Service men and women who have been injured during combat must not be shut out of the justice system if they believe Ministry of Defence (MoD) negligence contributed to their injury, the Law Society of England and Wales said today. This statement is in response to MoD proposals to expand the circumstances under which it cannot be held liable, known as combat immunity.
Law Society president Robert Bourns said: “Men and women who have chosen to serve our country must have the choice to use our justice system if they believe the Ministry of Defence has failed in its duty of care to them."
Combat immunity is a well established principle which recognises that no one should be held negligent for decisions made in the heat of battle.
The MoD wants to expand the definition of combat immunity to include situations that are far beyond or before the battlefield, and so prevent a wide range of negligence claims against the MoD being heard in the justice system, even if inadequate training or equipment is to blame for injury or death.
Robert Bourns continued: “The Law Society has a range of concerns over the proposed new definition of combat immunity. For instance, if it is inappropriately extended in this way it could cover any UK-based operation in preparation for war, such as the ordering of Snatch Land Rovers or a training exercise in the Brecon Beacons.
“A decision about equipment or training, made from a desk in Whitehall, should be subject to the same scrutiny as similar decisions about specialist training or equipment made by other employers."
Instead of liability being considered, the Ministry of Defence proposes to force all such cases of death or injury through an in-house compensation scheme, where decisions on levels of compensation would be made behind closed doors, on MoD terms and by MoD-appointed officials.
“This creates a David and Goliath situation where the MoD would be both judge and jury. A young squaddie trying to prove that his employer failed in its duty of care could be faced by the might of the MoD, in a forum defined and run by that same employer,” Robert Bourns said.
"While for some injured service personnel a compensation scheme may be the best option, the Ministry of Defence's proposed in-house compensation scheme would lack the transparency, impartiality and accountability of our courts.
“When soldiers or their families believe the Ministry of Defence has been negligent, some may want more than financial compensation”, said Robert Bourns.
“They may also want and deserve public scrutiny of the Ministry of Defence’s actions or decisions, improvements in processes to prevent such deaths or injuries in the future and a public admission of negligence if this is found to be the case.”
Notes to editors
The Ministry of Defence proposals can be found here.
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