Combat Compensation

Mike Kane Excerpts

Thursday 20th July 2017 Westminster Hall

[Mike Kane (Wythenshawe and Sale East) (Lab)]

I beg to move,

That this House has considered Government proposals for better combat compensation.

It is a great pleasure to serve under your chairmanship, Mr Gapes, in the last Westminster Hall debate before the recess. I refuse to call it the graveyard shift—this is an extraordinarily important debate. I welcome the Under-Secretary of State for Defence, the right hon. Member for Bournemouth East (Mr Ellwood), to his seat. May I formally put on the record the whole House’s gratitude to him for his work, particularly during the terrorist incident, when he administered CPR to PC Keith Palmer? He is a real hero, who has served in uniform and stepped up to the mark when his country needed him.

This debate addresses concerns arising from the “Better combat compensation” consultation, which ran until 23 February 2017 and on which the Government have yet to publish their conclusions. According to the Government, an enhanced compensation scheme will address the

“urgent need to reform the current system for dealing with compensation claims brought before the Courts and provide clarity in law on issues of negligence which may contribute to deaths and injuries suffered by members of our Armed Forces in combat.”

Linked to that scheme, the Government propose to enshrine in legislation an extension to combat immunity, so that it not only applies to deaths or injuries that occur in the course of combat but covers all military operations.

The Secretary of State for Defence has stated that those proposals arise from three main concerns: that service personnel and ex-service personnel who are injured in combat can be drawn into long and frustrating legal cases; that the legal costs of such cases borne by the taxpayer often far outstrip the damages awarded; and that judges are required to second-guess military decisions using criteria appropriate in civilian life.

In essence, through its “Better combat compensation” proposals, the Ministry of Defence plans to scrap the legal duty of care that it owes to service personnel. That duty of care has been in force since 1987, when Parliament repealed section 10 of the Crown Proceedings Act 1947 to provide protection for those who bravely serve their country. I find it hard to believe that the Minister believes that it is both legally and morally right that the MOD should be allowed to legislate its way out of that duty of care.

I will first address the concern that judges are required to second-guess military decisions using criteria appropriate in civilian life. The courts already recognise the difference between cases involving military decisions made by armed forces personnel in combat and civilian cases where the duty of care applies. The duty of care is not exclusive; it applies to all walks of life. That is reflected by the fact that not a single court decision has second-guessed a military decision made in a battlefield situation.

The right of access to the courts is a long-established common law right that is now enshrined in article 6 of the European convention on human rights. Any exclusion of that right would require primary legislation, which would need to be judged compatible with the convention. Does the Minister know whether such legislation would be judged compatible? If it would, when do the Government propose to bring forward such legislation? There was no mention of it in the Queen’s Speech.

Extending combat immunity could be a slippery slope. If the MOD, as an employer, can legislate its way out of a duty of care to our armed forces, where will that stop? Will other employers, such as the fire service or the police service, be next? Where will it end? As a Government Department, the MOD already enjoys Crown privilege, which means that, although health and safety legislation applies to it, it is not subject to criminal enforcement action in the courts. Instead, such action is mirrored by administrative arrangements, which ultimately lead to a Crown censure instead of prosecution.

Introducing a smokescreen of combat immunity over all military operations, as the Government propose, would be a huge step backwards. Combat immunity, which is currently interpreted by the courts, is there to protect military operations when thinking is impaired in the heat of battle. It does not, and should not, apply to procurement decisions made back at Whitehall when equipment that is procured for our troops turns out to be faulty or unsuitable.

The MOD has already tried and failed to extend the scope of combat immunity in the courts. The Supreme Court ruled in a landmark case that the Government are under a legal obligation to fulfil their duty of care and to ensure that British soldiers are sent to fight with adequate equipment and training. In that case, our troops were travelling in the lightly armoured Snatch Land Rover, the vulnerability of which had led some soldiers to call it the “mobile coffin”. The Chilcot report eventually found that the Snatch Land Rover was at the end of its planned life in service and that an alternative should have been found.

That case defined the legal obligations that the Government owe to soldiers who are killed or injured on active service abroad. Why is the MOD now attempting to ignore the will of the highest court in the land? Under the system of blanket immunity that the MOD proposes, those facts would never have come to light, there would have been no pressure to make changes and no lessons would have been learned.

That brings me to the second concern put forward by the Secretary of State: that legal costs outstrip the compensation awarded. That assumes that people have a purely financial motive for taking cases through the courts, but their motivation is often more complex. Service personnel and their families do not simply seek financial recompense; they often seek justice. They seek to protect others from suffering the same fate as them or their loved ones. They want to shine a light on their case and ensure public scrutiny so that it does not happen again. They want questions answered.

Extending the scope of combat immunity would be discriminatory to armed forces personnel and their families, and would breach the armed forces covenant. The covenant’s two principles are that,

“the armed forces community should face no disadvantage compared to other citizens in the provision of public and commercial services; and that special consideration is appropriate in some cases, especially for those who have given the most such as the injured or the bereaved.”

The covenant is a pledge that together we acknowledge and understand that those who serve or have served in the armed forces, and their families, should be treated with fairness and respect in the communities, economy and society that they have served with their lives.

This is not how we in this country should respect those who risk their lives to protect our way of life. Why should a decision about equipment or training made at a desk in Whitehall not be subject to the same scrutiny as similar decisions made by other employers? In April last year the Defence Committee published its report, “Beyond endurance? Military exercises and the duty of care”, which called for the MOD to be subject to sanctions under the Corporate Manslaughter and Corporate Homicide Act 2007, without exemption. The inquiry was called after three Army reservists died after taking part in SAS selection exercises in the Brecon Beacons. They were three of 135 armed forces personnel who lost their lives while on training and exercises between 1 January 2000 and 20 February 2016: a statistic to make us sit up and think.

The inquiry found that it was wrong for the MOD and armed forces to have exemptions under the Corporate Manslaughter and Homicide Act in situations where they have been penalised by Crown censure for serious failings in hazardous training and selection events. The Government, however, rejected the Committee’s modest proposals to reform the military exemptions in the Corporate Manslaughter and Homicide Act. Why is the MOD so reluctant to accept responsibility for its actions? Do our brave men and women, who put themselves on the front line to protect our country, not deserve better?

I now turn specifically to the compensation awards under the new enhanced scheme. Before doing so, it is important to point out a flaw in the current system that takes no account of those who have suffered brain damage as a result of their injuries and lack capacity to make decisions or control large amounts of money. The MOD simply pays more than half a million pounds into a soldier’s bank account with no checks currently on capacity. They are simply left to get on with it. Lawyers instructed in such cases are under a duty to assess mental capacity and are negligent if they fail to do so. That protects vulnerable claimants. No such checks and balances exist for military service personnel, so I ask the Minister to address that urgently.

The MOD’s enhanced pension scheme should not be reviewed as an issue linked to the extension of combat immunity as the two issues are independent of each other. The Government say that individuals or their families will be awarded better compensation for injury or death in combat and will not require legal representation. Straightforward cases will be suitable for the compensation scheme, but using the scheme should be optional, with the decision taken to do so by armed forces personnel or their family. The option to go through the courts and the subsequent public scrutiny must remain open. Many cases will inevitably be very complex with a need for multiple experts to help to assess the extent of injuries and losses.

Service personnel are often vulnerable and traumatised, and some will have catastrophic injuries. In my constituency I have the South Manchester amputation unit, which I visit regularly and I have seen the extent of many of the injuries. Improvements in medical expertise mean that those who suffer battlefield injuries have extended life expectancy. The complex nature of the injuries, including the cost of adapted housing, equipment and rehabilitation to last a lifetime, has always been determined by experts and the courts, with independent legal advice available. The MOD now proposes to take those calculations away from the courts and instead handle them itself. Further, it expects injured and vulnerable military personnel to be able to assess themselves whether the correct amounts have been awarded. Does the Minister really expect vulnerable and injured service personnel and their families to navigate the process without legal representation? If the MOD is serious about full compensation, servicemen and women must have recourse to legal representation to help prepare the evidence for the courts to adjudicate.

However, the proposal will allow the MOD to create a situation in which it serves not only as gatekeeper, but as both judge and jury. The fact that the MOD itself should decide whether a claim against it is valid creates a clear conflict of interest. As a result, it is unlikely that armed forces personnel and their families will have confidence in the system or its impartiality.

In summary, the Government need to look again at the enhanced compensation scheme and the proposal to extend the definition of combat immunity. As it stands, soldiers will be shut out of justice, and military equipment failures will be swept under the carpet rather than receiving public scrutiny through the court system. I repeat my questions to the Minister: does he legally and morally believe that the MOD should be allowed to legislate its way out of its duty of care to our soldiers as set out in the armed forces covenant and in law? If the Minister proposes to extend combat immunity, when does he propose to put the primary legislation before Parliament?

The Government have stated that there is an urgent need to reform the current system for dealing with compensation claims. When, therefore, can we expect the conclusions of their urgent consultation? I am sure we can all agree in this place that any process of compensation for armed service personnel needs to be transparent, and that everybody needs to be accountable. The enhanced compensation scheme and proposed extension of combat immunity fails to deliver either. Our armed forces deserve better.

--- Later in debate ---

[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.

[Mike Kane]

As I said in my speech, it was my understanding that no court decision has ever second-guessed a military decision in the theatre.

[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.

--- Later in debate ---

[Mike Kane]

I have two points on that. First, to whom would the lawyer be accountable and who would employ them? Secondly, if the MOD had admitted its negligence and settled the Snatch Land Rover vehicle case, it would not have run up so much expenditure on the legal case.

[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.

[Mike Kane]

Part of the nub of the matter is how those independent assessors will be independent if they are appointed by the Ministry of Defence. Do we not already have an independent assessor system in judges?

[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.

--- Later in debate ---

[Mike Kane]

There is a scientific law known as Graham’s law, which says that gaseous material expands to fill the room. In the graveyard shift, with four contributions, we have gone on for quite some time and explored these very important issues in great detail. We are beginning to get some more clarity about the Government’s thinking.

I thank the hon. Member for Motherwell and Wishaw (Marion Fellows). We often spar in this place over education issues, and it is rare that we agree on so many things, but I thought she spoke extraordinarily eloquently. She highlighted the issue of veterans with mental health issues. My concern is that the compensation scheme currently pays out but does not look at the long-term health implications for people who need adaptations, equipment and generally help to live. She rightly said that we look for the best possible compensation package.

My Front-Bench colleague, my hon. Friend the Member for Caerphilly (Wayne David), always speaks so eloquently. He talked about having the best and most appropriate possible compensation for armed services personnel and their families. He particularly highlighted issues around liability and said that fairness and transparency should be at the heart of the system.

The Minister gave his own extraordinary personal testimony in the light of the death of Keith Palmer. That will stay with him for the rest of his life. I wish him the best, along with his family and children, who he mentioned and who will grow up with that incident. He is in my thoughts and prayers.

The Minister promised to write to me on some of the finer details. Is it correct that primary legislation will be needed to introduce this system? When are the Government thinking of introducing that? I am glad that he praised the Labour manifesto; that was very courteous of him.

At the moment, there is a point of division between us. It would be great if the Front-Bench teams could go for coffee at some stage and reach some unanimity, but currently we stand divided, and we will have to see how this plays out in the weeks and months ahead. I am grateful to the Minister for his courteous and reflective response, to the other Members who have contributed and, as ever, to you for your chairmanship, Mr Gapes.

Question put and agreed to.

Resolved,

That this House has considered Government proposals for better combat compensation.