Combat Compensation

Wayne David Excerpts

Thursday 20th July 2017 Westminster Hall

[Wayne David (Caerphilly) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Gapes. To be honest, I was not best pleased when I realised that I had to come to this sitting of Westminster Hall, right at the end of a parliamentary term, but when I realised what issue was to be considered, my attitude soon changed. We owe a great deal of gratitude to my hon. Friend the Member for Wythenshawe and Sale East (Mike Kane) for bringing this extremely important issue forward and securing the debate.

All of us here today would agree that we want the best and most appropriate compensation for all those who deserve compensation, whether they are soldiers or other members of the armed forces who have been hurt, or members of their families. We want justice for everyone, and we want it to be done as quickly and expeditiously as possible. I expect we are all concerned about the lengthy delays in some court cases, because we want justice to be achieved as quickly as possible.

I have two profound concerns about the proposals that the Government sent out for consultation. The consultation period has concluded and I shall be interested to hear what they intend to do in the light of the responses—whether they intend to legislate, and what form that legislation will take.

My first concern is quite fundamental, and it is about combat liability. Who exactly would be entitled to put forward a claim for compensation? The consultation paper suggested a new definition of liability:

“We believe that the test should be whether the harm—injury or death—occurred in the course of a UK military operation as a result of direct or indirect hostile enemy action, or as the direct result of misdirected targeting by friendly forces, or as the direct result of action taken to avoid hostile enemy action. If it did, it should be regarded as occurring in combat.”

That might on the face of it seem to be a straightforward, common-sense definition of combat, but its implications are truly profound, and it flies in the face of the practice and legal precedent established in this country since at least the end of the second world war. The suggested definition would mean that the Ministry of Defence could not be held accountable for decisions made far from combat, including those concerning training, procurement and the suitability of future combat equipment in the light of known operational issues. All those issues would be excluded under the proposal.

The practical implications of that are huge. An example that has already been quoted is the case brought with regard to Snatch Land Rovers. It was a long legal case, pursued against the Ministry of Defence by the families of soldiers who lost their lives in those inadequate vehicles in Iraq. In the end, it was successful in securing compensation and, more importantly, in gaining public recognition of the fact that the vehicles were inadequate. They were replaced with better, more sustainable vehicles that provided better protection for soldiers, but there were also lessons that had to be learned. The deficiencies of the Snatch vehicles were identified previously in Northern Ireland but, for reasons best known to civil servants and politicians at the time, action was not taken to replace them with appropriate vehicles. Those issues came to light clearly in the court case, which was long and protracted but extremely thorough. Of course, reference was made to all that in the Chilcot report, which I think should be considered alongside the Government proposal.

My second concern is that the proposal flies in the face of established legal practice based on common law, because it would take away people’s legal rights. It sets out, essentially, an in-house Ministry of Defence system, under which people would not have their legal rights or legal representation, but would accept what was decided by the Ministry. Admittedly, there would be an independent opinion about the entitlement.

I consider the proposal to be extremely worrying, and although I am a lay person, I am not the only one saying that. Lawyers with enormous experience are also concerned about it. The president of the Law Society said:

“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.”

That, in a nutshell, is my second reservation.

In the light of those points, I hope that the Government will have second thoughts and listen to the Law Society and the many other people who have made representations. I also hope that the Government will uphold the consensus that was accepted by all parties on the armed forces covenant and take it forward, both in its detail and in its spirit, and that they will continue to have the principle of the duty of care for all armed forces personnel foremost in their mind whenever they consider bringing forward proposals. With those few words about my strong reservations, I thank my hon. Friend the Member for Wythenshawe and Sale East for securing the debate and look forward to hearing the Government response.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

[Wayne David]

Will the Minister take an intervention on that point?

[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.