See the Consultation Document (13 pages pdf). The government considers that it already has powers, under the Armed Forces (Pensions and Compensation Scheme) Act 2004, to set up the scheme and it said that the new scheme will work in parallel with the existing Armed Forces Compensation Scheme. The way in which combat immunity will be defined is discussed in Section 2 of the Consultation Document. The proposals would prevent courts from adjudicating on allegations that injury or death in the course of combat were the result of negligence. Cases not arising from combat (as defined) will remain open to legal action in the courts.
The proposed scheme appears to be closely based on this article by Dr Jonathan Morgan (Cambridge University) - Military negligence: Reforming Tort Liability after Smith v Ministry of Defence.
Dr Morgan recommended both:
(1) That an order be made under s.2 of the Crown Proceedings (Armed Forces) Act 1987 to clarify the scope of combat immunity in tort (which has been left doubtful, and attenuated, by the Supreme Court’s decision in Smith v. MoD).
(2) That in place of the tort claims thus removed, and instead of attempting to weave the tort principle of restitutio in integrum into an enhanced Armed Forces Compensation Scheme, the Secretary of State should declare that compensation will be paid on the full tort quantum to all service personnel who suffer death or injury but have no claim pursuant to the s.2 order, on a no-fault basis.
The background to the government proposal is the litigation which reached the Supreme Court in Smith and Others v The Ministry of Defence; Ellis and another v Ministry of Defence; Allbutt and others v The Ministry of Defence - Judgment. Previous post 22nd June 2013. The proceedings concerned three sets of claims which arose out of the deaths of three young British servicemen and the serious injuries of two other young British servicemen in Iraq. The first set (“the Challenger claims”) arose from a “friendly fire” incident involving British tanks which caused the death of Cpl Stephen Allbutt and the serious injury of Lance Cpl Daniel Twiddy and Tpr Andrew Julien. They were brought in negligence and alleged failures by the Ministry of Defence (“the MoD”) to properly equip the tanks involved and to give soldiers adequate recognition training. The second set (“the Snatch Land Rover claims”) arose from the deaths of Pte Phillip Hewett (son of the claimant Susan Smith) and Pte Lee Ellis (father of the claimant Courtney Ellis and brother of the claimant Karla Ellis) by the detonation of improvised explosive devices level with the Snatch Land Rovers in which the soldiers were travelling." The Supreme Court held that all the cases could proceed to trial.
The Guardian 14th February - Soldiers could be 'shut out of justice' under combat immunity plans
Law Society Gazette 1st December 2016 - MoD unveils plans to take military combat claims away from court
Solicitor's Journal 14th February
Litigation Futures 1st December 2016
Hodge Jones and Allen - criticism of the proposal
Parliament 2nd April 2014 - UK Armed Forces: Legal framework for future operations