October 18, 2013

The Fog of Law: An introduction to the legal erosion of British fighting power

Britain’s Armed Forces are under threat from a sustained legal assault which could paralyse the effectiveness of the military with catastrophic consequences for the safety of the nation.

A new Policy Exchange report, The Fog of Law, co-authored by Tom Tugendhat and Laura Croft, shows how the application of civilian norms to military conduct has led to a surge in legal claims against the Ministry of Defence (MOD).  The costs of litigation have now risen out of proportion with forecasts, with the number of claims brought against the MOD totalling 5,827 in 2012-2013.

The report says that the main weapon used in legal challenges to UK military operations is the European Convention on Human Rights (ECHR).  Although the ECHR had applied since September 1953, the Human Rights Act (HRA) in 1998 gave individuals the ability to appeal directly to domestic courts.  This, combined with two operations, Afghanistan and Iraq, saw a rise in actions brought through domestic courts, and judicial precedents are set to cause more.

Claims include:

  • Ali Al Jedda v the UK (2011). The claimant was arrested travelling from London to Iraq in 2003 on suspicion of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq (a charge that he denies). He sued the government using Article 5 of the Human Rights Act, a claim dismissed by the UK Supreme Court but overturned by the ECHR.
  • Smith and Others v Ministry of Defence (2012). This case arose out of the deaths of soldiers using Snatch Land Rovers and Challenger II tanks in Iraq. The Supreme Court ruled that British troops remain within the UK jurisdiction and so fall under the Human Rights Act even when deployed on active service abroad.
  • Ahmed al-Fartoosi, the leader of the radical Shia cleric, Moqtada al Sadr’s militia. He is in the process of suing the government for compensation alleging abuse during his captivity in Basra. He claims he was denied his rights under the ECHR.

In the past, those serving in the Armed Forces were protected from prosecution under Combat Immunity while the Law of Armed Conflict ensured that the minimum harm was done to all affected by conflict.  However, recent legislation and judicial findings have extended the domestic common law claims of negligence and civil claims of duty of care to the combat zone. These constraints have led to confusion among commanders undermining their interaction with allies and affecting the combat capability of the services. In the long run, the report says that the rise of ‘legal creep’ could pose a “mortal threat to the culture and ethos of the military which cannot be easily reversed.”

The report warns that the, “extension of law risks catastrophically weakening the UK”.  It says that it may not be long before either a foreign power or sub-state forces begin to sponsor legal actions as a way of paralysing the Armed Forces through legal process. If the costs of litigation continue to rise, the MOD will have to ask the Treasury Reserve to fight legal as well as military action, or risk having procurement and vital funds for UK service personnel diverted.

The report makes a number of recommendations including:

  1. The government should introduce legislation to define Combat Immunity to allow military personnel to take decisions without having to worry about the risk of prosecution.
  2. Parliament should legislate fully to exempt the MOD from the Corporate Manslaughter and Corporate Homicide Act 2007.
  3. The UK should derogate from the ECHR during deployed operations. Instead the government should define the Law of Armed Conflict (LOAC) as the relevant body of law to govern operations.
  4. Legal aid should be removed from lawsuits brought by non-UK persons against the government in line with the Ministry of Justice’s current proposals for reform.


“I welcome this timely contribution to the debate about the appropriate balance between legal protections and freedom of decision-making by commanders in the field.

“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.”
Philip Hammond MP, Secretary of State for Defence

“an excellent Policy Exchange pamphlet”
Boris Johnson, Mayor of London

“The recent publication by Policy Exchange of The Fog of War provides a penetrating analysis of the way in which the law has developed and reaches the conclusion that, “recent legal developments have undermined the Armed Forces’ ability to operate effectively on the battlefield”. If this is correct, we must question whether it is time for a change in the law.”
Lord Faulks

“The changes since the Human Rights Act 1998 and the assurances given then and the recent Supreme Court ruling show that this issue still has legs and will run and run unless remedies are devised and provided. This said, what proactive approach might be taken? The Policy Exchange think tank, which has been mentioned several times, argued in its study entitled The Fog of Law that such legal mission creep could paralyse the effectiveness of the military. It came up with seven options for tackling this problem. I floated two, Crown immunity and combat immunity, in my topical Question last month.”
Lord Craig of Radley

“If noble Lords wish to consider all this in more detail, I, too, recommend the Fog of Law pamphlet produced by Policy Exchange. One of the authors, Colonel Tom Tugendhat, was wounded in Afghanistan and knows what he is talking about. Whether we disagree with it—and I do not—I believe that many hundreds of servicemen and servicewomen support what he says. That is what they feel.”
Lord Guthrie of Craigiebank

“The recent report by the Policy Exchange called The Fog of Law, to which a number of noble Lords and noble and gallant Lords have referred, was therefore a timely contribution to the discussion and raised a number of very important questions. It was written by authors with a great deal of hands-on experience of military planning and operations, so its conclusion, “recent legal developments have undermined the armed forces’ ability to operate effectively on the battlefield”, deserves respect and careful consideration.”
 Lord Astor, Parliamentary Under-Secretary of State, Ministry of Defence


Tom Tugendhat

Conservative MP for Tonbridge, Edenbridge, and Malling

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