Dr Nicholas Bevan

Dr Nicholas Bevan

Wednesday, 2 April 2014


It was depressing to hear conservative MP James Arbuthnot on The Today Program this morning misreprenting the Supreme Court ruling in  Smith & Ors v Ministry of Defence [2013] UKSC 41 last year as a challenge to the principle of combat immunity.  He insinuated that claims like these undermined the ability of our armed forces to put men on the ground in dangerous combat situations and risked causing unnecessary civilian loss by the substitution of aerial bombing.  This is misleading if not disingenuous.

The principle of combat immunity is long established, well acknowledged and in robust usage.  Last year’s Supreme Court hearing did not undermine the principle of combat immunity; quite the opposite.  The case featured an unsuccessful attempt by the Ministry of Defence to extend the scope of combat immunity beyond its well recognized boundaries, in order to prevent the Ministry’s planning and procurement decisions from falling under scrutiny.  The claim featured allegations that service personnel had been unnecessarily exposed to risk and killed or injured due systemic or operational failures on the part of the Ministry of Defence in Whitehall, not in the heat of battle, for failing to provide them with the basic and readily available equipment that was necessary to protect life and limb.  

Whilst it is true that the Human Rights Act was also considered in Smith, the following excerpts from Lord Hope’s judgment indicates the policy limitations that apply to these convention rights:
‘The Strasbourg court has repeatedly emphasised that, when it comes to an assessment of the positive obligations that are to be inferred from the application in any given case of the Convention rights, a fair balance must be struck between the competing interests of the individual and of the community as a whole. It has also recognised that there will usually be a wide margin of appreciation if the state is required to strike a balance between private and public interests and Convention rights.’

Defence Secretary Philip Hammond is reported by the BBC as saying: ‘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.’  Well, obviously not.  However, instead of resorting to knee jerk condemnations of the Human Rights Convention, the minister would do better if he concentrated instead on curbing the profligate misspending and staggering procurement blunders perpetrated by his ministry in Whitehall.  Is it really too much to expect, in the absence of a national emergency of the kind experienced in the Second World War, that members of our armed forces should be provided with basic and readily obtainable protective equipment?  This is what the ongoing Smith case is really about.

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