Wednesday, 19 June 2013

Litigation does not always protect the living. Thoughts on the Supreme Court 'snatch' ruling.


Humphrey was very disappointed at the news today about the ruling by the Supreme Court that widows of soldiers killed in Iraq are able to sue the Government for negligence. What follows here is a very personal viewpoint as to why he feels this decision is not the correct one. From the outset, it should be clear that Humphrey has the most enormous sympathy for the families of those killed or injured – the pain they are going through cannot be conceived, and the natural desire to try and right a self-perceived wrong is fully understandable. But, his firm belief is that this is not the right decision and could make life more challenging for Commanders in the field and actually cause more deaths.

 The challenge we have in today’s Western society is that there is a deeper reluctance to take unnecessary casualties. While this author believes that as a whole we remain a ‘warrior nation’ able to absorb a steady stream of casualties, as a whole there is a greater effort to try and reduce these to the lowest possible level. Western society as a whole is less willing to tolerate large numbers of casualties (say WW1 levels) and invests a great deal of money in military capability in order to convince their troops that they are the ‘best equipped & best protected in the world’. This comes at a substantial price though – one only has to look at the cost of high end military equipment these days (say the FRES programme or other new APCs) to realise just how expensive having the best protection can be.

This is where the challenge emerges – it is expensive to procure a first rate set of vehicles to provide the best possible protection – ultimately compromises need to be made, and trade-offs accepted in order to balance the need for reasonable protection versus affordability in the wider budget. There is no point having a world class APC if you cannot afford any of the other enablers to deploy it properly.

In the case of the UK the problem is made doubly difficult by having a military optimised for global operations. The vast majority of equipment procured has to be able to work in all manner of conditions from Western Europe, to the desert, to the jungle, and experience of the last 20 years has seen some kit tested in all conditions. It is inevitable that something procured as a ‘jack of all trades’ will not excel in all conditions. Instead UK procurement can be seen as something of a balancing act, trying to put into service a vehicle designed to meet a hugely diverse set of requirements, and set against a truly global operating area. This is not easy, and it is to the requirement managers credit that there is such genuinely good equipment in service at the moment. What this means then is that one could see UK military vehicles and equipment as a bridging act – able to hold its own for a reasonable length of time in any one theatre, but not optimised for performance in one specific area.

In the case of both Iraq and Afghanistan, (and to a lesser extent Northern Ireland too) the military had to take equipment not optimised for the regions and work with it in theatre. In time as it became clear that there were environmental challenges which needed overcoming, and as the tactical environment changed, these vehicles were often upgraded and withdrawn. The flexibility of the Urgent Operational Requirement (UOR) process meant that it has been possible to transform a generic military capability into a hugely bespoke force – the equipment used on HERRICK now bears practically no resemblance to the equipment deployed in 2006. Indeed beyond a few generic light vehicles, it is hard to think of any vehicle fleet in service there being unchanged in some way. The myth that the wrong equipment is deployed and soldiers are left to deal with it is completely wrong – the British Army today on HERRICK has spent 10 years reequipping itself with an entirely new set of vehicles and equipment, which rely on technology which often didn’t exist a couple of years ago.

The system is far more responsive than the public give it credit for, and we should rightly be proud that there is good equipment out there. The problem is though that all this takes time to achieve – no army on the planet can re-organise itself and reequip itself overnight.

Both HERRICK and TELIC have been marked by an environment where the opposition, its tactics, its equipment and its membership had the potential to change on a monthly, weekly and sometimes daily basis. One only has to look back to the campaign in Iraq to see the changing nature of the IED, which went from a relatively simple ‘bomb in a box’ to being a hugely dangerous and incredibly sophisticated weapon system in a very short period of time. Similarly, the area of operations and the manner in which they were conducted changed, from hostile to permissive, to hostile and then to something in-between. There was no consistent period of change as loved by theorists with flowcharts depicting the phases of conflict – instead it was a very confusing situation which could be barely predicted, let alone managed.

Within this then the challenge was how to manage on the ground with equipment which was at times the right kit for the job, while a few days later it could be entirely inappropriate. Snatch Landrovers were not always the right vehicle, but they were often useful in the cramped backstreets of Basra, and as a less escalatory vehicle – the author remembers his time in Basra and hearing how the locals equated Warrior IFVs to Tanks, and their presence on the street did not always help improve relations. The commander on the ground then has to balance his assets and know that relying on the safest method of transport is not always the correct method.

Meanwhile where upgrades were going through, they took time to implement – one only has to consider that it can take a period of months to procure, manufacture, integrate, deliver, train and deploy even a basic piece of UOR kit. Now look at the case of a complicated system like a vehicle, which may need dozens of modifications, or introducing an entirely new platform into service to replace older ones.

It is easy to say that the MOD should have foreseen these challenges and equipped troops correctly, but with technology changing and finite resources in the mainstream budget which didn’t allow for this sort of widespread procurement of theatre specific assets, it is hard to see what else could be done. One only has to consider that procuring equipment takes time, training on it to use it to best effect takes even longer. The MOD was pilloried for delaying sending sets of armoured vehicles to Afghanistan some time ago, even though they were in vehicle parks in the UK – the reality though that there was no one trained to use them in theatre, that the tactics, spares chains, mechanics and all the other complex pieces of equipment needed to support them were in the UK and not HERRICK was not noted. There was a perception that because we possessed modern vehicles, we should deploy them, even if we could not support or operate them.

The challenge for commanders is how best to balance the need to deploy their assets, while using the equipment that they have to hand. The challenges of this ruling are that commanders will now need to consider their duty of care and not be able to take as much risk. Would a commander now be willing to send a Snatch vehicle onto the streets if he had no other suitable vehicles available? If the answer is no, then the question becomes ‘what is the impact’? By having to consider the reduced presence, we wonder whether the streets will become less safe, and the operational area less permissive for friendly forces. Could this lead to firing points being established in local areas, where it is not appropriate or physically possible to send a larger vehicle, but which a snatch could get into? If the establishment is mortared as a result of this, and people are killed, then has the UK government failed in its duty?

It is very easy with the benefit of hindsight to regard something as being the wrong vehicle for the job, but that is a reality of working with equipment which is being outpaced by both the operational environment and technological developments of the opposition. In the modern world knowledge transfer is easy to achieve, and as tactics and procedures evolve, they can shift areas and theatres of operations far more quickly than new equipment can be procured. In this world the opposition is very much inside our own OODA loop, and is media savvy enough to realise that concerted efforts against a specific vehicle type, or a ‘spectacular’ could see a strategic effect.

Commanders will now find themselves having to consider this, and while it is easy to say ‘but its only one vehicle fleet’ the reality is that it can have a far wider impact. Vehicles and equipment is not deployed in isolation, and they are mutually self-supporting – by denying a commander the ability to fully use or employ one vehicle for which concerns may exist, this may leave a gap in capability which cannot be filled by other assets, and in turn causing more deaths as the opposition exploit this.

Ultimately military operations are about inflicting violence on those who need it, and balancing risk against reward to achieve success. No one wants to come home in a body bag, and everyone hopes that their equipment is up to the job. Sometimes one must reluctantly accept that there will be risk taken on equipment in the short term, knowing that mitigation is underway in the medium term. This doesn’t make it any easier for the families of those killed, but how does one balance this – you cannot suspend military operations until the right equipment emerges.

While it is imperative that as a nation we seek to provide the best possible equipment within the resource constraints of the time, we must also accept that procurement is a trade-off. We will never have enough money to put the right equipment, meeting all possible threats and being future proofed to the nth degree across all fields of the military. To pretend otherwise is ludicrous.

While suing may achieve a self-perceived form of justice for loved ones, it will not change the reality of modern operations, namely that we need to work in an environment where the threat changes, and simply putting newer, larger and more protected vehicles into service is not only not the answer, but also cannot be done in a very short timescale. We must all remember that military operations come with a degree of risk, and while mitigated, it cannot always be eliminated. Humphrey feels deeply for the families of those who have lost loved ones, but cannot help but feel that in pursuing this case, they may inadvertently set the conditions where more will die unnecessarily than may otherwise have been the case.

19 comments:

  1. No matter what the MOD and military leadership does, or doesn't do servicemen and women will be killed and seriously injured on active service. That is the brutal nature of war and there is no escaping from it. Best that can be done is to minimise casualties.

    In some ways I do see this issue as being in a long British tradition of blaming our side for military deaths while effectively ignoring the enemy who actually did the killing. Should it not be them that the families should sue? In an ideal world, yes, but I recognise we don't live in an ideal world.

    Will this ruling set a new precedent? Could, to pick a somewhat OTT example, someone who's relative was killed at Loos in 1915 sue the MOD for the shortage of artillery shells? Is the MOD now liable for casualties caused because British tank design in WW2 was often sub-standard?

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  2. Where this judgement will lead is to relatively junior officers having their operational decisions second guessed by lawyers years latter. In action as, people here will no better than the population as a whole, decisions often have to be made on the rush, in difficult circumstances, on incomplete information. The lawyers, who will likely have no military experience, will be reviewing them in warm comfy offices with plenty of time and the benefit of full hindsight.

    A relatively junior officer whose decisions could be subject to a civil suit based on the allegation he/she was negligent, has but one protection, record keeping. From my time in the Home Office, where in certain areas this or similar threats have become commonplace, the keeping of contemporaneous logs setting out what one knew and what one didn't know and the basis for each decision (along with written risk assessments) have become de rigueur. The idea of a platoon commander sitting in his hole in the pissing rain filling out a risk assessment before he sends out a patrol, might seem laughable but if he don't and two years down the line he is in the witness box facing Michael Mansfield QC his career will be in tatters.

    Mr. SO2, seems to think this ruling will lead to the big boys being held to account. It might, but I doubt it - those Civil Servants never ordered Snatch Landrovers out on patrol - the blame, like sh1t will roll down hill, and it will be the company and Platoon leaders who will catch the flack. It is a recipe for massive risk aversion and military paralysis as decisions are shuffled up and down the line like a M26L2 with the pin out.

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  3. Interesting post.

    I broadly agree with the author that, philosophically, nobody and no institution should be above the law.

    What I do worry about is the same as a lot of people and that's a ridiculous risk aversion resulting from the MoD losing its case.

    Sometimes's I am very surprised about how sensible the law can be, and sometime's very shocked at how ridiculous and detached from reality it is - I hope that I am of the former rather than the latter mind when this is finished. Until then I await developments.

    Lord Lt.

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  4. What happened to SO2's guest post?
    http://thinpinstripedline.blogspot.co.uk/2013/06/smith-ors-end-of-world-as-we-know-it-or.html

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  5. A very good question. Mr. So2's first version appeared as a reply here then very quickly became a guest post in its own right. Now both versions have gone. I does seem rather odd.

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  6. Both odd and disappointing.
    I thought SO2's arguments to be a well informed and welcome antidote to the usual media knee jerk misdirection and clap trap, which is what this site is usually so good at too. Shame.

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  7. SO2's arguments, IMO do not really consider why the immunity was either granted or at least de facto tolerated for so many years.

    Even if we assume we can limit this to so-called "administrative policy" such as arms procurement, it can still be hazardous and lead to an overemphasis on tactical (or even technical) factors over operational-strategic ones.

    Let's go back to WWII. We'll say Britain's tank industry was more competent, and produced 2 designs. Cromwell (it was perfected a bit earlier than in real life) and a copy of the Panther. The relative merits I suppose don't have to be repeated here. So what should Britain build?

    There is a strong case for arguing to build the Cromwell because the percentage of times it'll meet a Panther is relatively limited and a large number of Cromwells is more advantageous on an operational level - which is to say, it is better for the nation.

    But even if this is so, there will inevitably be days when it meets Panther in Panther's home ground and it'll get killed. Which under the new legal doctrine is reasonable grounds for a lawsuit. I mean, the MoD knowingly accepted a vehicle with less armor and firepower, and now some crews are dead. Is that not negligence? Ignoring duty of care?

    So now it gets fought out in a civil court. Sure, it still has to be fought, but MoD is in an adverse position. What do you think the civilian judge finds easy to understand? Authoratative numbers on penetration tables or operational considerations so complex that many a professional military officer would never approach true understanding? How do you think he would judge?

    On the other hand, if I choose to build the Panther-copy, sure, it means a lot of infantry won't have tank support. It is likely a bunch of them will die for this. But that's not as easily traced in a civilian's mind to being a valid negligence case. And even if I go to court, I can point out that it is important to protect tanker's lives, and British war industry is going full out - simple arguments that the court can understand. That is, I'm less likely to get sued and if I do I can fight on advantageous ground.

    Now, if I'm Bureaucrat, what would I pick? It is that simple.

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  8. I've no knowledge over MOD legal framework but this is nicely argued.

    BTW, you are a nice defence blogger compared to some arrogant ones.

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  9. Another vote in support of S02's missing comment/guest post.

    Cases such as XV230 demonstrate the need for the MOD to be held accountable for its Duty of Care.

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  10. I an aware that, unlike Humphrey, there are many in the MOD who welcome this development as it should guard against the wilful removal of even basic survivability features from the requirements for future platforms on land, sea and in the air; often removed due to Industry pressure as "its all too difficult", justified by inflated (often ludicrous) cost estimates and frequently supported by senior military personnel in project teams who take Industry's opinion over the contrary advice of MOD's subject matter experts in Dstl and elsewhere.

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  11. "I thought SO2's arguments to be a well informed and welcome... "

    I agree, though I think he was optimistic, if not actually simplistic, in his conclusions. Be that as it may the fact that his comments have disappeared raises questions. Our good Host has been around today, witness his post on "Think Defence", so perhaps he could enlighten us why SO2's views have been disappeared.

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    1. On this occasion I had my reasons. That's all that I will say on this matter.

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  12. Censorship in a free and open society - the reasons must have been compelling.

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  13. As a user of Snatch on many occasions and others issues S02 brought up in his post,a lot of what he brought up rang very true to me.
    As to the issue of the post I'm afraid I can only agree with S02's (sadly) now deleted comments. The MoD firmly had it's head up it's arse on this issue. Despite the issues you bring up in the blog, it was more a lack of fires being lighted under backsides. If there are had of been there, to my mind, there is little doubt a replacement vehicle could and should have been brought into theatre faster. It wasn't a problem that was of Byzantine complixity, just an issue that needed focusing on and some leadership. Sadly in my opinion that was lacking, which is the real issue here.

    Over the wider legal issues, the MoD sadly needs rulings like this from time to time to shock them into action. If it takes something like this to force some leadership to occur then so be it.

    As to the deleted posts Sir H, it's disappointing to see them removed, I won't try and second guess why, but I believe you've weakened the blog by doing so.

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    1. Well it might have been at the request of S02...

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  14. We are privileged to be included in Sir Humphrey's fireside chats and I, for one, would not wish to endanger that by questioning his wisdom in matters of his own discipline.
    Unlike Messrs Pseudonyms and Anonymous freedom to speak is not the same as freedom of speech.

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  15. "Censorship in a free and open society - the reasons must have been compelling."

    Censorship is hyperbole. At the end of the day it is a blog (a very interesting one but still just a blog) and only a fool is going to put a blog over real world concerns.

    "Unlike Messrs Pseudonyms and Anonymous freedom to speak is not the same as freedom of speech."

    Some of us post "Anonymously" because we can't get this blogspot thing to work properly and under a Pseudonym so we can speak something approaching our minds without it biting us in the arse years down the line. And because the internet is full of freaks and can get nasty and menacing.

    Lord Lt.

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  16. Good article, but think you miss the main point. MoD and Ministers lied over Snatch.

    It is one thing to say it is fit for purpose and it turns out not to be, perhaps because the oppo has developed a bigger and better IED.

    But it is quite another to say it is fit for purpose when everyone knows it has been agreed long ago it isn't and was due for replacement in NI.

    That single fact destroys MoD's argument.

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    1. Perhaps when Snatch was deployed the primary threat wasn't IEDs. The Iraq of 2003-2006 was very different to the Iraq of 2007+.

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