Oral evidence: Beyond endurance? Military exercises and the duty of care, HC 598
Wednesday 9 December 2015
Ordered by the House of Commons to be published on 9 December 2015.
Written evidence from witnesses:
– Philippa Tuckman, Solicitor, Bolt Burdon Kemp Solicitors
Watch the meeting – Beyond endurance? Military exercises and the duty of care
Members present: Mrs Madeleine Moon (Chair); Richard Benyon; Mr James Gray; Johnny Mercer
Questions 140–218
Witness[es]: Hilary Meredith, Hilary Meredith Solicitors, and Philippa Tuckman, Bolt Burdon Kemp Solicitors, gave evidence.
Chair: Good morning and thank you for joining us. At the start, I would like to read out a statement.
Welcome to the second evidence session for the Defence Sub-Committee inquiry into military exercises and the duty of care. The purpose of the inquiry is to examine the overarching policies, practices and guidance of the Ministry of Defence and the armed forces in respect of the health and safety of service personnel during training exercises and the selection events, and whether effective processes exist for capturing lessons from accidents and deaths that have occurred during such events.
For the avoidance of any doubt, let me make it clear that we will not be looking at individual cases. We do not want to hear evidence in relation to individual cases or make any comments on them. We will also not be making any media statements until we publish our report.
We have a number of questions that we need to get through this morning. I hope you will assist us by making your answers as short and clear as possible, while at the same time being as full as you can. I am sure that is not a problem for lawyers.
Q140 Johnny Mercer: Starting with Hilary, what are your general concerns regarding the MoD’s application of its duty of care to service personnel on training exercises and selection events? What areas of each of the Services and Joint Forces Command cause you major concern?
Hilary Meredith: My main concern with duty of care is that it is probably not understood properly. It is not understood properly at institutional level, at the top. I think there is still a culture of the old school, “Well, you joined up, so you accept the risk,” and that’s it. That may be acceptable on the battlefield, but it is not acceptable in training. That culture has to change somewhere.
I feel that you have heard evidence so far on what should happen. We see what actually happens at the grassroots. My main area of concern is possibly the Army: they are the men on the ground and the main route of the complaints that I see is from the Army; secondly from the Air Force, and probably last from the Navy. I don’t know whether that is because they are on ships and out and sea with no access to lawyers, or they have fewer accidents. My main concern is the Army and the duty of care owed there.
Philippa Tuckman: I agree with everything Hilary said. I have concerns about the application of the duty of care. I think that the key to it is to stop thinking of service as something exceptional, to which the normal rules that we would expect to apply to our employment or our children’s employment in civilian life do not apply. It is exceptional work, but it is work and the Ministry of Defence is an employer. One of the problems we encounter acting on behalf of injured service personnel is very often a feeling of exceptionalism and excuses made for not observing normal safety procedures.
Q141 Johnny Mercer: My view is that not a single death in training is acceptable. Do you think that is shared by the MoD?
Hilary Meredith: No, I don’t. I was personally involved in the Brecon case. I know we are not discussing individual cases, but the Brecon case was shocking with a completely reckless attitude—
Chair: Hilary, can I stop you there? We really are not looking at specific cases. If there is a wider and more general comment you want to make, that would be fine.
Hilary Meredith: I think there is a blasé attitude to attrition rates, particularly in training. The culture has to change and there has to be a better safety record in training.
Q142 Johnny Mercer: Do you have experience also of working with clients from other higher risk sectors, such as oil and gas or the police? How does it compare? What are the cultural differences and challenges in dealing across a sector like that?
Hilary Meredith: I have only personally acted for the Armed Forces since 1987, so I have not worked in any other industry.
Q143 Johnny Mercer: And you have never seen the sort of associated levels of almost disregard for health and safety that you have seen in the MoD.
Hilary Meredith: I haven’t worked in any other sector. I have only worked for the Armed Forces, so I have no knowledge of that.
Philippa Tuckman: I have not worked with the Armed Forces for as long as Hilary and therefore have the advantage of having worked with people who have been injured in other high-risk sectors—firefighters, for example, but also people working in the legitimate, well regulated construction industry, which can be very dangerous. I have also canvassed views from members of my team who have come more recently from trade union firms, for example.
The impression we have all had is that, on beginning to work with injured service personnel, we have been quite surprised by the huge differences. In industry, there is a culture of gathering information about adverse incidents and taking seriously accidents that do not necessarily result in serious injury. There is accountability from the top downwards, which is obviously encouraged by a legislative pressure. There is also empowerment from the bottom up—that is one of the things you’ll get bored of me saying today—so that people who have been injured expect to report incidents and expect to be listened to.
Q144 Johnny Mercer: And expect to be held accountable, I suspect, under civil and criminal law. We will come to that later.
Philippa Tuckman: Yes, very much so. So there is pressure coming down and going up and it all results in, to be perfectly prosaic about it, better record keeping that results in fewer accidents.
Johnny Mercer: Yes; higher standards. Okay, thank you very much.
Q145 Mr Gray: From the points you have been making about the construction industry and other things, do you think in the MoD, or in the military, there is a difference in the duty of care between warlike training, which might be viewed as being more risky, and routine training, which is still highly risky? In other words, might the routine training injuries you have seen or worked with clients over be different? Might not that side of military training be more like industry, whereas warlike training is something quite different from being on a construction site?
Philippa Tuckman: I would say that it is not a distinction that could properly be made, because all training is ultimately training for war.
Q146 Mr Gray: Not necessarily. You might be training a military lawyer, for example, or training someone to mend a Land Rover, which might fall down on their head, but that is completely different from training somebody to jump out of an aeroplane.
Philippa Tuckman: It is true that the circumstances in which you are going to use that training—I am setting aside the military lawyer, who probably is not at such physical risk—
Q147 Mr Gray: Caterers.
Philippa Tuckman: Caterers, yes.
Mr Gray: And drill sergeants. There are loads of things in the military where you are not actually doing warlike training.
Hilary Meredith: With respect, we probably do not see those, because the injuries that we see are from training incidents or from warlike training. We do not see the circumstance where someone is injured in catering or training to do law.
Philippa Tuckman: I must say that I do, and I see a great deal of clinical negligence. You are absolutely right that it is horses for courses—
Mr Gray: Cavalry—that’s another one. Yes, there are a lot of cavalry injuries.
Philippa Tuckman: Yes, although there are fewer cavalry injuries in battle nowadays, I suppose.
I think that what is causing concern here is, for example, training on the Brecon Beacons, where it gets very cold. One of the things that I have to emphasise to my clients and to the Ministry of Defence in the course of litigation is that you can have a relatively minor injury caused by relatively low-level negligence and it is only the circumstance. The training is exactly the same, the procedures are the same; they are ultimately procedures that are supposed to keep you safe in combat, but in the context of the Brecon Beacons when the temperature falls, quite a small instance of negligence can result either in a minor injury—but one which can stop your career in its tracks, so I don’t think we should concentrate only on fatalities—
Q148 Mr Gray: Sure. I understand that, but the nature of my question was whether the duty of care exercised by the military or the MoD is different when you are carrying out routine training, akin to the kind of training you might get on a building site. Some 75% of all military training is non-warlike: it is about writing documents or cooking lunch, but you can get an injury cooking lunch. Therefore, my question is whether the duty of care for those kinds of people is different from the duty of care that you have to expect when you are training someone to jump out of an aeroplane or drive a tank.
Philippa Tuckman: Yes, I see your question. I am sorry, I was rather slow on the uptake there.
Mr Gray: Perhaps I was being oblique.
Philippa Tuckman: The duty of care is to take reasonable care to avoid reasonably foreseeable injury. The “reasonable care” does take into account the circumstances, so it is reasonable to expect somebody to run at full pelt down a steep hill, because that is required, as long as silly risks are not taken. The duty of care is modified in that way, but it has to be properly risk assessed.
Q149 Mr Gray: Give us a flavour of the kind of injuries you act for, Hilary.
Hilary Meredith: The majority of the people who contact me are from the Army, and the type of injuries that we see are gunshot wounds, crushing injuries—
Q150 Mr Gray: Crushing under vehicles?
Hilary Meredith: Vehicles or aircraft—and impact injuries from vehicles or aircraft. We sometimes see burns as well.
Q151 Richard Benyon: Gunshot wounds means blue on blue?
Hilary Meredith: Yes, on training exercises. We are seeing lots of those at the moment.
Philippa Tuckman: And climatic injuries.
Q152 Chair: Will you say a little more about the climatic injuries?
Philippa Tuckman: Yes. I’ll concentrate on non-freezing cold injuries, because heat injuries do happen and should not happen, but they are rarer.
Mr Gray: Yes, although curiously the heat injuries might be the ones that we are particularly interested in, so if you can—
Chair: James, could we let Philippa respond?
Philippa Tuckman: What heat and cold injuries have in common is that they are covered by the same regulation—Joint Service Publication 539—and they are clearly seen as part of the same problem by the Ministry of Defence because it is made clear in both the heat and cold sections that they should be, in the vast majority of cases, avoidable by taking what seem very prosaic steps: making sure people change their socks, measuring the wind chill factor and so on.
Cold injury is a good example—well, heat injury could be as well, but looking just at cold injury, it is a good example of something that is apparently a minor injury but can become more severe and have a great impact on somebody’s working life. I was astonished—when I came across my first cold injury case, I did my research and got a reading list, and No. 1 on the reading list was a paper from 1915 about trench foot. I thought, “Ah, so it’s still around,” and it is still around.
I’m sure you don’t want me to go into the mechanism of the injury—I have set that out in my paper—but the point about this injury is that it is completely avoidable. The reason why I focused on it in my paper was that this is the Ministry of Defence’s own regulation, which has been carefully thought out. It is by and large an excellent regulation. If it was up to me, I would make one or two changes, but clearly they feel it is workable. It was cited in the last evidence session as an example of best practice—it was specifically pulled out—and therefore I think this is one of those areas where there can be no argument about it being fair to expect the Ministry of Defence to abide by those rules. It is not a standard of care that I am trying to argue for as a lawyer; it’s just there.
Both Hilary and I find that there is a steady stream—quite a wide, fast-flowing stream—of non-freezing cold injury cases coming through our doors. If that is the case, then given that they are admitted to be largely avoidable, somebody is not obeying the rules.
Hilary Meredith: There are hundreds of them going through the courts at the moment.
Q153 Johnny Mercer: Costing how much, do you think, to the MoD?
Hilary Meredith: It involves a loss of career, so the damages to the victim are—
Johnny Mercer: Substantial?
Hilary Meredith: Yes, they can be.
Philippa Tuckman: An unusual one will be in the £30,000 to £40,000 range and a loss of career one will be up to £500,000.
Q154 Mr Gray: Is that frostbite?
Philippa Tuckman: No, not exactly. Frostbite is when the temperature drops below zero and the tissues freeze and die. In terms of non-freezing cold injury, temperatures can be as high as 4°C—positive—but if your hands or feet get cold and damp and stay that way for a long time the veins are constricted and the blood is prevented from getting into the limb. On reheating it will flood back far too fast, and the result can be this neurological and vascular damage.
We have had clients who are going to have lifelong torrential sweating, for example, so part of the compensation claim will be for a new pair of shoes every two weeks because the sweat just pours out. Because it affects you in cooler climates, and because Africans and Afro-Caribbeans are 30 times more likely to be affected by this, a soldier who has been recruited from the Commonwealth, comes over and is injured in basic training and whose career stops, has to go back and live somewhere warm and can never again decide to work in a cold climate. As you can see, it can be a relatively minor injury that can be life-changing in many ways. At the worst end it can cause lifelong pain and damage.
Q155 Chair: And there are protocols already in place that would mean that they should be avoided, that such cases should not be coming. Can I get a sense of how many of those cases would be coming across your doors in an average year?
Hilary Meredith: There are about 40 in my office at the moment.
Philippa Tuckman: It is probably more like 15 in mine, but we are a smaller firm.
Q156 Richard Benyon: May I come back to something that you said earlier before we were all admonished not to talk about specifics? You used the word “blasé”—that there was a “blasé attitude”. Could you give some examples of how that manifests to you—something that was said, written or you had heard?
Hilary Meredith: I have been doing this work since 1987 and have seen thousands and thousands of cases over 27 years. I don’t think the attitude in the MoD as an institution has changed that much over that 27-year span. It is not a blasé attitude at the grassroots, among the men on the ground; it is the attitude higher up. There is still this old-school attitude that you joined up and you accept what you get. There is a lack of ownership and accountability higher up in the hierarchy of the rank system and in the MoD. I think it all stems from a lack of anybody policing them or public liability looking at them. There is a lack of vicarious responsibility at an institutional level in the MoD.
Q157 Richard Benyon: I am doing that dangerous thing of playing devil’s advocate. There is probably a commander out there who is thinking, “I want to train hard so we can fight easy.” That is the expression that is used all the time. “I want to test my guys and that involves depriving them of sleep, it requires them to be in cold parts of the UK or elsewhere, or hot parts of the world, and pushing them physically in those circumstances. If Ms Meredith and Ms Tuckman have their way it is going to be tougher and tougher to do what I want to do with these guys to keep them safe when we take them to war.” What do you say to that?
Hilary Meredith: Not at all. We are not advocating a dumbing down of training. Training has to be tough. We are making them ready for war and it has got to be tough training, but there have to be systems in place in case something happens, first trying to avoid something happening, and then a system in place if it does happen, and some accountability if it does. One thing I mentioned in my paper is the lack of reporting of near misses. If there is a blame-free culture where you can report near misses and it goes back up the chain so there can be some database and collected information for future training, that would assist greatly, but I don’t think that happens at the moment. A lot of things happen in training. You can plan, but there are last-minute decisions, weather changes, weapons malfunction, equipment not working or human error. What is very poor is dynamic risk-assessing of changes at the scene, which needs to be improved dramatically.
Q158 Richard Benyon: Do you agree, Ms Tuckman?
Philippa Tuckman: Yes. We do need this blame-free culture for reporting not just near misses, but any accident that results in any injury. Above all, there needs to be a system on which that information is collated, because that will help people to avoid injury in future. It will help the planning. It will help the commanders. It will help people to avoid making bad mistakes and reinventing the wheel for every training exercise.
Q159 Richard Benyon: You mentioned earlier that you would like to see some changes to the particular section of the code that you quoted.
Philippa Tuckman: The JSP.
Richard Benyon: I am not saying you should tell us now, but perhaps you might like to provide something in writing.
Philippa Tuckman: Yes. The changes are very minor and just fiddle around the edges.
Richard Benyon: We might find a useful recommendation that we could make if we could see them.
Philippa Tuckman: Certainly.
Q160 Richard Benyon: What is your assessment of the effectiveness of the measures that exist for the Health and Safety Executive to hold the MoD and the Armed Services to account in respect of accidents and fatalities during training exercises and selection events? Should the law be changed to allow the HSE to investigate incidents outside the UK?
Hilary Meredith: At the moment, the Health and Safety Executive has its hands tied and has no teeth to enforce anything. It can make recommendations, but if they are not acted upon, nothing happens. I listened to the HSE’s evidence. The worst penalty is that something can be published on a website if nothing happens. That is the worst penalty against the MoD for not complying with the recommendations. It has no bite or teeth.
As for the HSE operating overseas, I think that if you are on British soil overseas, the HSE should be allowed to operate. If it is a British camp overseas, the HSE should be allowed in.
Philippa Tuckman: I would add that although health and safety legislation does not actually apply to operations or training overseas, the MoD acknowledges it and strives to abide by the spirit of it. I don’t see why the HSE should not be allowed to investigate training exercises overseas, because a great deal of work is done there.
As for accountability and the relationship, I agree that the HSE has its hands tied. Again, we are not talking about specifics, but there is a case that involves a gunfire accident and targets which Hilary has mentioned in her paper. It took place in 2015, and I am aware of a chillingly similar case, which is on the public record, that happened in 2011 in which a Crown censure was issued for exactly the same sort of breaches of procedure. I think that just illustrates that the HSE means well and can make recommendations, but there is no mechanism for ensuring that those recommendations are followed.
Q161 Richard Benyon: So you think that Crown censure is not effective?
Philippa Tuckman: Well, it wasn’t effective in this case.
Richard Benyon: Not in that case obviously, but there are other things that they can do to draw attention to a failing of an individual commander, which could have massive effects on their—
Hilary Meredith: I am not so keen on individual prosecutions. I think the MoD should be accountable. I have acted on cases where, for example, there have been courts martial of the captains in charge of particular training events, and I have personally felt that they weren’t responsible and the courts martials have collapsed because they were almost made scapegoats. I think the MoD, as any employer does, has to take corporate responsibility and acceptability for the lack of systems and the failings within the organisation.
Can I extend the point about the Health and Safety Executive to the coroner, for example? In many inquests that we attend, the coroner can make recommendations to the MoD and request it to reply, stating that they have made these recommendations. If it fails to reply, the coroner can do nothing. If the MoD replies but fails to implement changes, the worst penalty that the coroner can impose is to announce that publicly on the coroner’s website. To me, that is not a penalty. There is nothing to stop the MoD from failing to comply with the coroner’s recommendations.
Q162 Chair: Has that position changed since the appointment of the Chief Coroner? We have the Office of the Chief Coroner coming to give evidence later, and I wonder whether it has been able to tighten up on that at all.
Hilary Meredith: As far as I am aware, it hasn’t changed.
Q163 Chair: We have been told that there have been no criminal prosecutions since 2000 and seven prosecutions by the Service Prosecuting Authority since 2010 in respect of accidents and fatalities during training, exercise and selection events. What is your reaction to those statistics?
Hilary Meredith: Again, without repeating myself, unless there is a real disregard and failure to comply with the systems in place, I do not think that the private prosecution of an individual will work. The systematic failure stems from the top—from the MoD as a corporation—and it is the corporation that should be prosecuted, not the individual.
Philippa Tuckman: I would add that, obviously, we can only speculate as to why there haven’t been prosecutions, but it may be that when they have been investigated, it has been found that there are no systems for this person to have breached. That could be the reason. What we need is for the systems to be there.
Q164 Chair: I appreciate that you are not experts in service law, but could you give us your assessment of the effectiveness of service law in respect of the duty of care in training exercises and selection events? You seem to be quite scathing. Is that the right assessment?
Hilary Meredith: Probably, yes. The only individual prosecutions that I have been involved in are courts martial. I have sat and watched courts martial because I have been acting for a widow. In many cases, I have felt that the court martial was wrongly placed and should not have been brought, and in fact, there were no systems in place, or there was faulty equipment—not the fault of the individual running the training programme. Those courts martial should not have been brought. It was about a systematic failure or equipment failure from the top, and there should be more accountability at the top.
Philippa Tuckman: I agree. I have been involved in cases where my client has been court-martialled and, in fact, they have been one of the victims of an equipment failure or a systems failure. It is very tempting for commanders further up the chain to think that the person immediately behind the gun is the guilty one, and it is not a productive way of dealing with things. It can mean that a systematic failure is missed, so other people are going to be injured further down the line.
Q165 Chair: You have talked about courts martial. What about administrative action? Have you had experience of that being utilised? What is your assessment of that process?
Hilary Meredith: I have never come across administrative action.
Philippa Tuckman: I have occasionally. It can be useful, but it has to be on a case-by-case basis. If it is somebody who has done something really stupid, then of course it makes sense, and individuals have to be held responsible if they are genuinely at fault. I would like to know that once that had been done, if the person was shown to have been largely at fault but that it wasn’t a completely one-off incident, there was some mechanism for ensuring that the incident was investigated from a lessons-learned point of view.
Q166 Chair: Your concern is much more that, although administrative action may be appropriate in this case, the wider lessons learned across the military are not addressed and passed on. It becomes an isolated incident with no wider institutional learning.
Hilary Meredith: Yes.
Philippa Tuckman: Yes. I should stress that we are not aware of all the policy that comes down from the top. What we see is the effect from the bottom up. My impression is always that there is a great deal of thinking that goes on at the top about how to deal with accidents and so on, but there is a hole in the middle. There is a difficulty in communication of thinking at the top to the bottom. I think we both have some ideas about how that hole might be bridged.
Q167 Chair: Are you willing to share them with us?
Philippa Tuckman: Yes. At the risk of sounding rather presumptuous, my feeling is what I was talking about in the context of industry. We need this no-blame culture to investigate these incidents.
There needs to be training to encourage communication right up the chain of command, right from the bottom to the top, right from day one of training. Otherwise, it encourages a lack of information to come up the chain of command, because the general who is drafting JSP 539 is not going to know whether the socks work or not, or whether the corporal as a general rule is not listening to complaints, or that somebody cannot feel his own feet because he will not know that that is one of the symptoms.
It means that the top levels are deprived of information and the bottom levels do not take full responsibility for their own welfare. I realise that there needs to be strict discipline in the Army and the chain of command needs to be in command, but the MoD might take a lesson from the airline industry, where a great deal of progress was made in avoiding accidents when the co-pilot was encouraged—was obligated—to bring any incident to the attention of the pilot, rather than accepting that because he was the co-pilot the pilot would know better.
There needs to be a fundamental shift in the culture of top-down safety to encourage those at the bottom to share information without fear of censure.
Hilary Meredith: May I add to that? I agree totally with what Philippa is saying. From the bottom up there seems to be a huge time delay in information, even if it is passed up, in getting up to the top. A prime example is the equipment in Iraq and Afghanistan. It took two years to change the vehicles, yet people on the ground were crying out for those vehicles to be changed. It took such a long time—two years—for the information to filter back up to the top. That seems to be a gap that needs to be changed somehow.
Q168 Chair: Do the different standards of proof—beyond reasonable doubt and the balance of probability—complicate things? That is a good lawyerly question for you.
Hilary Meredith: The criminal standard of beyond reasonable doubt does not concern us really because we are civil lawyers. As for the balance of probability, we have had no problem explaining that to our lay clients. It is a very simple concept. It all stems back to the duty of care. There is a duty of care owed, whether the MoD like it, to those in their employ. It is a simply duty. If they breach that duty of care that is where there is a negligent aspect.
Q169 Johnny Mercer: Slightly out of left field, Hilary, how much money do you think you individually have recovered from the MoD since 1987 on behalf of soldiers through negligence?
Hilary Meredith: Millions—absolutely millions. We tried to calculate. My PA who has been with me in my previous practices as well as this practice—she is chained to me—tried to calculate it. We have acted for thousands over the years. If I mention £50 million, that is probably a ballpark figure around the right amount.
Q170 Johnny Mercer: You make a very good point about prosecuting not individuals but organisations. Surely, however, there has to be the ultimate culpability that you have in the civilian sector for a civilian industrial company or manufacturing firm. Do you think that the law should be changed so that the MoD or individual services—or individuals within that—can be subject to a corporate manslaughter charge?
Hilary Meredith: I do agree with that. Where there is a complete and reckless disregard for life, the MoD should be no different, as an institution, from anybody else. It should be subject to the Corporate Manslaughter Act. At the moment, it is excluded from that Act, and so are the SAS. If nothing else, if they were subject to that Act, it might act as a warning if something goes wrong, or it might prevent something from going wrong. I am not saying that I want them to be prosecuted, because they do a very tough job, but if they were subject to that Act, that might act as a warning.
Q171 Johnny Mercer: Talking about prosecution, part of the deterrence is education and various other things, but a very strong part of it is the accountability. That is why there is such a difference between the public and the private sector. Ultimately, if it goes wrong in the private sector, you will lose everything. In the public sector, the Government will just pick up the tab and you can carry on. Is that fair?
Hilary Meredith: That is very fair, and I agree totally with what you are saying. There is no accountability. They police themselves. If they were subject to the Corporate Manslaughter Act, it might take people sit up and take notice, and suddenly think, “Wow, this is serious.” It is a serious game, the military. It is a dangerous game. It might stop what I have named as the blasé culture at the top if they were subject to the Corporate Manslaughter Act. It would be a deterrent.
Philippa Tuckman: I agree with that. Again, it would be very salutary for the Ministry of Defence to be seen as part of civil society. Being subject to the same sort of accountability as other organisations that do dangerous work would help not only accountability from the top, but proper appreciation by those at the bottom of their own right to work without being harmed.
Q172 Chair: Before I go to James, can I just ask you this, Hilary? Of the £50 million that you have estimated, how often are those payments subject to confidentiality clauses where people are not allowed to talk about the level of compensation that they have received? I just wondered whether that figure would be in the public domain.
Hilary Meredith: Most of the figures are not in the public domain because we try, wherever possible, to settle the case out of court amicably with the MoD. For all we do, we enjoy a good relationship with them, so if we can settle things privately, it is better for the client. If there is a case where the MoD have dug their heels in, we really believe in the case and we have to go to trial, that is in the public domain, but most of them settle.
Philippa Tuckman: In the last few years, the MoD has published a list of the highest settlements, but it is a bit hit and miss.
Hilary Meredith: Negligence claims against the MoD are down year on year, and that is because the MoD in 2005 published their armed forces compensation scheme. It has the word compensation in it, so most soldiers feel that that pension with a gratuitous lump sum is their compensation. They are not told that they can also go on and bring a claim in the courts. The top award under the scheme for severe injuries, loss of career or loss of limbs is £570,000. In a court, that is probably worth around £5 million, but they do not know that they can also claim through the courts. Claims are down year on year because of the armed forces compensation scheme.
Philippa Tuckman: This is rather off the subject of this inquiry, but we feel that the guidance that is published for soldiers and service personnel does not emphasise nearly enough—in fact, it is slightly ambiguous about—the possibility of making a civil claim. A civil claim can provide for things like housing, care, aids and equipment, which the Armed Forces compensation scheme explicitly does not allow for.
Hilary Meredith: A civil claim is a way of the MoD sitting up and taking notice of what has happened and possibly making changes to stop it happening again. Particularly where there is a fatality, a lot of the clients we act for do not really want compensation, they just want to make sure that that accident never happens again to anybody else. It is a way of trying to make sure that it doesn’t happen again.
Q173 Richard Benyon: Given that you have been successful on behalf of your clients, has anybody from the senior MoD, whether an official or somebody in the services, asked to have this kind of conversation with you?
Philippa Tuckman: No, never.
Hilary Meredith: I have. In the past, there were some very good heads of claim in the MoD. I used to have regular meetings with them and say, “Look, there’s a trend here. You’ve got faulty equipment or something has happened and we can see a trend developing. Can you send a JSP out and warn people to stop future accidents happening?”
That changed around four years ago and we have no connection now with anybody who is a decision maker in the MoD to say, “Can we stop this happening? Can we notify you about the non-freezing cold foot injuries?” That is so easy to avoid and it is causing so many traumas to so many people.
Q174 Richard Benyon: Do you think that they are advised by their officials that they couldn’t have a without prejudice conversation with you?
Hilary Meredith: They used to and they used to be very successful, but it has just stopped. We don’t have any line of communication into the MoD any more.
Philippa Tuckman: I think it is symptomatic of the general failure to take proactive action to see what can be done—to look at the bigger picture. I have had discussions with other lawyers in the area over the years. We have a great deal of information that could be interesting and useful, but who do we go to? We haven’t known who we could go to and certainly nobody has approached me. I don’t know whether in those days you were approached or whether you did the approaching.
Hilary Meredith: I used to approach MoD and say, “Can we have a chat? We’ve seen a problem here that needs to be solved”.
Q175 Mr Gray: The Defence Safety Authority has been up and running for a few months now. What do you make of it so far?
Hilary Meredith: I have to admit I have not heard of them.
Johnny Mercer: Never heard of them?
Hilary Meredith: No.
Q176 Mr Gray: Do you know Air Marshal Garwood?
Hilary Meredith: No.
Philippa Tuckman: The first I heard of the Defence Safety Authority was when I watched the recording of the last evidence session and—
Hilary Meredith: We ran away and looked it up.
Philippa Tuckman: Yes.
Mr Gray: You are two of the main lawyers involved in this area and you have not even heard of the Defence Safety Authority. That was my last question.
Q177 Richard Benyon: The Armed Forces adopted the duty holder concept as part of the defence safety governance arrangements. We have been hearing a lot about this from other witnesses. What is your assessment of this concept?
Philippa Tuckman: Again, Hilary and I asked each other rather shamefacedly had we heard of the duty holder concept and neither of us had. I had to look it up. All I can say is my clients have not been coming to me and saying, “The injury I suffered was as a result of the failure of the duty holder concept”. Nobody has mentioned it to me, from which I conclude that it is not having an enormous impact at the grassroots.
Q178 Richard Benyon: Would you say that is possibly because it is fairly new and it is a laudable attempt to change culture, which might be happening faster in some units than others, and in some sectors of the Armed Forces than in others?
Philippa Tuckman: Yes, that is possible. We won’t know until it has filtered down. I think your point about attempts from the Defence Safety Authority to communicate with people who know what is going on at the bottom is a valid one. They might be able to improve the operation of the duty holder concept and speed up its adoption if they speak to people like us or even to their own men about how they perceive it.
Hilary Meredith: We would both welcome the opportunity to speak to the MoD and say, “We have seen many different incidents from many areas of the MoD, come and talk to us and we will tell you what is happening, what the trends are and what equipment is failing.”
Q179 Richard Benyon: It might reduce the amount of fees you earn.
Hilary Meredith: If I leave my legal career having made the Army and the military a safer place, I will be happy.
Q180 Richard Benyon: From what you were saying earlier, when you witnessed court martial for what would now be considered the duty holder—maybe a company second-in-command who was responsible for planning an exercise in which someone was injured and who would therefore be the duty holder—you are saying that that places a level of blame there, when you want to see it owned right at the top of the organisation?
Hilary Meredith: Rather than a level of blame, I would say a level of ownership. Ownership of what is happening in planning is very important, but ultimately, ownership must rest at the top and the MoD would be vicariously liable for anybody who acts outside their system, if there is a system in place, or breaches something. Ownership of what is happening in planning is very important and I think that ownership is lacking.
Philippa Tuckman: I come back to the fact that I do not think there is a system in place, allowing proper learning from accidents or incidents, which makes it fair to have universal accountability in that way. In every piece of litigation that we have engaged in—almost every single one—we have had to go looking for the records or the account of how an account happened as an individual case. That being so, I do not see how most commanders can really know that they are making decisions based on past experience or using the knowledge of the institution to make the decisions safely. I agree that if somebody really has made a terrible mistake and has disregarded their responsibility, they should be held personally accountable.
Q181 Richard Benyon: I am more confused now than when we started this inquiry. I liked the idea of the duty holder concept, because, having served, I was never properly held to account and it would be much more sensible if I had been, for these sorts of things. This is ages ago. You are saying there is now a paradox: yes, it is important that unit commanders at every level take ownership of safety, but you have to retain that ownership right at the top.
Hilary Meredith: I think you have to have both in place. There has to be ownership at the top—
Richard Benyon: You don’t think it’s a paradox?
Hilary Meredith: No. Ultimate ownership is at the top, but I think individuals can take ownership of a training plan or programming. You have to take some sort of ownership and think that if you own that training and you plan it then it is your ultimate responsibility. If something goes horrifically wrong, even the person in the regiment who had ownership of it may not be at fault—it could be something from on high, it could be equipment failure; he cannot be responsible for poor equipment—so ultimate responsibility lies with the MoD.
Philippa Tuckman: Hilary said that much more articulately than me—I was flailing around a bit. I agree with her, but I think that it is only fair to do that if, at the same time, the bigger picture is that the systems for gathering information, processing it and making sure it is actioned are taken very seriously in a way that they have not been to date.
Q182 Chair: Can I ask what is the central question for me? Is the number of injuries disproportionate to the complexity and risk-engendered training that we need our Armed Forces to have? Is the number of injuries and accidents still disproportionate to the level of training required? All the time we are told we are going to featherbed, we are going to make training unrealistic and leave people unprepared. Is it possible to have that level of training without the level of injuries that we have got now?
Hilary Meredith: I think it is. I think the training has to be realistic. The injuries and fatalities that I have seen on training could have been totally avoidable. It is usually some silly mistake that has happened that could have been avoided if it had been thought out properly, with a change at the time of the training: either weather, human error, equipment failure, something. There is a snap decision to go ahead instead of stopping and thinking about how it is going to affect everybody. Training has to be realistic, but there have to be some dynamic risk assessments on the ground as well as the pre-planning, if situations change.
Q183 Chair: We are not talking about feather-bedding; we are talking about better risk assessment and judgment calls.
Hilary Meredith: Yes.
Philippa Tuckman: It is also important to remember this point. The eye-catching injuries are the fatalities and serious injuries, but the minor injuries can be the canary in the in the mine. They draw attention to avoidable situations that can, in different circumstances, be very serious.
Hilary Meredith: Smaller injuries can still curtail a military career, so you have lost your military career even though it is a smaller incident. That smaller incident may not be reported, and it could be avoidable.
Q184 Johnny Mercer: I think I know the answer to this question. What is your assessment of the risk assessment processes within the MoD? Could you frame your answer within two brackets? Is there uniformity across the services? We have seen quite different numbers in terms of deaths in service. Do you think that when people are given risk assessments, they are just given a template and change the date, or do they actually apply that risk assessment to the activity they are undertaking and take personal responsibility for ensuring that training is safe?
Philippa Tuckman: The risk assessments I have seen are templates, and they are just tick boxes. Coming back to the cold injuries—not necessarily because I think they are the biggest problem but I have explained why I am focusing on them—the risk assessments have very generic risks and there is little scope.
Q185 Johnny Mercer: So what is the point of them?
Philippa Tuckman: That is a very good question.
Hilary Meredith: I think it is a starting point. A generic risk assessment is a starting point.
Q186 Johnny Mercer: If the guys don’t even read them, what is the point?
Philippa Tuckman: It is the dynamic risk assessment on the ground that makes the difference, and that has got to be good enough. You can only do that if you have got the information coming up from the bottom as well.
Q187 Johnny Mercer: Do you think there is a difference across the services?
Philippa Tuckman: Well, the Navy tends to be more efficient.
Q188 Johnny Mercer: In terms of how people take safety. From my experience—I was in the Army 18 months ago—I would say that there is a significant difference between the risk acceptable in the Royal Air Force and the risk to the Army. Would that be fair in your view?
Hilary Meredith: Yes.
Philippa Tuckman: Yes.
Q189 Chair: Do you ever meet lawyers dealing with military cases across other countries? Are we unique in this? Are there concerns? Your issues in relation to wet feet and cold injuries—do they come up internationally in law conventions?
Hilary Meredith: Different jurisdictions have different regulations. For example, in the United States, if you are on duty you cannot bring a claim against the United States, and the United States will say you are on duty even when you are off duty. The fact that you are a soldier means you are on duty for ever until you are discharged from the military, so there are effectively no claims in the US. However, their welfare system of looking after injured soldiers is probably better than ours.
Philippa Tuckman: Which I think you heard about yesterday in the context of the Lariam inquiry.
Chair: Could I ask you to speak up a little bit? I am struggling because I have lost a contact lens, so I have my spectacles on, and I can see you with the spectacles on but I cannot read. If I take them off I can’t see but I can read. It might be affecting my hearing.
Philippa Tuckman: I have exactly the same problem.
Chair: So sorry. What were you saying in relation to the international comparators?
Philippa Tuckman: Simply that I believe you heard about the superior veterans’ welfare system in the USA in the context of the Lariam inquiry yesterday. Yes, as Hilary said, each jurisdiction has a very different approach and I have no knowledge of—
Q190 Chair: It is just that cold, wet feet must be an issue across all Armed Forces.
Philippa Tuckman: I know that a great deal of the medical research about cold, wet feet comes from the Norwegian Army.
Chair: Perhaps we can ask some questions of the Norwegians.
Q191 Mr Gray: It is the duty of each serviceman, prior to training and to exercises, to declare themselves to be unfit or to notify the authorities about injuries and so on. From your experience—not instinctively, but from your experience—to what degree do people fail to do that because they think they are being namby-pamby or pathetic if they do? Is there a culture of “Get a grip of yourself, laddie,” or not? Instinctively, one imagines that there would be, therefore I am not talking about instinct; I want to know if you actually have evidence that an injury occurred that would not have occurred had the soldier been more up front about it before the exercise or the training started.
Philippa Tuckman: Yes, it happens a lot.
Hilary Meredith: Both of us have experience of failure to report what the military might feel are minor injuries—to a civilian they might be huge, but to the military an injury might be minor—and then there is, “Do or die. Must carry on—don’t let the team down,” but that injury that has failed to be reported has subsequently turned out to be a far greater injury.
Q192 Mr Gray: How frequently does that kind of thing happen?
Hilary Meredith: Pretty frequently actually.
Philippa Tuckman: People realise afterwards that not reporting the injury and making themselves worse is the opposite of not letting the team down. You are letting the team down by carrying on.
Q193 Mr Gray: But whose fault is that?
Philippa Tuckman: I would say that in part it is an example of where this culture change is needed. It is partly a desire to be tough and a slightly misplaced idea of where the good of the team lies; it is also partly an example of the top-down attitude to welfare, so if it is the commander’s responsibility to make sure that you get through all this safely, then really you have no responsibility for yourself.
Hilary Meredith: The biggest injury that is not reported is mental health issues and PTSD. There is a huge culture of failing to report mental illness in the MoD.
Q194 Mr Gray: That would be generic, though; that would not be prior to a particular exercise or a piece of training. Clearly, there might be soldiers who have PTSD and they should make sure that the authorities know about that, because it has an effect on their entire lives. What I was thinking about was someone feeling that declaring an ingrowing toenail was not the sort of thing you talk about—“Just get on with it”—and ending up lame.
Philippa Tuckman: I am sure that is right, but if it were instilled from day one that this was something you should report because otherwise you might go lame and someone else will have to carry something for you, and that it was as honourable to admit to that before the exercises carry on, it might change the culture.
Q195 Mr Gray: To play devil’s advocate, if you did change the culture and if every soldier who has something that was not great felt that it was his right and duty to declare it, you would be turning the whole exercise into a bunch of namby-pambies crying off for no particular reason. Also, the good guys would probably still be on parade, but all the wetties would see a good opportunity to get out of some rather nasty training, wouldn’t they?
Hilary Meredith: I think that is rather extreme—
Mr Gray: It is—intentionally so.
Chair: He does have a reputation for winding things up.
Hilary Meredith: One of the duties of anyone in the Army is to look after your feet, because you are marching on your feet, so an ingrowing toenail could be quite serious if you do not have it fixed before you go marching.
Chair: Clearly he has never had an ingrowing toenail and known the pain of it.
Q196 Richard Benyon: To follow on, there is a boundary, isn’t there? As a rifleman in training, I was taught that it was my responsibility to look after my feet. We were given all sorts of films, in the same way as for dental health and everything else. But at some point, it doesn’t matter how many dry socks you have in your pack; it rains for five days and you get wet feet. At some point, there has to be buy-in—that’s awful corporate-speak—an acceptance from a higher level that it is no longer Rifleman Benyon’s fault that his feet have gone manky. It is that line, isn’t it?
Hilary Meredith: The problem with the cold foot injury is that we recruit from the Commonwealth and it is a certain section of the military that is susceptible to cold foot injury. It is well recorded and well known, yet it still happens. That is the bit that we think should be changed.
Philippa Tuckman: Well, that is one of the bits. People who are not from the Commonwealth also get cold injuries. I entirely agree with your point, because one of the stages at which that acceptance ought to kick in is when Rifleman X, having been told and having taken note of his training, goes along to the corporal and says, “My feet feel funny,” the corporal says, “Right, well, how badly do you think you are injured? Do you want to be evacuated from this exercise, in which case you won’t pass it?” and Rifleman X thinks, “Well, if he is saying it’s okay, then I can carry on,” whereas if the corporal is following JSP 539, it should not be a discretion. Rifleman X should be off that exercise, and if he is not off that exercise, his career may end.
Hilary Meredith: One of the problems is self-diagnosis. People are left to decide on their own when enough is enough and it is dangerous to their health. Self-diagnosis needs to be looked at.
Q197 Richard Benyon: Would you and others in your profession be interested if the DSA were to say, “Right, we want to have a Chatham House regular get-together with the RBL, medical specialists and other stakeholders? Do you think it would be acceptable to have that kind of information sharing?
Hilary Meredith: I would welcome it.
Q198 Richard Benyon: I am genuinely surprised that it hasn’t happened, but you think there would be a willingness?
Philippa Tuckman: There would be a huge benefit. We have ever such a lot of information, which I could see from the last evidence session was not available to a great number of the people who are making the rules. We would be delighted to share it.
Hilary Meredith: Yes, absolutely. The biggest thing we want to do is prevent accidents. We want to prevent fatalities and accidents. When you see the same thing occurring over and over again, it is so upsetting for us and for the families involved. You think, “Well, this has happened before.”
Q199 Richard Benyon: Do you have any particular concerns regarding the duty of care of Reservists during training exercises and selection events? I am specifically thinking of your clients who are Reservists and whether you are noticing any particular trends among that group.
Philippa Tuckman: Well, yes. There is the fact that they haven’t been through the military medical system, so they have not had the benefit of the pre-emptive occupational health support before they go on the exercise. They are invited to self-certify fit, but their doctor is their civilian GP, who may not have an appreciation of exactly what it is they are certifying themselves as fit for.
After an injury, there is also the problem—this is a huge problem for Reservists—that they go back into the civilian health care system, so again nobody is looking at their fitness for their military occupation, if they are not immediately to the point of injuries that they may sustain. If a Regular is injured, there will be an attempt to put them into an occupation that is not going to injure them further, if there is a manning possibility for that, whereas a Reservist, if they are a mechanic and their hand is injured, is going to go back into civilian life and lose that job without that kind of support.
Hilary Meredith: I totally agree. As much as we would like to think that Reservists are as fit as the full-time Regulars, in reality they are not. They are part-time, so they are not as fit, on the whole, and maybe the duty of care has to extend slightly higher for Reservists.
Q200 Johnny Mercer: What is your experience of contact made by the MoD Service Prosecution Authority with the families of those who have died or been injured during training exercises and selection events. Is it sufficient? Is it poor? Is it good? Could it be improved?
Hilary Meredith: Unfortunately, I have dealt with a lot of fatalities, especially over the last few years of Iraq and Afghanistan. Among the families I have come into contact with, the original approach from the MoD and liaison officers is usually quite good, but without a doubt, in every incident I have been involved in, the picture of the fatality that has been given to the families at the beginning and that they have set in their minds is not the picture they have after the inquest.
Q201 Johnny Mercer: Is that through negligence or through a natural filtering out of facts over time?
Hilary Meredith: It could be a bit of both, but I think that if you are going to have contact with bereaved families you must tell them the truth from day one. To tell them anything other than that only compounds their anguish when they go through the inquest process. A military inquest is difficult enough for a civilian family to deal with, but to find out in evidence that what actually happened is different from the story they were told at the beginning is shocking, in my view. Just tell them what actually happened from day one.
Q202 Johnny Mercer: How does that happen?
Hilary Meredith: It has happened at every single inquest I have ever dealt with. The family cannot get closure. They think they have closure but then they are given the whole circumstances, which are completely different from the original set of circumstances, and their closure is delayed and prolonged as a result. I think that open communication and honesty with the family from day one, whether there is a lawyer present or not, is so important.
Philippa Tuckman: Yes, I agree with that. It is even worse when the circumstances are mysterious in some way. There can be a complete breakdown in communication. The family will hear nothing until, if they are very lucky, they get a copy of the service inquiry report, which can take months to produce. Sometimes we hear good stories, but most of the time it is very unsatisfactory. There is kindness to begin with and then the inquiry process seems to take over, at which point the shutters come down because you can only assume that the MoD does not want to prospectively incriminate itself.
Q203 Chair: There is always a huge time lag between a death that needs to be investigated and the coroner’s hearing. You talked about kindness and involvement at the start, but that trails off, the family get into the grieving process and then it is all opened again, sometimes months and possibly years down the line. Is that part of the problem?
Hilary Meredith: It is normally two years from the date of death to the inquest.
Q204 Chair: And there has been a lack of communication along the line. Is that a case of families needing to move on and the military stepping back because the family is moving on, or is it a case of the military needing to learn the lesson that until and right up to the inquest and the coroner’s hearing process, there needs to be constant iteration of new information and updating? Is that where the gap is?
Hilary Meredith: No, I think there is constant communication with the family from the MoD throughout this process, even if it takes two years for the inquest to take place. The problem is that once the inquest starts to unfold, and the evidence unfolds, the version of events given to them is different. That is when anger sets in. They may have already had possible closure but the anger of finding out something different in an inquest usually leads the family to claim after the inquest, if there is a claim there. Beforehand they would not have claimed had they known the truth.
Q205 Chair: So why is there a difference of information? What is the reason behind this difference of information?
Philippa Tuckman: I think it is that the MoD is, in a way understandably, trying to get its head down and carry out its inquiry. There is not a slot for the family within that, because the family mostly will not know what has happened. The MoD probably moves into the mode of prioritising its own inquiry and its own need to know what went on and to know whether there might be any civil liability for itself. It forgets there is a family there that needs to know what happened. I think that probably at some level there is an appreciation within the MoD that the family are potentially claimants.
Q206 Johnny Mercer: Do you think that is a stronger driver than discovering what actually happened? Do you think there is more emphasis put on self-protection than finding out what has happened and looking after people?
Hilary Meredith: Possibly. There is also a fear of a criminal prosecution in some circumstances, not so much a civil claim.
Q207 Mr Gray: On JSP 539, you indicated that you were unhappy about the collection of data. Have you raised that with the MoD? If so, with whom and what did they say?
Philippa Tuckman: I have raised it on numerous occasions through the litigation process. I suppose until recently I was possibly naively optimistic that that information was being filtered back to the MoD through its lawyers. JSP 539 deals with preventing the accidents but it also says clearly that once one of these incidents has happened there is a form for reporting it. It has to be fed back to a central point and it has to be processed. That is clearly with the idea of recycling that information and ensuring there are no further accidents.
I hope nobody here has had to deal with personal injury litigation but this is the process: with every claim we write a letter of claim that gives details of what we think went on. It may not be completely correct but is our understanding from our client. We give a list of documents that we think reasonably should be produced.
The MoD has a certain amount of time—three months or six months depending on where the accident happened—to respond to the letter of claim. They can admit liability, which they rarely do. They can admit that they were negligent, in which case they do not have to do anything more with respect to the negligence itself.
If they deny liability they are supposed to give full reasons and to give us the documents we have asked for. The documents we ask for always include a copy of the report and the lessons learned. Further down the line, if they deny liability we will issue the claim and go to court, and there will be a second opportunity to ask for that information. I went round my department to make absolutely sure that I am right to say this: so far none of us has seen a single one of those reports.
Q208 Mr Gray: Right. Those approaches are through the litigation process and up the litigation channel. Have you made a direct approach to the MoD itself to indicate your disquiet with this process, leaving aside the legal side of it?
Philippa Tuckman: No, I have not, partly because I do not know where to send it.
Hilary Meredith: I have had meetings with some of the claims handlers in the MoD but there is no one there who is a decision maker to change things at the moment whom I could contact and speak to. Costs could be saved. We will get these documents but we have to apply to a separate hearing to the court with costs to get them, instead of the MoD handing them over in the first place.
Q209 Richard Benyon: There was a perception some years ago that the police were just settling claims by police officers for injury, partly because it was often more expensive to contest them. This led to a culture in the police where there were a large number of spurious claims. You do not think we are anywhere near that sort of situation.
Hilary Meredith: No. In fact, I think this cohort of people in the military are very reluctant claimants. They do not want to claim. They loved their life in the military, and it is only when things go so horribly wrong and they are medically discharged, and their career is curtailed and they are suddenly facing life in Civvy Street without a job, without a house, that anger kicks in and they think “I’ve got to claim, because I need compensation to help me, for a start.”
Philippa Tuckman: I would add that we are very often approached by people who have gone through all the stages of trying to get on with their military career and then fighting through with the treatment, then being medically discharged and getting out, and finding that their service compensation is just not going to keep them. Then they come to us, by which time it is actually beyond the legal limitation date, and it is very hard for them to make a civil claim at all.
So the claims that we are talking about that we have taken are the ones that actually can be run, not necessarily all the ones that ought to have been run. Sometimes you can ask the court to exercise its discretion and allow the claim to go out of time, but there are a lot of people who ought to have been able to claim and have not.
Q210 Richard Benyon: Do you think the MoD is deliberately obstructive in releasing material relating to serious training incidents?
Philippa Tuckman: That is the effect you sometimes pick up.
Hilary Meredith: I don’t know whether they are being obstructive or they are just not geared up to producing stuff quickly enough.
Q211 Richard Benyon: In the form that you need it.
Hilary Meredith: Yes.
Q212 Richard Benyon: I imagine you need a fair amount of detail.
Hilary Meredith: A lot of the information we get is heavily redacted; there are black lines right the way through it, so we can’t read anything.
Q213 Richard Benyon: Over-redacted?
Hilary Meredith: Possibly.
Philippa Tuckman: I must say that when I started doing this work—as I say, I have only been doing it for nearly 10 years now, rather than Hilary’s 27, but I did have the advantage of comparing it to other industries—I was flabbergasted, to be honest, to realise how little collation of information there was at the MoD. There is no archive, for example, of historical regulations.
There are certain areas where the information is collated and which work reasonably well, like medical records or personnel records, but the rest of it is very piecemeal and the effect is you can be reduced to making Freedom of Information Act requests, and, unless you actually know what you are looking for, very often you have to make several before you track down the information. I am not sure that that is anybody deliberately hiding the information from you; it is just that there isn’t any one person who knows where to find it.
Q214 Chair: Should there be an independent commissioner to investigate training standards and failings in training safety—perhaps like the Service Complaints Commissioner? Should we have a training complaints commissioner? Should there be someone who can do that investigation? Should there be a separate body?
Philippa Tuckman: I think that is a new and original and very interesting idea. What I like very much about the Service Complaints Commissioner—obviously it is becoming the ombudsman—is that because it is quite a small, flexible, independent organisation it can zoom in on particular problems. It would not be a complete answer but I think it would be a very good step towards normalising or bringing the MoD back into civil society: making sure that people realise—that staff realise—that they have rights too. I think it is an idea that ought to be looked at.
Hilary Meredith: It is a good idea in theory, but in practice I am not sure how it would work, because there has to be clear understanding of the military operations and how they work. They have to be training in how to be realistic. Although I welcome some independent policing of the MoD and its training planning, I am not sure who should do it—but I think I would welcome it. In my view, though, there definitely has to be some corporate ownership and responsibility at the top, and policing of that. For example, there is no teeth or bite to any recommendation made by the Health and Safety Executive or the coroner. There should be some sanctions or penalties on the MoD if it does not comply with requests from the coroner or the Health and Safety Executive.
Q215 Chair: If there was one change you could make that you think would improve the situation, what would it be?
Philippa Tuckman: I don’t suppose it will be any surprise to hear that what I would like is a system for recording all adverse incidents that cause injury, including minor ones. It should be simple and accessible enough to command general respect and buy-in from everyone from the grassroots up, if that were possible. I am sure it is not beyond the wit of coders to make a system where there could be certain triggers for collating information about similar incidents as soon as two happen.
Hilary Meredith: Following on, because I agree with that as well, I think there should be—I have harped on about it a lot—corporate ownership and responsibility at the top. I would like to see the MoD subject to the Corporate Manslaughter and Corporate Homicide Act 2007 as a penalty and to make those at the top realise that their actions have consequences. Maybe that would prohibit accidents from happening in the first place, if that was there.
Q216 Chair: You said that the first time you heard about Air Marshal Garwood, the director-general of the Defence Safety Authority, was when you heard about the DSA in these hearings. What about the concept? Do you welcome it? Is it something that has potential to help and to focus the attention you want? There certainly seems to be a need for it.
Hilary Meredith: That is a really good starting point. I would like to see it filter down through the rank system to the grassroots, which is what we see.
Philippa Tuckman: Yes, I would like to see that as well. It is an excellent idea. I would be very keen to know that it was not the forces talking to themselves exclusively, though. I think oversight or input from the HSE, people like us, service charities and so on needs to be a part of it.
Q217 Chair: You said that if you were approached, there is information, advice or ways of resolving issues that you felt you could pass to the MoD and that would be particularly helpful. Is that something you would be willing to share with the Committee, so that we may look at it for our report? Would you provide that additional information to us?
Hilary Meredith: Absolutely.
Philippa Tuckman: Yes.
Hilary Meredith: As I said, I used to have a direct route to a decision maker at the top in the Ministry of Defence, but changes were made and that route is no longer there, so I would welcome anyone who will listen to me.
Q218 Chair: We are listening, I promise.
Philippa Tuckman: We have been saying since we were invited how absolutely delighted we are to have this opportunity to say what we have been talking about for some years now.
Chair: On behalf of the Committee, I thank you for your evidence today and for your work on behalf of service personnel. In conclusion, anything additional that you feel you would like to pass to the Committee to assist us in this inquiry, we would welcome receiving.
Oral evidence: Beyond endurance? Military exercises and the duty of care, HC 59823