Combat immunity plan will deny soldiers justice, says Law Society

Concern that shielding MoD from legal action by channelling compensation claims into internal scheme will stifle debate

Soldiers will be “shut out of justice” and military equipment failures will be covered up under plans to extend combat immunity and prevent military claims going to court, ministers have been warned.

The move to channel complaints into an internal Ministry of Defence compensation scheme will do away with the need to prove negligence and include more generous payments, but it has nonetheless caused deep misgivings among some service families who have campaigned to reveal flaws in army vehicles and protective clothing.

The enhanced compensation, announced in the run-up to Christmas, is the latest initiative by the defence secretary, Sir Michael Fallon, in a campaign to shield soldiers and the department from as much legal action as possible.

Last October the MoD announced plans for the military to opt out of sections of the European convention on human rights during future conflicts to block an “industry of vexatious claims” against troops. The MoD has also initiated prosecutions of lawyers who pursued alleged abuses in Iraq.

The Law Society, which represents solicitors in England and Wales, fears the latest proposals could stifle legitimate public debate and deny bereaved relatives access to justice.

Its president, Robert Bourns, said: “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.

“Soldiers and their families must not be shut out of our justice system. The Law Society will be responding to the MoD’s consultation to raise these and other concerns.”

But the Conservative MP Tom Tugendhat, a former lieutenant colonel in the Intelligence Corps who served in Iraq and Afghanistan, said the government was “absolutely right” with the proposal.

He told BBC Radio 4’s Today programme on Tuesday the change “means that young commanders … will not be consistently taking decisions looking over their shoulders and wondering whether a lawyer is going to second guess them in a courtroom 20 years hence”.

Senior commanders and politicians could still be held to account by internal military investigations, public inquiries, such as the one conducted into the Iraq war by Sir John Chilcot, and the press, Tugendhat said.

But Bourns, also interviewed on Today, pointed out that combat immunity still applied and that the cases hitherto brought by soldiers had largely focused on negligence outside active combat, including inadequate equipment and training.

Nevertheless, Tugendhat added: “Combat immunity, by the way, is not a new convention and the MoD isn’t – in inverted commas – extending it. What it is doing is reapplying what has been eroded by a series of legal actions in the past 20 years taken under the European convention on human rights.”

Under the scheme, former or serving personnel who are injured – or the family of those killed – in combat will be awarded compensation “equal to that which a court would have awarded if the government had been negligent”. Legislation will be introduced to extend combat immunity, preventing claims against the MoD going to court. This, the consultation states, will “remove the often stressful process of litigation that can take many years to resolve”.

Claims against the MoD that occurred outside an armed conflict or peacekeeping operation, as well as those involving human rights, will still be able to go to court. Combat immunity could also apply in the UK, presumably for incidents in Northern Ireland.

The armed forces compensation scheme will not conduct any public hearings. Awards, it is said, will be “consistent with what a court would pay out”. The assessors will be either retired judges or experienced lawyers appointed by the MoD. Appeals against decisions will be made to an independent tribunal.

Jocelyn Cockburn, a solicitor at the law firm Hodge Jones and Allen, pursued claims over the deployment of lightly armoured Snatch Land Rovers in Iraq and Afghanistan, which were known to be vulnerable to roadside bombs.

“The impact, and possibly the intention, of this change is to protect the MoD from scrutiny by the courts – for instance in relation to allegations of faulty equipment,” she said.

“Sir John Chilcot’s Iraq inquiry report identified numerous MoD failings in planning and preparation for the Iraq war, which were described as ‘wholly inadequate’. It is revealing therefore that the first step, by the MoD, in response to Chilcot is to seek to remove the duty of care it owes to its soldiers and to remove its duty to operate a ‘safe system of work’ when our troops are deployed to fight on our behalf … The scheme can be brought in without the need to legislate to remove the duty of care.

“I welcome the proposal of a no-fault scheme where all combat deaths and injuries are compensated fully. No one should have to fight for a decade to achieve justice as the Snatch Land Rover families have done. However, the valuation of loss is a complex process and if the MoD are serious about full compensation then servicemen and women must have recourse to legal representation to help prepare the evidence and to the courts to adjudicate.”

Colin Redpath pursued a compensation claim for negligence all the way to the supreme court in 2013, where he and other families alleged that the MoD had failed to provide properly protected vehicles.

L/ Sgt Chris Casey (left) and L/Cpl Kirk Redpath
L/Sgt Chris Casey (left) and L/Cpl Kirk Redpath were killed in Iraq in August 2007 when the Snatch Land Rover they were travelling in was struck by a roadside bomb. Photograph: MoD/PA

His son, L/Cpl Kirk Redpath, was killed near Basra, southern Iraq, in August 2007 when the Snatch Land Rover he was travelling in was struck by a roadside bomb. More than 35 deaths caused by such devices in Afghanistan were blamed on the failure to invest in replacements for the vehicles, which were nicknamed “coffins on wheels”.

“The MoD wants to settle out of court,” Redpath said. “That’s why they are doing this new scheme. That’s fair enough, but it means that our problems won’t get aired. They will be brushed under the carpet. The Snatch Land Rover problem was known about in 2004 … but three years later my son died in a Snatch and still nothing was done.

“The MoD didn’t want us to go to court with the Snatch Land Rover problem. What about the radio equipment that didn’t work in the police station [in Majar Kabir where six Royal Military policemen were killed by an Iraqi mob in 2003]? Soldiers are always going to get killed on the battelfield, but they need to have the best chances possible with the right equipment. In the first Gulf war, they were going in without body armour.”

The Chilcot report eventually found that the Snatch Land Rover was at the end of its planned life in service and an alternative should have been found.

Responding to the criticisms, Fallon, said: “Our armed forces put their lives on the line to keep us safe. This new scheme will mean more generous payments to anyone injured – or the families of those who are killed – in combat. By making these changes we will put more money into compensation and remove the stress of lengthy legal action.”

An MoD spokesperson said: “This is about better compensation and, regardless of legal action, we already prioritise learning lessons from any incidents involving the safety of our personnel.

“Where there have been serious injuries or fatalities, we have robust systems and processes in place that allow us to record and investigate these accordingly, and in the unfortunate case of a death, the requirement for an independent inquest to determine the cause will of course remain.”

Commenting on the MoD compensation scheme, Martha Spurrier, director of Liberty, said: “These plans are an insult to our armed forces and the families who have in some cases spent decades battling to persuade the MoD to learn the lessons of its failings. It is only through the courts that better protection has been achieved for our troops.

“By weaselling its way out of future legal action, the MoD is seeking to sweep its sins under the carpet, and dismiss servicemen and women who have been let down by the government they serve.”


Owen Bowcott and Damien Gayle

The GuardianTramp

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