Armed Forces Covenant

Lord Thomas of Gresford Excerpts

Monday 9th January 2017 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, the military covenant embraces a principle of fair and just compensation for injury and death in service. Basic awards are currently made under the Armed Forces compensation scheme without proof of negligence on a tariff basis: the amounts awarded for a specific injury are laid down in the scheme. Claims for damages for negligence are therefore frequently brought against the MoD as an alternative. The claim, if successful, will attract general damages based on common law principles which will generally greatly exceed a tariff award, because a lifetime of losses will be considered. However, at present, the defence of combat immunity will defeat a negligence claim for injuries or death sustained in combat.

The Government announced, on 1 December last, a new policy in the spirit of the military covenant to introduce an enhanced compensation scheme which will provide the equivalent of common law damages for injury or death in the field of combat without proof of negligence. The proposals are out for consultation until 23 February. Claims where negligence has to be proved will be redundant. I very much welcome these proposals.

But what is combat? Should combat include deployments on secret missions; or peacekeeping operations, as in Bosnia; or against terrorism, as in Northern Ireland; or anywhere else where British forces are deployed against insurgents? I would argue that planning for specific military operations should stipulate a date or an event when the troops deployed should come within the scope of the new enhanced statutory compensation scheme. On that clear-cut basis, an individual serviceman and his family would have, in effect, an insurance against injury or death at the level of common law damages during the period of deployment in return for the loss of his rights to sue for negligence. Litigation would be greatly reduced.

The Minister has already agreed to participate in a seminar of the Association of Military Court Advocates, of which I am chairman, on the issues raised by the consultation, when I hope to pursue the concept. Further, having regard to experience I have had of the Criminal Injuries Compensation Board when, until 1994, the equivalent of common law damages was awarded for criminal injuries, I also hope to address the problems of administering the new scheme. I look forward to a date and time when the seminar can be held within Parliament for all noble Lords to attend.