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By Chris Payling and Mark Sanderson, Solicitor, Walker Morris Solicitors

A recent case in the High Court has highlighted the liabilities that the Ministry of Defence (MoD) has to its employees. This case has implications for those contracting in the Defence sector.

In the late 19th Century, potential recruits were offered a shilling to join the Army (or Navy). The shilling was not only an incentive to join the Army and was their first day’s pay, but also sealed the contract between the potential soldier, the Army and the Nation. Thus, the shilling was the price for which a soldier agreed to put his life on the line for the country. The modern version of this contract is the “Military Covenant”. The Covenant officially applies only to the Army, but its core principles are also taken to extend to both the Air Force and Navy.

Under Army Doctrine: “soldiers will be called upon to make personal sacrifices – including the ultimate sacrifice – in the service of the Nation. In putting the needs of the Nation and the Army before their own, they forego some of the rights enjoyed by those outside the Armed Forces. In return, soldiers must always be able to expect fair treatment, to be valued and respected as individuals…. In the same way the unique nature of military… operations means that the Army differs from all other institutions, and must be sustained and provided for…by the Nation. This mutual obligation forms the Military Covenant between the Nation, the Army and each individual soldier”.

Whilst any member of the Armed Forces voluntarily accepts the risk that they find themselves in a situation where they may have to make the “ultimate sacrifice” for the sake of the Nation, what duty of care is owed to British servicemen or women by the Nation through the Government and once a soldier, sailor or airman has accepted the Queen’s shilling, do they lose their right to life?

Under Article 2(1) of the European Convention on Human Rights (ECHR) “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally…”. The ECHR and the conventions impose a positive obligation upon a State to protect the life of its citizens. However, the nature and purpose of the Armed Forces appears to be at odds with this obligation, as sending a soldier to fight or keep order will inevitably expose them to the risk of death. Although the State is not under an absolute obligation to protect the lives of its citizens, the State is not absolved of its responsibilities and Article 2 imposes a duty of care on a State to take appropriate steps to safeguard and protect the lives of those within its jurisdiction, which includes members of the Armed Forces.

The purpose of the Human Rights Act 1998, which implements the ECHR into domestic law, is to provide remedies, usually in the form of a compensation claim, for a person who has had their human rights breached by a public body. The difficulty with this process in relation to a breach of Article 2, is that claimant who has had their right to life violated is not in a position to make a claim. Therefore, the family of the deceased has to bring a claim and has to show that the public body failed to protect the deceased’s right to life. In the case of a member of the Armed Forces, it must be shown that the MoD failed in its duty to protect a soldier’s life.

The difficulties involved with the Armed Forces and the right to life have been the subject of two recent court cases, which were decided within two days of each other. The first, R (on the application of Gentle and anor) v Prime Minister and ors [2008] UKHL 20, concerned the application of Article 2 as a basis to impose upon the Government a duty to satisfy itself of the legality of a military action. However, of more significance to the Defence sector is the second case, Smith v The Assistant Deputy Coroner for Oxfordshire [2008] EWHC 694 (Admin), which concerned

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