Armed Services: Claims

Lord Trevethin and Oaksey Excerpts

Thursday 24th November 2016 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

My Lords, I declare an interest of sorts in that I am a practising barrister and I work in the field of claims against professionals, and I suppose that is a field into which at least some of the cases that your Lordships are discussing would fall. Unlike many of the noble, and sometimes noble and gallant, Lords who have spoken in this debate, I am completely unqualified to comment on the effect of the law’s incursion into military matters on operational efficiency because I have never seen action or done military service. In that, I would think I resemble over 99% of the judges who now serve. We now do not even have judges on the Bench who will have done national service. The disconnection between the legal system and its practitioners on the one hand and military people on the other is part of the problem that lies behind this important debate.

I have asked myself how things might go on the side of the fence that I know a bit about: namely, litigation involving professionals. At the moment, if you leaf through the increasingly bulky textbook on professional negligence, you travel through the bit about insurance brokers and then there is a bulky section on lawyers, but you do not have a chapter on military negligence. Within five or 10 years’ time, though, unless the developments we have been discussing today are arrested and reversed, we will find a chapter on military negligence and it will make uncomfortable reading. I shall give the House in advance one or two highlights of what it might say. There will be a section on breach of duty that will say something like this: “It is a defence for the defendant to show that the Ministry of Defence has been following a procedure that is established and recognised as acceptable by a substantial body of opinion within the military”. In professional negligence law that is known as the Bolam defence, and I see no reason why it would not apply to the claims against soldiers that we are currently considering.

When the military sets about drafting its manuals to fend off the risk of liability in future litigation, it will find itself having to set out procedures designed for that very purpose. Those procedures will ossify in the manual in a way that is completely inappropriate when one considers the need for operational efficiency in the face of ever-changing threats. The result will be that the military will be constrained to make the well-known mistake of fighting the last war by the incursion of the fog of law, if you like, into military activities. That is one problem.

When one moves on from breach of duty, one passes over issues about evidence and comes to the section on causation and loss, which for lawyers in the field is often the most difficult and legally interesting part of the case. As the noble and learned Lord, Lord Hope of Craighead, said, the Smith decision in the Supreme Court was concerned with issues of procurement and equipment. Nevertheless, one of the cases before the Supreme Court involved injuries and deaths caused by friendly fire in relation to the use of Challenger tanks. It seems to me inevitable that, if that case were to go to trial, issues would arise about exactly what happened in the heat and dust of the battleground.

The judge hearing that case and similar cases might well have to answer issues about causation. It would be said on the part of the defendant—it is a standard defence in this type of litigation—“Even if we had done what we should have in relation to equipment and so forth, the result would have been the same, because things would have played out in the same way on the battleground”. The judge would have to ask himself whether there was a possibility of a more favourable outcome. That would involve hypothetical inquiries about the actions of combatants on the battleground, and he might end up saying something like: “There is a 30% chance that the hostile combatants would have behaved in a different way if the equipment issues had been properly addressed by the Ministry. I am therefore constrained by the law to award discounted damages on that basis”. That sort of inquiry into events on the battleground seems to me, and, I should have thought, most of your Lordships, unimaginable and something that cannot be allowed.

What is to be done? I have about 30 seconds left and there are obviously no easy answers. I entirely understand what the noble and learned Lord, Lord Hope, said, about the difficulty of derogating from the convention. It seems to me that primary legislation is required. One function of that legislation might be to define combat immunity. That doctrine was explored by the Supreme Court in the recent case of Smith. This cannot be left to the judges alone because they cannot cope with the thickets of law emerging from Strasbourg. Strasbourg jurisprudence is a living tree and, every now and then, the tree surgeons in Strasbourg lop off one branch and replace it with another, which makes judicial control of this area impossible. Legislation is required and, for all the reasons developed in this debate, it is required urgently.