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The Parliamentary Under-Secretary of State for Defence (Mr Tobias Ellwood)
I welcome this debate, secured by the hon. Member for Wythenshawe and Sale East (Mike Kane). He said that it was the graveyard shift: it is the last day of term, and I am already on my feet to respond to a debate that could have lasted an hour and a half. However, the subject is important, and I am grateful for this opportunity to respond as I begin my work in my present portfolio.
The hon. Gentleman made some very kind initial comments about what happened in the Westminster bridge attack. As this is the last sitting day before the recess, I think we are all reflecting on what has been a dramatic and difficult year for Britain, with the terrorist attacks and the Grenfell Tower fire. I feel humbled by the hon. Gentleman’s comments. It was a difficult day for me, and not a day goes by when I do not think about PC Keith Palmer. The toughest part of the day for me after that was going home and finding my eight-year-old boy at the top of the stairs, unable to sleep and wanting explanations of what had happened that day. All I could offer was that there are occasionally very bad people who do very bad things, but that there are always very good people who, even more, do good things. That day I was one of a number of people trying to do a good thing.
A lot of detail has arisen in the debate, and many questions have been asked. I shall do my best to answer the questions, but if I miss any details I shall, if I may, do as I customarily do and write to hon. Members. I do not have the excuse of not having enough time to answer; it is just that the portfolio is new to me, and I will say frankly that the issue is complex. However, as a former regular soldier and as a reservist—something that I should declare—I have a personal interest in making sure that when we send our brave soldiers, sailors and air personnel into harm’s way, we give them the equipment that they require.
I am grateful for the opportunity to elaborate on the Government’s proposals for better compensation. Before I turn to the details, it is worth saying something about the consultation paper, but also, in view of what has been said, rehearsing the rationale for the steps proposed for the consultation paper itself. There could hardly be a more important responsibility for the Ministry of Defence than ensuring that our arrangements for providing financial compensation to people who are injured while fighting for their country, and the families of those who are killed in so doing, are not only fair but generous. We owe them nothing less.
There are currently two routes by which service personnel or their families may be paid compensation for deaths or injuries suffered in that way. Virtually any injury, whether fatal or not, that is sustained by a member of the armed forces as a result of service will attract a payment under the armed forces compensation scheme. The scheme applies to deaths and injuries sustained both in combat and in situations such as training, and whether or not the Ministry of Defence was at fault in any way in the incident concerned. In a relatively small number of cases, a second route to seeking compensation would involve suing the Ministry of Defence for negligence in the law courts. That is because, were a court to find that there was negligence, it would award compensation that would be expected to be higher than that under the armed forces compensation scheme. In practice, the MOD would normally settle a case if it believed that it had been totally or partially to blame. It is fair to say that few cases actually go all the way to trial.
In the main, the MOD has no difficulty with the current approach, and we are not proposing any change whatsoever in cases that do not relate to combat. That distinction is important; I do not think the hon. Member for Wythenshawe and Sale East made the distinction in his opening remarks between cases that are in combat and those that are not. If people believe that they have a case, they may sue the MOD, and the Department will normally settle the case if it believes that it was indeed totally or partially to blame.
The real problem with the court route is when it comes to combat. Combat is inherently dangerous—we are sending people into harm’s way to use organised violence. That was why the courts developed a doctrine known as combat immunity, which means that the Government cannot be sued for negligence when a person is injured or killed as a result of being sent into combat. The Ministry of Defence will continue to do everything practicable to minimise casualties among members of Britain’s armed forces when they are called on to fight, but armed hostilities cannot be treated in the same way as training incidents or accidents in civilian life. I hope hon. Members understand and recognise that distinction, which I think is agreed across all parties.
Mike Kane
The Minister will know that the armed forces compensation scheme is limited in scope and does not take into account the rehabilitation costs of members of the armed forces who have been injured. We need to keep the court system so that they can get full compensation for the lifetime’s worth of injuries that they have to face.
Mr Ellwood
If I may, I will come on to that in a second. Given that I have some time, it is worth saying that I have just been at a two-day conference with Veterans’ Ministers from Australia, Canada, New Zealand and the United States, where we discussed that very thing: what support, compensation and packages of measures are available and in place while people are in the service, going through the transition, and once they are veterans. I think that is the point the hon. Gentleman is alluding to, and I will come to that shortly.
The challenge we face is that the scope of the doctrine of combat immunity is complex and unclear. That has resulted in some exceptionally protracted claims alleging that the MOD should not have used certain kinds of equipment or transport or should have trained people in a different way. The strong view of the Government is that decisions about such challenging and sensitive matters should be taken by military commanders with the appropriate expertise, and not—with all respect—by the courts.
Indeed, one of the minority judges in the Supreme Court case I mentioned rightly warned that the decision could lead to “the judicialisation of war”. The result has been a number of long-running cases in which the MOD has been forced to defend its military preparations in the lead-up to combat. Such cases have risked the exposure of sensitive material, which could be useful to our enemies and adversaries. They have also cost large amounts of taxpayers’ money, which could have been spent in better ways. We believe the cases have been highly stressful for the litigants and created much uncertainty for the conduct of future hostilities.
What we cannot have is cases where commanders in a war might be concerned about the manner in which they make decisions for fear of litigation or lawsuits when they come home. Military commanders may come to feel that they will be second-guessed back in Britain by lawyers intent on mounting negligence cases. That could have a chilling effect on decision making and affect our ability to fight and complete actions. Against that background, the proposals we put forward in our consultation paper offered a solution, which we believe will generously meet the needs of any service casualties in future conflicts and their families but also benefit the operational effectiveness of the armed forces.
Mr Ellwood
I will confirm that is the case. What I am saying is that we would not want any officer, commander or non-commissioned officer to be concerned about such a consideration. However, I hear what the hon. Gentleman says.
We have suggested that in future, whenever a member of the armed forces is killed or injured in combat, compensation will be paid at the rate a court would have been likely to award if it had found the MOD to have been negligent, regardless of whether it has indeed been negligent. The amount will be assessed independently —that was a concern the hon. Gentleman had—by an experienced, qualified lawyer. For the claimant, that will mean that there will be no need to spend years engaged in complex legal battles, with no certainty of success, seeking to prove that the MOD has been negligent in law.
Wayne David
Rather than excluding claimants in their best interests, would it not be better for there to be a choice on whether to pursue the case through the route suggested, with the MOD, or to take independent legal advice?
Mr Ellwood
One of the purposes of the consultation is to simplify the system. We need a robust system that everybody is able to follow and that is clearcut for both sides.
For the Government, the new system will mean increased expenditure on compensation for death or injury sustained in the most challenging conditions. They will be paying higher sums in cases in which the MOD has not been negligent, but that will be offset to a large extent by a reduction in the costs of litigation. The Government would prefer to spend taxpayers’ money directly on compensation for the armed forces rather than on legal fees. I think everyone would agree with that.
Mr Ellwood
It is because of such cases that we are now having to provide this compensation. The hon. Gentleman is right to say that no court has ever second-guessed a military decision, but the Supreme Court’s judgment opened up the prospect of precisely what is happening and what might happen in future cases.
The corollary to the proposal is that any cases covered by the new, more generous compensation rules can no longer be heard by the courts. That will mean that complex issues of military planning will be decided upon by members of our armed forces with the appropriate experience and not by the courts themselves, as the Government believe is right and proper. The Government therefore believe that our proposals will benefit members of our armed forces involved in future conflicts, their families and the country as a whole, and we launched our consultation paper on that basis last autumn. At the same time as publishing the proposals for future cases, we offered to settle the current cases to which I referred. I am pleased that a number of those offers were accepted.
There were more than 500 responses to the consultation, and it is fair to say that the majority were broadly positive. However, respondents made a number of points that the Government are considering, and in some cases looking at very carefully indeed. For example, some suggested that claimants should be able to choose between the new scheme and the traditional court route. However, as I said earlier, that would be difficult for the Government to accept, because it would perpetuate legal uncertainty and the problem of the judicialisation of war. Some expressed concern about the independence of the assessors, and we are considering how best to demonstrate that they will indeed be totally independent in making their decisions. Some wanted assurance that mental injuries suffered in combat, particularly post-traumatic stress disorder, would be covered as generously as physical injuries. The Government completely agree with that point of view.
Mr Ellwood
I think there has to be some faith given to the fact that, when we make those appointments, we choose based on independence. I will look at that process and confirm that. I think we are getting into the weeds a little bit by talking about the confirmation of the independence of those who will make the decisions.
Finally, some suggested that, by removing such combat cases from the courts, an opportunity to prevent any recurrence would be lost. The Government disagree with that argument, because the adversarial nature of litigation makes it an unsatisfactory way of learning lessons. I think we would all agree with that. When a member of the UK armed forces has been killed in combat, a full inquest will always be held. When there has been a non-fatal injury of any significance, there will be a service inquiry. I believe that those non-adversarial inquiries will get to the heart of what happened far more quickly than any civil litigation.
The consultation confirmed the Government’s view that our proposals are fair and just, both for the taxpayer and for those who are killed or injured in combat and their loved ones. However, I must make it clear that we were disappointed that the Labour party’s manifesto expressed itself against the proposal, which, in the current political circumstances, is a matter of some significance.
Mr Ellwood
Yes, if the hon. Gentleman will be helpful and say that he might be reconsidering.
Mike Gapes (in the Chair)
Order. I do not think that interventions necessarily have to be helpful.
Wayne David
I am so pleased you said that, Mr Gapes. I was not going to introduce party politics into the debate, but as the Minister has done so, I want to make it absolutely clear that the Opposition want fairness and transparency, but that we also recognise that we live in a parliamentary democracy in which the rule of law is a cornerstone. I understand the operational necessities of conflict, but it is important that we always bear that in mind.
Mr Ellwood
I think it is probably too late to amend the armed forces Bill, which is passing through the House of Lords as we speak, but maybe if the hon. Gentleman and I have a quiet coffee, we will find there is some compromise to be had. I hope he would agree that the thrust of the consultation and the Government’s proposals make sense, but I am happy to discuss them with him in more detail if he is minded to do so. We certainly believe that the arguments for making these changes are compelling, and we will announce how we intend to proceed as soon as possible. Of course, we can do that even earlier if Labour Members are inclined to support the proposals.