Amendment 19

Part of Overseas Operations (Service Personnel and Veterans) Bill - Committee (1st Day) – in the House of Lords at 9:30 pm on 9 March 2021.

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Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland 9:30, 9 March 2021

My Lords, I begin by addressing Amendment 29, which seeks to carve out claims from service personnel and veterans from the limitation longstops in the Bill. I have to be clear from the outset: such a carve-out would amount to an unjustifiable difference in treatment between different categories of claimants and would therefore be likely to be incompatible with the United Kingdom’s obligations under the European Convention on Human Rights.

A carve-out would also have very limited practical impact. The noble and gallant Lord, Lord Stirrup, anticipated the statistic that I am about to quote. Analysis of previous claims has indicated that the vast majority of claims—around 94% of relevant claims brought by service personnel or veterans in connection with overseas operations—have been brought within six years, which is the period of the longstop.

In answer to the noble and gallant Lord, it must be the case that many of the remaining 6% will come under the state of knowledge provisions, whereby the period of limitation will commence at the point at which the individual has become aware of their condition. The noble Baroness, Lady Smith of Newnham, adverted to this in her submission when she spoke about hearing loss, a condition that might well become manifest outwith the period of six years from the point at which it had been incurred or commenced. The same might equally be said for post-traumatic stress disorder.

The purpose of the limitation longstops is not to stop service personnel from bringing claims but to stop large-scale and out-of-time litigation from being brought in relation to military actions on overseas operations. The current legal framework allows claims to be brought many years after the events in question, which puts our service personnel at the mercy of being called upon to provide evidence about historic events, with all the harm and anxiety that that risks causing them. I gratefully adopt the words of my noble friend Lord Faulks in relation to the longstop and to the fact that the harm that is envisaged may be caused to a member of the Armed Forces involved in operations who is approached much later after they have left theatre and retired, after a period of time has elapsed in the course of which they have hoped to put distressing matters behind him, or indeed her.

As well as reducing the threat of being called to give evidence of historical events many years in the past, these longstops will also help to reduce the likelihood of historic criminal investigations many years or decades after the event. This is because the longstops are likely to encourage civil claims to be brought sooner in future, and any associated criminal allegations will therefore also be investigated sooner. This reduces the risk of criminal investigations arising many decades later as a result of allegations made in civil claims.

I have mentioned that excluding claims from service personnel from these measures is likely to be incompatible with our obligations under the ECHR. That is because there would be an unjustifiable difference in treatment between different categories of claimants—for example, between service personnel and the Ministry of Defence civilian personnel who deploy alongside them on overseas operations. All the difficulties that arise from claims connected with overseas operations in relation to the availability of documentary evidence and accurate memories apply in the same way to claims from service personnel as they do to claims from other individuals. There is therefore no objective or functional reason why claims from service personnel and veterans should be excluded from the longstops.

Equally, I reassure the House that these measures do not break the Armed Forces covenant. Again, I have particular regard to the submission made by the noble Baroness, Lady Smith of Newnham. The covenant was designed to ensure that service personnel and veterans do not face any disadvantage in their day-to-day lives when compared to civilians in the same position. The covenant thus ensures that all service personnel and veterans are treated in the same way as civilians in the same position. The longstops in Part 2 of the Bill apply equally to any claimants bringing claims connected with overseas operations against the Ministry of Defence, whether they are military personnel, civil servants, contractors or local nationals. There is therefore no disadvantage in being a member of the Armed Forces in relation to these measures because everyone who has deployed on an overseas operation is treated equally.

I echoed the noble and gallant Lord, Lord Stirrup, in his citation of the figure of 94% of service personnel claims connected with overseas operations being brought within six years. Those claims are also only a small subset of all claims made by service personnel against the Ministry of Defence. If claims are not connected to an overseas operation, as most claims are not, then they will not be impacted in any way by the measures in the Bill. I am therefore clear that the benefits of the limitation longstops to service personnel far outweigh any perceived disadvantages.

To make sure that as many service personnel as possible understand these measures in future, we will aim to ensure that the Armed Forces and the wider Armed Forces community are made aware of the new measures. In any event, any potential unfairness faced by service personnel as a result of the imposition of an absolute time limit is mitigated by those date of knowledge provisions to which we have made reference.

Carving their claims out of Part 2 of the Bill will therefore have little practical impact but would likely make these measures incompatible with our ECHR obligations. So, while the adverse impact on service personnel is considered to be very low, the benefits they will see from the reduced likelihood of being investigated or called to give evidence many years into the future are significant. I therefore recommend and urge that Amendment 29 be withdrawn.

I now move to Amendments 19, 46, 49, 51 and 53. These amendments would mean that, where an injury or death which occurs in connection with an overseas operation could have also occurred in the UK, a claim relating to that injury or death would not be caught by the limitation longstop applicable to personal injury and death claims brought in England and Wales. The example given by the noble and learned Lord, Lord Falconer of Thoroton, was injuries caused by a particular type of vehicle: why is it different in theatre from an accident with the same vehicle being driven down a road in Wiltshire?

However, I submit that the effect of these amendments is not clear. What is clear is that they would introduce unnecessary and undesirable complexity. For example, how will the courts assess what incidents could also reasonably have occurred in the UK? The answer is potentially limitless, meaning that the longstop would fail to operate as intended. It also seems that the burden of the amendments fails to take into account the specific characteristics of overseas operations, recognition of which informs this Bill throughout.

Part 2 of the Bill is trying to achieve greater certainty for service personnel who are deployed on overseas operations. In so doing, the Bill recognises that overseas operations are different from other types of deployment, including in the United Kingdom. The situation faced by service personnel on overseas operations where they are under attack or face the threat of attack or violent resistance is not comparable with being on exercise in the United Kingdom. This is why this Bill specifically covers overseas operations, and it would be disingenuous to compare the different environments that service personnel face in a hostile environment with those in the United Kingdom.

Furthermore, the amendments might have very little practical effect on claims brought by service personnel and veterans. I have already made the point that the vast majority of service personnel and veterans bring relevant claims within six years from either the date of the incident or the date of knowledge. We believe that six years is a reasonable period of time for bringing a claim. In an answer to a submission made in the course of the debate, it is one which is in accord with provisions in domestic law and in the law of other nations. The benefits of these amendments would be limited, but they would add an unnecessary and undesirable layer of complexity and the courts would be obliged to contend with that. They would thus be at odds with the principle of greater legal clarity which the Bill seeks to introduce.

On the subject of time limits and particularly in reply to the noble Lord, Lord Thomas of Gresford, the courts are of course sensitive to pleas of state of knowledge. Again, I respectfully echo the submission of my noble friend Lord Faulks on that matter. So, while thanking all noble Lords who have contributed to this debate, I recommend that these amendments are not taken forward.