Military Negligence: Reforming Tort Liability after Smith v. Ministry of Defence, Slides of Human Rights

Download Military Negligence: Reforming Tort Liability after Smith v. Ministry of Defence and more Slides Human Rights in PDF only on Docsity! Military Negligence: Reforming Tort Liability after Smith v. Ministry of Defence Paper presented to the House of Commons Defence Select Committee by Dr. Jonathan Morgan, Corpus Christi College, University of Cambridge [November 2013] Executive Summary The Supreme Court’s decision in Smith v. Ministry of Defence (failing to strike out negligence and human rights claims over combat injuries) is deplorable. It will have damaging consequences for military effectiveness. It also leads the judiciary beyond the limits of their proper constitutional role. Accordingly Smith should be reformed. Although the legal basis for the Smith decision is fairly weak, it would be naive to expect any radical change of approach from the courts in the near future. Therefore legislation will be necessary to restate the proper limits of tort liability for military negligence. A power exists under s.2 of the Crown Proceedings (Amendment) Act 1987 which can largely achieve this goal. But a consideration of the desirable functions of tort liability shows that simply introducing an immunity would be undesirable (to say nothing of its political acceptability). It is therefore argued that a new Government commitment to compensating combat injuries fully, on a no-fault basis, be coupled with the revival of Crown immunity using the 1987 Act. About the Author Dr. Jonathan Morgan is Fellow, Tutor and Director of Studies in Law at Corpus Christi College and University Lecturer in Tort Law, University of Cambridge. He is active as a teacher and researcher in the fields of tort and public law. He is one of the editors of Hepple and Matthews’ Cases and Materials on Tort. Publications in the specific field of public authority liability include “Policy reasoning in tort law: The courts, the Law Commission and the critics” (2009) 125 Law Quarterly Review 215, and a case-note on the Court of Appeal’s decision in Smith v. Ministry of Defence, “Negligence: Into Battle” [2013] Cambridge Law Journal 14. Articles on human rights law include “Amateur Operatics: The Realization of Parliamentary Protection of Civil Liberties” in Campbell, Ewing and Tomkins (eds), The Legal Protection of Human Rights: Sceptical Essays (Oxford 2011). The Structure of this Paper At the heart of the paper is a consideration of the Supreme Court’s decision in Smith v. MoD and how that approach should be reformed. But the paper opens with two sections that lay the ground by considering the purpose and social function of tort claims more generally, and the basic forms of liability (fault-based, strict, and immunity from liability) available to satisfy those purposes. The third section critically analyses Smith v. MoD. The legal basis of the decision (both common law and European Convention on Human Rights) is explored and found to be questionable. More importantly, the likely damaging effects of the decision are outlined—the threat of litigation’s impact on military effectiveness, and the constitutional danger of courts intruding into non-justiciable political territory. The fourth section explores how to reform Smith. The damaging effect of the decision can best be avoided by a combination of exclusion of negligence claims (a statutory power that the Secretary of State already possesses) and, in place of negligence, a commitment to pay full compensation on a no-fault basis. It is suggested that a direct commitment to this effect by the Government, rather than a radical reformulation of the Armed Forces Compensation Scheme, is the best way to achieve this. A brief recapitulation of these conclusions and recommendations concludes the paper. (In an appendix the author’s 2013 case-note on the Court of Appeal decision in Smith v. MoD follows.) I. The Purpose of Tort Claims While an action in negligence is a claim to be compensated for an injury, tort claims can play other social functions too, such as deterring culpable behaviour and holding to account governmental or other powerful institutional defendants. These are explored below as the basis for later discussion of claims for injuries sustained during military operations. Compensation In a common law negligence claim “damage is the gist of the action”, so that the action will lie only if somebody has actually been injured by the negligence of another. This may be contrasted with tort claims for (e.g.) battery or false imprisonment, or claims under ss. 6-8 of the Human Rights Act 1998, where all that need be shown is invasion of the necessary right. These torts are “actionable per se”—and nominal damages (or a declaratory judgment) may be granted to vindicate the right in question where such an invasion is shown. But where actual losses are proved these may also be recovered in such a “vindicatory” claim. Tort compensation aims to put the claimant back where he or she would have been had it not been for the tort—restitutio in integrum. This takes full account of the personal situation of the claimant, for example his or her particularised “loss of the amenities of life”, medical needs and earnings forgone, in a catastrophic injury case. Deterrence The prospect of being sued in tort may clearly act as an incentive to avoid the negligent behaviour that gives rise to the liability. However, it seems that tort liability is but an imperfect way of deterring negligence in practice. On one hand, the deterrent edge of tort liability is blunted by the widespread presence of insuring against such liabilities (through “liability” or “third party” insurance—which is often a legal requirement as for e.g. motorists or employers). The criminal law avoids this drawback since it is (obviously) against public policy to insure oneself against the risk of being fined or imprisoned after criminal conviction. Moreover, criminal penalties are tailored to the degree of culpability of the defendant, whereas damages for negligence are calculated according to the severity of the claimant’s injuries rather than the gravity of the defendant’s fault. (And a highly negligent defendant who, through luck rather than judgment, injures nobody will escape tort liability altogether.) Conversely, it is possible that tort liability may sometimes over-deter. Instead of inducing an activity to be carried on carefully the spectre of liability may cause that activity to cease. Such “overkill” is obviously a matter of concern where the activity forgone is something that benefits Immunity As noted, the armed forces were immune from liability until the historical privilege of the Crown in this respect was removed by Parliament’s 1987 amendment of the Crown Proceedings Act 1947. Furthermore, it was accepted by all the judges in Smith v. MoD that there remains today a common law principle of “combat immunity”.9 Its precise ambit was, however (and remains) controversial. It is obvious that any immunity from tort liability, whether general or specific, obstructs all of the social functions identified above. Those injured cannot claim compensation, and any deterrence or accountability effects of liability are lost. Two further points should be noted. First, that such immunity may nonetheless be justified, where the effects of liability for society as a whole would be so serious that removing an injured individual’s claim is the lesser evil. But we must be clear that individual hardship is being inflicted for the wider public good.10 Secondly, that the removal of tort liability’s valuable social effects concentrates attention on the other means by which the same social functions can be performed. In the present context, the AFCS provides an alternative route to compensation for deaths and injuries in military service.11 Accountability for (and so the deterrence of) military errors is expressed through Parliament generally and the Defence Committee specifically; through coroner’s inquests into deaths and through other (ad hoc) public inquiries; through the investigation of complaints made to the Service Complaints Commissioner for the Armed Forces; and even (potentially) through courts-martial. Also, in the ordinary courts, immunity from tort actions would not exclude judicial review of MoD decisions, including review under the Human Rights Act 1998. Liability for Fault This is the general law of negligence, given considerable impetus for service personnel’s claims by Smith v. MoD. But despite their preliminary victory in the Supreme Court in Smith, the various claimants still face the considerable hurdle of showing that there was a negligent breach of duty on the facts of the cases. By definition, this kind of liability provides compensation only for victims whose injuries are the result of demonstrable fault. But while the fault principle limits the number of victims who can claim compensation, it can be considered to have a salutary effect on the conduct of defendants. Sanctioning negligence holds defendants to account by investigating whether they have been at fault. Obliging the payment of compensation when they have been seems likely to deter negligent behaviour, on some level.12 Strict Liability Payment of compensation without fault is the salient feature for present purposes of the AFCS. The obvious advantage of such strict liability for victims of injury is that compensation does not depend on their proving fault; so more victims will receive payments. But where the level of payments is lower than at common law there will still be an incentive to bring negligence claims, hoping to prove fault to obtain higher (“full”) compensation. Distributive concerns are 9 NB [2013] UKSC 41, [89] per Lord Hope (the doctrine’s existence is “not in doubt”) (judgment of majority). 10 Cf. Van Colle v. Chief Constable of the Hertfordshire Police [2008] UKHL 50, [75] per Lord Hope of Craighead; [139] per Lord Brown. 11 The argument that providing no-fault compensation also has a valuable deterrent effect is developed below. 12 Cf. discussion of Deterrence above, and of the specific effects of Smith v. MoD, below. raised by the generosity of compensation: is full compensation on a no-fault basis affordable? Why, in justice, should it be available for only one set of employees? It might seem that strict liability cannot deter mistakes nor hold bodies accountable for them, since fault is not investigated (indeed for the defendant to prove the absence of fault is no defence). Such an assumption would, however, be erroneous. Strict liability provides an inherent incentive to take all reasonable (i.e. cost-justified) precautions, through the logic of cost-internalisation. Where risky activities cause injuries to others, making the activity bear (“internalise”) the cost of the injuries provides a financial incentive to reduce their occurrence and severity, on the person or body carrying such activities out. The actor will realise that investing to reduce injuries to others is justified by rational self-interest under such a regime, until the point is reached when the cost of taking additional precautions outweighs the financial savings from the reduction in the injuries for which they are liable. In other words, making an activity internalise the cost of injuries to others means that it also internalises the benefits of accident prevention. Any alternative approach “externalises” costs from the risk-generating activity onto the injured parties, subsidising the activity at their expense. This is clearly the position with tort immunities but also, in part, with negligence liability. In adjudicating on fault, the courts are in practice limited to deciding whether a particular activity was carried out negligently (e.g. negligent driving). They do not adjudicate on whether carrying out the activity in the first place was “negligent”, even though it creates a risk of injuries (driving in general, or taking the particular journey which caused the accident). The result is that the level of the activity (and thus the number of injuries it causes) is higher under a negligence regime than under strict liability. So, arguably, strict liability offers a superior form of deterrence (and avoids difficult questions about “fault”). Also, with public authority defendants whose expenditure tends to receive very close scrutiny (e.g. of the Ministry of Defence by the House of Commons Defence Committee), strict liability heightens the financial effects of injuries for which the defendant must pay. This makes injury prevention a more important aspect of overall financial accountability. III. Smith v. Ministry of Defence The Supreme Court Decision in Smith A number of claims were heard together in Smith, one group relating to the use of allegedly inadequate Snatch Land Rovers and the other group arising from a “friendly fire” incident on (and by) a British Challenger tank. Some of the claims relied on common law negligence, other claims relied on the right to life under Article 2 of the European Convention on Human Rights (ECHR) as incorporated into English law by the Human Rights Act 1998 (HRA), and some relied on both negligence and Article 2. The Ministry of Defence (as defendant) had applied to have the claims struck out as disclosing no cause of action, or for summary judgment in its favour on the basis that the claims were bound to fail. The approach of Lord Hope’s majority Supreme Court judgment to these various issues was broadly similar. The various claims were allowed to proceed to trial (and the Ministry of Defence’s applications refused). Lord Mance (with the agreement of Lord Hughes) and Lord Carnwath delivered separate dissenting judgments. Departing from an earlier decision,13 the Supreme Court unanimously held that the ECHR applied in principle to the military operation of British armed forces outside the UK. On the substance of Article 2 ECHR, the majority stated that they accepted that battlefield decision- making and military procurement were “a field of human activity which the law should enter into with great caution”,14 and that the existence of “issues relating to the conduct of armed hostilities [which] are non-justiciable is not really in doubt”.15 But on the other hand: a finding that in all circumstances deaths or injuries in combat that result from the conduct of operations by the armed forces are outside the scope of Article 2 would not be sustainable. It would amount, in effect, to a derogation from the state’s substantive obligations under that article. Such a fundamental departure from the broad reach of the Convention should not be undertaken without clear guidance from Strasbourg [i.e. the European Court of Human Rights].16 No such clear guidance existed. Thus, upon striking the balance between individual rights (i.e. the claimants’ right to life) and the public interest (that the courts should not adjudicate on non-justiciable issues), “No hard and fast rules can be laid down. It will require the exercise of judgment. This can only be done in the light of the facts of each case.”17 It followed that the claims must proceed to trial and the issue of whether the MoD had breached the claimants’ Article 2 rights decided only after hearing all of the evidence.18 As for common law negligence, while accepting that there is a defence of “combat immunity”,19 the Court similarly held in the Snatch Land Rover cases that its applicability could not be determined on the bare statement of alleged facts in the pleaded claims. Since “the details that are needed to place the claims in context will only emerge if evidence is permitted to be led in support of them”, the Snatch Land Rover claims had to proceed to trial before the combat immunity issue could be decided.20 The Court again warned that while the “risk … of judicialising warfare” through negligence claims must “of course” be avoided, the facts of cases arising out of active military operations were very various and could not be “grouped under a single umbrella” as if that risk were equally serious in every case.21 Therefore, in deciding whether a duty of care was owed in the first place (would liability be “fair, just and reasonable”?), as a separate question from combat immunity, the facts again had to be investigated first. Thus the court could weigh each claim in context against the consideration (of “paramount importance”) that 13 R (Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1. 14 [2013] UKSC 41, [64]-[66]. 15 Ibid, [58]. 16 Ibid. 17 Ibid, [76]. 18 Ibid, [78]-[80]. 19 [2013] UKSC 41, [89] per Lord Hope (the doctrine’s existence is “not in doubt”) 20 Ibid, [96]. 21 Ibid, [98]. Legal Basis of Smith: ECHR As noted above, there is no positive authority from the European Court of Human Rights (the Strasbourg Court) on the application of Article 2 in a situation such as Smith. As seen, the majority treated this as a reason for caution, and refused to strike out the ECHR claims. Article 2 could only be held inapplicable tout court to soldiers killed during active operations if there were clear Strasbourg authority to that effect. There was not. Other judges have taken different views. Dissenting in Smith, Lord Mance was not willing to hold that Article 2 went any further than the law of negligence (inapplicable in his view, on the grounds of combat immunity and the non-justiciability of military decision-making).39 The dearth of authority left the path open to reach the same conclusion on the ECHR: “In my opinion it is not possible to conclude that the Strasbourg court would hold that such matters are justiciable under the [European] Convention, any more than they are at common law.”40 Lord Mance expressed scepticism about the European Court of Human Rights’ having evolved what amounts to an “independent substantive law of tort, overlapping with domestic tort law, but limited to cases involving death or the risk of death” in the first place.41 He concluded: The prospect of the Strasbourg court reviewing the conduct of combat operations [by making the state liable for the death in combat of one soldier due to alleged negligence of his commander or of another soldier] seems to me sufficiently striking, for it to be impossible to give this question a positive answer. If the European Court considers that the Convention requires it to undertake the retrospective review of armed conflicts to adjudicate upon the relations between a state and its own soldiers, without recognising any principle similar to combat immunity, then it seems to me that a domestic court should await clear guidance from Strasbourg to that effect.42 Lord Carnwath pointed out that sending the cases in Smith to trial would not resolve the difficulty: “if the problem is a lack of directly relevant guidance from Strasbourg, it is hard to see how, simply by hearing further evidence or finding further facts, [the trial judge] will be better able to fill that gap, still less to do so ‘with complete confidence’.”43 Lord Mance also emphasised the continuing relevance of Lord Brown of Eaton-under- Heywood’s “evident scepticism” when, in an earlier case, Lord Brown had rhetorically asked: Is it really to be suggested that … Strasbourg will scrutinise a contracting state’s planning, control and execution of military operations to decide whether the state’s own forces have been subjected to excessive risk (risk, that is, which is disproportionate to the objective sought)? May Strasbourg say that a different strategy or tactic should have been adopted—perhaps the use of airpower or longer-range weaponry to minimise the risk to ground troops notwithstanding that this might lead to higher civilian casualties?44 39 [2013] UKSC 41, [151]. 40 [2013] UKSC 41, [143]. 41 [2013] UKSC 41, [142]. 42 Ibid. 43 [2013] UKSC 41, [156]. 44 R (Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1, [146], cited in Smith v. MoD [2013] UKSC 41, [130]. Lord Mance noted another point. If domestic UK courts were to construe the ECHR narrowly against an individual claimant’s right, he or she would still be able to go to the Strasbourg Court to argue for a wider construction of the Convention rights. But if domestic courts construe the Convention generously against their state, it has no mechanism for “appealing” beyond the UK Supreme Court against the (arguably over-wide) construction of the rights. Lord Mance said he was “not over-enamoured” of this “one-way street” argument.45 But it is still a very proper reason cautioning against over-expansive readings of the Convention by domestic courts, ahead of anything that the Strasbourg Court has recognised. Connexion between Negligence and Human Rights Reasoning Orthodoxy prior to Smith was established by the House of Lords’ decision in Van Colle. The fact that there might be infringement of a Convention right does not of itself give rise to any claim in negligence at common law.46 The claims may run in parallel channels (NB Lord Mance’s comments above about Article 2 jurisprudence having generated an independent law of quasi- tort). But they do not mix. There have been suggestions that HRA adjudication has had a more pervasive influence on tort liability, in particular whether courts should decline to adjudicate altogether on non-justiciable issues. In a case decided the year before the House of Lords’ decision in Van Colle, Lady Justice Arden suggested that the preliminary question of whether a given matter was justiciable at all had “assumed less importance” in tort cases because of the HRA: “following the 1998 Act courts have now to consider questions of social policy with which they were not previously concerned. From this, in my judgment, it is possible to conclude that courts will hold that fewer matters are now non-justiciable [in negligence] on the grounds that they involve policy issues.”47 It seems that notwithstanding Van Colle,48 such reasoning may have influenced the majority decision in Smith. Both Lord Mance and Lord Carnwath specifically complained in their dissenting judgments that Lord Hope and the majority had given priority to the ECHR claims (followed, as discussed above, by a relatively brief treatment of common law negligence). Lord Carnwath stated that negligence ought to have been considered first, since “our primary responsibility should be for the coherent and principled development of the common law, which is within our own control”, whereas “We cannot determine the limits of Article 2”.49 His Lordship suggested that the focus of counsel’s submissions on the ECHR jurisdictional question had “distorted” “the balance of the relevant issues” (with the unspoken implication that the majority judgment was similarly unbalanced).50 So Lords Mance and Carnwath, having held (after lengthy discussion) that there was no duty of care in common law negligence, used this conclusion as the basis for dismissing an alternative claim under Article 2. Conversely, in the majority judgment, the decision that Article 2 liability could not be ruled out seemed to drive the conclusion that a negligence claim could not be denied either, by declaring there to be no duty of care. 45 [2013] UKSC 41, [142]. 46 Van Colle v. Chief Constable of Hertfordshire Police [2008] UKHL 50: contrast the judgment of the Court of Appeal in the same case, sub nom. Smith v. Chief Constable of Sussex [2008] EWCA Civ 39. 47 Jain v. Trent Strategic Health Authority [2008] Q.B. 246, [62]. 48 NB criticisms above of the side-lining of the whole line of police case-law. 49 [2013] UKSC 41, [156]. 50 [2013] UKSC 41, [155]. Consequences of Smith: Practical and Constitutional All the judgments in Smith recognise the potentially damaging practical consequences of extending legal liability too far. But the dissenting judges allege with good reason that having identified this trap, Lord Hope and the majority blundered into it regardless. As Lord Hope himself says: A court should be very slow indeed to question operational decisions made on the ground by commanders, whatever their rank or level of seniority.51 The allocation of resources to the armed services and as between the different branches of the services, is also a question which is more appropriate for political resolution than it is by a court. Much of the equipment in use by the armed forces today is the product of advanced technology, is extremely sophisticated and comes at a very high price. Procurement depends ultimately on the allocation of resources. This may in turn be influenced as much by political judgment as by the judgment of senior commanders in Whitehall as to what they need for the operations they are asked to carry out. It does not follow from the fact that decisions about procurement are taken remote from the battlefield that they will always be appropriate for review by the courts.52 Therefore: subjecting the operations of the military while on active service to the close scrutiny that may be practicable and appropriate in the interests of safety in the barrack block or in the training area is an entirely different matter. It risks undermining the ability of a state to defend itself, or its interests, at home or abroad. The world is a dangerous place, and states cannot disable themselves from meeting its challenges. Ultimately democracy itself may be at risk.53 it is of paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong.54 All of this is a welcome recognition of the dangers of over-judicialisation. But while the rhetoric sounds well, does the actual decision in Smith live up to the strictures? It does not. As Lord Mance stated, “I do not consider that the majority approach reflects or meets this imperative” (i.e. the last statement quoted above).55 As seen above, the majority decision largely refused to decide whether Article 2 was engaged, or whether there was a duty of care at common law (either whether it would be “fair just and reasonable” or ruled out by “combat immunity”). All of these were, it held, questions that required the case to go to trial and for all the evidence to be heard before they could be resolved. The single exception to this studied indecision was the ruling that combat immunity 51 [2013] UKSC 41, [64]. 52 [2013] UKSC 41, [65]. 53 [2013] UKSC 41, [66]. 54 [2013] UKSC 41, [100]. 55 [2013] UKSC 41, [147]. Is Legislation Necessary? Of course the Supreme Court’s decision in Smith is not the final word on this question—not even in the Snatch Land Rover and Challenger cases themselves, where the questions of duty of care and breach of duty in negligence, and breach of Article 2 ECHR, await determination at trial. Naturally the MoD remains free to argue strenuously against liability on the facts of these and future cases (by denial of duty and breach, invocation of “combat immunity”, and arguing for a narrow application of Article 2). But given the tenor of the majority decision in Smith, it is most unlikely that any trial judge (or the Court of Appeal) will lay down any general principles limiting liability under either heading. Indeed, it is most unlikely that the Supreme Court will revisit the question any time soon when it has decided the matter (to its own satisfaction at least) by a seven-judge panel, albeit by a bare majority. As noted above, the MoD will not be able to challenge what seems to be a remarkably broad interpretation of Article 2 before the European Court of Human Rights. Thus, irrespective of whether particular cases succeed on the facts, they will surely continue to be brought and thus the prospect of the military “having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong” remains.69 It seems highly unlikely therefore, in the absence of an unprecedented volte face by the Supreme Court, that the mischief of Smith will be removed by judicial action (even with a concerted strategy of contesting liability by the MoD). If liability in negligence is to be denied, a legislative solution is needed. In fact a ready-made procedure exists in s.2 of the Crown Proceedings (Amendment) Act 1987 for the revival, by ministerial order, of Crown immunity in cases involving the armed forces. This will be considered below. While such legislation could be attacked on the grounds of constitutional principle (as a breach of the Rule of Law), such criticisms would be weak. Every time the police exercise their powers of arrest and detention they are being immunised by legislation (or by their remaining common law powers) from what would otherwise be liability in the torts of battery and false imprisonment. So legislative immunity for public authorities from what would otherwise be common law torts is widespread and uncontroversial. It may be worth noting one argument that positively favours legislation. It is sometimes suggested that judges should concern themselves only with (rights-based) “principle” and eschew (consequentialist) “policy” in tort adjudication, because they are not well equipped to consider the latter. Although a minority position, it has occasionally attracted judicial support,70 and rather more often that of academic purists.71 If this argument is correct it fortifies the conclusion above that tort claims arising out of military action will not (indeed cannot, properly) be limited by judicial denial on the grounds of damaging constitutional and operational consequences. The proper way to place limits on the claims and rights that service personnel would otherwise have at common law is through legislation. The legislative removal of Article 2 claims poses more formidable challenges. States have the power to derogate from the ECHR but only “In time of war or other public emergency threatening the life of the nation” and then only “to the extent strictly required by the exigencies of the situation” (Article 15(1), ECHR). It is obvious that such a derogation could 69 [2013] UKSC 41, [100]. 70 E.g. Lord Scarman in McLoughlin v O’Brian [1983] 1 AC 410. 71 E.g. R Stevens, Torts and Rights (Oxford 2007) ch 14. not properly be made in terms wide enough to deal with the general problem of claims against the military posed by Smith v. MoD. The courts will, of course, review the legality of such a derogation and although deference will be shown to the judgment of the political arms of government in making it,72 the argument that Smith-type claims against the military under Article 2 represent an emergency threatening the UK would surely not survive scrutiny. Of course Parliament might repeal the HRA altogether, although this would not prevent individuals claiming breach of their Article 2 rights in the European Court of Human Rights. To preclude that would necessitate repudiation of the entire Convention by the United Kingdom. There are respectable arguments for both of those courses of action. But even the most ardent opponent of human rights legislation would have to admit (in best Jim Hacker style) that to repeal the HRA just to reverse Smith v. MoD would use a sledgehammer to crack a nut by allowing the tail to wag the dog. At any rate, repeal of the HRA is a much larger question that cannot be adequately addressed in the present paper. Whether a generous enough no-fault compensation scheme (in place of negligence liability) would forestall HRA claims is considered below. 72 See e.g. A v. Secretary of State for the Home Department [2005] 2 AC 68. Section 2, Crown Proceedings (Amendment) Act 1987 This provision allows the Secretary of State to revive the effect of s.10 Crown Proceedings Act 1947 (which had preserved the common law immunity of the Crown in respect of armed forces claims, but which has now otherwise been repealed by s.1 of the 1987 Act). Such an order is made by statutory instrument subject to negative annulment procedure in both Houses (s.2(5)). Any revival takes effect “either for all purposes or for such purposes as may be described in the order” (s.2(1)(a)). The purposes may be described “by reference to any matter whatever and may make different provision for different cases, circumstances or persons” (s.2(3)). Any order cannot have retrospective effect (s.2(4)). The condition for making such an order is that it “appears” to the Secretary of State “necessary or expedient” either: “by reason of any imminent national danger or of any great emergency that has arisen” (s.2(2)(a)) or: “for the purposes of any warlike operations in any part of the world outside the United Kingdom or of any other operations which are or are to be carried out in connection with the warlike activity of any persons in any such part of the world” (s.2(2)(b)). It appears that no order has been made to date under s.2 of the 1987 Act. But it could clearly be used to reverse the effect of Smith as far as common law negligence, insofar as the conditions in s.2(2)(b) are met. That is to say, that it appeared to the Secretary of State necessary (or expedient) for the effective conduct of warlike operations overseas (and connected activities) that claims by personnel on active service alleging negligence in the training, equipment and/or command of personnel should be barred. The exact terms of the statutory instrument would of course require very careful consideration so that the mischief of Smith was reversed without precluding legitimate claims that pose none of the same difficulties. The resulting order might face a challenge as being ultra vires s.2 or in some other way violating the principles of judicial review, but considerable deference would have to be shown by the reviewing court to the Secretary of State’s judgment of what “appears … expedient” on a matter of national security. An order under the 1987 Act could not entirely remove the vice of Smith—for example it would not affect claims for injuries suffered inside the UK that alleged negligence in high-level procurement decisions. Such claims still involve courts determining non-justiciable issues, albeit outside the theatre of war. But an order would provide a clear legislative restatement of the supposedly uncontroversial general principle of combat immunity, to which the majority decision in Smith has given a narrow and context-specific definition. Immunities Again It seems that the Secretary of State could largely reverse Smith v. MoD by an order under the Crown Proceedings (Amendment) Act 1987, and obviously Parliament could achieve the same goal even more comprehensively by new primary legislation. But should this be done? It was argued above that immunities prevent tort law from performing its functions of compensation, deterrence and accountability. It may be that the public interest in ensuring the effectiveness of the armed forces is so great that individual rights (their claims to tort compensation) can justifiably be sacrificed to protect that public interest. But we should still ensure that individuals’ interest in compensation for their injuries, and the wider social functions of tort law, are still promoted so far as possible. It was argued above that strict liability offers certain advantages as a deterrent, through the mechanism of cost-internalisation. It has been argued that fault-based liability is unwise in the The commitment to pay compensation without proof of negligence could and ideally should be embodied in legislation. Most conveniently, it could be included in the statutory instrument implementing the order under s.2 of the 1987 Act. However, s.2 does not seem to contemplate such extensive conditions being including in orders made under it, and there would be a serious danger that any no-fault damages provisions included in the statutory instrument would be ultra vires s.2. In the absence of primary legislation to authorise the payment of no-fault, tort-level compensation, the Government could then simply declare itself bound to make such payments “under the prerogative”, as the Criminal Injuries Compensation Scheme was originally promulgated in 1964.77 This could be stigmatised as merely an ex gratia concession, and one that the Government might withdraw at any time. But in political reality, any Government with a Parliamentary majority is not bound even by primary legislation.78 The original CICS scheme was no more, but certainly no less, robust than its statutory successor. There is no reason to believe that a Government commitment to full compensation for wounded personnel, as the explicit quid pro quo for restriction of their tort law rights using s.2 of the Crown Proceedings (Amendment) Act 1987, would be any less enduring. Political pressure would help ensure this. Compensation and Human Rights If the suggestion above were taken up, and full compensation were to be paid on a no-fault basis for all injuries sustained in combat, then a major impetus encouraging the continued initiation of Article 2, ECHR claims would fade. This is important because, as seen, s.2 of the Crown Proceedings (Amendment) Act 1987 only applies to common law negligence (pre-1947 Crown immunity is simply irrelevant under the HRA). Injured personnel, or the dependents of those killed in service, would no longer need to bring Article 2 claims (which at the moment are usually brought in tandem with negligence claims) as a means of getting compensation, under the proposal above. It is true that some might still wish to bring claims under the HRA to ensure vindication of Article 2 rights and to hold the Government to account for breach of them. But the Government could plausibly argue that it would be unnecessary for a court to hear the claim (requiring adjudication upon military/procurement decision-making discussed above) when the Government had already made full financial satisfaction. It seems unlikely that damages awarded under s.8 HRA will exceed the level of tort damages; if anything the practice to date has been to award more modest awards in HRA cases.79 In short, payment of full compensation on a no-fault basis would in practice preclude most Article 2 claims from being brought in cases like Smith v. MoD. Such compensation might even provide a basis for the courts to decline to hear any such cases on the basis that full satisfaction had already been provided by the state. 77 For differing views on whether this was truly an exercise of the royal prerogative compare Regina v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864 with (e.g.) HWR Wade, “New vistas of judicial review” (1987) 103 LQR 323. The Scheme is now on a statutory basis, cf. Criminal Injuries Compensation Act 1995. 78 Compare Criminal Justice Act 1988 ss.108-117 and Regina v. Secretary of State for the Home Department, Ex parte Fire Brigades Union [1995] 2 A.C. 513. 79 See e.g. Regina (Faulkner) v Secretary of State for Justice [2013] UKSC 23. For criticism cf. J Varuhas, “A tort-based approach to damages under the Human Rights Act 1998” (2009) 72 MLR 750. V. Recommendation In conclusion it is recommended both: (1) That an order be made under s.2 of the Crown Proceedings (Amendment) Act 1987 to clarify the scope of combat immunity in tort (which has been left doubtful, and attenuated, by the Supreme Court’s decision in Smith v. MoD). (2) That in place of the tort claims thus removed, and instead of attempting to weave the tort principle of restitutio in integrum into an enhanced Armed Forces Compensation Scheme, the Secretary of State should declare that compensation will be paid on the full tort quantum to all service personnel who suffer death or injury but have no claim pursuant to the s.2 order, on a no-fault basis. Appendix Jonathan Morgan, “Negligence: Into Battle” [2013] Cambridge Law Journal 14-17 CAN soldiers killed or injured during combat sue the Ministry of Defence for failing to protect them? At first blush this sounds like the latest in that series of questions to which the terse answer is “no”. Such claims, in negligence, have previously been given short shrift: Mulcahy v Ministry of Defence [1996] Q.B. 732 (which P.S. Atiyah said was “surely entitled to the prize for the most undeserving claim of the decade (which is saying something)”: The Damages Lottery (Hart, 1997), p. 90). On the other hand, the Ministry clearly owes duties to its employees both at common law and under the Health and Safety at Work Act 1974, as confirmed in cases concerning injuries during military training exercises (e.g., Chalk v MoD [2002] EWHC 422 (QB) and Fawdry v MoD [2003] EWHC 322 (QB)). Furthermore, since the claim in Mulcahy was dismissed, the Human Rights Act 1998 has imposed new duties upon the Government. Might the line in the sand now be crossed? Smith v MoD [2012] EWCA Civ 1365 concerned soldiers wounded or killed during the Iraq war. There were two groups of incidents and claims. In the first, numerous “Snatch” Land Rover vehicles (which were notoriously lightly armoured) had been attacked using “improvised explosive devices”. In the second incident, a tank from a different regiment of the British army had shelled the claimant soldiers (mistaking their identity). The claimants sought to rely upon the MoD's obligation to safeguard their right to life under Article 2 of the European Convention on Human Rights, or upon common law negligence, or both. The gist of the alleged breaches was a failure to provide suitable equipment (properly armoured Land Rovers; automatic recognition systems to guard against “friendly fire”) or adequate training in vehicle recognition. *C.L.J. 15 Our focus here will be upon the common law claims. The European Convention was held inapplicable in accordance with the decision in Regina (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 A.C. 1. (It was noted that a Strasbourg challenge was pending against Smith v Oxfordshire in Pritchard v U.K., but that any reconsideration would have to await the European Court's judgment.) The starting point for Moses L.J. (with whom Rimer L.J. and Lord Neuberger M.R. agreed) was the Ministry's duty qua employer to provide a safe system of work for the claimant soldiers. This was too well established to be disputed. The question was whether that duty yielded to the “combat immunity” relied upon in Mulcahy. In the end, the Court of Appeal held that that was a question of fact which would have to be determined at the trial of the action. Accordingly, the judge below (Owen J.) had been wrong to strike the claims out on the basis of “combat immunity” (cf. [2011] EWHC 1676 (QB)). This sounds like an un-illuminating classification of the central issue as one of “fact”. But Moses L.J. gave some guidance on the proper scope of “combat immunity”. It was not sufficient that the injuries in question were sustained during battle (otherwise all of these claims would, necessarily, have failed). The question was whether the supposedly negligent decisions were taken during “active operations”. Decisions about training and equipment taken some time before the conflict in question could not enjoy “combat immunity”. Otherwise, it would be “difficult to see how anything done by the Ministry of Defence” would fall beyond it (at [62]). So decisions “away from the theatre of war” would not enjoy the immunity, which was to be narrowly construed. Only if the court would be required to sit in judgment on decisions made in the course of active operations would “combat immunity” bar claims.