Amendment 20

Overseas Operations (Service Personnel and Veterans) Bill - Committee (1st Day) – in the House of Lords at 9:45 pm on 9 March 2021.

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Lord Falconer of Thoroton:

Moved by Lord Falconer of Thoroton

20: Clause 11, page 7, leave out lines 7 to 28

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

This amendment deals with the factors that the court must have regard to when it considers whether or not to extend a limitation period under the Human Rights Act. The new Clause 7A(2) that the Bill would insert into the Human Rights Act states:

“The court or tribunal must have particular regard to ... the effect of the delay in bringing proceedings on the cogency of evidence adduced or likely to be adduced by the parties”.

More detail is then given before it says that the court or tribunal must also have regard to

“the likely impact of the proceedings on the mental health of any witness or potential witness who is ... a member of Her Majesty’s forces.”

Those factors would, no doubt, be considered in the ordinary course of the exercise of the discretion, irrespective of whether they were put into the Bill.

The wording in the Bill is “particular regard to”. Is it intended that these particular factors should be the main ones that the court has regard to, or is it intended to change the law in any way, in relation to the exercise of the discretion? I do not dispute that the factors that are set out would be relevant, but I think the drafting is unfortunate, and I would be interested to hear the Minister’s explanation of how he thinks it is intended that the exercise of the discretion will work.

Photo of Lord Faulks Lord Faulks Non-affiliated 10:00, 9 March 2021

My Lords, I will be brief. I am conscious that the noble and learned Lord, Lord Falconer, does not have much regard to what lawyers say on this Bill, so I will bear that in mind as well. I understand the amendment, but there is a query in my mind as to whether he would prefer a “must not have regard”, or the omission of “particular” so that the clause simply has “the court or tribunal must have regard to”.

I have some sympathy for “must have regard to” rather than “particular regard”, because I accept from the noble and learned Lord that there is a possible suggestion that this would be the trump card rather than one of the factors. But it is appropriate that those matters should be specifically drawn to the attention of a court by the Bill, given its overall philosophy. It is probable that those matters would be taken into account. The law of limitation in relation to the Human Rights Act is still developing. It is rather unclear, but this seems to me to be consistent with the philosophy of the Bill, so I do not agree with the total removal of these provisions as the amendment suggests.

Photo of Lord Alderdice Lord Alderdice Deputy Chairman of Committees

The noble Baroness, Lady Chakrabarti, has withdrawn, so I call the noble Baroness, Lady Smith of Newnham.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat Spokesperson (Defence), Liberal Democrat Lords Spokesperson (Defence)

My Lords, not being a lawyer, I shall take the approach taken by the lawyers and be very brief in my comments. I have the same question as the noble and learned Lord, Lord Falconer: what is the purpose of “particular regard” in this respect? There is a time limitation already. Is the “particular regard” intended to truncate the ability to bring proceedings even further, so that if there is a suggestion that somebody’s memory has been impeded by overseas action, it makes it even less likely that proceedings can be brought?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, I am again grateful to those noble Lords who have contributed to this short debate. The Bill introduces three factors that the courts must consider and pay particular regard to when deciding whether to allow Human Rights Act claims connected with overseas operations to proceed after the one-year primary limitation period has expired. We feel that these factors are an important part of the Bill, because they ensure that the unique operational context in which the relevant events occurred is taken into account by the courts when considering limitation arguments in claims connected with overseas operations.

As the noble and learned Lord, Lord Falconer of Thoroton, pointed out very early in his submission, the courts will do this already; the courts will have regard to these things. Part of their consideration of whether to allow a claim to proceed beyond the primary limitation period includes assessing whether the claim is, in the language of statute,

“equitable having regard to all the circumstances”.

But our position is that putting these three factors on the face of the Bill will provide a guarantee for service personnel and veterans that appropriate consideration will always be given by the courts—whether that is for Human Rights Act claims or for personal injury and death claims—to these significant points, which are different from those which would apply in peacetime.

We believe that in situations where claims are connected with overseas operations, the courts should pay particular regard to the reality of these operations: the fact that opportunities to make detailed records at the time may have been limited; that increased reliance may have to be placed on the memories of the service personnel involved; and that, as some personnel may suffer from mental ill-health as a result of their service, there is a human cost to them in so contributing.

This is what the additional factors that the Bill introduces seek to do. They consider the extent to which an assessment of the claim will depend on the memories of service personnel and veterans; the impact of the operational context on their ability to recall the specific incident; and the likely impact of the proceedings on their mental health. We believe that it is right that the operational context is at the forefront of the mind of the court when considering whether to allow claims beyond the primary limitation period. Noble Lords will know that we are also introducing these factors for personal injury and death claims, and we must ensure that Human Rights Act claims connected with overseas operations are treated in the same manner.

Particular emphasis was placed on the word “particular” in the course of this short debate. I undertake, in light of the submissions made in the time available, to consider the terms of the drafting and to weigh the suggestions made by noble Lords in relation to that particular adjective in the context of the provision. I will look at any connotations that might flow from it and might be adverse to the intention of the Bill. At this stage, however, I urge that the amendment be withdrawn.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

My Lords, I am obliged to the noble Lord, Lord Faulks, and the noble Baroness, Lady Smith, for taking part in the debate. May I specifically exclude the noble Lord, Lord Faulks, from the lawyers to whom I do not pay regard. The House pays great regard to what the noble Lord, Lord Faulks, has to say on every topic. I express my gratitude to the Minister for answering, as ever, with great care and regard to the questions that were asked.

What was in my mind in advancing this amendment was having some indication as to the extent to which the Government intend to change the approach that would otherwise be applied by the court. In particular, would these factors referred to in proposed new subsection (2) be intended, as the noble Lord, Lord Faulks, said, to trump other factors? I will very carefully study what the noble and learned Lord, Lord Stewart, said, but I do not think that he quite answered that. It may be that the way forward in relation to this is to have a further discussion with the noble and learned Lord to see whether he can give further assurance, either in correspondence placed in the Library of the House, or maybe on Report, if we cannot reach agreement on this. I am grateful to him for the answer that he gave. I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

House resumed.

House adjourned at 10.08 pm.