Government rules out Combat Compensation Scheme

The government has announced it will not proceed with plans to introduce a new combat compensation scheme for armed forces personnel and veterans.

The scheme was first announced in 2016 as part of a package of measures to address issues surrounding investigations into allegations relating to historical operations. Despite receiving considerable push back from the Law Society, among others, the government reiterated its commitment to legislate for the scheme in 2019.

However, on 17 September 2020 the government announced it was no longer planning to take forward legislation “at this time”.

The announcement comes ahead of Second Reading of The Overseas Operations (Service Personnel and Veterans) Bill (23 September). This bill is intended to provide greater legal protections to Armed Forces personnel and veterans serving on military operations overseas.

Why was the government considering a new compensation scheme?

The proposed ‘Better Combat Compensation Scheme’ was first introduced in 2016 as part of the government’s wider plans to prevent what it described as vexations allegations against armed forces personnel and veterans.

Specifically, it was intended to address the issue of individuals or families of those killed serving in combat suing the Ministry of Defence for negligence. The government said the scheme would avoid individuals or families pursuing lengthy and stressful claims in court and avoid lengthy legal cases alleging battlefield negligence. The scheme would pay compensation at levels which a court would award, which are often substantially greater than the existing Armed Forces Compensation Scheme.

The government consulted on its proposals for the scheme between December 2016 and February 2017: Better Combat Compensation. The government has not published a response to the consultation.

Concerns about the scheme

A number of bodies, including the Law Society, published their concerns with the proposed new scheme. They questioned the removal of the right of affected individuals to pursue the Ministry of Defence in court, lack of clarity over the independence of those assessing both eligibility of a claim and level of award, the focus on financial compensation at the expense of an admission or confirmation of negligence or liability, and the removal of the opportunity for lessons to be learnt, particularly if the claim relates to defective equipment or bad practices.

These concerns, and the government's rationale for proposing the scheme, are discussed at length in Library briefing paper The Armed Forces Compensation Scheme (March 2017).

Government recommits to introducing the scheme in 2019

The government said little more about the proposed scheme until May 2019, when then Defence Secretary Penny Mordaunt, in announcing a consultation on measures relating to legal protections for soldiers, affirmed her commitment to the scheme. She pledged to bring forward legislation “as soon as parliamentary time allows”.

She reaffirmed this in the foreword to the consultation (opened in July 2019):

To make sure that Armed Forces personnel and their families no longer have to endure the stress of pursuing lengthy claims in court, the Government has committed to establishing a no-fault scheme that will pay the same level of compensation as a court would award. Following an extensive consultation exercise, we will bring forward legislation when Parliamentary time allows.

The government introduced the The Overseas Operations (Service Personnel and Veterans) Bill on 18 March 2020. The bill does not make provision for the proposed scheme.

Government says no plans to legislate

The government has since announced it is not intending to legislate for a new combat compensation scheme.

The government published its response to the legal protections consultation on 17 September 2020, a few days ahead of the Bill’s Second Reading (23 September). The response said:

The Better Combat Compensation Scheme, noted in the Foreword of the consultation document, is not being taken forward in legislation at this time. Claims in relation to Armed Forces personnel injured or killed can still be brought either through the Armed Forces Compensation Scheme or (except where they are barred under the principle of combat immunity) through the courts.