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Combat immunity plan will "shut out justice": LSEW

14 February 2017

Concerns that a proposed new compensation scheme relating to service personnel killed or injured in combat will "shut out justice" for soldiers and their families, have been voiced by the Law Society of England & Wales.

The Ministry of Defence wants to replace the right to bring court proceedings for negligence with an enhanced compensation scheme, through a derogation from the European Convention on Human Rights. Its scheme, on which consultation closes next week, would avoid the need to prove negligence by those alleging failures to provide suitable vehicles and equipment, while providing compensation “equal to that which a court would have awarded if the Government had been negligent”. Claims would be judged by independent assessors, but there would be a presumption against paid legal representation. Appeals could be taken to an independent tribunal.

Claims against the MoD that occurred outside an armed conflict or peacekeeping operation, as well as those involving human rights, would still be able to go to court, but the concept of combat immunity would be widened to include all deaths and injuries in combat, including non-battlefield incidents arising for instance from failing to provide adequate equipment.

Defenders of the scheme say it will prevent commanders from having to worry whether their decisions will be challenged in court perhaps years later, but the Society, along with some service families, believes it could deny claimants access to justice as well as stifling legitimate public debate.

LSEW President, Robert Bourns, said in a BBC radio interview: “The Ministry of Defence wants to make it impossible for soldiers and their families to bring claims against it to court when these relate to actions in combat. Any claimant would only have recourse to an internal MoD compensation scheme that would rule on cases brought against itself.

“This means cases would not be heard by an independent judge, facts would not be independently investigated, responsibility would not be established and a state institution, if liable, would not be held to account."

He added: “Soldiers and their families must not be shut out of our justice system." 

Conservative MP and former lieutenant colonel Tom Tugendhat, however, claimed that the scope of combat immunity was simply being restored to where it had been before the principle was "eroded" by actions taken under the European Convention.

Jocelyn Cockburn of solicitors Hodge, Jones & Allen, which has represented claimant service families, said she welcomed the proposal for a no fault scheme, but argued that as cases could be very complex with the need for multiple experts to help assess the extent of the injuries and losses, claimants should "not be expected to navigate the process without legal representation". Some might be vulnerable or traumatised, have serious injuries or have poor literacy levels. 

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