Human rights 'undermining military'
Published 18/10/2013 | 06:06
British military operations risk being undermined by human rights laws and health and safety red tape applying to troops in the field, experts have warned.
A report by the Policy Exchange think tank claimed that Britain's enemies could view the courtroom as a new front in any future conflict as a way of "paralysing" the armed forces.
Defence Secretary Philip Hammond admitted he was "concerned" about recent court judgments which could make it "more difficult" to carry out operations.
One of the cases that raised concerns was the Supreme Court ruling earlier this year that damages claims could be launched by a group of families of soldiers killed in Iraq against the Ministry of Defence (MoD) under legislation covering negligence and human rights.
Lawyers representing relatives said the landmark ruling meant that the MoD owed a duty of care to properly equip servicemen and women who went to war.
Tom Tugendhat, one of the authors of the Policy Exchange report and a former military assistant to the chief of the defence staff, said: "Over the past decade, legal steps based on the European Convention on Human Rights (ECHR) have undone safeguards Parliament drew up to ensure military commanders have the freedom of manoeuvre to make vital decisions on the ground.
"The armed forces neither are, nor should be, above or exempt from the law. But, imposing civilian norms on the military is deeply misplaced
"The focus on rights misunderstands the nature of armed forces. 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."
Laura Croft, a retired US Army lieutenant colonel and military lawyer, who co-wrote the report, said: "These judicial incursions into military terrain are not just changing military ethos and longstanding legal principles.
"They are placing impossible burdens on the bureaucracy of military operations. By setting precedents which can barely be satisfied in today's limited conflicts the courts risk paralysing themselves and the military in a war of national survival particularly when to these are added the demands of coroners' inquests, health and safety legislation and the rights guaranteed under the ECHR.
"The paperwork alone would simply overwhelm the MoD even if the findings of the eventual inquiries ascribed no blame."
The report said the MoD faced 5,827 claims in 2012/14 and lawyers cost the cash-strapped ministry £36 million a year.
It claimed: "It may not be long before either a foreign power or sub-state forces might begin to sponsor legal actions as a way of paralysing the armed forces through legal process."
Mr Hammond welcomed the report and said: "I remain concerned about the challenge to combat immunity arising from recent court judgments.
"These could make it more difficult for our troops to carry out operations in the future, and they potentially throw open a wide range of military decisions to the uncertainty of litigation.
"It cannot be right that troops on operations have to put the European Convention on Human Rights ahead of what is operationally vital to protect our national security."
But Martyn Day from law firm Leigh Day, which has fought many high profile cases against the MoD, said: "This is an entirely biased report which seems to have been written with the full co-operation of the MoD.
"We were not consulted and neither were our clients. Had we been, we believe this report would have been far more accurate.
"The report states that the customs and practices of Britain's armed forces are now under threat from the law. We would argue that it is the breaking of these laws which is 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.
"We find it very disconcerting that the Government of law and order seem so intent on desecrating the legal system, ignoring the safeguards the law provides for all individuals and continues to act unlawfully through its many departments including the MoD.
"Greater adherence to the laws, both domestic and international, are the only way in which the MoD's litigation will decrease."
Asked if Prime Minister David Cameron was concerned about the impact of legal claims against the MoD, a Downing Street spokesman said: "Yes, he agrees with what Philip Hammond has said when he welcomed the contribution of the Policy Exchange report.
"Philip Hammond has highlighted some concerns about the challenge to combat immunity arising from various court judgments and he agrees with what Philip Hammond has said.
"His concern is that troops on operations have to put the European Convention on Human Rights ahead of what is operationally vital to protect out national security."