Amendment 21

Overseas Operations (Service Personnel and Veterans) Bill - Committee (2nd Day) – in the House of Lords at 1:52 pm on 11th March 2021.

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Lord Thomas of Gresford:

Moved by Lord Thomas of Gresford

21: Clause 11, page 7, line 23, at end insert— “(c) the importance of the proceedings in securing the rights of the claimant.”Member’s explanatory statementThis amendment adds a further consideration to which UK courts must have particular regard when determining whether to disapply the standard HRA limitation period of one year so as to ensure that the claimant’s interest in having their claim proceed is not subordinated.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

My Lords, I will start with a quote on how the court approaches the extinction of the limitation period in any category of case:

“It is for the court to examine in the circumstances of each case all the relevant factors and then decide whether it is equitable to provide for a longer period. It may be necessary in the circumstances of a particular case to look at objective and subjective factors; proportionality will generally be taken into account. It is not in my view appropriate to say that one particular factor has as a matter of general approach a greater weight than others. The court should look at the matter broadly and attach such weight as is appropriate in each given case.”

I am quoting from the judgment of the noble and learned Lord, Lord Thomas of Cwmgiedd, in the case of Dunn v Parole Board in 2008.

The standard limitation period is three years for tortious claims for personal injury and wrongful death, and one year for claims under the Human Rights Act. The limitation periods can be extended by an application to the court on the principles I have quoted.

This Bill introduces factors in Clause 8(1)(b) and in paragraph 1(4) of Schedule 1 and—in relation to Human Rights Act claims—in Clause 11(2), which inserts new Section 7A into the Human Rights Act. The purpose of introducing these additional factors that a court must take into account in claims arising from overseas operations is to introduce a degree of bias into the equation. The Bill requires that the court pay “particular regard” to the impact of the operational context on the ability of members of HM Forces to fully or accurately recall events and the degree of

“dependence on the memory of such individuals” for the cogency of the evidence, as well as the impact on the mental health of Her Majesty’s Forces witnesses caused by the proceedings.

Over the past 20 years, in the field of criminal law and procedure, the victim has been put at the forefront. I think it was the noble and learned Baroness, Lady Scotland, who emphasised that, in particular when she was Attorney-General. Everything has been done to try to make it easy for victims in criminal courts to complain in the first place—not least in cases involving sexual offences. Special measures have been introduced to that end.

In dealing with civil claims by victims, the thrust of this Bill is entirely to reverse that position. The concentration is now on fairness to the alleged perpetrators of the acts from which the victims suffered and which are the foundation of their claims. Special weight must be given to a declaration by a serving soldier or veteran of the possibility that his memory will be affected and his comfort zone invaded by the stresses and strains of giving evidence about things he would prefer to forget. This is so even if the victim happens to be a fellow service man or woman. It is not even as if this hurdle is placed on people because they are foreigners whose country we have invaded in order to save them from the particular regime under which they are suffering. It would of course be disgraceful if such a distinction were ever made between service victims and foreign victims. So what is the rationale for these provisions which introduce factors to alter the balance of which the noble and learned Lord, Lord Thomas, spoke, and weigh down in favour of the MoD?

On Tuesday, I spoke about vexatious claims. I pointed out that I witnessed an Iraqi woman withdrawing her claims of sexual assault and admitting in court that they were false. There were vexatious claims, stirred up by English lawyers for their own gain. Our legal system is robust and it dealt with the claims by striking them out and by disciplinary actions against the lawyers concerned which effectively removed them from circulation.

But not every claim brought by a victim is vexatious. We have to face the fact that some are legitimate. As I said on Tuesday, my Written Questions to the Minister on 2 June 2020 revealed that, since 2003, 1,330 claims arising from the treatment of foreign victims by British personnel had been accepted and £32 million paid in compensation. The Answer to my Questions also revealed that not a single serviceman, however responsible he might have been for the victim’s claim, has had to pay damages or compensation out of his own resources. The MoD has covered them all—and it claims that it does not settle claims which it does not believe to be meritorious.

If we look elsewhere for confirmation, in its final report published on 9 December 2020 entitled Situation in Iraq/UK, the prosecutor for the International Criminal Court concluded that the information available provides

“a reasonable basis to believe that … members of UK armed forces in Iraq committed the war crime of wilful killing/murder … at a minimum, against seven persons in their custody. The information available provides a reasonable basis to believe that … members of UK armed forces committed the war crime of torture and inhuman/cruel treatment … and the war crime of outrages upon personal dignity …against at least 54 persons in their custody.”

The prosecutor also found that there was a reasonable basis to believe that there were seven victims of sexual violence. It is impossible, regrettable as it may be, to dismiss the claims brought by victims as being vexatious. As a civilised country, we must face up to that fact and ensure as far as we can that the disciplines are in place which prevent these things happening.

If it is accepted that these are proper claims, is it an answer to a victim that his case cannot go forward because the perpetrator from our military has lost his memory or because of the stresses of service, or that whatever the victim may have suffered, that pales into insignificance in the light of the stress of giving evidence in a witness box and recalling past events? Every day in every court in this country, people suffer the stress of the witness box, as I have myself on a number of occasions. Would we ever say to a gang-raped 13 year- old that her case could not go forward because her assailants have lost their memory or that the strain of them giving evidence and recalling what they have done would be too much for them?

That is a general introduction to the topic which arises in the three groups that we will be considering, and I promise that I will not repeat it in relation to the other groups. In this group, I am concerned with the victim. In Clause 11, the court’s general discretion to extend time in Human Rights Act proceedings is to be fettered to require the court or tribunal to have “particular regard to”, first, the ability of the alleged perpetrator to remember or to “record” the events and, secondly,

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

Our amendment would add a third factor: namely, the importance of the proceedings in securing the rights of the victim and thus to achieve justice. If the Bill needs to spell out in statutory form the factors that the judge should pay particular regard to, contrary to the general approach of the noble and learned Lord, Lord Thomas, which I have quoted, our addition would add the duty to pay particular regard to the rights of the victim. Without our amendment, the judge’s discretion is deliberately skewed by this Bill in favour of the Ministry of Defence.

The rest of our amendments in the group introduce the same third factor: the rights of the victim in all the other contexts and jurisdictions in Scotland and Northern Ireland in which this bias in favour of the MoD appears in the Bill. I beg to move.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 2:00 pm, 11th March 2021

My Lords, I cannot hope to improve on the powerful and compelling forensic critique of Part 2 that has just been offered by the noble Lord, Lord Thomas of Gresford, but perhaps I may lend my support to his general approach and that of his noble friend Lady Smith of Newnham in these amendments. They probe and highlight the problems with interfering with judicial discretion in the manner proposed in Part 2.

A lot has been said about the Bill in general being about providing reassurance to our veterans. Reassurance can be important, particularly where it is a practical improvement on problematic law. But when reassurance is more political and is provided against a false problem that has been raised in political rhetoric, we all need to be far more concerned about interfering with judicial discretion. In the other place—although not so much in this place the last time we met—there has sometimes been the language of claims being used in relation to Part 1 and Part 2. Part 1 is about prosecution which, understandably, veterans will fear in certain difficult contexts. However, this is about civil claims, where the presumption of innocence that must and should apply in criminal proceedings does not apply. This ought to be as fair a contest as possible between two civil parties.

Invariably in the context of these claims, as the noble Lord, Lord Thomas, has set out so clearly, we are talking about the MoD, a great and well-resourced department of state which is the defendant. Sometimes claimants will claim to be the victims of war crimes, but there will also be no small number of veterans themselves. That has been lost in parts of the public discourse and certainly in the debate in the other place. I am therefore grateful to the noble Lord, Lord Thomas, for bringing this forward.

The false war between veterans on the one hand and lawyers on the other is particularly pernicious in the context of Part 2 when veterans’ groups and the lawyers who represent them are in concert in their concerns about the way that Part 2 protects the MoD not from false claims, against which the department is well protected, but from genuine claims where, sometimes because of the problems of overseas conflict and the difficulties that veterans themselves have faced in those dangerous situations, six years is too short a time. Some open and well-applied judicial discretion is what is required.

Without further ado, I shall make way for my noble friend Lord Hendy, who I understand has direct experience of representing at least one veteran’s mother.

Photo of Lord Hendy Lord Hendy Labour

My Lords, I cannot improve on the powerful contributions made by the noble Lord, Lord Thomas of Gresford, and my noble friend Lady Chakrabarti. However, perhaps I may add one point of legal detail which might assist. If I make the point now, I will not need to do it in my later contributions.

Section 7(5)(b) of the Human Rights Act 1998 to which these amendments relate provides a one-year time limit or

“such longer period as the court … considers equitable having regard to all the circumstances”.

As regards any application to extend that time period, Clause 11 of this Bill seeks to require the court to have regard to the ability of witnesses in Her Majesty’s forces to remember or to have recorded events and to the impact of the litigation on the mental health of any HM forces witness.

Amendment 21 merely seeks to redress the balance by reference also to the interests of the claimant. It is a modest amendment. The movers might have gone a lot further and brought limitation under the Human Rights Act into line with the parallel provisions of the Limitation Act 1980 in civil cases. I will remind the House briefly of those provisions. They impose a limit of six years for claims in tort or contract, but in Section 3 this is reduced to three years for personal injury claims; that is, three years from the date of the accrual of the cause of action or from the date of knowledge if later. There is much jurisprudence on the date of knowledge, as the noble Lord, Lord Faulks, alluded to on Tuesday. However, the period can be extended. This is an area of law that is very familiar to anyone who has practised in the field of personal injuries.

Section 33(1) of the Limitation Act 1980 permits a court to allow an action to proceed out of time, if it

“appears … that it would be equitable”,

having regard to the prejudice if it were to do so to the defendant and to the claimant. In addition, Section 33(3) specifies that the court, in making a determination,

“shall have regard to all the circumstances of the case”.

In particular, it must have regard to certain specified factors:

“(a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time” limits set out in the Act;

“(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action … (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew” he might have a claim; and, finally,

“(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice”.

If the Minister is not minded to concede the modest amendments sought, I commend to him altering the Bill to incorporate these familiar provisions of the Limitation Act, which has worked well in all manner of cases over the last 40 years. No justification appears for imposing harsher limitation provisions for actions in respect of personal injuries or death that relate to overseas operations of the Armed Forces.

This provision in the Bill may save the MoD a few bob, but it will give no reassurance to military personnel who are claimants or to members of their families, such as the lady for whom I acted some years ago, as I explained at Second Reading. Her son had been killed by a shell fired at his tank by another British tank outside Basra. The claim was based on the MoD’s failure to fit the tanks with adequate and available identification kit and to adequately train tank commanders. The case was ultimately settled by the MoD, after many years.

The noble Baroness, Lady Goldie, kindly wrote to me after Second Reading to explain the time limits proposed in the Bill for cases such as this, but I regret to say that, in spite of her clarity in elucidating the Bill, I was not reassured. Military personnel on overseas operations need to know that they—and, if they die, their mums, dads and children—can make a claim against the MoD, if it turns out to be at fault. They should not be subject to hurdles to which other claimants are not subject. The Government need not fear vexatious claims. Anyone who has practised law in this field from bench or bar knows that the courts are astute enough not to permit vexatious claims. The Bill, unamended, will time-bar some vexatious claims, but it will equally time-bar meritorious claims. That is not forgivable. It is no answer to say that there will be few of them; there should be none.

A final point arises from an argument advanced by the Minister in response to Amendment 29, moved by my noble and learned friend Lord Falconer, late on Tuesday night. The Minister suggested that the amendment would result in an unjustifiable difference in treatment between different categories of claimants and that this, therefore, would offend against the European convention. Presumably he had Article 14 in mind, which prohibits discrimination on grounds including “other status”.

Yet these provisions in the Bill impose a difference in treatment between those making a claim for personal injuries or death that relate to overseas operations of the Armed Forces and those who make such a claim that does not relate to overseas operations of the Armed Forces. I and, it appears, many Members of your Lordships’ House regard that as unjustifiable. I would be interested to hear how the Minister justifies that difference in treatment under Article 14 or, indeed, Article 2, which protects life by law.

Photo of Lord Faulks Lord Faulks Non-affiliated 2:15 pm, 11th March 2021

My Lords, it is a pleasure to follow the noble Lord, Lord Hendy, not least because he has helpfully set out the provisions in the Limitation Act to which I would have made reference. He also made reference to Section 7(5)(a) of the Human Rights Act, which deals with the limitation period for human rights claims.

The purpose of limitation periods is to provide that it is public policy that there should be an end to litigation, but some people have perfectly good reasons to delay bringing cases. It is important that any limitation period strikes an appropriate balance between those who bring claims and those who are the recipient of or witnesses to claims. There is plainly an interest in bringing an end to cases.

The noble Lord, Lord Thomas, suggests that there is a degree of bias as a result of the amendments to the limitation periods provided for by the Bill. I hope that that is not the case, because it is clearly not desirable. The additional provisions that are written into limitation periods specifically for our Armed Forces are questionable. The existing limitation periods under the Limitation Act and Human Rights Act are perfectly adequate to deal with the considerations that are specifically averted to in the Bill.

For example, Section 33 of the Limitation Act, to which the noble Lord, Lord Hendy, referred, recites various matters that should be taken into consideration. He helpfully drew the House’s attention to them. The relevant subsection begins,

“the court shall have regard to all the circumstances of the case and in particular to—” and then the various factors are listed. There is a slight difference between having regard to all the circumstances, which is a general discretion, and identifying particular factors. The Bill superimposes factors, as it says that the courts must have “particular regard”. There is a difference between “particular regard” and “regard in particular”. I do not think that that is merely a lawyer’s point because, as I said during the debate late on Tuesday, it is important that, although these factors may reasonably be taken into consideration, there should not be any form of trump.

My view is that these additional provisions do not provide a bias, but it is important to allay even the risk of them seeming to provide a bias. With respect, I do not agree with the noble Lord, Lord Hendy, about amending the Human Rights Act on discretion. In fact, in the London Borough of Hackney v Williams in 2017, the Supreme Court said that the court should not rewrite the statute. The words of the statute, in both the Human Rights Act and the Limitation Act, give the court a broad discretion. That will inevitably include these matters—the importance of securing a claim, from the claimant’s point of view, being one of them. All the others set out in both the Limitation Act and the additions provided by the Bill should also be taken into consideration. It is not a trump card, but I understand the noble Lord’s concerns.

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

My Lords, I enter this set of amendments as a lead signatory but as somewhat of an interloper, being the only speaker in this set of amendments and the subsequent two who is not a lawyer and does not have legal training. I will defer to my noble friend Lord Thomas of Gresford and his excellent opening remarks, but I want to add a couple of points and reasons why this set of amendments is so important.

As the noble Lord, Lord Hendy, pointed out, this is a minor amendment—essentially, the four amendments are doing the same thing in the various parts of the United Kingdom—but I believe that it is a necessary amendment. That is precisely because Her Majesty’s Government have spent a lot of time telling us that this Bill is about the interests of service men and women and veterans, and yet, if one looks at the briefing, which I suspect other noble Lords have received, from the Royal British Legion, there is particular concern about Part 2 of the Bill. There is a whole set of representations that has been sent to me, and I assume to other noble Lords who are participating—for example, from the Association of Personal Injury Lawyers, which is urging Peers to accept the amendments in my name and that of my noble friend to Clause 11 and Schedules 12 and 13.

Also, this is very much in line with the evidence received by an inquiry undertaken by the All-Party Parliamentary Group on the Rule of Law and the All-Party Parliamentary Group on Drones. I declare a prospective future interest in that my name has been put forward to become a vice-chair of the APPG on Drones. I took no part in the work that it has been doing, but it has produced an excellent briefing. It is important to reiterate from that evidence that, as the noble Baroness, Lady Chakrabarti, pointed out, in Part 2 we are talking about claims brought against the MoD. This looks as if it is a protection for the MoD rather than supporting claimants. I believe very strongly that, if our concern is to support our Armed Forces and veterans, then we should be looking to protect them and not the MoD. That point was also made by Emma Norton, the director of the Centre for Military Justice, in her briefing:

“In terms of impact on soldiers which the MOD states it wants to minimise, it is worth remembering that all of these civil claims – whether brought by a civilian or a soldier - are brought against the MOD as defendant, not individual soldiers, though of course soldiers may have to give evidence.”

Our modest amendment is very much about securing the rights of claimants, and as the noble Lord, Lord Hendy, pointed out, there should be no cases where service men and women and veterans are being disadvantaged, and yet as the Royal British Legion pointed out, even in the Government’s own impact assessment of the Bill, a minimum of 19 injured and bereaved members of the Armed Forces communities would have had their claims blocked if the limit being proposed had been in place. And that is just for operations in Iraq and Afghanistan. Therefore I would like the Minister in his response to consider whether it would not be appropriate to balance the two subsections already proposed for “particular regard” for our amendment to be added as paragraph (c).

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

This has been a very significant debate, and one should not lose sight of the important changes that will take place in the ability of people to sue the MoD in respect of human rights claims, tort claims and contract claims arising out of overseas operations. The underlying problem, which the noble Lord, Lord Thomas, identified in his very clear and effective opening remarks, is that you do not want a situation where, when a court is considering whether to extend the limitation period beyond the primary limitation period, there is a bias in favour of the defendant, the Ministry of Defence.

What the noble Lord is saying, in effect, is that it should be approached in the way that these cases are approached in every other piece of civil litigation where there is an application to extend a period of limitation beyond the primary limitation period: the judge comes to a conclusion as to what he or she thinks—this is not quite the line in the statute—is just and equitable in all the circumstances. One of the really important things that one is looking at is the fact that the claimant will have a claim, and the claimant may be losing what would otherwise be a just claim because of the passage of time—and it may well be in particular that the passage of time beyond the primary limitation period could not properly be described as the fault of the claimant.

Over the years, the courts have become quite expert at exercising a discretion in relation to this, both under the Limitation Act 1980 and under the Human Rights Act 1998. My noble friend Lord Hendy, in his very helpful and compelling remarks about how the limitation period works, and the noble Lord, Lord Faulks, were basically in the same place. They were both saying that we should strike the balance in an even-handed way. I hope that it is not the case that there is going to be a bias in favour of the MoD, because, as the noble Lord, Lord Faulks, said, that is not desirable. My noble friend Lord Hendy said that there should not be bias. I completely agree with that. The purpose of this first group of amendments advanced by the noble Baroness, Lady Smith, and the noble Lord, Lord Thomas, is to make sure that there is not such a bias. I agree with my noble friend Lord Hendy and the noble Lord, Lord Faulks, that it has to be clear that there is not going to be a bias.

I believe, therefore, that amendments to the Bill are required. Whether or not the proposals of the noble Baroness, Lady Smith, and the noble Lord, Lord Thomas, are the best way to do it in group 1—there might be another way of doing it—the sentiment that underlies these amendments and the fact that they have been supported by both my noble friend Lord Hendy and the noble Lord, Lord Faulks, is significant. I very much hope that the noble and learned Lord, Lord Stewart of Dirleton, will have listened and may perhaps reassure us that he will come back with some amendments to make sure that there is not that undesirable bias.

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

My Lords, I have listened with care to the remarks advanced by noble Lords in relation to this proposed amendment. At the outset, may I note and associate myself with remarks made by noble Lords as to the tenor of the speech introducing this part of the debate by the noble Lord, Lord Thomas of Gresford. This seems to me, drawing on my short experience in your Lordships’ House, to be of a kind with contributions which we hear from that source, from the noble Lord, Lord Thomas of Gresford, concerned as it was that the principles which underpin the legal systems in the jurisdictions of our United Kingdom should apply universally, irrespective of whether claimants are British subjects or not—underpinned also by that confidence in the ability of our courts and our system to do justice among all forms and manners of people.

In considering this amendment, I note that we have already discussed first of all the three factors that this Bill is introducing which the courts must consider and to which they must have particular regard when deciding whether to allow claims connected with overseas operations to proceed after the primary limitation periods have expired. I will not rehearse the arguments that I have already made as to why we are introducing these new factors, though I will necessarily, in answering your Lordships’ points, touch upon them.

However, the additional factor that these amendments propose to add is not, I submit, necessary. That is not because it is not right for the courts to consider the importance of proceedings in securing the rights of the claimant—of course it is—but because this is already something that the courts will take into account when they consider whether it is equitable in all the circumstances to allow a claim to proceed. The court would inevitably be assessing the right of the claimant in determining whether or not an extension to the time limit should be granted. The additional factor in terms of the amendment proposed does not enhance the policy aim of the Bill, which is to help provide service personnel with greater certainty. It would however, I submit, increase legal complexity in a way that is unnecessary.

The noble Lord, Lord Thomas Gresford, the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Hendy, and the noble and learned Lord, Lord Falconer of Thoroton, in particular were concerned that the Bill as framed may risk presenting the appearance of bias in favour of the Ministry of Defence against an individual claimant. I suggest that it is better to look to the rationale behind the measures proposed in the Bill and the reflection that, unlike domestic litigation, litigation arising out of overseas operations should reflect these three factors which do bear on overseas operations in a manner in which they do not in a domestic context.

I am also grateful to the noble Lord, Lord Hendy, for his rehearsal of the terms of the legislation in the Human Rights Act and the Limitation Act 1980 and for his account of the case arising out of the tragic circumstances of the matter in Iraq, in which he represented a complainant. But I also urge on your Lordships the views of the noble Lord, Lord Faulks. These provisions do not place a trump card in the hands of the Ministry of Defence; rather, in my respectful submission, they do what noble Lords speaking in favour of the amendment have accepted must be done—they strike a balance. I submit that they create a better balance by acknowledging the context of overseas operations, which otherwise do not appear in our legislation.

Because the amendment will risk introducing additional legal complexity and because the Bill as it stands seeks rather to redress the balance by acknowledging the circumstances of overseas operations, I urge the noble Lord to withdraw the amendment.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 2:30 pm, 11th March 2021

My Lords, I am most grateful to the Minister for his response. This is one of those unusual situations where I can thank every single Lord, including him, who has spoken in this debate. The noble Lord, Lord Faulks, in particular, gave very interesting support in spirit to what we seek to do. We just do not want these additional factors to be given statutory force. It undoubtedly gives the impression of bias to pay “particular regard” to matters in favour of only one party, the Ministry of Defence. I do not want to see those there, and if they are not there, there is no need for the amendment I am putting forward in an attempt to balance the biased effect of what is in the Bill.

It is extremely important that we should not pay “particular regard” to matters in the interests of one party. If we think about an application to extend the limitation period brought to the court, the claimant would be represented and would argue the reasons for delay. As I said on Tuesday, it is not a foregone conclusion that their argument will be accepted but, on the other hand, the Ministry would be entitled to put forward: “Well, it’s been such a long time, nobody can remember anything.” That might be right in a particular case, but it is not right as a matter of principle that should appear as a factor to which particular regard must be given in this statute. An important point of principle is involved in this and I shall certainly return to the issue on Report. For the moment, I beg leave to withdraw.

Amendment 21 withdrawn.

Photo of Lord Alderdice Lord Alderdice Deputy Chairman of Committees

We now come to the group beginning with Amendment 22. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.