MoD combat immunity proposals would shut soldiers and families out of justice, warns Law Society

The Ministry of Defence’s (MoD) plan to extend the concept of ‘combat immunity’ will lead to soldiers being unable to access justice and cover-ups, the Law Society has warned.

The MoD’s proposals respond to a concern that a culture has arisen of vexatious legal claims being made against soldiers for their actions on the battlefield. The defence secretary, Michael Fallon, has moved to shield the MoD and current and former soldiers from legal action as much as possible. This has taken the form of expanding the concept of ‘combat immunity’, where soldiers cannot be held negligent for decisions made in the heat of battle and are under no duty of care to avoid causing loss or damage to their fellow soldiers or anyone else in combat circumstances. However, the Law Society argues that the MoD plans would extend combat immunity too far – to situations far removed from or long before actual combat – and are thus designed to prevent a wide range of negligence claims against the MoD being brought through the justice system. For example, it would no longer be possible to prosecute the MoD if inadequate equipment or training is to blame to injury or death.

Robert Bourns, president of the Law Society, said that it is vital for soldiers and their families to be able to access justice in such circumstances. He commented: “Men and women who have chosen to serve our country must have the choice to use our justice system if they believe the MoD has failed in its duty of care to them…The MoD 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.”