In a letter published in The Times today, the authors of Policy Exchange’s Clearing the Fog of Lawpaper address the President of the Law Society’s misplaced criticism of government proposals to revive combat immunity. The point of the proposals is to restore the law as it stood before the landmark decision of Smith & Others v Ministry of Defence and thus to beat back the judicialisation of war. The Law Society is wrong to say that this is an attack on compensation or accountability.
Sir, The president of the Law Society is wrong to castigate the government for proposing to revive combat immunity (Letters, Sep 28). The point is not to save money but to restore the law as it stood before the Supreme Court’s majority decision in Smith v MoD in 2013.
Lord Mance’s dissenting judgment notes that extending the law of negligence to decisions about training and equipment relating to active combat judicialises war, which is constitutionally problematic and undercuts the UK’s military capacity. We argued in our 2015 Policy Exchange paper, Clearing the Fog of Law, that the government should roll this back by reviving combat immunity.
Compensation for injured personnel is ensured by the Armed Forces Compensation Scheme and should be enhanced still further. Coroners’ inquests and service inquiries will continue. Negligence litigation is neither the best way to ensure lessons are learned nor a sensible way to maximise compensation for all those who need and deserve it.
Richard Ekins, St John’s College, Oxford and Policy Exchange’s Judicial Power Project; Jonathan Morgan, Corpus Christi College, Cambridge; Tom Tugendhat, MP, chairman, foreign affairs committee
This letter was published in The Times