Soldiers’ right to protection remains, and so it should

Last week’s Supreme Court ruling in the Snatch Land Rover / Challenger II cases, which allowed the families of four soldiers who lost their lives while serving in Iraq to sue for damages, has provoked some strong opinions.

Some say that the MoD is in all ways different from other employers and that it should not therefore be held accountable in the courts.

Of course soldiering is not ‘just another job’, but surely it does not follow that we should tolerate the deaths of young British citizens if those deaths are caused by the Government’s failure to provide adequate training or equipment.

Soldiers should be no less entitled than the rest of us to protection against negligence and human rights abuses. To say otherwise would, effectively, give the MoD carte blanche to disregard avoidable risks to life or health. There would be no deliberate harm, of course, but freedom from scrutiny would eventually result in laxity, and laxity causes injury.

Although even the Secretary of State for Defence appears confused on the subject, the doctrine of combat immunity has not in fact been radically affected by last week’s ruling. Decisions made in the heat of battle will still not give rise to claims for damages, and that is as it should be. Where training has been negligently designed, however, or equipment chosen without proper regard to the real conditions in which it will be used, such a right to immunity still does not exist.

We should remember that it was the MoD who were trying to extend combat immunity to include all battlefield injuries without exception, even if caused by negligence before deployment. The claimants were, in this respect, defending the status quo as it was understood.

The ruling on human rights is indeed new, but it is hedged about with strong guarantees, and nothing done in the field, and no decision at the highest command level, will give rise to a claim.

No one would deny that even very young soldiers embrace the risk of injury or death when they enlist, but while they serve us they must share our right to challenge our employers when they fail to observe a reasonable duty of care towards us. The Armed Forces Covenant promises that members of the services should not be placed at a disadvantage because of their profession. Blanket combat immunity would have done precisely that and dishonoured us all.

Philippa Tuckman is a military injury claims specialist and partner at Bolt Burdon Kemp.