‘Shielding MoD from cases 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.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 yesterday 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.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 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”. 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.”