Policy Exchange highlighted as Government declares intention to legislate against unnecessary Judicial Review of armed forces

December 5, 2016

The Ministry of Defence has highlighted Policy Exchange’s work identifying the growing judicialisation of military operations in a consultation document declaring plans for legislative change to prevent wasteful and damaging legal action against the armed forces. The Rt Hon Michael Fallon MP, Secretary of State for Defence, explains in an accompanying written statement that the reform ‘will address the “judicialisation of war” whereby judges second-guess military decisions using criteria that are appropriate for civilian life, but not for the battlefield.’ The document makes clear the government’s intention to support the armed forces against costly and damaging litigation through new legislation.

The trend of unwieldy legal restrictions placed on military operations abroad, first identified in Policy Exchange’s report The Fog of Law by Thomas Tugendhat and Laura Croft, constitutes ‘a sustained legal assault which could paralyse the effectiveness of the military with catastrophic consequences for the safety of the nation.’ Following Policy Exchange’s intervention, the government are addressing the need to restore fairness and effectiveness in the way the UK’s armed forces are treated by the judicial system.

What is at stake?

In Al-Skeini v UK (2011), the European Court of Human Rights (ECtHR) interpreted the meaning of ‘jurisdiction’ to require not only litigation of alleged domestic human rights infringements but also infringements made abroad during military operations. Because it was implicitly understood before Al-Skeini v UK that the European Convention on Human Rights (ECHR) applied domestically only, the surprise judgment by the ECtHR opened the door to cases of alleged human rights infringement that occurred even before 2011, including the bulk of operations by British forces in Iraq and Afghanistan.

The torrent of legal cases brought against British forces in Iraq led to creation of the Iraq Historic Allegations Team, which tried – largely unsuccessfully – to make the process more efficient by separating cases of merit from those without. Caught unawares by the volume of legal work created by the ECtHR interpretation, many soldiers have suffered extremely long litigation processes before eventually being found innocent.

Policy Exchange’s Judicial Power Project held a closer lens to what was going on with a second report, ‘Clearing the Fog of Law’, which identified over 1,000 public law claims being filed against the Ministry of Defence in the wake of the ECtHR judgment, whereby misguided human rights law meant ‘British troops operating in the heat of battle are now being held to the same standard as police officers patrolling the streets on a Saturday night at the West End.’

Even before the government’s current call for solutions, the House of Commons Defence Sub-Committee launched an inquiry into the treatment undergone by service personnel subject to judicial processes. In an oral evidence session, Attorney General Jeremy Wright QC MP was questioned over why the government had failed to establish clear and fair processes for soldiers undergoing litigation.

As part of the attempt to rectify the situation, Prime Minister Theresa May committed in October this year to derogation from the ECHR for future British operations overseas — another sign of the government’s intention to re-establish the rule of law and make certain court processes for service personnel. The recent call by the Ministry of Defence makes clear the need for structural change that accompanies this commitment from the Prime Minister. As the document states, military decisions ‘should not be subject to overturning by Courts applying principles which were developed with the very different circumstances of civilian life in mind.’

The declaration is welcome news and establishes comprehensive governmental commitment to the welfare of our armed forces. As the consultative document explains: ‘the Government intends to introduce legislation which would prevent the Courts from adjudicating on allegations that injuries or deaths in the course of combat were the result of negligence.’

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