by our litigation compelled population, we should not give senior politicians, civil servants and service commanders immunity from responsibility for making stupid mistakes. They are given a handsome wage to shoulder that responsibility and if they object to being held accountable, they need only step aside as there are no shortages of able and willing individuals equally capable.

Let`s not lose sight of the fact it does not include heat of battle decisions.

If you or I failed to do our job properly in peace or in the heat of battle, we would be charged, make no mistake.

During the heat of battle, my Commanding Officer ordered Check Fire on an incoming air attack. The upper deck crews could be heard clearly on the Command Loop reporting, "They`re Argies, they`re Argies!", The pipe went out; "I repeat: Check, check...." Interrupted by the explosion and death of two crew.;

Questions are; Who is to say they may not have made the same call under the same circumstances? What if they were Harriers and we shot them down? Should he have been awarded the DSO or should he have been sued?
Ninja_Stoker. You make a very good point and a very graphic and apt example. There are certain similarities there to the Blue on Blue Challenger 2 engagement that the Noble Lords latched on to as a case not immune from MoD Duty of Care (inadequate IFF protection and tank recognition training}.

Let`s not lose sight of the fact it does not include heat of battle decisions.
, is also what we've been assured. However, in the same way politicians usually introduce "mission creep" into modern armed conflicts, human rights legal eagles and Courts are equally capable/inclined. Leaving aside the probability of the poor sods at the sharp end having to cover their backs, the MoD will be in a difficult position. If a piece of kit exists and is available (at whatever cost) that may have avoided loss of life, the MoD will likely be hammered for not having enough of it in the place where it's wanted. I can't think of any operation where we've had sufficient amounts of the kit needed in the right place. Who decides what's "sufficient" or even suitable? Some shiny bum in the comfort of Chambers or a Court (who's probably a pacifist at heart anyway)? Unless we acquire a Defence Budget the size of the Welfare one, I doubt if it's even possible.

As I see it, the MoD will be continually fighting negligence claims and the easy targets to shoulder the blame will be the SO3/SO2/SO1s and not much higher who are trying to do the job, juggling what they actually have. The alternative would be a massive down scaling of operations (possibly even exercises) to the point where nothing is undertaken unless it's directly related to the direct defence of the Country. We also need to be conscious that the Treasury and career politician have no interest in matters Military and will be of the mind, if-you're-not-using-it-you-will-be-losing-it.

I think we are looking at the thin end of a bloody big wedge.


War Hero
I think we are looking at the thin end of a bloody big wedge.
Agreed and perhaps I'm viewing it in an overly positive light.

My thoughts are that those who take the manager's wage are corporately held to account, much the same as those in the private sector.

During the First World War, politicians & generals simply got away with murdering their own troops through crass incompetence in many respects - Victims of 'shell shock', for example, were executed for not doing their job. No tactician was ever held to account at the time or since.


Lantern Swinger
The main reason for having laws is for settling disputes, and doing so in such a manner that it can be seen to be fair to all. Without ways of seeking legal redress for harm caused, everybody would act according to their own laws.

Everything, when we get down to it, is about money, with each person or organisation seeking to increase their own wealth at the expense of others. And most redress is accomplished by an exchange of money, by way of compensation.

I can see no reason why those in the armed services should be denied the right of redress. Or why the MOD should be exempt from liability for redress.

Any specific case either has merit, or it does not. And courts are the places to decide that, not the House of Commons.
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Any specific case either has merit, or it does not. And courts are the places to decide that, not the House of Commons.
I think you sum up the civil and many Service families' view of this very well.

It reminds me of those 3 overlapping circles they used to (maybe still do) hang inside leadership training courses: that eternal ballance of task need, team need and individual need. We will now probably have an individual need circle the size of a planet and a task need circle the size of a circus tent.

Do we really believe that the blame chain is going to reach as far as CoS, the Treasury, Ministers, the Cabinet or the PM?
It seems to be an excellent time to be in the human rights law business and bad time to be in any command/executive position in the killing foreigners and breaking their stuff for our national good business.
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