Amendment 19

Part of Overseas Operations (Service Personnel and Veterans) Bill - Committee (1st Day) – in the House of Lords at 9:15 pm on 9 March 2021.

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Photo of Lord Faulks Lord Faulks Non-affiliated 9:15, 9 March 2021

My Lords, the scheme of this part of the legislation creates a long stop of six years, subject to date of knowledge provisions which provide for an additional one year. It also specifies certain additional factors to be taken into account under the provisions of Section 33 of the Limitation Act 1980.

Limitation law tends to be much more complex an area than one might first expect. In a sense, all limitation periods are inevitably arbitrary. The law has sometimes struggled to find ways of mitigating hard edges. I have had the privilege of being involved in a number of cases at appellate level about the law of limitation. The concept of a date of knowledge has proved quite challenging, even at that level. It might be worth reminding the House that the primary limitation period for personal injuries is three years, and for claims under the Human Rights Act it is one year. There is a six-year limit for claims under breach of contract—that is unlikely to arise in these circumstances. For cases of personal injuries or under the Human Rights Act, there can be extensions. For personal injuries, the date of knowledge can extend the period, and there is also discretion to disapply the limitation period. The discretion is unfettered, although there are certain matters identified in the 1980 Act which have to be taken into account.

Why, therefore, is there a long-stop in this Bill? It should be made clear that this is not the only area where there is a long-stop; different periods apply with different courses of action. The particular challenge, as I understand it, of overseas operations is that they come to an end and, when they do, evidence can disappear. Personnel leave the theatre; they go on to different activities, or to civilian life or retirement. If sometime later a claim is made by an individual, perhaps lacking any corroboration, it might be difficult to rebut. We all know of the many bogus claims there have been. Memories of events inevitably fade.

To be honest, I am not quite sure that many claims—or any claims—which would now be dismissed if this were the law would have succeeded. A late claim, absent a postponed date of knowledge, would probably not succeed because the courts do not exercise the discretion to disapply lightly. Many of the reasons for a long-stop would, in fact, be the very reasons that result in courts refusing to extend primary limitation periods. As with Part 1 of this Bill, we, as parliamentarians, need to respond appropriately to the vexatious litigation the military has had to put up with. This long-stop, on the face of it, seems a proportionate response. Amendment 19 does not seem to me to reflect the distinction between operations at home and those that take place overseas.

The other amendments are more difficult. They seek to carve out an exception for service personnel. I listened carefully to what noble Lords have said about the anxiety that this is causing in some quarters. I suspect that this was an unintended consequence and that really the protection of service personnel is the protection from them being in receipt of a knock on the door, many years later, being asked to give evidence or to respond to some possibly spurious claim in a theatre of war that has long since stopped functioning. That might be what really lies behind this, rather than denying service personnel normal rights under a limitation period. I should say that six years is quite a long time for a long-stop period to apply.

As for the date of knowledge provisions, they have now been explained by the courts to be sensitive to the fact that there will sometimes be delays—understandable delays—in bringing claims. For example, suppose a claimant were to contract a disease—say, mesothelioma, which was caused by exposure to asbestos. Many years later, there is no difficulty in recovering, because the individual would simply not know that they had in their body the potential to contract mesothelioma. Similarly, if there is some mental inhibition which prevents them being aware of the problem, that too is reflected in the way the law approaches date of knowledge. There have been a particular number of cases that have governed the position of people who had been abused in childhood and only later realised what had happened and the extent of the problems. The law does not treat understandable delay harshly. That would be the same whether the individual was in the military or not.

I am concerned that the military should feel in any way disadvantaged, because that would, of course, run contrary to the overriding philosophy that lies behind this Bill. For the moment, I look forward to being reassured by the noble and learned Lord; I welcome his late arrival to the Front Bench to respond to this debate.