The lawyer who represented British Forces in a landmark Supreme Court judgment, which forced the Ministry of Defence (MoD) to accept it owed a duty of care to soldiers to train and properly equip them to go to battle, has criticised new plans proposed by the MoD in relation to compensation for deaths and injuries during battle.
If implemented the proposed measures will remove the legal duty of care the MoD has towards service personnel and will make the MoD immune from legal action in the courts for negligence in combat-related deaths and injuries, removing the public scrutiny and transparency afforded by public court proceedings. A ‘no fault’ compensation scheme will be put in place with the amount of compensation decided by an MoD-appointed assessor. The presumption that service personnel receive paid legal representation will also be removed.
Leigh Day represented the family of Cpl Stephen Allbutt and two injured soldiers who argued that the MoD owed them a duty of care to properly protect them from friendly fire attack in the battlefield. In 2013 the Supreme Court agreed with the soldiers and refused to allow the MoD to argue it owed no duty of care to the soldiers simply because the deaths and injuries occurred in the battlefield.
Shubhaa Srinivasan, from law firm Leigh Day, said the recent consultation plans amounted to a ‘get out of jail free’ card to the MoD over any unlawful conduct which leads to deaths and injuries in combat and will result in a complete lack of transparency.
Ms Srinivasan added: “The plans propose the MoD be judge and jury over servicemen and women. Soldiers have no recourse to impartial investigation of their cases and establishment of responsibility by an independent judge. The court process ensures that where an employer goes wrong there is an element of public scrutiny which helps ensure that improvements to standards are made.
“Often soldiers injured in battle will receive very severe injuries and it is appalling that they would be expected to fight for the compensation they need without the help of specialist legal representation.
“The Government’s proposals offend the fundamental principle of the rule of law in that everyone – including the Government – should be legally accountable for their actions and subject to enforcement by an independent body such as the judiciary. It is not for the Government to decide whether or not it is at fault and if so how much it needs to pay by way of compensation.
“It appears the intention behind the proposals announced is to do away with the MoD’s employer obligations to its employees. No other employer would be allowed to hide in this way from the scrutiny of the courts over its actions. These proposals amount to nothing short of soldiers and their families being told by their employer that they are shut out of our justice system.”