Combat immunity plans attacked

The lawyer who successfully sued the Ministry of Defence (MoD) in the “Snatch Land Rover” case has hit out at MoD proposals on “combat immunity”.

An MoD consultation, Better combat compensation, due to close on 23 February, proposes to widen the common law concept of “combat immunity”. It would introduce a “no fault” compensation scheme for injured soldiers and families of those killed, but service personnel would not be allowed paid legal representation when losses and compensation are assessed. The MoD’s current duty of care to service personnel would be abolished, preventing legal claims for negligence from being brought to court.

“The impact, and possibly the intention, of this change is to protect the MoD from scrutiny by the courts regarding equipment failures,” said Jocelyn Cockburn, partner at Hodge Jones & Allen. Cockburn represented the families of soldiers killed in Snatch Land Rover vehicles in Iraq to bring claims for damages under the Human Rights Act and in negligence, in a 2013 Supreme Court case that secured a duty of care for all British troops on active service abroad.

“If the MoD are immune from legal action there is a real risk that safety standards will fall. During the course of the Snatch Land Rover litigation the government tried to persuade the court not to impose any duty on the MoD to protect its troops,” Cockburn said. “This argument failed and was patently unreasonable. Parliament should give any such Bill short shrift.”

In the foreword to the MoD consultation, defence secretary Michael Fallon says that only a minority of claims arise out of combat but, when they do, judges are required to “second-guess military decisions”. This could weaken the Armed Forces’ readiness to take necessary risks, he said.

Human rights in the battlefield have come under the spotlight in recent weeks with the MoD’s decision to close down the Iraq Historic Allegations Team Inquiry, which was pursuing around 3,500 allegations of abuse and torture of Iraqi civilians by British troops, none of which were proven. The vast majority of the claims were brought by the disgraced former Public Interest Lawyers partner Phil Shiner, who has now been struck off for acting dishonestly in bringing false claims.