Members of the armed forces should have recourse to the courts, argues Richard Scorer
“None have [sic] succeeded in defeating the armed forces of the UK. Napoleon and Hitler could not. But where these enemies failed, our own legal institutions threaten to succeed.” This was the stark conclusion of The Fog of Law, a report originally published in 2013 by the think tank Policy Exchange. The report asserted that judicial decisions—involving the Human Rights Act 1998 (HRA 1998) and negligence claims by injured soldiers against the Ministry of Defence—had “undermined the armed forces ability to operate effectively on the battlefield”. The report sparked a fierce debate, and led to last year’s report from the House of Commons Defence Select Committee UK Armed Forces Personnel and the Legal Framework for Future Operations. The Select Committee report reiterated some of the concerns expressed in the Fog of Law. But until now these arguments have had relatively little political traction—not least because one of the parties in the coalition government was firmly committed to upholding
