Today, there is considerable celebration amongst a small, badly neglected group of people at the Appeal Court ruling handed down on Monday. This has determined that soldiers on operations overseas retain their protection under Article 2 of the European Convention on Human Rights, which safeguards the right to life.The result of the ruling, as The Times records (and others here and here), is that families of British troops killed in war zones may be able to sue the government for a breach of human rights.
That "badly neglected group" who are so pleased with this ruling comprises the relatives – including the mothers, fathers, husbands, wives and even grandparents – of soldiers killed in action, almost all of whom feel let down by the system and deserted by the very people who are supposed to be there to help them.
Amongst them is Sue Smith, mother of Pte Philip Hewett who was killed with two others in a Snatch Land Rover in al Amarah on 16 July 2005, the circumstances of which we have recorded in several posts (such as this one, plus this).
Sue – like many others - has since spent many years battling to seek justice for her son and has a court case pending, suing the MoD for negligence, a case which was awaiting the outcome of this judgement. The way is not clear yet, as permission has been given to take the case to the House of Lords - granted on condition that the Secretary of State for Defence pays the legal costs whether the plaintiffs win or lose. But this is a significant step forward.
Sue's point – which I heartily endorse – is that the Army, for local political reasons, knowingly and with "malice of forethought" sent men out in highly vulnerable Snatches, fully aware that these vehicles provided no protection whatsoever against the weapons that were being deployed against them, in circumstances where there was an extremely high risk that they would be attacked and killed.
This goes way beyond the normal risks of war where commanders at all levels failed in their most basic duties to protect the lives of the troops under their command, when simple, basic precautions and adequate equipment could have protected them.
As with the original decision handed down in April 2008 by Mr Justice Collins sitting at the High Court in London, there will probably be talking heads bemoaning this judgement, arguing that the Courts have no place in the battlefield. Already, some senior commanders are complaining that they will lose control over their own men, as tactical decisions – and orders – are questioned on "health and safety" grounds.
In principle, it is hard not to disagree with these sentiments but the upshot is that the Army and the MoD have largely brought it on themselves. Had they responded intelligently – and decently – to the very real and well-founded concerns of relatives, instead of "dead batting" them and then relying on their presumed exemption from human rights law, none of this would have happened. Not one of the relatives wanted to go to law, but the attitude of the authorities left them with no choice.
In that context, we see a very measured and sensible response in The Daily Telegraph.
But there is another player here, which also failed the relatives – and the men and women who died, and will die. That is Parliament. There will be few, I vouch, who will make the connection with this case, but the fact is that Parliament has a responsibility here.
Uniquely, soldiers, sailors, airmen and marines are bound by law to put their lives at risk and occasionally forfeit them, in serving the interests of the state. In so doing the state – as represented by the government – has a duty of care, moral if not legal. But the primary body charged with scrutinising the government and bringing it to account is Parliament. Given that service personnel are unable to speak openly on their own account, Parliament thus has that special duty to look after their interests.
Unfortunately, almost without exception, where bereaved relatives have gone to their constituency MPs for aid and some succour, they have found them to be useless. For sure, they get the ritual expressions of sympathy and promises of help, but nothing ever materialises.
At another level, never has the defence committee specifically looked at the issue of mine protected vehicles, or force protection in general and, in respect of many of the substandard vehicles used or bought by the Army, the committee has actually welcomed uncritically their introduction.
Then, at the higher political level, there has been an infuriating and utterly irresponsible tendency of the opposition to use equipment deficiencies as a stick with which to beat the government, scoring political points rather than seeking to resolve problems.
To understand why this is so objectionable, one has to get past the Janet and John view of politics – the one that has the secretary of state in total control, making all the decisions and taking responsibility for everything that goes wrong.
Many former ministers will attest to how little power they actually have in office and often how difficult it is to impose even minor changes in their departments. This is especially so with the Ministry of Defence, where there are powerful vested interests, in the civil service, in the military and in the defence contractor lobby. It is rare that ministers can take on the combined weight of their own departments and win, if there is embedded an outright refusal to change. That is real life.
Here, one of the greatest allies a minister has is Parliament – both his own MPs and, especially, the opposition. While his department might seek to frustrate his wishes, when there is a strong sentiment from parliament that things should change, the hand of the minister is immeasurably strengthened. If, however, the MPs insist on turning criticism into party, partisan scoring points, that is of no help at all.
For sure, politicians are there to score points off each other, but in terms of defence – where the lives of service personnel at risk – the duty of MPs as parliamentarians should transcend party interest. Their duty to those at risk comes first. That is why, indeed, we maintain the title of "Her Majesty's loyal opposition".
In all respects, Parliament – at an individual level, with a very few honourable exceptions - has failed to step up to the plate. At an institutional level it has completely failed. This is an abject failure.
So, for want of Parliament doing its job, relatives today are rejoicing that a court of law has done it for them. In the end, we hope justice will be done, but the fact that it will have to come from the courts rather than Parliament is another – and very serious – indictment of that failing and increasingly useless institution.
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