The Ministry of Defence today unveiled plans to prevent the courts from adjudicating on allegations that injuries or deaths in the course of combat were the result of negligence. Defence secretary Sir Michael Fallon said he wanted to stop service and ex-service personnel being ‘caught up’ in long and frustrating legal cases where costs escalate.
Instead, it is proposed that personnel injured in combat will be awarded compensation by the government equal to that which would be awarded for negligence by the court.
The MoD also plans to legislate to enshrine the position that combat immunity should apply to deaths or injuries which occur in the course of combat. The plans in effect will remove the requirement to take legal action against the government and would take away any element of adversarial procedure, with lawyers expected to be removed from the process.
‘The combined measures I hope will provide welcome relief for families and individuals who might otherwise find themselves having to pursue lengthy and stressful claims in the courts which in future would no longer be necessary,’ said Fallon. ‘This would also ensure that our armed forces will be freed from increasing judicial constraints whilst on operations, thereby allowing them to do their duty.’
The consultation sets out that the MoD believes military decisions should be taken by members of the armed forces and not overturned by courts with principles ‘with the very different circumstances of civilian life in mind’.
The proposals would not affect any case where the harm in question occurred before the legislation comes into force.
No person, participating directly in the conflict, would be able to sue the government for negligence as a result of deaths or injuries: the MoD says this would remove any possibility of enemy combatants claiming armed forces had taken insufficient care to avoid injuring them.
The compensation scheme is planned to work by individuals notifying the ministry of their claim: one option is the MoD would then decide if the claim qualifies for compensation. Claimants would be able to challenge that decision through judicial review, or pursue a claim for negligence in the courts.
In difficult or contentious cases, the MoD says it would seek independent advice.
‘The presumption is that a claimant will not need legal representation because the assessor will help him or her bring forward all the information which needs to be considered,’ adds the consultation. ‘Claimants would however be free to seek legal representation if they wished, but this would be at their own cost.’
The consultation proposes a seven-year limit for making compensation claims, although there would be provision for exceptions.