The House of Commons has today debated Government proposals for better combat compensation.
Under the proposals, combat immunity – which provides an exemption from legal liability for members of the armed forces and the government – would apply to all claims brought by those in combat, even when failings occurred far from the battlefield.
An enhanced compensation scheme will be set up for current and former members of the armed forces and their entitled family members who will be precluded from suing the government for negligence under the terms of the proposed exclusion of liability.
In essence The Ministry of Defence (MoD), plans to scrap the legal duty of care it owes to service personnel. This duty of care has been in force since Parliament repealed section 10 of the Armed Forces Act 1987 providing protection for those who bravely serve their country.
Mike Kane MP MP for Wythenshawe & Sale East said:
“I find it hard to believe, both legally and morally, that the MoD should be allowed to legislate its way out of this duty of care.
“If the MoD, as an employer, can legislate its way out of a duty of care to our armed forces, where does this stop? Will other employers be next? The Fire Service? The Police Force? Where will it end?
“Combat immunity, which is currently interpreted by the courts, is there to protect military operations when thinking is impaired in the heat of battle. It does not – and should not – apply to procurement decisions made back at Whitehall, where equipment procured for our troops, subsequently turns out to be faulty or unsuitable.
“Why should a decision about equipment or training, made from a desk in Whitehall, not be subject to the same scrutiny as similar decisions about specialist training or equipment made by other employers?”
Mike Kane also highlighted a flaw in the current legal process.
“The current system takes no account of those who have suffered brain damage as a result of their injuries and lack capacity to make decisions or control large amounts of money,” he said.
“The MoD simply pays over half a million pounds into a soldier’s bank account with no checks on capacity. They are then simply left to get on with it.
“For civilians, lawyers instructed on these types of cases are under a duty to assess mental capacity and indeed are negligent if they fail to do so. This protects vulnerable claimants. No such checks and balances exist for military service personnel and this needs to be addressed urgently.”
Turning specifically, to the compensation awards under the new enhanced scheme, he continued:
“The Government says that individuals or their families will be awarded better compensation for injury or death in combat – and they will not require legal representation.
“There will be straightforward cases which will be suitable for the Compensation scheme but using the scheme should be optional and the decision taken to do so by the armed forces personnel or their family.
“Many cases will inevitably be very complex though, with the need for multiple experts to help assess the extent of injuries and losses.
“The complex nature of these injuries including the cost of adapted housing, equipment and rehabilitation to last a lifetime has always been determined by experts and the courts with independent legal advice available.
“The MoD now proposes to take these calculations away from the courts and instead handle them itself. Further, it expects injured and vulnerable military personnel to be able to assess themselves if the correct amounts have been awarded.”
“The option to go through the courts and the subsequent public scrutiny must remain open.
“The fact that the MoD itself should decide whether a claim against it is valid or not creates a clear conflict of interest. As a result, it is unlikely that armed forces personnel and their families will have confidence in this system or its impartiality.”
Specialist military solicitor, Hilary Meredith, Chair of Hilary Meredith Solicitors said:
“We cannot allow servicemen and women to be shut out of the justice system.
“The legal process needs to be open and transparent – but this new system is closed and opaque with everything tilted in the Government’s favour.
“It is simply not right to allow the MoD to create a David and Goliath situation where it is both judge and jury.
“These proposals are discriminatory to armed forces personnel. They are also in breach of the armed forces covenant.”