Amendment 22

Overseas Operations (Service Personnel and Veterans) Bill - Committee (2nd Day) – in the House of Lords at 2:30 pm on 11th March 2021.

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Lord Thomas of Gresford:

Moved by Lord Thomas of Gresford

22: Clause 11, page 7, line 30, leave out from “before” to end of line 34 and insert “the end of the period of 6 years beginning with the date of knowledge.”Member’s explanatory statementThis amendment is one of a series that change the relevant date from which the six-year longstop starts to run so as to account for legitimate and explicable delays commonly experienced by persons bringing claims under the HRA arising out of overseas operations.

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

[Inaudible]—that date will be either the date on which the act complained of took place or, alternatively, the date of knowledge of the cause of the action; for example, where a person is unaware of his right to sue or of the negligence which caused his injuries. Clause 11 introduces the concept of a cut-off date, whereby the judge loses any power to extend and the cause of action is extinguished for good.

This will be unique in the British system of justice, as we have discussed. A new category of claims arising out of overseas operations will be created. The rule set out in the Bill is that proceedings must be brought before the later of

“the end of a period of six years beginning on the date on which the act complained of took place” or

“the end of the period of 12 months beginning with the date of knowledge”.

Whatever the cause of delay in starting proceedings may be, such as brain injury received by an injured serviceman, or the inherent problems that would face a victim living in some dusty village in Iraq or Afghanistan, about which I spoke at length on Tuesday and will not repeat, the rule is to apply not only in the courts of England and Wales, but in Scotland and in Northern Ireland.

Remember that the judge has power to strike out vexatious claims and that we are talking about claims against the Ministry of Defence, not the individual serviceman, who will never be called upon, whatever he has done, to pay the damages awarded. The worst that can happen to him is that, in the event of non-settlement of the case—I believe that over 90% of claims regarded as valid are settled—he might have to give evidence in the witness box and recall what he has done.

Amendment 24 refers to the definition of the date of knowledge. The Bill says that

“the ‘date of knowledge’ means the date on which the person bringing the proceedings first knew, or first ought to have known, both … of the act complained of, and … that it was an act of the Ministry of Defence or the Secretary of State for Defence”.

Our amendment adds further definitions of the date of knowledge—first, the date of

“the manifestation of the harm resulting from that act”,

and secondly, the knowledge that the claimant was eligible to bring a claim under the Human Rights Act in the courts of the United Kingdom.

Amendment 47 and the other amendments in this group are consequential or extend that principle to Scotland and Northern Ireland. I beg to move.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, I have little to add to the brief but very pertinent analysis in the most persuasive speech by the noble Lord, Lord Thomas of Gresford. I support Amendment 22 in particular as one of a series of amendments that change the relevant date from which the longstop starts to run to account for explicable delays commonly experienced by bringing claims under the HRA arising out of overseas operations.

I shall be brief. My experience of overseas operations in the Cold War was limited. As an infantry subaltern, my tour of duty in Germany was very brief, taking part in exercises over German planes and Gatow airport in Berlin and being in charge of the overnight train from Hanover to Berlin to emphasise our rights to go through the Russian zone to the British sector in Berlin.

Given my very limited experience, which I emphasise, I can quite see the circumstances for delay when advice and witness are not readily available. When active service is involved, in very different and hazardous conditions overseas, the timing of knowledge that is the basis of this amendment goes to the heart of the matter. The mover of Amendment 22, the noble Lord, Lord Thomas, seeks to put into the Bill some statutory flexibility around the date of knowledge. There is nothing that I can usefully add, but I support with great pleasure this amendment, because knowledge is vital.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

It is always a pleasure to follow my noble and learned friend Lord Morris of Aberavon, who is ever youthful and eloquent, but of course it is the noble Lord, Lord Thomas, who is on a particular roll with these amendments, one that I do not want to impede for too long—save to say that Amendment 22 in particular reveals and reflects what a terrible disservice Part 2 does to veterans in the context of difficult and complex overseas operations. In particular, it highlights that it is not just the date of the harm that is an issue but the date of knowledge of causation, which can be so complex in the course of overseas operations. In the practical reality of a legal aid landscape, where most people including, tragically, veterans, have no ready access to advice and representation, it could be a very long time before a troubled veteran even knows that they had the right to bring a claim. That is a problem for everyone in a legal aid landscape that has been virtually decimated, but it is particularly shameful for any Government to be making it harder for their own veterans to claim redress against the MoD where appropriate and put an absolute bar up at six years.

The point about causation is so important; the noble Lord, Lord Thomas, describes it as

“the manifestation of the harm resulting from that act which is the subject of the claim”.

A veteran may well know that they are injured and know that they have, for example, experienced a number of different traumatic and potentially harming events in a complex situation of warfare, but causation can be a very difficult thing to discover. This will be even more problematic in the context of psychological harm and, possibly, other physical harms—to hearing, for example. It may be very difficult to learn, let alone to prove, that it was friendly fire and not enemy fire, or that it was negligence in provision of equipment that caused the harm.

The absolute six-year bar put up in relation to veterans against their former employer would be shocking enough in the context of factory workers domestically. Given the Minister’s remarks on the previous groups, that we should be particularly sensitive to the difference between what he described as domestic litigation and the special issues around overseas operations, it seems to me that the noble Lord, Lord Thomas of Gresford, has really hit the nail on the head in this group and some of those that follow.

Photo of Lord Hendy Lord Hendy Labour

My Lords, I have practically nothing to add to the contributions of the noble Lord, Lord Thomas of Gresford, and my noble friend Lady Chakrabarti. Their arguments are powerful and appear irresistible.

I just add one small point. I mentioned a case in which I was involved for the mother of a serviceman killed in a tank because of friendly fire. That case in fact took more than 12 years from his death until the payment of an award by way of settlement by the Ministry of Defence. There was no delay on any side; there was litigation in the meanwhile, and the test case went to the Supreme Court, and so on. But there were inordinate difficulties in pursuing that claim—in finding out what had happened, what the MoD record was on the fitting of identification kit, what the training programmes were and whether they were defective, obtaining expert evidence on these points, and so on—to know whether the case was meritorious, as it turned out to be.

These cases are not easy. As I say, the logic of the proposal from the noble Lord, Lord Thomas, is irresistible.

Photo of Lord Faulks Lord Faulks Non-affiliated 2:45 pm, 11th March 2021

My Lords, once again, it is a pleasure to follow the noble Lord, Lord Hendy. In considering all these amendments, we should bear in mind that not all the claims that this legislation is concerned with—in fact, only a small proportion—are actually brought by veterans. The majority of the claims that have given rise to this litigation are brought by those who allege that they have been the victims of wrongs done to them by the military. One advantage of trying to put an end finally to litigation is that those members of the military who might be involved in this litigation, potentially as witnesses for the defendant or, indeed, for the claimant, can put an end to the matter in their minds. Nobody would be concealing anything deliberately but, once you have left theatre—overseas operations come to an end—it is a considerable burden to be troubled by some incident, about which there may be little corroboration or evidence, and to have to go to court, if necessary, to deal with allegations more than six years after the event.

These amendments are, of course, concerned with date of knowledge, and the legislation provides for an extension from the six-year long-stop period for date of knowledge. Incidentally, long-stop periods are not only in this Bill; they exist in other fields of law—for example, in the Latent Damage Act. As I said previously, and as the noble Lord, Lord Hendy, acknowledged, the date of knowledge is a difficult matter for courts, but they have shown themselves—helped by provisions in Sections 11 and 14 of the Limitation Act—able to find a proper response to difficulties that individuals may have in being aware that they have a cause of action.

The real issue is when the clock starts ticking. In the normal event, it starts ticking when the incident that gives rise to the claim occurs; in these cases, the possibility for litigation will end after six years, unless there is an extension of one year because of an extended date of knowledge. The provisions in the Limitation Act dealing with personal injury claims do not actually provide for a six-year period from the date of knowledge, as these amendments do; they provide at the maximum for three years. In other words, the clock starts ticking for three years after the incident occurs, in the normal case, and three years if there is a postponed date of knowledge. So this six-year extension is in fact wider than exists in conventional limitation periods for negligence cases. There is no equivalent of a date-of-knowledge provision in Human Rights Act cases; it is all dealt with under the provisions of Section 7 of the Human Rights Act.

One must be careful not to make too close a comparison between claims in negligence and claims under the Human Rights Act. As Lord Bingham said in a famous case, the Human Rights Act is not a tort statute. For the most part, these claims for personal injuries are much better brought in negligence. In fact, the claims under the Human Rights Act were usually advanced on the basis of an investigative duty that tends to be attached to these claims, which is one of the reasons why they were relied upon.

I respectfully suggest, although I understand what lies behind them, that these amendments go into territory that they should not go into and extend the period longer than it is desirable that anybody concerned in these types of cases should have to endure.

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

My Lords, in this suite of amendments we are focusing on a relatively narrow area. On this occasion, I should be slightly relived that the noble Lord, Lord Faulks, does not entirely agree with the movers of the amendment, because at least it gives me some additional points to respond to.

I take the point that there might be a shorter period within civil law and domestically, but there is a very clear difference between overseas operations and the civilians and military who might have to bring claims, and what might happen in a civilian context in the United Kingdom. As Emma Norton pointed out in her evidence to the All- Party Groups on Drones and on the Rule of Law, if something happened

“within the UK more than 6 years ago, courts would remain able to extend time limits”,

but if something happened overseas the courts would not have that right. As my noble friend Lord Thomas of Gresford pointed out, what is being proposed is unique in the British justice system—a new category of claims arising from overseas operations in respect of which the courts would have no right to give an extension.

It is clearly right that claims should be brought expeditiously and dealt with expeditiously, but sometimes it will not be possible for cases to be brought within the time limits the Government are suggesting. It is surely right to look for ways to ensure that claimants who may have not been in a position to bring a claim within a year of date of knowledge can bring the claim, and further discretion can be brought.

As with amendments in the previous and subsequent groups, if the Minister does not feel able to accept the language of our amendments, perhaps he might suggest how claimants who have cases arising from overseas operations will not be disadvantaged by Part 2 of the Bill.

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

I will first pick up on a point made by my noble friend Lord Hendy in the last group, which in fact relates to a group debated on Tuesday. It concerns the validity or otherwise of the point advanced by the Government: that they cannot make special exceptions for military personnel only suing the Ministry of Defence—in other words, treat them as if they are governed by the normal limitation periods—because there would be discriminatory concerns under Article 14 of the European Convention on Human Rights.

As I indicated on Tuesday, I disagree with that proposition, as does my noble friend Lord Hendy. It is significant for this group of amendments because real concern is being expressed by practically all of your Lordships—I say practically because the noble Lord, Lord Faulks, is not—about members of the military not being able to bring claims in accordance with what I describe as the “normal law”. I do not ask the noble and learned Lord, Lord Stewart of Dirleton, to respond to the legal point now, but I ask him to write to us indicating the legal basis for the proposition that you cannot have a provision stating that military personnel suing the Ministry of Defence will be governed by the ordinary rules of limitation.

The amendments in this group do two important things. First, the current proposal in the Bill is that the limitation period on civil claims should be

“the later of … the end of the period of 6 years beginning with the date on which the act complained of took place”,

or

“the end of the period of 12 months beginning with the date of knowledge”.

The position is that the claimant who discovers that they have a claim only at the end of six years has only 12 months to make that claim. The first amendment in this group from the noble Lord, Lord Thomas of Gresford, says that it should not be 12 months from the date of knowledge, but six years. I am sympathetic to that idea and I would like to know why a period of 12 months was chosen in relation to service personnel. I would be interested to know why, having regard to the circumstances that arise on overseas operations, the Government thought it appropriate to have what might be seen as a very short period.

The second significant amendment from the noble Lord, Lord Thomas, would add certain additional elements to what is meant by the “date of knowledge”. At the moment, the Bill treats you as knowing if you knew of the act complained of and that it was an act of the Ministry of Defence. The noble Lord, Lord Thomas, proposes amending Clause 11, so that you also have to know of the harm you suffered as a result of the act complained of. If, for example, the harm was mental illness, you might not know for some considerable time. In addition, the amendment says that you do not have to know only that it was an act of the Ministry of Defence, but that you might have a legal right to bring a claim too.

Taking the example given by my noble friend Lord Hendy, if you knew that your son was killed because of an act of the Ministry of Defence—friendly fire—but you did not know there was negligence and that you had a right to bring a claim, then knowing of the act complained of and that it was an act of the Ministry of Defence does not do you much good. These additional factors seem legitimate ones to take into account when considering what is meant by “date of knowledge”. These are important amendments and I am interested to hear the Minister’s answer.

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

These amendments relate to the date of knowledge provisions in Part 2 of the Bill. Before I address the substance of the amendments, I wish to issue a clarification regarding a statement I made in the previous sitting on Tuesday evening. I said that, while 94% of service personnel already bring their claims within the relevant time,

“it must be the case that many of the remaining 6% will come under the state of knowledge provisions”—[Official Report, 9/3/21; col. 1596.]

Your Lordships may recollect that that issue came up in the course of submissions by the noble and gallant Lord, Lord Stirrup. In fact, we assessed that the 94% figure relates to claims brought by service personnel and veterans within six years of either the date of incident or the date of knowledge. We will endeavour to educate service personnel and veterans about these new provisions to ensure that more, if not all, claims are made within the new time limits in future.

I now move to the amendments in this group, which would increase the time period which runs from the date of knowledge for Human Rights Act claims from 12 months to six years. They would also change how limitation time periods are calculated by allowing claims to run only from the date of knowledge and not also from the date of the act or incident.

The date of knowledge provisions in Part 2 are an important aspect of the Bill. Because we are introducing hard time limits for certain claims, it is right that the longstop period can start from the date of knowledge. Of course, the Limitation Act 1980 already includes a date of knowledge provision which works, and we should not be amending that in this instance. However, the Human Rights Act does not have such a provision. We are therefore seeking to mitigate any unfairness that might arise from the imposition of a hard time limit by allowing claims to be brought late if the date of knowledge is later than the date of the incident.

The time period, which runs from the date of knowledge provision, is 12 months for Human Rights Act claims, because this mirrors the primary limitation period that already exists for Human Rights Act claims. We should consider why the primary limitation period for Human Rights Act claims is one year, as opposed to three years for personal injury claims, as we have heard already from the noble Lord, Lord Hendy. I believe that this is because it was considered, at the time, that 12 months was a sufficient period to bring a Human Rights Act claim. Your Lordships will recollect the submission of the noble Lord, Lord Faulks, on what these claims, as opposed to claims in tort, tend to involve. We feel that in situations where the date of knowledge provision is engaged because knowledge is gained later than the date of the incident, 12 months provides enough time to bring such a claim. Claimants will still have at least six years from the date of the incident to bring a claim if they are able to persuade the court that it is fair and equitable in all the circumstances to extend the primary limitation period of 12 months.

While I accept all that the noble Baroness, Lady Chakrabarti, had to say about the potential difficulties of such claims, and while I acknowledge all the observations made by the noble Lord, Lord Thomas of Gresford, about the provenance of such claims and the fact that they might arise from people in the theatre of operations, nevertheless these are circumstances with which the courts are familiar. All noble Lords who have spoken, including the lawyers, have considered that limitation periods are necessary. They are accepted throughout the world in all legal systems, because finality in litigation is desirable. Those speaking in support of the Bill differ from those on this side only in saying where the line should be drawn.

These amendments also propose changing the date of knowledge definition. We consider that the definition in Clause 11 is comprehensive and fair both to claimants and to the Ministry of Defence. It does not replicate Section 14 of the Limitation Act 1980, because parts of the definition there do not make sense in the context of Human Rights Act claims. For example, in Human Rights Act claims, it is not necessary to show that a significant injury has been sustained as the result of an act or an omission alleged to constitute negligence. Similarly, these changes would add a new element to the date of knowledge definition—

“knowledge … of the manifestation of harm—" that does not work in the context of Human Rights Act claims, where a victim simply needs to show a causal link between an unlawful act of a public authority and the resulting adverse outcome.

Lastly, these amendments would remove the date of incident or act as a reference point and rely only on the date of knowledge for calculating the limitation period. The date of knowledge would already be the relevant point in time for the limitation period to start from situations where knowledge arises after the date of the incident or act.

The noble Baroness, Lady Smith of Newnham, acknowledged that these matters will arise in the special context of overseas operations, and I maintain what I said earlier about the difference between that and the domestic context, which is more familiar. The noble and learned Lord, Lord Falconer of Thoroton, referred to aspects of Tuesday’s debate on Amendment 29, as have others, and to the Government’s justifications for arguing against that. I gratefully accept the noble and learned Lord’s invitation to write to him on the legal basis upon which that argument was founded rather than taking up the time of the House with an amendment that we discussed on Tuesday.

For all the reasons I have advanced, I recommend that the amendment is withdrawn at this stage.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 3:00 pm, 11th March 2021

My Lords, I am most grateful to all noble Lords who have contributed to this interesting and important debate. I cannot help taking myself back to RAF Gatow, to which the noble and learned Lord, Lord Morris of Aberavon, referred, because I once stayed there on a rugby tour and subsequently played rugby for the combined clubs of Berlin. I need not go into the circumstances, but it was in the 1938 Olympic stadium. I thank him for reminding me of that.

Finality is an important principle, but it is not a principle that should work in the interests of only one party; I am yet to see it discussed or suggested, in relation to this Bill, that finality is for anyone other than the Ministry of Defence. Of course, references are made to the stress of giving evidence and so on, but I have already commented on that and will not repeat my comments. I do not think the principle of finality in favour of one party does anything more than increase the feeling of bias in favour of the Ministry of Defence which runs through this Bill, and that is what makes it so very objectionable. I heard the Minister refer to the fact the Human Rights Act is not affected but would not be involved in one of my amendments. These are not intended to be cumulative but to be considered separately; the date of knowledge can vary depending upon the circumstances of the case.

I simply adopt the words of the noble Lord, Lord Hendy, for whose speech I am grateful, when he said these amendments are “irresistible.” I agree, and I shall pursue them on Report. For now, I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords)

We now come to the group beginning with Amendment 23. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.