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Ministry of Defence Must Be Accountable If It Fails in Its Duty of Care

February 28, 2017


An attempt to limit circumstances in which the Ministry of Defence (MoD) can be found negligent if it fails in its duty of care to servicemen and women was today criticised by the Law Society of England and Wales as it submitted its response to the MoD's consultation.

"The MoD must be held publicly accountable if it fails in its duty of care to service men and women," said Law Society president Robert Bourns.

"Men and women who have chosen to serve our country must be free to use our justice system if Ministry of Defence negligence has caused them harm.

"It is simply not acceptable they should be denied open justice in favour of an opaque system that cannot match the impartiality of our courts."

The MoD wants to introduce legislation to redefine 'combat immunity' - a well-established principle that until now holds that no one should be held negligent for decisions made in the heat of battle.

In our response to consultation, we raised the following concerns:

The MoD's proposed definition of 'combat immunity' is far too broad, including situations that are far beyond or before the battlefield. This would prevent a wide range of negligence claims against it being heard in the justice system, even if inadequate training or equipment were to blame for injury or death.
The MoD's proposed in-house compensation scheme - which they want to force service personnel to use - lacks the transparency and impartiality of our courts.

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