Richard Scorer asks why there is growing disquiet about the treatment of serving and retired personnel

IS THE military covenant being broken? There is said to be growing anger in the armed services that the compact between soldiers and the state is not being honoured. British Army message boards complain about poor equipment, inferior housing and lack of proper healthcare for service personnel.

These complaints have been brought into sharper focus by legal cases. The High Court recently ruled that sending British soldiers out on duty with defective equipment may constitute a breach of their human rights. A soldier “does not lose all protection simply because he is in hostile territory carrying out dangerous operations”.

The case followed an inquest into the death of a Territorial Army soldier serving in southern Iraq. The soldier died from heatstroke in temperatures reaching 60C. At the inquest, the coroner concluded that the tragedy occurred because of “a serious failure to recognise and take appropriate steps to address the difficulty that [the soldier] had in adjusting to the climate”. Mr Justice Collins held that, while risk was inherent in military service, the Ministry of Defence had to provide soldiers with proper care. However, the judge upheld the concept of combat immunity – in other words, the doctrine that the MoD is not liable to soldiers for injuries caused by negligence in battlefield situations. Applying a historical analogy, the judge explained: “Failures to provide any adequate medical attention in the Crimean War would [breach the Human Rights Act], whereas the charge of the Light Brigade would not.”

Mr Justice Collins also rejected an attempt by the MoD to stop coroners using phrases such as “serious failure” in inquests concerning troops who have died on active service. This part of the decision highlighted another issue: the MoD’s apparent determination to prevent criticism from the courts and its institutional reluctance to admit blame and learn lessons.

There is clearly concern among servicemen and women about the state of the military covenant. What is the reality? There are several issues here.

One concerns the overall level of defence spending. The Tories complain that defence spending as a percentage of gross domestic product has declined from 4.4 per cent in 1987/88 to 2.2 per cent now. This ignores the fact that the figure in the last year of John Major’s Government was 2.6 per cent, so the decline on this measure has hardly been dramatic under Labour. In fact, defence expenditure in real terms – that is to say, at current prices – rose from £26.2 billion in the last year of the Major Government to £31.6 billion in 2006-7.

The counter-argument is that too much of this spending goes on expensive high-tech projects such as the Eurofighter. This situation was no different under the Tories, but now feeds the concern around neglect of ordinary soldiers and complaints about faulty equipment.

As a lawyer who has fought many battles with the MoD over the past 15 years on behalf of injured servicemen, my experience is that defective equipment has been a problem under governments of both parties. There is clearly now more media attention on this than previously, which may partly reflect public discomfort about British involvement in Iraq and a feeling that ordinary squaddies are bearing the brunt of a misguided military intervention. Also, the Human Rights Act has given lawyers additional ammunition to expose the MoD’s failings.

Concern is heightened by the fact that, in dealing with some of these issues, the MoD has consistently displayed an institutional resistance to openness, irrespective of whichever party is in power. Under the previous Conservative Government, the investigation into the 1994 Chinook crash over the Mull of Kintyre was accompanied by a great deal of stonewalling by the MoD. The relatives of those who died had to campaign for a proper inquiry. Latterly, their campaign was supported by Malcolm Rifkind, the former Tory Defence and Foreign Secretary who lost his seat at the 1997 general election and who is now MP for Kensington and Chelsea. However, Rifkind’s position was a complete about-turn from the stance which he adopted when in office. So, problems of faulty equipment and the MoD’s institutional tendency to suppress criticism are not recent developments. Disquiet may be justified in many cases, but these issues are not new, just more susceptible to high profile legal challenges and more in the public view.

Serious injuries caused by faulty equipment are appalling and unacceptable. However, there is a danger that the public focus on this may divert attention from other, more profound problems. In my experience of representing injured servicemen, the biggest single failing – both of successive governments and society as a whole – is the lack of proper support for the psychiatric casualties of warfare. These are the service personnel who leave the forces with long-term mental illnesses – for example, depression and post-traumatic stress disorder – after suffering horrific experiences in combat. In many ways, this is a hidden epidemic.

The House of Commons Defence Select Committee has been considering this issue. It concluded that, while the MoD is providing adequate mental healthcare for serving members of the armed forces, here is no system for ensuring the specific needs of ex-servicemen are understood by civilian doctors. “We are concerned that the identification and treatment of veterans with mental health needs relies as much on good intentions and good luck as on robust tracking and detailed understanding of their problems.”

As the committee recognised, these problems are likely to increase because of the high tempo of operations in Iraq and Afghanistan. The National Health Service has to bear much of the burden in providing treatment for ex-service personnel suffering from post-traumatic stress disorder because mental illness can take years to emerge. The average period between leaving the armed forces and diagnosis of associated mental health problems is about 15 years. The select committee argued that support has to go beyond the period of service in the military and should form part of the compact between the services and society. The committee acknowledged the huge number of-ex service personnel affected by these problems.

In November 2007, the Government announced it was expanding priority access to healthcare for veterans. This is long overdue. In 2002/3, the MoD defended a group action brought in the courts by several thousand ex-servicemen who argued that the MoD had been negligent in its failure to detect and treat stress-related mental ill-health among service personnel. The claimants argued that other countries, such as the United States, Canada and Israel, had developed a sophisticated understanding of post-traumatic stress disorder among soldiers and had taken steps to tackle the problem. No doubt fearing the floodgates might open, the courts found in favour of the MoD in all but a small number of the cases.

The group action concerned the MoD’s liability in respect of psychiatric injury sustained before 1996. With developing understanding of the psychiatric consequences of warfare, the courts may be more critical of the MoD in future.

At present, however, lacking the leverage of a favourable court decision, ex-service personnel suffering from post-traumatic stress disorder and similar conditions are reliant on a network of charities, such as Combat Stress, and patchy NHS provision. This needs to change. In all the debates around the military covenant, the psychological welfare of ex-servicemen is one of the least publicised issues, but it’s also the one which probably merits the most concern.

Richard Scorer is a lawyer and Labour’s prospective parliamentary candidate for Hazel Grove