Plans to remove army service personnel’s right to pursue cases through the court are still alive, the government has confirmed.
The plans, which effectively extend the principle of combat immunity and prevent claims coming before the court, were unveiled last December but a response to the MoD consultation has yet to materialise.
There had been speculation over the summer that proposals might be dropped, but a defence spokesman said this is not the case. He added that a response was coming “in due course”.
Hilary Meredith, chair of Hilary Meredith Solicitors and Visiting Professor of Law and Veterans’ Affairs at the University of Chester, today accused the Government and Defence Secretary Michael Fallon of “plotting to ride roughshod over the courts and our troops”. She is demanding answers to the following ten questions:
1. Does the Government intend to proceed with the legislation outlined in its consultation paper Better Combat Compensation?
2. If so, could the Government explain the timescale?
3. How does the Government intend to protect vulnerable claimants and how will the individual claimant know if the amount offered by the Government or their assessor is a fair and right amount?
4. How will the Government identify and protect those who suffer from reduced mental capacity as a result of injury and are unable to cope with large sums of money, budgeting and investments? Veterans UK and the MoD fail to identify vulnerable claimants under the current Armed Forces Compensation Scheme so how will it cope with an increased scheme?
5. Do the Government feel that the MoD as employer, paymaster and tortfeasor is best placed to identify vulnerable claimants and assess mental capacity? Are they not conflicted in this decision-making process?
6. If the MoD, Veterans UK or the independent assessor is able to identify those lacking mental capacity how will they instruct an independent suitable person to act as the equivalent of a litigation friend to protect the vulnerable person?
7. Lawyers are deemed negligent if they do not address issues such as mental capacity. Will the same apply to the MoD?
8. The Government states it will provide damages equivalent to that of a court. How will it decide matters such as as life expectancy and what if the injured person doesn’t agree?
9. How will the MoD assess adapted housing needs, aids and equipment, care and mobility requirements on every individual case?
10. Why does the Government seek to deny the fundamental right of access to justice to the men and woman of the armed forces, a right enjoyed by every other citizen of this country?
Labour’s shadow defence secretary Nia Griffith told the Law Society Gazette that the government should think again before making fundamental changes to rights of redress.
“If the intention is to give the same as claimant would be given in a court, then why not let the court make that decision? It gives you a nasty felling of another agenda which is reducing these claims,” she said. “It is important to understand the judiciary are there to make a difficult judgment as to what is the appropriate redress.”
Griffith noted the issue has parallels with the dispute over employment tribunal fees, which resulted in the government being forced to back down following a Supreme Court decision this summer.
The proposals have also been criticised by the Law Society, which warned the compensation scheme would create a “David and Goliath situation where the MoD would be both judge and jury”.