Lord Hope of Craighead discusses EU exit and combat immunity on legal programme

The latest episode of BBC Radio 4’s Unreliable Evidence series features retired UK Supreme Court Justice Lord Hope of Craighead and other guests discussing with Clive Anderson the controversial suggestion that the UK should withdraw from human rights legislation and re-instate “combat immunity” to protect the British Army from legal action.

The British Army is increasingly under fire in the courts, where the Ministry of Defence has suffered a series of defeats.

Since the landmark case of Smith v MOD in 2013, soldiers injured in battle or the families of those killed in action may sue the government for negligence under domestic law and for breach of the “Right to Life” under the European Convention on Human Rights.

Arguing the case for combat immunity is Dr Jonathan Morgan, co-author of the think tank Policy Exchange’s report Clearing the Fog of War which contends that the judiciary is the wrong body to hold the army to account.

It says the extension of the common law of negligence to military action has already had damaging effects on the forces.

The result will be an excessive degree of caution which is antithetical to the war-fighting ethos that is vital for success on the battlefield.

Arguing against Dr Morgan are barrister Jessica Simor QC, who acted for the appellants in Smith v Ministry of Defence, and Lord Hope, who presided in the case.

Also taking part is former Army Legal Service officer Andrew Buckhamwho now represents soldiers suing the military and the government.