The MoD will now struggle to hold the line between what happens at home and what happens in theatre | Hew Strachan

Off By Sharon Black

The supreme court decision to allow soldiers’ families to sue could have a profound effect on British and US military relations

I was on a flight back to the UK from a war college in the US when I read of the supreme court’s decision to permit families to sue the Ministry of Defence for failing to protect sufficiently the human rights of soldiers.

The feeling in America is that defence cuts are making Britain a freeloader within Nato. The Rand corporation’s recent report, Nato and the Challenges of Austerity, has asserted that the British army “has been reduced to an almost pre-Victorian level in terms of active duty numbers”, and warned of the danger “that US and European forces will no longer be able to operate together”.

This is where we came in. Before 2003, Britain’s procurement programmes were driven by the determination to ensure inter-operability with its principal ally. The need to prepare for an even bigger war after the Iraq war, rather than to fight the war in hand, meant that long-term equipment programmes were given priority over immediate operational needs in 2003-6. As a result, troops on the ground found themselves patrolling in inadequately protected Snatch Land Rovers. The lives lost as a consequence were what prompted this week’s ruling.

Once again British forces find themselves worrying that they will struggle to fulfil their professional ambition, to be able to fight alongside the big boys. European law has aligned itself with economic austerity to constrain their capacity for taking risk. At one level, the MoD has only itself to blame. Had it prioritised equipment for Iraq from the outset, and on the assumption that the conflict would endure, it might have averted the problem. But on several levels it deserves sympathy.

First, the duty of care to service personnel includes proper training in the use of sophisticated kit. Rushing improved vehicles into theatre can be as risky as not doing so.

Second, the Snatch Land Rovers, with their lack of under-floor protection against improvised explosive devices, left a fearful legacy in limbless survivors. By 2006 senior officers were using the armed forces covenant in a context different from that for which it had been designed. The government was attacked for not providing proper support to those who were wounded – and, by extension, for the lack of adequate equipment. So the covenant became politicised before 2010 and the subject of legislation thereafter. While the supreme court’s judgment was not concerned with the covenant, it is of a piece with it.

Formally speaking, those who swear “to serve Her Majesty, her heirs and successors” enter into an unlimited liability. Because it can require them to kill or be killed, it is unlike any normal contract of employment. Its obligations fall entirely on the employee, and not at all on the employer. The implication of the covenant and now of the supreme court’s ruling is that this will change. The MoD will struggle to hold …read more