Ministry of Defence Negligence Claims - Finding the Bad Guys in the Theatre of War

Looking through the papers recently, I see the sadness of the story of our troops killed in Afghanistan and the Supreme Court ruling to allow families to make a Ministry of Defence negligence claim over defective equipment. As ever, I’m sure the devil is in the detail of the ruling and all I can see is the newspapers’ version of their understanding presently, but how does one attribute blame in this situation?

It must be a fundamental right to pursue a claim for Ministry of Defence negligence in the courts when parents or loved ones are killed and corporate responsibility lies with the senior commanders of the MoD in the same way it does to any company director. But surely this applies in a normal, UK environment  where you can understand and manage the risks accordingly.  Training on Salisbury plain, or routine low flying missions must all be conducted in a safe and reasonable environment but one which prepares the troops for the horrors of war. But at this point surely this ends. Yes, a commander must be responsible and that responsibility extends far beyond that of most companies when you are asking your people to put their lives at risk. In fact, you are not only putting them at risk but telling (not asking) them to place themselves in immediate danger for the benefit of others and the freedom of their country and our beliefs and ideals. Having been in this position and faced this conundrum, I always tried to use the reasonable test. However, what is reasonable in a normal environment is not necessarily reasonable in a war zone.

Outnumbered, outgunned or outflanked, how often have our troops defended our shores and society for the good of others by giving up their lives?  How, therefore, is it reasonable to allow next of kin to sue for Ministry of Defence negligence in these circumstances?  While immunity is a strong word, and I’m not sure that blanket immunity is right, there has to be an understanding that war or conflict is a terrible place. Enemies are far from civilised or respecting of our laws and society, so how can the MoD really be liable in this manner?

I’m sure that I and many of my colleagues took enormous risks during conflict but our focus was always on the welfare of our troops while trying to win sometimes against enormous odds. So while it is right to allow the MoD to be heard in court, I find it difficult to find the commanders negligent in these circumstances as a general principle. War and its environs are highly complex and an ultimately difficult operating environment. Launching an astronaut into space is similarly complex, but hopefully no one is shooting at you. In these days of asymmetric warfare, it is often impossible to even understand who the bad guys are.

So let’s find a way to hear the concerns about the snatch landrovers and I’m sure mistakes have been made in hindsight. It is now up to our justice system, which I believe is one of the best in the world, to find the right way to deal with the heartbreak and angst of those who have lost sons and daughters, while still enabling the military to operate in a war environment.

Last, despite my views and as a commander of forces in the past, my thoughts are with those who have had to bear the loss.